Opinion
No. C6-95-2615.
Filed May 7, 1996.
Appeal from the District Court, Meeker County, File No. C495305.
L. Wayne Larson, John C. Saunders, Hulstrand Anderson Larson Hanson Saunders, P.L.L.P., (for respondents).
Jay T. Squires, Ratwik, Roszak Maloney, P.A., (for appellant).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. sec. 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
This appeal raises issues of a county's discretionary function immunity in supervising drainage ditch repairs and publishing final notice to the affected landowners. We conclude that the district court properly denied the county's assertion of immunity on two of the landowners' three claims because the allegations arise from the county's operational rather than policy-making conduct. Affirmed.
FACTS
Meeker County authorized the clean-out and repair of two county ditches that had not been cleaned for over eighty years. Three contractors submitted "unit price" bids on the project. The bids stated an amount for each unit of work specified by the county (e.g., removing a tree, removing a wire fence) and produced a total bid amount by multiplying each unit price by the county's estimate of units required for the project. The county stated that its estimate was subject to increase or decrease but each unit must be "performed at the set unit price." The lowest bid, submitted by E.A.L. Excavating, totalled $36,950, and Meeker County accepted it.
The county substantially underestimated the units of work necessary. At completion, 3,430 trees had been removed rather than the estimated 450. The amount finally certified under the contract was $116,200 rather than $36,950. The county published notice of the final hearing to accept the contract. The notice referenced the county engineer's certificate that contained a final total but the notice itself did not include the amount. The county authorized final payment but did not state the project's final cost in the authorization.
The county assessed the $116,200 project costs against the landowners who in turn brought this action. The landowners claimed that Meeker County erred in its redetermination of benefits, negligently supervised the contract and repair work, and improperly assessed the costs of the project. Meeker County asserted discretionary immunity and moved for summary judgment. The district court dismissed the appeal from the redetermination of benefits as untimely, but denied the county's claim of immunity from allegations of negligent supervision and improper assessments. Meeker County appeals the denial of summary judgment on these two claims.
DECISION
An order denying summary judgment on the basis of immunity from lawsuits is appealable. McGovern v. City of Minneapolis , 475 N.W.2d 71, 73 (Minn. 1991). When the facts underlying the discretionary immunity claims are undisputed, whether the immunity applies is a question of law. Waste Recovery Coop. v. County of Hennepin , 517 N.W.2d 329, 331 (Minn. 1994), modified (Minn. June 28, 1994).
Counties are liable for their torts and the torts of their officers. Minn. Stat. § 466.02 (1994); Minn. Stat. § 466.01, subd. 1 (1994). Counties are not liable for "[a]ny claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subd. 6 (1994).
The critical inquiry in determining whether discretionary immunity applies is whether the conduct involved the government's balancing of policy objectives involving social, political, or economic considerations. Waste Recovery Coop. , 517 N.W.2d at 332. Operational decisions involving the ordinary, day-to-day workings of county government are not protected. Holmquist v. State , 425 N.W.2d 230, 232 (Minn. 1988). Implementation of an established policy, which may involve exercise of professional judgment, is not protected. Steinke v. City of Andover , 525 N.W.2d 173, 175-76 (Minn. 1994).
The county bears the burden of proving that it is entitled to immunity. Waste Recovery Coop. , 517 N.W.2d at 332. To demonstrate its conduct involved a balancing of policy considerations, the county may rely on: (1) the language of a statute authorizing the conduct, (2) an examination of the conduct itself, or (3) the policy considerations that gave rise to the conduct. Id .
Meeker County argues that its decision to repair the ditch is protected policymaking conduct. We agree that a major decision to construct or repair public works involves important policy considerations. But the landowners' allegations are directed to the manner in which the ditch repairs were carried out, not the decision to undertake them.
Count two alleges that the Meeker County Board negligently failed to supervise the repairs and negligently paid for work that the contractor never completed. Meeker County's supervision of public projects to insure proper construction does not involve the careful policy weighing and planning operations that discretionary immunity protects. The supervision pertains to the performance of the work and the contract. This supervision involves consideration of ditch slopes, drainage, and scrub clearance, rather than competing demands of political, social, and economic interests. Routine operational decisions, even those requiring professional judgment, are not protected by discretionary immunity. Waste Recovery Coop. , 517 N.W.2d at 332. The district court did not err in refusing to apply discretionary immunity to claims arising from Meeker County's supervision of its ditch repair projects.
In the remaining claim, count three, the landowners allege that Meeker County improperly assessed the costs of the repairs because it failed to notify them of the total cost of the project. A county must provide affected landowners notice of a final hearing on a drainage project. Minn. Stat. § 103E.555 (1994); Minn. Stat. § 103E.325 (1994). The statute, however, does not require notice of the final cost of the project. Minn. Stat. § 103E.325, subd. 2. But whether this defective notice claim may be subject to summary judgment on another basis is beyond the scope of an appeal limited solely to immunity questions. Our consideration must be directed to whether the allegation attaches to a discretionary function that is protected by immunity. The county auditor prepared notices for the landowners pursuant to the requirements of section 103E.325. Preparing the contents of a public notice is a clerical function that does not involve balancing policy considerations. The district court did not err in refusing to apply discretionary immunity to the landowners' claims.