Lee v. Walstad
| Decision Date | 22 May 1985 |
| Docket Number | No. 10887,10887 |
| Parties | Gary LEE, Plaintiff and Appellant, v. Percy WALSTAD, Mayor of Park River, and City of Park River, a municipality, Defendants and Appellees. Civ. |
| Court | North Dakota Supreme Court |
Shirley A. Dvorak of Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, for plaintiff and appellant.
M. Richard Geiger of Dahl, Greenagle, Currie, Geiger & Petersen, Grafton, for defendants and appellees.
Gary Lee appealed from a summary judgment dismissing his action against Percy Walstad, Mayor of Park River, and the City of Park River. We affirm.
Lee was employed as the Chief of Police for Park River. He was discharged from his position by the Mayor during the week of July 4, 1984, the week Park River was to celebrate its centennial. The justification for the discharge is in dispute. Lee subsequently brought an action seeking a writ of mandamus requiring that he be reinstated to his position as Chief of Police. An alternative writ of mandamus was issued requiring the Mayor and the City to reinstate Lee to his position or show cause before the court why they had not done so. Prior to the hearing on the order to show cause, Walstad and the City filed a "Motion for Dismissal and Summary Judgment" in which they alleged as grounds for the motion for dismissal that reinstatement is a discretionary and not a ministerial act and that Lee had a plain, speedy, and adequate remedy in the ordinary course of the law, i.e., "a complaint for wrongful discharge, which plaintiff has commenced." The motion for summary judgment of the complaint for wrongful discharge was made "on the basis that the complaint fails to state a cause of action for which relief may be granted." Subsequent to the filing of briefs by the parties, the court issued its memorandum opinion and order for summary judgment, observing that under Section 40-08-19, N.D.C.C., there is a two-part inquiry: (1) Did Mayor Walstad remove Gary Lee because he was of the opinion that the interests of the City demanded it, and (2) Did he report the reasons to the city council at its next regular meeting? The trial court concluded that according to the affidavits of the Mayor and a member of the city council submitted in support of the motion for summary judgment the answer to both questions was yes and ordered the alternative writ of mandamus vacated and summary judgment entered for the defendants.
On appeal Lee presents two issues: (1) Was it an error of law to grant summary judgment based upon affidavits rather than the public record as required by statute, and (2) Was it a reversible error of law for the trial court to disregard statutory requirements as a limitation to the "at will" doctrine?
We begin our discussion of the issues with Section 40-08-19, N.D.C.C., the statute under which Lee was removed from office, and of the procedures which he claims were not followed. Section 40-08-19 provides:
The chief of police is an officer appointed by the mayor in council cities. See Section 40-08-27, N.D.C.C.
Lee argues that the requirements of Section 40-08-19, N.D.C.C., were not followed in that the record does not reveal the mayor reported the reasons for his removal to the council at its next regular meeting. The Mayor and one of the members of the city council filed affidavits stating that the Mayor did report the reasons for the removal at the next meeting of the city council. Lee urges that it was error for the trial court to rely upon those affidavits when the minutes of the city council do not reflect that the Mayor made such a report and that if a question of fact exists as to whether or not the report was made, summary judgment is not proper. Rule 56, N.D.R.Civ.P.
We believe the trial court was correct in its determination. The record before us contains the affidavits of the Mayor and a council member stating without qualification that the Mayor did report to the council his reasons for discharging Lee. There is no affidavit to the contrary, but in his brief Lee alleges that the minutes of the meeting of July 9, 1984, following his dismissal, are devoid of any report by the Mayor or any reasons for the removal. Those minutes are not in the record before us and we must assume they were not before the trial court. However, for purposes of discussion if we assume that the minutes do not reflect any report by the Mayor as required by statute, the absence of reference thereto in the minutes of the council is not conclusive of the issue. It is possible that a report was made by the Mayor as required by statute but that the report and reasons contained therein were not made part of the minutes.
Although we agree with Lee that where the law requires a public record of proceedings to be kept, such records cannot be contradicted, added to, or supplemented by parol evidence [see McQuillin, Mun Corp Sec. 14.07 (3rd Ed) ], we are not convinced that the statute required the minutes to reflect the report by the Mayor. Section 40-08-19 does not appear to contemplate any action by the city council following the report by the Mayor. The better practice might well have been to spread upon the minutes of the city council the reasons advanced by the Mayor for removing Lee from his position as Chief of Police, but the statutes appear to require the minutes to reflect the action taken by the council. Thus Section 40-11-03, N.D.C.C., requires that the "yeas and nays shall be taken and entered on the journal of the governing body's proceedings upon the passage of all ordinances and upon all propositions creating any liability against the city or providing for the expenditure or appropriation of money, and in all other cases at the request of any member." See Mitchell v. City of Parshall, 108 N.W.2d 12 (N.D.1961). Here, the council is not required to affirm the action taken by the Mayor. If the council were to take action it would be action not required by the statute.
Finally, as we discuss more fully in the next issue, we do not believe the statute requiring the Mayor to report his reasons for removal to the city council was enacted for the benefit of the officer removed; rather, we conclude the statutory provision is for the benefit of the city council so that the members thereof might be apprised of the events occurring in city government. In this case, Lee has not requested a writ of mandamus seeking to have the Mayor report his reasons for removing Lee to the city council and to have those reasons published as part of the proceedings of the city council [see Section 40-18-12, N.D.C.C.]; rather he is seeking to be reinstated to his position as Chief of Police because of the...
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