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Judge Carol Hanks, Judge Lucinda Jesson, Sheriff Kurt Freitag
Judge Carol Hanks, Judge Lucinda Jesson, Sheriff Kurt Freitag

Appeals court, after reversal, sides with sheriff in pay dispute

A District Court judge did not abuse her discretion in setting a southern Minnesota sheriff’s salary at nearly $17,000 more than county commissioners had voted to pay him, the Minnesota Court of Appeals has ruled.

The decision apparently ends Freeborn County Sheriff Kurt Freitag’s long-running, well-traveled salary dispute with the Freeborn County Board of Commissioners — which moved from District Court to the Court of Appeals before a Minnesota Supreme Court reversal in March that sent it back to the appellate court.

Court of Appeals Judge Lucinda Jesson, in a unanimous nonprecedential opinion filed on July 19, writes that “because the District Court’s determination was not against the facts in the record or based on an erroneous view of the law, the District Court did not abuse its discretion when considering statutory and other valid factors when setting Freitag’s salary.”

Freitag’s attorney, Steven J. Hovey of the Hoversten, Johnson, Beckmann & Hovey firm in Austin, said the Court of Appeals ruled as the sheriff had expected.

“The Court of Appeals decision is pretty clearly correct,” Hovey said. “It seemed pretty clear that the trial court made a decision based upon the facts in the record, and there’s no point or no ability of the appellate court to reverse it as long as the findings are supported in the record.”

Sheriff, county far apart on salary

In 2018, Freitag asked for a 2019 salary of $113,952, a 23 percent increase, based on the median salary of sheriffs in neighboring counties and of sheriffs in comparable positions across the state. The board, however, voted to set Freitag’s salary at $97,020, only a 5 percent increase.

Freitag appealed the board’s decision to the District Court under Minn. Stat. § 387.20, subd. 7. District Court Judge Carol M. Hanks concluded that the board’s setting of Freitag’s salary was arbitrary because commissioners did not explain how they arrived at the $97,020 figure. Hanks set the sheriff’s salary at $113,952, determining that the board insufficiently considered his responsibilities, experience, qualifications and performance, as the statute specifies. Freitag, for his part, asked the District Court for a raise to $120,000.

The Court of Appeals reversed the District Court in a May 2020 published opinion. The Court of Appeals found that the District Court erred in not addressing nonstatutory factors the board identified, including constituent concerns about the sheriff’s pay raise. It also determined that the board’s inability to specify how commissioners calculated Freitag’s salary did not render the board’s decision arbitrary. Further, the Court of Appeals concluded that the District Court erred in finding that the board did not adequately take into account Freitag’s responsibilities, experience, qualifications and performance.

In reversing the Court of Appeals, the Supreme Court held that the lower court misapplied the clear error standard of review and improperly substituted its own judgment for that of the District Court. Justices found reasonable support for the District Court’s determination that the board’s salary decision was arbitrary and that the District Court did not clearly err in setting aside that decision.

 Abuse of discretion in sheriff’s raise?

On remand, as Jesson notes, the issue the Supreme Court specified is narrow — whether the District Court abused its discretion in setting the amount of Freitag’s new salary.

While elected bodies like the Freeman County Board typically set elected officials’ salaries as a legislative function, the Supreme Court has held that it does not violate the separation of powers for courts to review salary determinations for judicial officials or “quasi-judicial officers,” including sheriffs.

“And when reviewing a salary determination for quasi-judicial officers, such as county sheriffs, the District Court is necessarily vested with ‘wide discretion,’” Chief Justice Lorie Gildea, wrote in overturning the Court of Appeals, citing the Supreme Court’s 1947 ruling in Cahill v. Beltrami County.

Because the Supreme Court determined that the District Court did not err in finding that the county board had violated state statute in its salary determination, the Court of Appeals in its new look at the dispute reviewed the District Court’s salary determination under an abuse-of-discretion standard. Under that standard, the Court of Appeals may overrule the District Court when its ruling is against the facts in the record or is based on an erroneous view of the law, Jesson writes, citing the Supreme Court’s 2011 decision in Riley v. State.

The county argued that the District Court used facts not properly in the record for a salary determination. In addition to statutory factors under Section 387.20, subd. 7, other “valid factors” the District Court may consider, under the Supreme Court’s ruling in Amdahl v. County of Fillmore, include sheriff’s salaries in neighboring counties and the population and the revenue-raising ability of those counties, Jesson writes.


‘Significant improvements’

In Freitag’s case, the District Court considered the statutory criteria of his responsibilities and job performance, including “significant improvements” to the sheriff’s office and duties beyond those typical of the office, including launching a drone program, increasing training and restarting a K-9 program, Jesson wrote. It also considered nonstatutory valid factors including neighboring county data, averaging median salaries of neighboring and statewide sheriffs.

“In doing so, the District Court thoroughly explained the reasoning for its calculation, and the materials in the record provide a basis for the District Court’s decision to set Freitag’s salary at $113,952,” Jesson writes. “Therefore, the decision was not against the facts in the record.”

The county also challenged the District Court’s salary determination as an error of law, arguing that it improperly used a “fair and appropriate standard” that the salary statute does not justify.

“Case law imposes the duty to set ‘the amount of the sheriff’s salary in a just and reasonable sum,’” Jesson writes. “The use of the words ‘fair’ and ‘appropriate’ throughout the District Court’s order do not read as a new standard but instead are simply adjectives to describe the sheriff’s appropriate salary. In short, the use of the ‘fair and appropriate’ language is comparable to the ‘just and reasonable’ language required by case law. Because the District Court did not adopt a new standard when reviewing the sheriff’s salary, there was no error of law.”

Hovey said he did not expect the county to petition the Supreme Court to review the Court of Appeals’ new decision in the case.

“The problem is there’s very wide discretion in terms of setting salary,” Hovey said. “I don’t know how you would get that overturned, really, on appeal. Would be very, very difficult to do. If you look at the Supreme Court’s decision on the case when they remanded it to the Court of Appeals to review on that one issue, they reminded the Court of Appeals of the very wide discretion. I think the Court of Appeals took that cue.”

The county’s attorney, Karen K. Kurth of Barna, Guzy & Steffen, did not respond to requests for comment.


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