Gary Schwartzenberger, in his official capacity as the Sheriff of McKenzie County, Petitioner and Appellant
McKenzie County Board of County Commissioners, Respondent and Appellee
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
A. Schwarz, Chief Assistant State's Attorney, Watford
City, N.D., for respondent and appellee.
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
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.
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
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 ...