Richard Duncan, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1775

Richard Duncan,
Relator,

vs.

County of Chisago,
Respondent.

Filed June 24, 2019
Affirmed
Cochran, Judge

Chisago County Board of Commissioners

Marshall H. Tanick, Teresa J. Ayling, Meyer Njus Tanick, PA, Mi nneapolis, Minnesota
(for relator)

Janet Reiter, Chisago County Attorney, Center City, Minnesota; and

Dyan Jean Ebert, Cally R. Kjellber g-Nelson, Quinlivan & Hughes, P.A., St. Cloud,
Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Florey, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Relator Richard Duncan, the former Chisago County Sheriff, is subject to a federal
lawsuit by another former employee of the sheriff’s office. Th e lawsuit is related to

2
Duncan’s conduct towards the employee during the time that Duncan was sheriff. Duncan
requested that Chisago County (the county) defend and indemnify him in the lawsuit
pursuant to Minn. Stat. § 466.07 (2018). The Chisago County Bo ard of Commissioners
(the board) declined to defend and indemnify Duncan, finding that the underlying conduct,
which Duncan admitted to, was not done in the performance of hi s duties as sheriff. The
board also found that Duncan’s conduct constituted malfeasance and that Duncan acted in
bad faith. Duncan appeals the board’s decision by writ of certiorari. Because we conclude
that the board’s decision is consistent with the law and supported by substantial evidence,
we affirm.
FACTS
Relator Richard Duncan was th e county sheriff from January 2011 until May 2018,
when he voluntarily retired. In the fall of 2017, in a one-on- one meeting in his office,
Duncan told a subordinate employee of the sheriff’s office that he had received three letters
from an anonymous person. He showed one of the letters to the employee. The letter said
that the author wanted to control Duncan and the employee. The author demanded that
Duncan and the employee spend several nights at a hotel togethe r in Bemidji. The letter
threatened the employee’s children and referenced where the employee lived and that she
was married.
Duncan expressed concern for the employee’s children and sugge sted that they
follow the author’s instructions. H e t o l d t h e e m p l o y e e t h a t h e had not told anyone,
including other law enforcement personnel, about the letters an d instructed the employee

3
to not tell anyone about the letters. Duncan told the employee that he would find a training
in Bemidji during the dates that the author wanted them to stay in a hotel together.
Four days after he showed the e mployee the letter, Duncan sent an email from his
personal email account to the empl oyee indicating that the auth o r h a d s e n t t h r e e m o r e
letters. Duncan stated that the letters were signed by a person who called himself “Control
Freak.” Duncan typed the letters into the email.
The first letter was addressed to both Duncan and the employee. Control Freak said
that the two must stay at a particular hotel in Bemidji in a room with a king sized bed, drive
a particular route to get to the hotel, and bring swimsuits and several other items. Duncan
told the employee that he would make reservations at the hotel.
The second letter was addressed only to the employee. Duncan claimed that he
found the letter near the employee’s home. Control Freak said that he knew where the
employee lived and that he could have hurt her kids while she was out of town.
The third letter was addressed only to Duncan. It contained t hreats to Duncan’s
wife.
The employee began to believe t hat Duncan was writing the letters under the Control
Freak alias. The employee feared that Duncan would escalate the situation. Duncan again
emailed the employee, noting his belief that Control Freak woul d demand that they have
sex on the Bemidji trip. He agai n expressed concern that his f amily or the employee’s
family would get hurt if they did not follow Control Freak’s de mands. Duncan later sent
the employee an email suggesting that they not discuss the letters while at work.

4
Two days after he sent the empl oyee the email with the Control F r e a k l e t t e r s ,
Duncan emailed the employee and told her that if she did not wa nt to go on the trip, she
did not have to go. Duncan said that he was still going to Bem idji and that he planned to
try to identify Control Freak. The following day, the employee told Duncan that she would
not go on the trip.
Eleven days after Duncan first discussed the letters with the e mployee, Duncan
discussed Control Freak with the employee for the last time. D uncan told the employee
that Control Freak hacked into his phone and destroyed his personal data.
After several months, the empl oyee reported the incident to human resources. The
county retained outside counsel to conduct an investigation. Duncan did not participate in
an interview for the investigation, but he admitted that he wrote the Control Freak letters.
Duncan voluntarily retired in May 2018.
The employee brought a civil la wsuit in federal court that all eged several claims
against both the county and Duncan. Duncan requested that the county defend and
indemnify him in the lawsuit pursuant to Minn. Stat. § 466.07. In support of his request,
he submitted a letter from his doctor that explained that Dunca n suffered from
Post-Traumatic Stress Disorder (PTSD). The doctor said that PT SD affected Duncan’s
behavior.
At an October 2018 meeting, the board addressed Duncan’s reque st for defense and
indemnification. Duncan chose not to attend the meeting. At t he meeting, the board
considered a report prepared by outside counsel summarizing the r e s u l t s o f h e r
investigation, the complaint that the employee filed in the federal lawsuit, Duncan’s written

5
request for defense and indemnification, a letter sent by Dunca n’s attorney in support of
his request for defense and indemnification, and the letter written by Duncan’s doctor about
his PTSD diagnosis. The board decided that the county would no t defend or indemnify
Duncan in the lawsuit because Duncan’s conduct was not related to the performance of his
duties as sheriff, Duncan’s acts constituted malfeasance, and D uncan’s acts were carried
out in bad faith with the intent to deceive and manipulate the employee. At the meeting,
the board passed a formal resolu tion denying Duncan’s request f or defense and
indemnification.
Duncan appeals by writ of certiorari.
D E C I S I O N
In reviewing the merits of a certiorari appeal, this court examines whether “the order
or determination in a particular case was arbitrary, oppressive , unreasonable, fraudulent,
under an erroneous theory of law , or without any evidence to su pport it.” Anderson v.
Comm’r of Health , 811 N.W.2d 162, 165 (Minn. App. 2012), review denied (Minn.
Apr. 17, 2012). Appellate courts review quasi-judicial decisions, such as this one, under a
“limited and nonintrusive standard of review.” Sawh v. City of Lino Lakes , 823 N.W.2d
627, 635 (Minn. 2012) (quotati on omitted). “[Q]uasi-judicial d eterminations will be
upheld unless they are unconstitu tional, outside the agency’s j urisdiction, procedurally
defective, based on an erroneous legal theory, unsupported by s ubstantial evidence, or
arbitrary and capricious.” Cole v. Metro. Council HRA , 686 N.W.2d 334, 336 (Minn.
App. 2004) (quotation omitted). Under this standard, appellate courts “may not substitute
[their] own findings of fact” for those of the county, or “enga ge in a de novo review of

6
conflicting evidence.” Sawh, 823 N.W.2d at 635. We will uphold the county’s decision if
it “has explained how it derived its conclusion and [its] concl usion is reasonable on the
basis of the record.” Id. (quotation omitted).
A municipality must defend and indemnify its officers and employees if the officer
or employee “(1) was acting in the performance of the duties of the position; and (2) was
not guilty of malfeasance in offic e, willful neglect of duty, o r bad faith.” Minn.
Stat. § 466.07, subd. 1. The boa rd decided not to defend and i ndemnify Duncan because
it found that Duncan’s conduct failed both of the statutory requirements—it found he was
not acting in the performance of the duties of sheriff and that he was guilty of malfeasance
and bad faith.
Duncan challenges the board’s determinations on both of the statutory requirements.
With regard to the first prong, he argues that the board’s decision was contrary to law and
was not supported by substantial evidence. He also challenges the second prong, arguing
that the evidence does not sup port the board’s finding that his conduct was malfeasance
and done in bad faith. We are not persuaded.
I. The board did not erroneously apply the law in determining whether
Duncan was “acting in the performance of the duties of the position”
under Minn. Stat. § 466.07, subd. 1.

Duncan argues that the board interpreted the language “acting i n the performance
of the duties of the position” too narrowly when it concluded t hat Duncan was not acting
in the performance of his duties within the meaning of Minn. St at. § 466.07, subd. 1(1).
Duncan contends that the performance-of-duties prong of Minn. Stat. § 466.07, subd. 1(1),
should be interpreted to require defense and indemnification wh e n t h e o f f i c e r o r

7
employee’s conduct is within his or her “course and scope of em ployment.” The statute,
however, does not contain that language—it instead specifically requires defense and
indemnification if the officer or employee “was acting in the performance of the duties of
the position.” Id. Duncan relies on principles of vicarious liability and respondeat superior
to support his argument. But Duncan cites no authority to support his contention that these
vicarious liability principles ar e incorporated into the statut e, or that the statute is
ambiguous and should be interpreted to incorporate them.
“If a statute is unambiguous, we apply the statute’s plain mean ing.” State v.
Overweg, 922 N.W.2d 179, 183 (Minn. 2 019) (quotation omitted). The cl ause “acting in
the performance of the duties of the position” is not ambiguous . Its terms have a readily
understandable, single meaning. Under the plain language of the statute, the board needed
only to determine whether Duncan was “acting” (as in, taking some action or engaging in
some conduct) “in the performan ce of the duties of the position ” (as in, while fulfilling
some requirement and expectation of a sheriff).
Duncan also asserts that we shoul d apply legal principles conce rning an insurer’s
duty to defend and indemnify its clients in interpreting whethe r the county is required to
defend and indemnify in this case. See Prahm v. Rupp Constr. Co., 277 N.W.2d 389, 390
(Minn. 1979) (“Any ambiguity [regarding an insurer’s duty to defend] is resolved in favor
of the insured, and the burden is on the insurer to prove that the claim clearly falls outside
the coverage afforded by the policy.”). An insurer’s duty to d efend, however, is
“contractual in nature.” Id. The county’s obligation to def end and indemnify its officers
and employees is statutory, and only triggered when specific requirements are met. Minn.

8
Stat. § 466.07. We are not persuaded that insurance-coverage principles apply to this case
given the unambiguous language of the statute.
Because the statute’s unambiguous language requires defense and indemnification
only when the officer or employee “was acting in the performanc e of the duties of the
position,” the board’s decision to decline defense and indemnif ication to Duncan was
proper if substantial evidence s upported its finding that Dunca n was not acting in the
performance of his duties as sheriff.
II. Substantial evidence supports the board’s determination that Duncan
was not acting in the performance of his duties as sheriff.

Duncan argues that the board’s finding that he was not acting in the performance of
his duties was not supported by substantial evidence. He offer s several arguments to
support his assertion that the conduct was done in the performance of his duties. He argues
that some of the conduct occurred while he was at work, that th e conduct was directed
toward a subordinate employee, and that there was a discussion of attending a work-related
conference. Moreover, he argues that addressing threats, such as the ones that he made to
the employee, is a duty of the sheriff. The county maintains that the evidence in the record
clearly supports the board’s finding.
The duties of a county sheriff are expressly defined by statute:
The sheriff shall keep and preserve the peace of the county, for
which purpose the sheriff may require the aid of such persons
or power of the county as the sheriff deems necessary. The
sheriff shall also pursue and ap prehend all felons, execute all
processes, writs, precepts, and orders issued or made by lawful
authority and to the sheriff delivered, attend upon the terms of
the district court, and perform all of the duties pertaining to the
office, including investigating recreational vehicle accidents

9
involving personal injury or death that occur outside the
boundaries of a municipality, searching and dragging for
drowned bodies, and searching and looking for lost persons.
When authorized by the board of county commissioners of the
county the sheriff may purchase boats and other equipment
including the hiring of airplanes for search purposes.

Minn. Stat. § 387.03 (2018).
1
Considering the statutorily def ined duties, we conclude that substantial evidence in
the record supports the board’s finding that Duncan was not act ing in the performance of
his duties when he attempted to convince his subordinate employee to spend several nights
in a hotel with him by creating an alias who threatened the emp loyee and her family. As
the board correctly determined, the letters by Duncan under the Control Freak alias were
not related to any work of the sheriff’s office in keeping and preserving the peace of the
county or any other actual work function of the sheriff’s office.
Duncan’s arguments that his conduct was done in the performanc e of his duties as
sheriff because he discussed attending a conference with the employee and because he was
addressing a threat to the employee are unpersuasive. Duncan suggested that the two attend
a conference as an excuse to get the employee to spend several nights at a hotel with him,
not to fulfill any of his duties as a sheriff. Similarly, ther e is no evidence to support
Duncan’s argument that he was addressing a threat to an employe e. Rather, the record
shows that Duncan made the threat to the employee; he encouraged her not to discuss i t
with anyone else; and he did not discuss it with anyone at the sheriff’s office. Though

1 Minn. Stat. § 387.04 (2018) pr ovides additional duties of sher iffs in counties with a
population of 300,000 or more.

10
some of Duncan’s conduct occurred while he was at work, Duncan was not fulfilling any
requirement of the duties of sheriff when he engaged in the con duct at issue. Substantial
evidence supports the board’s fi nding that Duncan was not actin g to fulfill his duties as
sheriff when he carried out the Control Freak ploy.
Duncan makes an additional argum ent regarding the performance-of-duties prong—
that his conduct was a product of his PTSD that was aggravated by his work as sheriff. In
support of this position, Duncan submitted a letter from his doctor to the board. The letter
stated in part: “All of his behav ior toward the [subordinate em ployee] took place during
the performance of his job. None of these behaviors had an ult erior motivation or illicit
purpose. Rather, it seemed to be attributable to work-related stress occurring in his law
enforcement activities, especially in Chisago County.” Based on the contents of this letter,
Duncan argues that the board’s d ecision that he was not acting in the performance of his
duties was not supported by substantial evidence and was arbitr ary. The record reflects
otherwise.
The board expressly noted that it considered the doctor’s lette r in its resolution to
deny Duncan defense and indemnification. The board denied the request because it found
that Duncan’s conduct was not done in the performance of his duties. The record supports
the board’s determination. While the doctor’s letter may provide insight as to why Duncan
engaged in the conduct towards the subordinate employee, the letter does not contain any
information relevant to whether Duncan’s acts towards the emplo yee were done to fulfill
any duty, requirement, or expectation of the sheriff. There is no evidence to suggest that
Duncan even subjectively believed that he was acting in the per formance of his duties by

11
creating the Control Freak alias and threatening the employee. In fact, the evidence
supports instead that Duncan ac tively attempted to conceal his conduct from other
employees of the sheriff’s office by telling the employee not t o tell anyone about the
Control Freak letters. Consequen tly, we reject Duncan’s argume nt and conclude that
substantial evidence supports the board’s finding that Duncan w as not acting in the
performance of his duties despite the evidence of his PTSD diagnosis.
Because the board could properly deny defense and indemnificati on solely by
finding that Duncan was not acting in the performance of his du t i e s , w e d o n o t r e a c h
Duncan’s arguments regarding the board’s findings of malfeasanc e and bad faith. See
Minn. Stat. § 466.07, subd. 1 (requiring defense and indemnification only when the officer
or employee “(1) was acting in the performance of the duties of the position; and (2) was
not guilty of malfeasance in office, willful neglect of duty, or bad faith” (emphasis added)).
In sum, because the board’s decision to deny defense and indemn ification was
consistent with Minn. Stat. § 466.07 and was supported by substantial evidence, we affirm.
Affirmed.