Edinger v. GOVERNING AUTHORITY, 20040233.

• Decision Date: 26 April 2005
• Docket Number: No. 20040233.,20040233.
• Citation: 2005 ND 79,695 N.W.2d 447
• Parties: Carla EDINGER, Petitioner and Appellant v. THE GOVERNING AUTHORITY OF the STUTSMAN COUNTY CORRECTIONAL CENTER AND LAW ENFORCEMENT CENTER, Respondent and Appellee.
• Court: North Dakota Supreme Court

695 N.W.2d 447

2005 ND 79

Carla EDINGER, Petitioner and Appellant v. THE GOVERNING AUTHORITY OF the STUTSMAN COUNTY CORRECTIONAL CENTER AND LAW ENFORCEMENT CENTER, Respondent and Appellee.

No. 20040233.

Supreme Court of North Dakota.

April 26, 2005.

Michael Geiermann, Schulz Lervick Geiermann & Bergeson Law Offices, P.C., Bismarck, ND, for petitioner and appellant.

Gary R. Thune, Pearce & Durick, Bismarck, ND, for respondent and appellee.

SANDSTROM, Justice.

[¶ 1] Carla Edinger appealed from a district court judgment denying her petition for a writ of mandamus. We affirm, concluding the Governing Authority of the Stutsman County Correctional Center and Law Enforcement Center ("the Governing Authority") did not violate the open meeting law when it held a closed executive session to discuss Edinger's complaint about changes in her pay and employment duties.

I

[¶ 2] Edinger works at the Stutsman County Correctional Center. On December 19, 2003, she was informed her employment duties would change and her pay would be reduced. The changes in duties and pay were not related to a disciplinary action, but resulted from a reorganization of positions.

[¶ 3] On January 20, 2004, Edinger's attorney wrote a letter to the administrator of the Stutsman County Correctional Center, requesting clarification of whatever appeal rights Edinger might have and indicating that Edinger intended to appeal the employment decision. The Stutsman County State's Attorney telephoned Edinger's attorney and advised him there was no substantive appeal available to Edinger, but indicated Edinger could seek an "audience" with the personnel committee or the county board.

[¶ 4] A few days after this telephone conversation, the Governing Authority held an open public meeting. During this meeting, the Governing Authority decided to go into executive session to discuss potential legal actions relating to the job reclassifications. Members of the public in attendance were asked to leave the meeting room, and the Governing Authority met in executive session with the State's Attorney and tape-recorded those proceedings.

[¶ 5] Believing that the Governing Authority's decision to meet in executive session violated the open meeting law, Edinger requested that she be provided a copy of the tape recording of the executive session. When the Governing Authority denied her request, Edinger formally requested an Attorney General's opinion under N.D.C.C. § 44-04-21.1. The Attorney General issued an opinion concluding the Governing Authority had not violated the open meeting law when it met in executive session.

[¶ 6] Edinger then filed a petition for a writ of mandamus in the district court, seeking to compel the Governing Authority to provide a copy of the tape. The district court determined the Governing Authority's discussion of the reclassification issues fell within the "attorney consultation" exemption from the open meeting law, and denied Edinger's petition for a writ of mandamus. Judgment was entered dismissing the action with prejudice. Edinger has appealed to this Court, arguing that the Governing Authority's decision to meet in executive session violated the open meeting law.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 32-34-01. See Tooley v. Alm, 515 N.W.2d 137, 138-39 (N.D.1994)

. Edinger's appeal was timely under N.D.R.App.P. 4(a)(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 8] Section 32-34-01, N.D.C.C., governs issuance of writs of mandamus:

The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is precluded unlawfully by such inferior tribunal, corporation, board, or person.

A petitioner for a writ of mandamus must demonstrate a clear legal right to performance of the particular act sought to be compelled by the writ, and must demonstrate that there is no other plain, speedy, and adequate remedy in the ordinary course of law. Kouba v. Hoeven, 2004 ND 185, ¶ 5, 687 N.W.2d 491; Wutzke v. Hoberg, 2004 ND 42, ¶ 3, 675 N.W.2d 179. Issuance of a writ of mandamus is left to the sound discretion of the trial court. Kouba, at ¶ 5; Wutzke, at ¶ 3. This Court will not reverse a trial court's denial of a petition for a writ of mandamus unless the trial court has abused its discretion. Wutzke, at ¶ 3; Nagel v. City of Bismarck, 2004 ND 9, ¶ 10, 673 N.W.2d 267. A trial court abuses its discretion only if it acts in an arbitrary, unreasonable, or capricious manner, or if it misapplies or misinterprets the law. Kouba, at ¶ 5; Wutzke, at ¶ 3.

III

[¶ 9] Under N.D.C.C. § 44-04-19, meetings of the governing body of a public entity must ordinarily be open to the public. The parties agree, meetings of the Governing Authority are covered by the statute. The Governing Authority claims, however, that it was allowed to close the public meeting and go into executive session to consult with the State's Attorney about possible litigation or administrative appeals arising from the job reclassifications at the Stutsman County Correctional Center. Section 44-04-19.1(2), N.D.C.C., allows a governing body to close a meeting to consult with its attorney:

Attorney consultation is exempt from section 44-04-19. That portion of a meeting of a governing body during which an attorney consultation occurs may be closed by the governing body under section 44-04-19.2.

The scope of the attorney-consultation exemption is set out in N.D.C.C. § 44-04-19.1(4):

"Attorney consultation" means any discussion between a governing body and its attorney in instances in which the governing body seeks or receives the attorney's advice regarding and in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings or concerning pending civil or criminal litigation or pending adversarial administrative proceedings. Mere presence or participation of an attorney at a meeting is not sufficient to constitute attorney consultation.

The statute defines adversarial administrative proceedings:

"Adversarial administrative proceedings" include only those administrative proceedings where the administrative agency or institution of higher education acts as a complainant, respondent, or decisionmaker in an adverse administrative proceeding. This term does not refer to those instances where the administrative agency or institution acts in its own rulemaking capacity.

N.D.C.C. § 44-04-19.1(5).

[¶ 10] The dispositive issue presented on appeal is whether the January 20, 2004, letter from Edinger's attorney to the administrator of the Stutsman County Correctional Center could be reasonably interpreted as creating an anticipation of "reasonably predictable civil or criminal litigation or adversarial administrative proceedings" under N.D.C.C. § 44-04-19.1(4). In her brief on appeal, Edinger characterizes the January 20 letter as merely a request for clarification of whatever appeal procedures were available:

Read in context, this letter is one which asks [the administrator of the Stutsman County Correctional Center] to clarify the administrative procedures available to Ms. Edinger and other county employees who may be considering some type of administrative appeal of employment actions taken by the Governing Authority. It must be noted at this point that there is nothing in the letter of January 20, 2004, or any subsequent correspondence which threatens litigation against the Stutsman County Governing Authority for its actions involving Edinger or any other employee. At best, the letter is one which asks for a clarification of available grievance or appeal procedures.

[¶ 11] The actual language of the January 20 letter, however, goes well beyond a simple request for "clarification" of available procedures, and directly states that Edinger would be taking further action. The letter includes the following statements:

•There is no doubt that Ms. Edinger will be appealing the decision to demote her.

•Once you have properly advised us of the correct procedures, I will be filing the appeal on her behalf.

•I am sure that once we have resolved the issue of the correct procedure, there will be other grievances and appeals filed in regards to actions you have taken in regards to other employees.

The letter further questions whether Edinger may be entitled to the same rights as state employees regarding grievances, and suggests that "Ms. Edinger would be entitled to a whole host of administrative remedies which would include remedies not only at the county level but also at the state level."

[¶ 12] Edinger suggests that because the letter did not directly threaten litigation, it did not provide the basis for application of the attorney-consultation exemption to the open meeting law. The statute does not say, however, that there has to be either pending or threatened litigation. Rather, it provides an exemption when there will be a discussion between a governing body and its attorney to receive "the attorney's advice regarding and in anticipation of reasonably predictable civil or criminal litigation or adversarial administrative proceedings." This language indicates the governing body may consult its attorney if there is a reasonable probability of some form of legal action, either litigation or an administrative proceeding.

[¶ 13] The Attorney General reviewed the January 20, 2004, letter and concluded it was reasonable for the Governing Authority to believe there was a "realistic and tangible threat of litigation or an adversarial administrative proceeding, or both." N.D. Op. Atty. Gen. 2004-O- 10, at 5. Formal...