This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. sec. 480A.08, ' 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-95-2436

David Coalwell, et al.,
Appellants,

vs.

John H. Murray, et al.,
Respondents.

Filed August 6, 1996
Affirmed as modified
Randall, Judge

Becker County District Court
File Nos. C1-94-1169, C8-98-1170, CX-94-1171

Zenas Baer, 331 Sixth Street, P.O. Box 249, Hawley, MN 56549 (for appellants)

Terrence J. Foy, Ratwik, Roszak & Maloney, 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellants challenge the trial court's denial of their motion for a new trial, arguing that the court erred in its determination that respondents are not liable for civil or other penalties for violating the posting and notice requirements of Minnesota's Open Meeting Law. We affirm as modified.

FACTS

The material facts of this case are not in dispute. Appellants David Coalwell and Richard Johannsen are residents of Becker County and are officers of appellant the Becker County Taxpayer's Association. Respondents John H. Murray, Carolyn Engebretson, Vernon Seal, Marjorie Johnson, and Alfred Mohs are all current Becker County Commissioners and together constitute the Becker County Board of Commissioners (the Board), which serves as the governing body of Becker County.

Respondents held several special meetings: (1) on March 25, 1993, and continued on April 16, 1993 (discussing county business on both dates, including short-and long- term goal setting); (2) on September 30, 1993 (discussing county business, including meeting and evaluating candidates for County Coordinator position); (3) on October 1, 1993 (discussing county business, including interviewing candidates for County Coordinator position); (4) on October 6, 1993 (discussing county business, including hiring County Coordinator); and (5) April 4, 1994, and continued April 5, 1994 (discussing county business on both dates; leadership strategic planning retreat). All of the respondents were present at these special meetings.

In October 1994, appellants filed a suit against respondents, alleging that they violated the notice provisions of the Open Meeting Law. Appellants sought to impose statutory civil fines against each respondent and to remove respondents from elected office. All respondents testified that they relied on the Clerk of Court (at times called the County Auditor and at times called the County Coordinator) to post notice of these meetings, and that they were unaware improper notice had been given. Both the County Auditor and the County Coordinator testified they believed it was their responsibility to give notice of the meetings.

In its July 1995 order, the trial court found that respondents had violated the notice provisions of the Open Meeting Law on five separate occasions. However, the court did not impose any civil fines or remove respondents from office. The trial court determined that respondents had not willfully and deliberately violated the Open Meeting Law. Appellants then filed motions for amended findings and a new trial, which the trial court denied in an order dated October 3, 1995. The court determined that appellants did not present any new issues or evidence requiring any findings of fact or conclusions of law of the July 1995 order to be changed. This appeal followed. In January 1996, this court dismissed that portion of the appeal relating to the July 1995 order. This appeal is limited to the October 3, 1995, order and judgment denying appellants' motions for a new trial and amended findings of fact.

D E C I S I O N

The Open Meeting Law mandates that meetings of public bodies relating to official business of the body be open to the public. Minn. Stat. ' 471.705, subd. 1 (1994); Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983). The law serves three important purposes:

(1) to prohibit actions being taken at a secret meeting where it is impossible for the interested public to become fully informed concerning board decisions or to detect improper influences; (2)to assure the public's right to be informed; and (3) to afford the public an opportunity to present its views to the [public body].

Claude v. Collins, 518 N.W.2d 836, 841 (Minn. 1994) (quoting St. Cloud Newspapers, Inc. v. District 742 Comm. Schs., 332 N.W.2d 1, 4 (Minn. 1983).

As a preliminary matter, the trial court found that the March 24, 1993, meeting which was continued on April 16, 1993, constituted just one meeting. The trial court also found that the April 4, 1994 meeting which was continued on April 5, 1994, also constituted just one meeting. Respondents argued that the trial court correctly counted a meeting that was continued as just one meeting. Appellants argued that the continued meeting had to be a second violation because neither it nor the first meeting had been properly noticed. We agree with appellants on this issue. The trial court found that respondents violated the notice provisions five times. We conclude that the March 24, 1993 meeting, part of which was held on April 16, 1993, and the April 4, 1993 meeting, part of which was held on April 5, 1993, constituted four separate meetings. Thus, we find that respondents violated the Open Meeting Law a total of seven times.

With respect to recessed or continued meetings, Minn. Stat. '471.705, subd. 1c(d) (1994), provides that

if a meeting is a recessed or continued session of a previous meeting, and the time and place of the meeting was established during the previous meeting and recorded in the minutes of that meeting, then no further notice is necessary.

Statutory construction is a question of law and thus fully reviewable by this court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). The general rule is that where the language is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. Hickok v. Margolis, 221 Minn. 480, 485, 22 N.W.2d 850, 852 (1946). Where the language is ambiguous, the statute must be construed in light of the general legislative purpose and the policy and object of the enactment should be considered on the subject viewed as a whole. Gleason v. Geary, 214 Minn. 499, 506, 8 N.W.2d 808, 811-12 (1943).

The language "then no further notice is necessary" of subdivision 1c(d), when read in context with the provision requiring notice of special meetings can only mean that proper notice has already been given for the initial meeting. See Minn. Stat. '645.16 (1994) (every law shall be construed, if possible, to give effect to all its provisions). To qualify as a continued meeting, the statute requires that proper notice be given for the initial meeting, and then the time and place of the continued meeting should be established during the previous (duly noticed) meeting. Otherwise, as appellants accurately point out, a government body could hold one meeting in violation of the Open Meeting Law notice requirements, "continue" the meeting on multiple occasions, and forever have only one violation. The better reasoning and the spirit of the law leads us to conclude that if the initial meeting is improper, a continuation of that meeting caries the same problems.

The parties agree that Minnesota's Open Meeting Law is applicable to the special meetings at issue here. The parties agree that respondents violated the law by failing to properly post notice. What the parties dispute is whether statutory fines and other penalties have to be imposed for these admitted violations.

Minn. Stat. '471.705, subd. 2 (1994), provides for a civil penalty and removal from office for Open Meeting Law violations. However, where the Open Meeting Law violation involves failure to post proper notice of meetings, liability may be imposed only if it is established that the violation was willful and deliberate. Minn. Stat. '471.705, subd. 1c(h) (1994); repealed by 1994 Minn. Laws ch. 618, art. 1 ' 39; see also Willison v. Pine Point Experimental Sch., 464 N.W.2d 742, 745 (Minn. App. 1991) (subdivision 1c(h) governs notice of meetings). [1]

The trial court refused to impose a fine or other penalty because it concluded that respondents "did not willfully and deliberately violate the notice and posting requirements of the Open Meeting Law" in connection with any of the special meetings. We agree. The trial court analyzed the issue of penalties with thoughtfulness and fairness.

Here, we are not dealing with closed meeting law violations under the Open Meeting Law. These meetings were not meetings that were first closed to the public and then issues of significant public concern are illegally discussed. See e.g., Claude v. Collins, 518 N.W.2d 836 (Open Meeting Law violated where meetings were closed to the public and issues of significant public concern were improperly discussed). Instead, we are dealing with a technical violation. First of all, as the record shows and the parties agree, the meetings were open to the press and the public. The press and other media were present at most of the meetings, including those where the posted notices were technically inadequate. There is no evidence in the record indicating respondents instructed anyone to be secretive or to improperly post the notices so that the meetings might escape attention. Rather, the record shows notices of most of the special meetings were given at the regular Board meetings and to the local newspaper. Respondents relied on the Clerk of Court, who was present at all the meetings, to post and publish notice of the Board meetings. The record does not support any inference that the Clerk of Court and respondents acted in improper concert to shift the blame.

Although we agree with the general principle that properly posted notices of meetings of governmental bodies are important, we conclude, as the trial court did, that this case does not represent the evil of secret meetings.

Appellants argue that respondents committed nonfeasance and thus should be removed from office pursuant to Minn. Stat. '471.705, subd. 2. That statute mandates removal from office where an official commits three separate, unrelated, and intentional violations of the Open Meeting Law. Minn. Stat. '471.705, subd. 2; Claude, 518 N.W.2d at 842. Because we agree with the trial court that respondents did not willfully and deliberately violate the notice provisions of the Open Meeting Law, we hold that the trial court properly refused to remove respondents from office. See Minn. Stat. '471.705, subd. 1c(h) (no fine or other penalty may be imposed unless it is established that the violation was willful and deliberate by the member), repealed by 1994 Minn Laws ch. 618, art. 1 ' 39..

The trial court acted within its discretion in refusing to grant appellants a new trial. We modify the trial court order to reflect seven Open Meeting violations instead of five. Despite violations, the trial court acted within its discretion and properly interpreted the statute when it refused to impose penalties on respondents.

Affirmed as modified.


Footnotes

[1] The "willful and deliberate" requirement was deleted from the 1994 statute by 1994 Minn. Law, ch. 618, art. 1, ' 39. However, this change did not go into effect until August 1, 1994, and, thus, is not applicable to this case.