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Schwartzenberger v. McKenzie County Board of County Commissioners

Supreme Court of North Dakota

August 29, 2017

Gary Schwartzenberger, in his official capacity as the Sheriff of McKenzie County, Petitioner and Appellant
v.
McKenzie County Board of County Commissioners, Respondent and Appellee

         Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable David E. Reich, Judge.

          Michael J. Geiermann, Bismarck, N.D., for petitioner and appellant.

          Todd A. Schwarz, Chief Assistant State's Attorney, Watford City, N.D., for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] Gary Schwartzenberger, in his official capacity as the sheriff of McKenzie County, appeals from a district court order denying his petition for a writ to prohibit the McKenzie County Board of County Commissioners from taking disciplinary action up to and including termination against a deputy in the sheriff's office. We conclude the Board did not have authority to discipline a deputy in the sheriff's office, and we reverse the order denying a writ of prohibition.

         I

         [¶ 2] Schwartzenberger was elected sheriff of McKenzie County in November 2014. In May 2016, an employee in the sheriff's office contacted the McKenzie County human resource director with a complaint about bullying and retaliation in the sheriff's office. In June 2016, the Board contracted with Village Business Institute to conduct an internal investigation of the sheriff's office. After considering the results of the investigation, the Board unanimously passed a motion at its October 13, 2016 meeting "to take disciplinary action against Lt. Michael Schmitz up to and including termination, pending a response within 10 days, and a final determination by this Board, " and to place Lt. Schmitz "on administrative leave immediately and unpaid administrative leave beginning the October 16, 2016, payroll." The Board also unanimously passed a motion requesting the acting state's attorney to prepare a petition for the governor's removal of Schwartzenberger.

         [¶ 3] Schwartzenberger petitioned the district court to prohibit the Board from taking any further action on both motions, claiming those motions exceeded the Board's jurisdiction and were unlawful. Schwartzenberger sought an order requiring the Board to refrain from further action involving Lt. Schmitz and to prohibit the Board from interfering with the internal operations of the sheriff's office.

         [¶ 4] The district court denied Schwartzenberger's petition for a writ of prohibition, ruling the Board had authority to hire Village Business Institute to investigate the sheriff's office and to request the state's attorney to prepare a petition for the governor's removal of Schwartzenberger as sheriff. The court also ruled the Board had authority to take disciplinary action against Lt. Schmitz. Relying on N.D. Op. Att'y Gen. 1997-L-32 (March 31, 1997), the court said a sheriff, as an elected county official, has implied authority to hire and fire employees in a sheriff's department, but the authority is not absolute and is subject to the Board's authority to supervise the conduct of county officers. The court said the Board's supervisory authority over county officers under N.D.C.C. § 11-11-11(2) includes ensuring that county officers lawfully implement employment discharges in accordance with county policies. The court explained, however, the Board's supervisory authority is not unfettered and the Board may not adopt burdensome or stringent personnel policies that usurp or significantly interfere with an elected officer's authority to hire or fire employees working in the officer's department. The court said the Board had adopted personnel policies for all McKenzie County employees and Schwartzenberger ignored the Board's policies. The court determined Schwartzenberger failed to show how the policies were so burdensome and stringent that they usurped or significantly interfered with his authority to hire or fire employees. The court explained that because Lt. Schmitz could raise issues about whether the Board's actions were justified under the Board's personnel policies in a lawsuit against McKenzie County, it could not be said Lt. Schmitz lacked an adequate remedy at law for purposes of the petition for a writ of prohibition. The court denied Schwartzenberger's request to prohibit the Board from taking disciplinary action against Lt. Schmitz.

         II

         [¶ 5] The Board initially moves to dismiss Schwartzenberger's appeal, arguing it is moot because Lt. Schmitz has been terminated from the sheriff's office by an interim sheriff for reasons unrelated to the initial disciplinary proceeding against him and he has surrendered his peace officer's license. Schwartzenberger responds that his appeal is not moot because the issue in this case is whether the Board exceeded its jurisdiction in interfering with internal operations of the sheriff's office and involves more than a disciplinary proceeding against one person in the McKenzie County Sheriff's Office. He claims issues about the authority over internal personnel operations in a sheriff's office are of great public interest involving the authority and power of elected public officials and satisfies an exception to the mootness doctrine.

         [¶ 6] Mootness is a threshold issue we consider before reaching the merits of an appeal. Bland v. Comm'n on Med. Competency, 557 N.W.2d 379, 381 (N.D. 1996). This Court does not render advisory opinions, and an appeal will be dismissed if the issues become moot or academic, leaving no actual controversy to be determined. Nord v. Herrman, 1998 ND 91, ¶ 12, 577 N.W.2d 782; Pelkey v. City of Fargo, 453 N.W.2d 801, 803 (N.D. 1990). An appeal becomes moot when, due to the lapse of time or the occurrence of events, an appellate court is unable to render effective relief. Nord, at ¶ 12; Bland, at 381; Pelkey, at 803. However, an appeal in which subsequent events have eliminated an actual controversy is not moot if the controversy is one of great public interest and involves the authority and power of public officials, or alternatively, if the matter is capable of repetition yet evading review. In re Estate of Shubert, 2013 ND 215, ¶ 12, 839 N.W.2d 811; Bland, at 381; Bolinske v. N.D. State Fair Ass'n, 522 N.W.2d 426, 430 (N.D. 1994); N.D. Council of Sch. Adm'rs v. Sinner, 458 N.W.2d 280, 283 (N.D. 1990); Pelkey, at 803; State v. Liberty Nat'l Bank & Trust Co., 427 N.W.2d 307, 308-09 n.1 (N.D. 1988). Public interest means more than mere curiosity; it means something in which the public or the community at large has some pecuniary interest, or some interest by which their legal rights are affected. Shubert, at ¶ 13; Forum Publ'g Co. v. City of Fargo, 391 N.W.2d 169, 170 (N.D. 1986). Public interest does not mean something as narrow as the interest of a particular locality affected by the matter in question. Shubert, at ¶ 13; Forum Publ'g, at 170.

         [¶ 7] Although Lt. Schmitz's employment with the sheriff's office has been terminated for unrelated reasons and specific disciplinary proceedings against him do not present an actual controversy, the issues in this appeal involve the scope of authority of an elected board of county commissioners and an elected county sheriff over personnel decisions in the sheriff's office. Those issues involve the interrelationship and potential overlap of the authority of two elected county entities over personnel decisions in the office of one of the entities. See Bland, 557 N.W.2d at 381-82 (holding issue about Medical Board's authority over doctor's license is not moot); Med. Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 294 (N.D. 1995) (holding issue involving separation of powers of entities of state government affect more than the interest of particular locality and is not moot). Issues involving the overlap of authority between elected boards of county commissioners and various elected county officials have been the subject of several attorney general opinions. See N.D. Op. Att'y Gen. 1997-L-32 (March 31, 1997); N.D. Op. Att'y Gen. 1996-F-01 (Jan. 9, 1996); N.D. Op. Att'y Gen. 1993-L-333 (Nov. 16, 1993); N.D. Op Att'y Gen. 1993-L-161 (May 20, 1993); N.D. Op. Att'y Gen. 1982-L-38 (May 5, 1982). The requests for attorney general opinions from various public officials reflect implications involving the public's interest in the authority of elected county officials throughout the State and pertain to more than a particular locality. Moreover, the parties and the district court have provided different interpretations of opinions by the attorney general. The parties' different interpretations reflect uncertainty for issues about the authority of a board of county commissioners and a sheriff.

         [¶ 8] We conclude the issues about the parties' authority in this case are matters of great public interest involving the authority of elected county commissioners and elected sheriffs throughout the State. We ...


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