STATE OF NEBRASKA EX REL. CHARLES E. SCHULER, APPELLANT, V. FLOYD DUNBAR ET AL., APPELLEES.
No. 42976
Supreme Court of Nebraska
February 20, 1981
302 N.W.2d 674 | 208 Neb. 69
CLINTON, J.
Joseph M. Casson for appellees.
Heard before KRIVOSHA, C.J., BOSLAUGH, MCCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
CLINTON, J.
The relator, a citizen and taxpayer of Loup County, Nebraska, brought this action in the District Court for Loup County, Nebraska, under the provisions of
The relator introduced certain documentary evidence and called the defendant Dunbar as his witness. The defendants called the relator as their witness in an apparent effort to establish estoppel as a defense. That defense is not urged in this court.
The trial judge found that “the Defendants did take a roll call vote on their action regarding the setting of salaries for Loup County officers and same was recorded in the minutes of Defendants’ January 3, 1978 meeting.” The determinative issue before us on this appeal is whether the evidence supports the above finding.
The action attacked, as described in the minutes, was as follows: “The Board set the following Salaries for County Officials for the term beginning January 1979 and the amount in parenthesis represents the present salaries:
| “Treasurer | 6700.00 | (6000.00) |
| “Service Officer | 600.00 | (600.00) |
| “County Clerk | 9000.00 | (8000.00) |
| “Sheriff | 7850.00 | (6850.00) |
| “Attorney | 6700.00 | (6000.00) |
| “Commissioners | 3000.00 | (2400.00)” |
Nothing in the original minutes of the January 3, 1978, meeting indicates that a motion was made and seconded, that there was a rollcall vote, or that votes were recorded in any manner. The introductory portion of those minutes states that the members of the board, the three defendants in this action, were present.
During the direct examination of defendant Dunbar by relator‘s counsel, the following testimony was elicited:
“Q. Could you explain the procedure which you customarily follow when you audit and allow claims, Mr. Dunbar?
“A. On the salary claims we — it is understood that they are approved but the others — you know — like the road claims and all of them they are reviewed and we sign them and anything that needs hashed over we hash it over to make sure they are legitimate claims.”
Earlier in the testimony, counsel had called to the attention of the witness the language of paragraph 6 of the defendants’ amended answer, as follows: “Defendants allege that the Loup County Board of Commissioners, with the actual or constructive knowledge of the relator, have audited and allowed claims against Loup County in substantially the same manner in
“Q. Now, are you admitting there you failed to record a roll call vote on the taking of a motion to allow the claim for more than a year prior to the filing of this action?” At that time, the defendant‘s counsel made objection on the grounds that the open meetings law made certain violations crimes and that the defendant was being asked to incriminate himself in violation of the fifth amendment. The court asked the witness if he desired to invoke the fifth amendment. He said he did, and the court sustained the objection.
Counsel then asked a question concerning the taking and recording of a rollcall vote on the motion to allow claims. Objection was made by defendant‘s counsel and the objection was sustained. The relator‘s counsel then apparently abandoned his attempts to establish violations by Dunbar‘s own testimony.
On offer of the relator and over objection by defendants, there was received in evidence copies of various minutes covering the period May 16, 1977, to January 16, 1978, which indicate that claims were approved and allowed in substantially the following language: “motion to audit and allow claims, carried.” Then followed a list of claims, including, in some instances, claims for salaries. There was no indication at any of these meetings that the roll had been called and the vote recorded.
We summarize the positions of the parties insofar as they relate to the point on which we decide the case. The relator contends the evidence shows that no rollcall vote was called and recorded on the motion of January 3, 1978, and that the purported correction made more than 1 year later is void.
The defendants assert that the minutes of a public body may be corrected, nunc pro tunc, to show what
Our consideration of the merits in this case must begin with an examination of the pertinent statutory provisions.
It is to be noted that not only does
The statutory provision makes it plain that actions by a public body in violation of certain portions of the
The defendants, however, rely upon the principle that public officers are presumed to have acted lawfully in performance of their duties, and that public records may be corrected, nunc pro tunc, to conform to the facts and to correct clerical errors. They argue that when these two principles are applied to the present case, the corrective action taken on January 15, 1979, remedies the deficiency and supports the trial court‘s finding. We must determine whether these principles are applicable here.
The purpose of a nunc pro tunc correction is to make the record speak the truth. Its purpose is not to correct oversights or failures in the performance of mandatory acts. Beverly Land Co. v. City of South Sioux City, supra; City of Valentine v. Valentine Motel, Inc., supra.
The relator produced the original minutes. The minutes do not indicate that a rollcall vote was made, nor do they show how each member voted. The record indisputably shows that the rollcall vote, if taken, was not recorded until more than 1 year later. Relator also introduced the minutes of other meetings showing a practice of not recording rollcall votes. Inquiry of a witness who presumably had knowledge of the facts as to what actually occurred on January 3, 1978, was prevented by the fifth amendment objection before the subject could be reached.
We note also that where a defendant in a civil case refuses to testify on the ground that the evidence may
The trial judge‘s finding that the rollcall vote was taken and recorded in the minutes was, as appears from comments made by him, based upon two factors: First, his interpretation of Dunbar‘s testimony, which we earlier quoted, concerning what took place when claims were allowed; and, second, his feeling that the corrective action taken in January 1979 satisfied the recording requirement under the nunc pro tunc principle. Dunbar‘s testimony related to a meeting which took place several months after the meeting of January 3, 1978. Its substance was that claims were discussed before they were allowed. It in no way pertained to what had occurred on January 3, 1978. There is, therefore, no testimony that a rollcall vote was taken, nor any testimony as to how a particular member voted or whether a member abstained. This leaves the corrective action of January 15, 1979, as the sole support for the trial court‘s finding. Is that sufficient? We think not, for if it were, the statute would be effectively emasculated. It is clear that the Legislature intended the statute to be mandatory; otherwise, it would not have provided that action taken in violation of the statute is void. This court is not free to disregard statutory requirements which are clearly within the legislative power to prescribe.
The primary obligation for properly recording proceedings by a board of county commissioners rests under statute upon the county clerk.
We have previously held that the presumption that a public official has acted in conformity with the law is not sufficient to meet a statutory requirement that action mandated by statute be spread on the record. Hull v. City of Humboldt, 107 Neb. 326, 186 N.W. 78 (1921); City of Valentine v. Valentine Motel, Inc., supra.
The first-cited case involved the validity of an ordinance. The applicable procedural statute required that ““on the passage or adoption of every by-law or ordinance, the yeas and nays shall be called and recorded.“” (Emphasis supplied by the court.) Hull, supra at 328, 186 N.W. at 79. The statute also required the reading of the ordinance on final passage, but made no specific provision that the fact of reading be recorded. The court held that, since the statute did not specifically require the recording of the fact of reading, the fact that the mandatory requirement of spreading the yeas and nays on the record had been met was sufficient to raise the presumption that the ordinance had been read.
City of Valentine v. Valentine Motel, Inc., supra, involved a statute (
We hold in this case that the provision of
The cause is remanded for further action in accordance with this opinion.
REMANDED WITH DIRECTIONS.
KRIVOSHA, C.J., dissenting.
If, in fact, the majority opinion holds, as I believe it does, that the provisions of the open meetings law (
It is clear beyond dispute that at common law a municipal council may at any time correct its minutes
Many jurisdictions which have been called upon to examine this proposition have reached such a conclusion. In Williams v. Longtown School Dist. No. 71 of Perry Co., 468 S.W.2d 673, 675-76 (Mo. App. 1971), the court said: “The board of directors of a school district has the power to correct the record of the proceedings had at a previous meeting so as to make them speak the truth and especially when the correction consists of supplying some omitted fact or action and is done, not to contradict or change the original record, but to have the record show that a certain action was taken or thing done which the original record fails to show. Parol evidence is also admissible for the same purpose.”
Likewise, in State ex rel. Wineholt v. LaPorte Superior Court No. 2, 249 Ind. 152, 157, 230 N.E.2d 92, 95 (1967), the court there said: “There is no question that a County Council has a right to correct the minutes of its council meetings and make nunc pro tunc entries where errors have occurred by the secretary in properly recording the same. Modifications and amendments may be made where no intervening vested rights are involved.”
For other cases supporting the general rule that county boards and councils have the authority to amend or correct their minutes, nunc pro tunc, see the following: Olympian-Tribune Pub. Co. v. Byrne, 28 Wash. 79, 68 P. 335 (1902); R.R. v. Cherokee County, 195 N.C. 756, 143 S.E. 467 (1928); Oliver v. Highway Commission, 194 N.C. 380, 139 S.E. 767 (1927); R.R. v. Forbes, 188 N.C. 151, 124 S.E. 132 (1924); Marengo County v. Barley, 209 Ala. 663, 96 So. 753 (1923); Jeffers v. Wharton, 240 Ala. 21, 197 So. 358 (1940); Bathurst v. Course, 3 La. Ann. 260 (1848); The People v. Wabash Ry. Co., 314 Ill. 513, 145 N.E. 733 (1924); The People v. C. & E.I. Ry. Co., 314 Ill. 382, 145 N.E. 714 (1924).
Moreover, the authorities are clear that “[a]fter the record has been amended, it is entitled to the same respect as an original record.” 56 Am. Jur. 2d Municipal Corporations § 179 at 231 (1971). See, also, 20 C.J.S. Counties § 91(c) (1940).
For the action of the county board, as reflected by the minutes herein, to be invalid and for the decision of the trial court finding the action valid, we must therefore find something in the open meetings law which compels that result. In Egbert v. Wenzl, 199 Neb. 573, 576, 260 N.W.2d 480, 482 (1977), we said: “Statutes are not to be understood as affecting any change in the common law beyond that which is clearly indicated.” Likewise, see, Paulsen v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979); Davis v. Walker, 170 Neb. 891, 104 N.W.2d 479 (1960). I find nothing in the open meetings law or the evidence in this case which justifies the conclusion reached by the majority.
Likewise,
The particular minutes under attack provide that Commissioners Schrup, Dunbar, and Pollard were present. They are all of the commissioners. Moreover, they now provide: “Motion made by Pollard, seconded by Schrup, that the minutes of the January 3, 1978 meeting of the Loup County Commissioner be corrected to reflect the vote of the Board on the Action taken in setting the salaries of the county officials for the terms of office beginning January 4, 1979, said vote being yes, unanimous.” (Emphasis supplied.) To be sure, the language is not as articulate as one might desire. Nevertheless, no one can reach any other conclusion but that the “vote being yes, unanimous” meant that Commissioners Schrup, Dunbar, and Pollard all voted yes. In my view, not only has the spirit of the open meetings law been met but I believe that the letter has likewise been met. To hold otherwise, as we are here doing, is to impose technical requirements upon part-time county commissioners beyond that which should be made and far in excess of anything the open meetings law was intended to require. The majority is now saying that persons who relied upon a salary increase and who ran for office in reliance on that salary increase should now be denied their just compensation because the minutes of the meeting of the county commissioners were not as artfully drafted as they might otherwise have been. Such a conclusion is neither required nor desirable.
There is no evidence in this record to discredit the record of the commissioners’ meeting. The relator concedes that he does not know what in fact took place at the meeting. We are called upon to set aside an official record based upon the fact that a single county commissioner, at the direction of his lawyer, sought to exercise the fifth amendment for whatever
The trial court specifically found that the county board did take a rollcall vote on its action regarding the setting of salaries for Loup County officers on January 3, 1978. I see no basis for disregarding that finding and I certainly find no legal basis for declaring that the open meetings law precludes a public body from lawfully reflecting what in fact took place. To be sure, if it did not take place, such could not be done after the fact. That is not the record we have before us here and is not the ruling we are asked to make. I am not unmindful of our earlier decisions in Payne v. Ryan, 79 Neb. 414, 112 N.W. 599 (1907); Beverly Land Co. v. City of South Sioux City, 117 Neb. 47, 219 N.W. 385 (1928); and City of Valentine v. Valentine Motel, Inc., 176 Neb. 63, 125 N.W.2d 98 (1963). They can be distinguished if one attempts to do so, but admittedly the distinctions are narrow.
It appears strange to me for the court to conclude that if an erroneous statement is “spread upon the records,” it may be corrected, nunc pro tunc, to reflect the truth; but if, in fact, the legally required action was taken but omitted from the record, a correction cannot be made nunc pro tunc. I find no basis for that rule and do not believe the above-cited cases holding such to be the rule were correctly decided. I would overrule Payne v. Ryan, supra; Beverly Land Co. v. City of South Sioux City, supra; and City of Valentine v. Valentine Motel, Inc., supra, and affirm the judgment of the trial court.
MCCOWN and BRODKEY, JJ., join in this dissent.