JUL-24-2003 10:50 RATWIK RDSZRK MALONEY 612 339 003E P,,12
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<br />Kevin J. Rupp -
<br />Erin K . Munson
<br />December 5,2002
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<br />Except as authorized in section 471 .88, a public officer who is authorized
<br />to take part in any rnanrier in making any sale, lease, or contract in official
<br />capacitor sly 'all not volontarily have a personal financial interest in that sale, lease,
<br />or contract or personally benefit financially therefrom,, Every public officer who
<br />violates this provision is guilty of a gross rrdsdemeanor.
<br />You have asked whether Nfinn . Stat. § 471.87 (2002) applies to contract tend riation,2 as
<br />it does to contract formation. we conclude that Minn. Stat. § 471.87 (2002) does not apply to
<br />contract terminations. This conclus ion . is supported . by the -plain language of the law. On its
<br />face, the statute. is limited to contract formation,_ As generally understdod. the ;�makirt }' of a
<br />contract ' means its formation. See Black's Law Dict. (7th ed. 1 999) (`make" means to cause
<br />something to exist or to legally perform as by executing): Michael-Curry Companies, Inc. v.
<br />Knutson Shareholders Liquidating Trust, 449 1 , . d 139, 14 (Minn. 198) ('Tie word
<br />'making' [its an arbitration agreement] refers to circumstances surrounding the formation of the
<br />contract "). Thus, "making"' would not normally include "termination" of a contract. Such an
<br />unnatural interpretation is not consistent with the word's general meaning and, therefore, not
<br />consistent with legislative intent. Minn. Stat. § 645.08; State v. Edwards, 589 N.W.2d 907} 810
<br />(Minn. Ct. App.), rear. denied, (May 18, 1999 )4
<br />In addition, Minn. Stat. § 471.87 (2002) is a criminal statute. As such, the statute should
<br />he narrowly interpreted so that public officials have fair warning of potential criminal liability.
<br />Stare v. Olson -, 325 N.w.2d 13; 19 (Minn. 1982); Stare v. Richardson, 633 N.W,2d 879, 884
<br />(Minn. Ct. App. 2001).3 Therefore, we conclude that Minn. Stat. § 47 1.87 (2002) does not apply
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<br />to the factual circumstances you present.
<br />2 You .have represented that the' hoard member has a si nificarit pecuniary her
<br />interest in
<br />p �
<br />husband's employment contract r - .
<br />Minn. Stat. § 122A.40, surd. 3 (2002) also supports the conclusion that section 471.87 *0o�
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<br />would not apply td the termination of a teacher contract. Minn. Stat. § 1 2 .40, suhd# 3,
<br />permits a school hoard member to vote to employ his/her spouse, provided the board vote is
<br />unanimous.. Prior Attorney General Opinions have held that "special" statutory conflict of
<br />interest provisions prevail over the more general provisions of section 471.87. op. Atty. Geri.
<br />90a -1 (August 25, 1997) (cable franchise agreements); Op, Attar. Gen. 90 (June 9, 1994)
<br />(Housing and Redevelopment Authority). Similarly, Minn. Stat. § 122A.40, suhd. 3, would take
<br />precedence over section 471. 7, allowing a school distract to employ a board member's spouse as
<br />a teacher where such a contract of employment might otherwise he prohibited by section 471.87.
<br />Significantly, however, both sections 122A.40, subdivision 3, and 471.87 specifically address the
<br />formation of a contract and neither references termination of that contract. This is further
<br />indication that the common law, rather than section 471.87, would apply to teacher terminations.
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