State Ex Rel. Schuler v. Dunbar

Krivosha, C.J.,

dissenting.

If, in fact, the majority opinion holds, as I believe it does, that the provisions of the open meetings law (Neb. Rev. Stat. §§ 84-1408 to 84-1414 (Reissue 1976)) preclude a public body from correcting its own records, nunc pro tunc, to reflect what in fact took place, I must respectfully dissent. I believe that the majority in this case has both misconstrued the open meetings law and the evidence in this record.

It is clear beyond dispute that at common law a municipal council may at any time correct its minutes *78to reflect the truth. The general rule as stated in 56 Am. Jur. 2d Municipal Corporations § 179 (1971) is as follows: “A municipal council may, at a subsequent meeting, if no intervening rights of third persons have arisen, order the minutes or record of its own proceedings at a previous meeting to be corrected according to the facts, so as to make them speak the truth, although the record has once been approved.”

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 *79County 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 “[ajfter the record has been amended, it is entitled to the same respect as an original record.” 56 Am. Jr. 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. Neb. Rev. Stat. § 84-1413 (Reissue 1976) provides that “[a]ny action taken on any question or motion duly moved and seconded shall be by roll call vote of the public body in open session, and the record shall state how each member voted, or if the member was absent or not voting.” (Emphasis supplied.) This obviously means the entire record and not just any single line in the record.

Likewise, § 84-1414 provides: “Any motion, resolution, rule, regulation, ordinance. or formal action of a public body made or taken in violation of . . . shall be declared void by the district court.” (Emphasis supplied.) The act which will result in a declaration of invalidity is the failure to make or take the vote in accordance with the statute, not, as suggested by the *80majority, the failure to record the vote. Nothing in the open meetings law has made the failure to record the vote, if in fact it was properly taken, grounds to nullify the action of the public body.

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 *81reason he may have chosen to do so. There is, however, not a single shred of evidence that a vote was not taken on the date and at the meeting in question. Yet, without hesitation, we set aside that action and ignore the finding of fact made by the trial court, which had the opportunity to see and observe the witnesses.

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 tó 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.