Walter M. Kaminsky, Sherburne County Attorney, Sean P. Stokes, Thomas C. McNinch, Assistant County Attorneys, 13880 Highway 10, Elk River, MN 55330-4601 (for appellant)

Roger S. Van Heel, Stearns County Attorney, Patrick T. Strom, First Assistant Stearns County Attorney, Administration Center, RM 448, 705 Courthouse Square, St. Cloud, MN 56303-4733 (for respondent)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

The district court affirmed the Department of Human Services' decision regarding which county bears financial responsibility for the commitment of E.P.K. We affirm the district court as to financial responsibility, but reverse the district court's award of attorney fees. We also grant respondent's motion to strike.

In 1990, E.P.K. was convicted in Stearns County of a criminal sex offense. He was released on parole in 1993 and lived in Stearns County until he moved to Sherburne County in February 1996. He lived there until August 1996, when he was jailed for violating the terms of his parole.

In May 1997, Stearns County filed a petition to commit E.P.K. as a sexual psychopathic personality. On September 24, 1997, respondent Stearns County Social Services sent a letter to appellant Sherburne County Social Services stating that Sherburne County was financially responsible for the costs of E.P.K.'s commitment because E.P.K. was living in Sherburne County at the time of his arrest. Appellant denied financial responsibility, so respondent requested that the Department of Human Services (Department) decide which county has financial responsibility.

Respondent submitted documents to the Department indicating that, at the time of his arrest, E.P.K. was living in Sherburne County and was receiving psychological treatment as a condition of his parole. The Department decided that respondent presented facts adequate to establish that appellant was financially responsible for the costs of committing E.P.K. Appellant challenged the Department's decision by filing in Sherburne County District Court both a notice of appeal and a civil complaint. The district court refused to take any additional evidence and affirmed the Department's financial-responsibility decision. The district court also dismissed the complaint as procedurally impermissible and awarded attorney fees to respondent for its defense against the dismissed complaint. This appeal followed.

We will not consider whether respondent failed to follow statutory procedure. Appellant did not raise the defense of insufficient process before the Department and fully participated in the proceeding, which was adjudicated on the merits. On appeal of an administrative decision a party cannot raise an issue that was not presented at the administrative hearing. Wesley v. Durance Corp., 363 N.W.2d 858, 859 (Minn. App. 1985).

The county of financial responsibility for E.P.K.'s hospitalization in a state hospital is the county in which he last resided in "nonexcluded" status. See Minn. Stat. § 256G.02, subd. 4, 6 (1998) (financial responsibility rests with county in which person last resided in nonexcluded status).

The undisputed facts established by respondent are that, at the time of E.P.K.'s arrest, he resided in Sherburne County. But at that time he was receiving psychological treatment as a condition of his parole. Time during which a person received "community-based services" was excluded time in 1996, when E.P.K. was arrested. Minn. Stat. § 256G.02, subd. 6 (1996).[1] The issue, thus, is whether the psychological treatment E.P.K. received as a condition of parole was a community-based service program.

The Department was informed that E.P.K. received psychological treatment as a condition of parole while he resided in Sherburne County, yet the Department determined that E.P.K. "last lived in a noninstitutional or nonexcluded time setting in Sherburne County." This court defers to an agency's expertise and experience when reviewing administrative decisions. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). We particularly give weight to the agency's statutory interpretation in this case because the term "community-based services" is technical in nature. See Arvig Tel. Co. v. Northwestern Bell Tel. Co., 270 N.W.2d 111, 114 (Minn. 1978) (agency's interpretation of technical terms given weight). In light of the expertise the Department applied to interpreting the statutory language, the evidence concerning E.P.K.'s psychological treatment was adequate to support the Department's determination.

Despite this clear language, appellant argues that the district court erred by refusing to admit new or additional evidence in its review of the Department's decision. Appellant points to Minn. Stat. § 256.09, subd. 3, which refers, in turn, to Minn. Stat. § 256.045, subd. 7 (1998). Section 256.045 allows a court to review department decisions and to take additional evidence if necessary for an equitable decision. Minn. Stat. § 256.045, subds. 7, 8 (1998). Therefore, appellant argues, the legislature contemplated that a reviewing court could take additional evidence when reviewing a department decision as to financial responsibility.

Statutory construction is a question of law reviewed de novo. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). When specific and general provisions of the law appear to conflict, they should be interpreted to give effect to both provisions. Minn. Stat. § 645.26, subd. 1 (1998). The specific provision is treated as an exception to the general, if giving full effect to both is not possible. Id. Section 256.045 is a general provision providing for appeal of the Department's decisions on human service matters, but section 256G.09 provides a specific procedure for an aggrieved county to appeal a decision regarding financial responsibility. The district court properly found that Minn. Stat. § 256G.09 provides the applicable review procedure; it did not err in refusing to take new or additional evidence.

Here, appellant filed a notice of appeal, but also filed a complaint. An aggrieved party may appeal the Department's decision to the district court only by "filing the original notice [of appeal] and proof of service with the court administrator of district court." Minn. Stat. § 256G.09, subd. 4.

The complaint here was unnecessary, but a complaint must be entirely unfounded before it is proper under Minn. Stat. § 549.21 to award attorney fees based on raising a frivolous or bad-faith claim. Block v. Target Stores, Inc., 458 N.W.2d 705, 713 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Because there is no evidence that appellant lacked a good-faith basis for challenging the Department's decision by complaint, appellant did not exhibit the sort of "bad faith" contemplated by Minn. Stat. § 549.21.

Additionally, this court has found that an award of attorney fees is not justified when the erring party did not exhibit a long-standing pattern of laxity indicating an intent to delay. Asmus v. Ourada, 410 N.W.2d 432, 435 (Minn. App 1987) (plaintiff litigated claim, but failed to file complaint, not to delay, but because of financial dispute with his attorney). There is no evidence that appellant filed the complaint "solely to delay the ordinary course" of the appeal. See Minn. Stat. § 549.21 (action solely to delay is ground for awarding costs). Rather, appellant's attorney said she was "uncertain" as to how to file the appeal and that she had had trouble filing such appeals in the past.

The notice of appeal and complaint were unified in a single action and the complaint was dismissed early in the appeal. Although appellant's attorney erred in filing the complaint and this caused some increased litigation costs to respondent, the district court abused its discretion by awarding attorney fees.

Appellant's appendix documents 12B, 14A, 14B, 14C, 14D, 14E, and 14F were not part of the record before the Department or the district court. Therefore, those documents are stricken from appellant's appendix and references thereto in the briefs are similarly stricken.

Affirmed in part, reversed in part, and motion granted.

[1] This provision was amended in 1997. 1997 Minn. Laws ch. 203, art. 4, § 58. Receiving "community-based services" no longer causes time to be excluded. Minn. Stat. § 256G.02, subd. 6 (1998).

[2] This statute has been repealed and replaced by Minn. Stat. § 549.211 (1998), but it still applies to actions that arose before August 1, 1997. Cole v. Star Tribune, 581 N.W.2d 364, 370 (Minn. App. 1998).