Wolf v. Grubbs

child support and alimony downward. However, our decision
that the court erred in reducing Matthew’s child support and
alimony moots this argument. As a result, we need not discuss
this assignment of error any further. See Kelly v. Kelly, 246
Neb. 55, 516 N.W.2d 612 (1994) (appellate court is not obli-
gated to engage in analysis which is not necessary to adjudicate
case and controversy before it).
CONCLUSION
Because Matthew’s loss of the job upon which his child
support was calculated, and his alimony was predicated, was
directly caused by his failure to conform to his employer’s
policies and expectations at a time when he was on probation-
ary status, the blame for the loss of his job cannot be laid at
Christi’s doorstep. The loss of the job was due to Matthew’s
employment misconduct, and as a result, he is not entitled to
a reduction in his child support or alimony obligations. Thus,
we reverse and vacate the trial court’s decision granting such
modification. Because Matthew failed to overcome the effect
of the discharge of the Citibank debt by the U.S. Bankruptcy
Court, he was not entitled to a credit of $4,300 by way of a
$100 per month reduction in his alimony obligation, and we
reverse and vacate the trial court’s order extending such credit
to him.
R eveRsed and vacated.
sieveRs, Judge, participating on briefs.
Billie Wolf et al ., appellees and cRoss -appellants , v.
GaRy GRuBBs et al ., appellants and cRoss -appellees.
759 N.W.2d 499
Filed January 13, 2009. 	No. A-07-1071.
1. Actions: Equity: Public Meetings: Appeal and Error. Actions for relief under
the public meetings laws are both tried by the trial court and reviewed by appel-
late courts as equitable cases, given that the relief sought is in the nature of a
declaration that action taken in violation of the laws is void or voidable.
2. Equity: Appeal and Error. On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to questions of both fact and
292 	17 NeBrASkA AppeLLATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

law, is obligated to reach a conclusion independent of the conclusion reached by
the trial court.
3. ____: ____. In an equity action, when credible evidence is in conflict on mate-
rial issues of fact, an appellate court considers and may give weight to the fact
the trial court observed the witnesses and accepted one version of the facts
over another.
4. Counties. The powers of the county are exercised by the county board of com-
missioners as provided by Neb. rev. Stat. § 23-103 (reissue 2007).
5. Counties: Statutes: Taxation: Valuation. The county board of equalization is
given statutory powers, all of which relate to the assessment of value and taxation
of property within the county. The county board of equalization shall fairly and
impartially equalize the values of all items of real property in the county so that
all real property is assessed uniformly and proportionately.
6. Counties. While the county board of commissioners and the county board of
equalization have the same membership, they have entirely different functions
and duties.
7. ____. The duties and functions of the county board of commissioners and the
county board of equalization, rather than their membership, determine whether
the boards are the same body or separate and distinct bodies, and because each of
the two boards has its own well-defined public duties and functions which do not
overlap, they are separate boards.
8. Public Meetings. every meeting of a public body shall be open to the public.
9. Governmental Subdivisions: Statutes: Words and Phrases. Included in the
definition of a public body are governing bodies of all agencies created by stat-
ute, or otherwise pursuant to law, of the executive department of the State of
Nebraska, and all independent boards created by statute, or otherwise pursuant
to law.
10. Public Meetings: Notice. public bodies are required to give advance publicized
notice of their meetings, and the notice requirements are set out in Neb. rev. Stat.
§ 84-1411 (Cum. Supp. 2004).
11. ____: ____. each public body shall give reasonable advance publicized notice
of the time and place of each meeting by a method designated by each pub-
lic body and recorded in its minutes. Such notice shall contain an agenda of
subjects known at the time of the publicized notice or a statement that the
agenda, which shall be kept continually current, shall be readily available for
public inspection at the principal office of the public body during normal busi-
ness hours.
12. Public Meetings. The open meetings laws should be broadly interpreted and
liberally construed to obtain their objective of openness in favor of the public.
13. Counties: Public Meetings: Notice. It is not necessary that the county board
of commissioners and the county board of equalization post separate meet-
ing notices, when such notice contains only the time and place that the boards
meet and directs an interested citizen to where the agendas for each board can
be found.
14. ____: ____: ____. A combined agenda for the county board of commissioners
and the county board of equalization is permissible under the Open Meetings
WOLF v. grUBBS 	293
Cite as 17 Neb. App. 292

Act, provided the agenda makes it clear which items are to be addressed by
each board.
15. Public Meetings. Neb. rev. Stat. § 84-1413 (reissue 1999) provides that each
public body shall keep minutes of all meetings showing the time, place, members
present and absent, and the substance of all matters discussed.
16. Counties: Public Meetings. Combined minutes of the county board of com-
missioners and the county board of equalization are permissible under the Open
Meetings Act if it is clear which matters were addressed by each board.
17. Public Meetings: Actions: Time. When there has been a violation of the Open
Meetings Act, a violation may be void or voidable within 1 year of the violation.
If the suit is commenced within 120 days of the meeting at which the viola-
tion occurred, the improper action is void; but if the suit is commenced more
than 120 days but within 1 year of the meeting at which the violation occurred,
the action is voidable, but only if it was a substantial violation of the Open
Meetings Act.
18. Public Meetings. Voiding an entire meeting is a proper remedy for violations of
the Open Meetings Act.
19. ____. Once a meeting has been declared void pursuant to Nebraska’s public
meetings law, board members are prohibited from considering any information
obtained at the illegal meeting.
20. Public Meetings: Notice. The purpose of the agenda requirement of the public
meetings laws is to give some notice of the matters to be considered at the meet-
ing so that persons who are interested will know which matters will be considered
at the meeting.
21. Counties: Public Meetings: Presumptions: Proof. County board meetings are
generally presumed to be regular meetings unless the challenging party carries
the burden of proving otherwise.
22. Public Officers and Employees: Presumptions. In the absence of evidence to
the contrary, it may be presumed that public officers faithfully performed their
official duties and that absent evidence showing misconduct or disregard of law,
the regularity of official acts is presumed.
23. Presumptions: Proof. A presumption imposes on the party against whom it is
directed the burden of proving that the nonexistence of the presumed fact is more
probable than its existence.
24. Public Meetings: Notice. placing notice of future meetings in minutes of a prior
meeting does not comport with the objective of the Open Meetings Act, openness
in favor of the public.
25. Public Meetings: Notice: Statutes. Where no notice of a particular meeting
was ever posted at places previously designated and the only public announce-
ment of the intention of a board to reconvene was a verbal announcement by
the chairman of the board to persons present, there was no notice as required
by statute, either for a separate meeting or for continuation of the recessed
meeting.
26. Public Meetings: Notice. Notice of recessed and reconvened meetings must be
given in the same fashion as the original meeting.
294 	17 NeBrASkA AppeLLATe repOrTS

27. Counties: Public Meetings: Time: Claims. Under Neb. rev. Stat. § 23-122
(reissue 2007), the county board of all counties having a population of less than
150,000 inhabitants shall cause to be published, within 10 working days after the
close of each annual, regular, or special meeting of the board, a brief statement
of the proceedings thereof which shall also include the amount of each claim
allowed, the purpose of the claim, and the name of the claimant.
28. Public Meetings: Statutes. Under Neb. rev. Stat. § 84-1411(1) (Cum. Supp.
2004), a public body shall have the right to modify the agenda to include items of
an emergency nature at public meetings.
29. Words and Phrases. An emergency has been defined as any event or occasional
combination of circumstances which calls for immediate action or remedy, press-
ing necessity, exigency, a sudden or unexpected happening, or an unforeseen
occurrence or condition.
30. Rules of the Supreme Court: Pretrial Procedure. Inasmuch as the Nebraska
rules of Discovery are generally and substantially patterned after the correspond-
ing discovery rules in the Federal rules of Civil procedure, Nebraska courts will
look to federal decisions interpreting corresponding federal rules for guidance in
construing similar Nebraska rules.
31. Pretrial Procedure: Parties. An order for discovery of writings should generally
provide that the inspection should be made at the defendant’s place of business
without removal, and the court will not order writings to be taken from one party
and delivered to his adversary.
32. Pretrial Procedure: Parties: Statutes. As a general rule, under statutes autho-
rizing discovery, no discovery can be required of documents of public record,
because they are equally accessible to all parties.
33. Attorney Fees. As a general rule, attorney fees and expenses may be recovered
in a civil action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of attor-
ney fees.
34. Public Meetings: Attorney Fees. The court may order payment of reasonable
attorney fees and court costs to a successful plaintiff in a suit brought under the
Open Meetings Act.
35. Attorney Fees. The fact that the plaintiffs did not accomplish the full objective of
their lawsuit does not prevent them from being successful plaintiffs, but, rather,
goes to the extent of an award for attorney fees, because the results obtained are
an appropriate consideration on the issue of attorney fees.
36. Attorney Fees: Appeal and Error. Discretionary decisions of the trial courts on
attorney fees will be upheld on appeal absent a showing of abuse of discretion.
37. Governmental Subdivisions: Public Meetings. It is a general principle of law
that where a defect occurs in proceedings of a governmental body, ordinarily the
defect may be cured by new proceedings commencing at the point where the
defect occurred.
38. Public Meetings: Notice: Waiver: Time. Any person who has notice of a meet-
ing and attends the meeting must object specifically to the lack of public notice
at the meeting, or that person will be held to have waived the right to object on
that ground at a later date.
WOLF v. grUBBS 	295
Cite as 17 Neb. App. 292

Appeal from the District Court for Banner County: KRistine
R. cecava, Judge. Affirmed in part, reversed in part, and in part
vacated and set aside.
Howard p. Olsen, Jr., and John F. Simmons, of Simmons
Olsen Law Firm, p.C., for appellants.
robert M. Brenner, of robert M. Brenner Law Office, for
appellees.
iRWin, sieveRs, and caRlson, Judges.
sieveRs, Judge.
This lawsuit concerns whether certain meetings of the
Banner 	County 	Board 	of 	Commissioners 	(BOC) 	and 	the
Banner County Board of equalization (BOe) were conducted
in violation of Nebraska’s Open Meetings Act, Neb. rev. Stat.
§§ 84-1407 to 84-1414 (reissue 1999 & Cum. Supp. 2004).
The district court for Banner County, Nebraska, made the fol-
lowing findings: (1) The BOe failed to give adequate notice of
any of its meetings from January 6 through August 16, 2005,
and all such meetings of the BOe are void; (2) the BOC failed
to give adequate notice of its meetings of July 5, 12, and 22,
2005, and such meetings were void; (3) the BOC failed to
provide an agenda which gave reasonable notice that changing
the posting requirement for meeting notices was an item to be
considered at its February 21, 2005, meeting, and because such
was a substantial violation, the action taken was void; (4) as
a result of a discovery dispute, the defendants were ordered to
pay attorney fees for the plaintiffs in the amount of $720 as a
sanction; and (5) the plaintiffs were awarded attorney fees and
expenses in the amount of $27,457.46.
The defendants are gary grubbs, Milo Sandberg, and robert
gifford, Jr., who are members of both the BOC and the BOe.
The BOC and the BOe are also named as defendants. The
plaintiffs are seven married couples, four single individuals, and
one corporation, all owning land in Banner County, Nebraska.
The common thread among the plaintiffs is the taxation of their
land. The defendants (hereinafter the appellants) have timely
perfected their appeal to this court, and the plaintiffs (herein-
after the appellees) have filed a cross-appeal.
296 	17 NeBrASkA AppeLLATe repOrTS

I. FACTUAL BACkgrOUND
Although this voluminous record contains considerable tes-
timony, it is largely composed of numerous exhibits. We have
determined that the most efficient format for our decision is to
include the appropriate narrative concerning the evidence and
exhibits in the discussion of each assignment of error.
II. prOCeDUrAL BACkgrOUND
The appellees filed their lawsuit on August 30, 2005, and
then filed an amended complaint on September 7. The date of
the filing of the lawsuit (August 30) becomes important later
in our analysis under the provisions of the Open Meetings Act.
Trial was held on October 20 and 26 and November 8, 2006,
and the district court’s order was filed on April 5, 2007.
III. ASSIgNMeNTS OF errOr
The appellants allege, reordered, that the district court erred
in (1) concluding that the BOC and the BOe are separate
public bodies; (2) concluding that the BOe must comply with
the Open Meetings Act in a manner separate and distinct from
compliance by the BOC; (3) concluding that it had power to
void entire meetings, rather than specific actions; (4) finding
that the BOe failed to give adequate notice of its meetings
of July 5, 12, and 22, 2005; (5) finding that the BOC failed
to give adequate notice of its meetings of July 5, 12, and 22,
2005; (6) finding that the BOC failed to provide an agenda
which gave reasonable notice of the matters to be considered
at its meeting of February 21, 2005; (7) declaring all BOe
meetings occurring between January 6 and August 16, 2005,
inclusive, to be void; (8) declaring the February 21, March 5,
and July 12 and 19, 2005, meetings of the BOC to be void; (9)
awarding attorney fees and expenses on the merits of the case;
(10) ordering the appellants to deliver public documents to
the appellees’ attorney; and (11) awarding attorney fees in the
amount of $720 as a discovery sanction.
On cross-appeal, the appellees allege that the district court
erred by (1) not automatically voiding all actions by the BOC
and the BOe that occurred after May 2, 2005, when in viola-
tion of the Open Meetings Act; (2) not finding that the BOC
WOLF v. grUBBS 	297
Cite as 17 Neb. App. 292

substantially violated the Open Meetings Act by failing to
find all “‘emergency items’” added between January 6 and
August 30, 2005, were not appropriate emergencies; (3) not
finding that the BOC substantially violated the Open Meetings
Act by failing to post notice of its meetings at the courthouse
and the post office between January 6 and August 30, 2005;
(4) not finding that the BOC substantially violated the Open
Meetings Act by failing to post notice of its meetings at the
Banner County School between January 6 and February 15,
2005; (5) not finding that the BOC substantially violated the
Open Meetings Act by failing to post notice of its meetings at
the Banner County School between February 16 and August
30, 2005; and (6) finding that posting public notice at only two
locations for the BOC and the BOe is sufficient reasonable
advance public notice, when the law requires posting at three
locations for other public body meetings.
IV. STANDArD OF reVIeW
[1] Actions for relief under the public meetings laws are
both tried by the trial court and reviewed by appellate courts as
equitable cases, given that the relief sought is in the nature of a
declaration that action taken in violation of the laws is void or
voidable. Alderman v. County of Antelope, 11 Neb. App. 412,
653 N.W.2d 1 (2002).
[2,3] On appeal from an equity action, an appellate court
tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion
independent of the conclusion reached by the trial court. Id.
See, also, Shoemaker v. Shoemaker, 275 Neb. 112, 745 N.W.2d
299 (2008). But when credible evidence is in conflict on mate-
rial issues of fact, we consider and may give weight to the fact
the trial court observed the witnesses and accepted one version
of the facts over another. Id.
V. ANALYSIS
1. same entity oR distinct entities?
For efficiency’s sake, there are several issues of law that
we decide initially before moving on to the factual matters.
The first of these issues is whether the BOC and the BOe are
298 	17 NeBrASkA AppeLLATe repOrTS

the same body or separate and distinct governmental bodies.
This is a question of law, and when reviewing questions of
law, an appellate court has an obligation to resolve the ques-
tions independently of the conclusion reached by the trial
court. McLeay v. Bergan Mercy Health Sys., 271 Neb. 602,
714 N.W.2d 7 (2006).
In 1943, the Nebraska Supreme Court stated that the two
boards are “not one and the same entity,” noting that the board
of equalization was composed of the county board, the county
assessor, and the county clerk. Speer v. Kratzenstein, 143 Neb.
300, 304, 9 N.W.2d 306, 309 (1943) (Speer I). However, the
statute defining the membership of the county board of equal-
ization has been modified since Speer I was decided. Since
1953, Neb. rev. Stat. § 77-1501 has stated that the county
board constitutes the board of equalization. Thus, if the Speer I
court meant to make the boards’ membership the sole consid-
eration for whether the board of commissioners and the board
of equalization are the same body or separate and distinct bod-
ies, the answer would be simple, because under the applicable
statute, the members of the board of commissioners are the
members of the board of equalization.
However, both Speer I and its modifying opinion of Speer v.
Kratzenstein, 143 Neb. 310, 12 N.W.2d 360 (1943) (Speer II),
devoted considerable effort to discussing the different duties
and functions of the two boards. And the Speer I court found
that a county board is without authority in the absence of
statutory grant to perform the duties which are a part of the
official duties of other officials or boards. Thus, it appears that
function and duty played a significant part in determining that
the two boards were in fact separate entities. Indeed, Speer II
reasoned as follows:
A county is one of the public governmental subdivi-
sions of a state, corporate in character . . . , created and
organized for public political purposes connected with
the administration of state government and specifically
charged by law with the superintendence and administra-
tion of local affairs within its lawfully defined territorial
boundaries. . . . Unless restrained by the Constitution the
legislature may exercise control over county agencies and
WOLF v. grUBBS 	299
Cite as 17 Neb. App. 292

require such public duties and functions to be performed
by them as fall within the general scope and objects of the
county as a body corporate or politic. . . .
Both the county board and the board of equalization
are such county agencies, required by statute and appli-
cable authorities to perform certain well-defined public
duties and functions in perfecting the administration of
representative local government. They are separate enti-
ties, as is every other agency of the county . . . .
143 Neb. at 313, 12 N.W.2d at 362 (citations omitted) (empha-
sis supplied). We now examine the current “well-defined public
duties and functions” of both county boards.
[4] The powers of the county in this case are exercised by
the BOC as provided by Neb. rev. Stat. § 23-103 (reissue
2007), which states:
The powers of the county as a body corporate or poli-
tic, shall be exercised by a county board, to wit: . . . in
counties not under township organization by the board of
county commissioners. In exercising the powers of the
county . . . the board of county commissioners . . . may
enter into compacts with the respective board or boards
of another county or counties to exercise and carry out
jointly any power or powers possessed by or conferred by
law upon each board separately.
And each county, through its county board, has the power
(1) To purchase and hold the real and personal estate
necessary for the use of the county; (2) to purchase,
lease, lease with option to buy, acquire by gift or devise,
and hold for the benefit of the county real estate sold
by virtue of judicial proceedings in which the county is
plaintiff or is interested; (3) to hold all real estate con-
veyed by general warranty deed to trustees in which the
county is the beneficiary, whether the real estate is situ-
ated in the county so interested or in some other county
or counties of the state; (4) to sell, convey, exchange, or
lease any real or personal estate owned by the county in
such manner and upon such terms and conditions as may
be deemed in the best interest of the county; (5) to enter
into compacts with other counties to exercise and carry
300 	17 NeBrASkA AppeLLATe repOrTS

out powers possessed by or conferred by law upon each
county separately; and (6) to make all contracts and to
do all other acts in relation to the property and concerns
of the county necessary to the exercise of its corporate
powers, except that no lease agreement for the rental of
equipment shall be entered into if the consideration for
all lease agreements for the fiscal year exceeds one-tenth
of one percent of the total taxable value of the taxable
property of the county.
Neb. rev. Stat. § 23-104 (reissue 2007).
The powers and duties of the county board are more spe-
cifically set forth in Neb. rev. Stat. §§ 23-105 through 23-147
(reissue 1997 & Cum. Supp. 2004). Included in those specific
powers are that the county board has the power to take and
have the care and custody of all the real and personal property
owned by the county (§ 23-105); the county board has the
power to manage the county funds and county business except
as otherwise specifically provided (§ 23-106); and the county
board shall have power as a board, or as individuals, to perform
such other duties as may from time to time be imposed by gen-
eral law (§ 23-113.03). The county board also has the authority
to revise, alter, increase, or decrease general county budget
documents. Neb. rev. Stat. § 23-908 (reissue 2007).
The board of equalization is an administrative agency of
the county. Speer II. As stated previously, the county board
constitutes the board of equalization; thus the two boards have
the same membership. Neb. rev. Stat. § 77-1501 (reissue
2003). However, “[t]he board of equalization is simply what its
name imports, a board for the equalization of values in certain
cases. It possesses no powers save those conferred by statute.”
Brown v. Douglas County, 98 Neb. 299, 303, 152 N.W. 545,
546 (1915).
[5] The county board of equalization is given statutory pow-
ers, all of which relate to the assessment of value and taxation
of property within the county. The county board of equaliza-
tion shall fairly and impartially equalize the values of all
items of real property in the county so that all real property is
assessed uniformly and proportionately. § 77-1501. The county
board of equalization has the power to consider and correct
WOLF v. grUBBS 	301
Cite as 17 Neb. App. 292

the current year’s assessment of any real property which has
been undervalued or overvalued. Neb. rev. Stat. § 77-1504
(reissue 2003). The county board of equalization has the
power to assess any omitted real property that was not reported
to the county assessor pursuant to Neb. rev. Stat. § 77-1318.01
(reissue 2003) and to correct clerical errors as defined in Neb.
rev. Stat. § 77-128 (reissue 2003) that result in a change of
assessed value. Neb. rev. Stat. § 77-1507 (reissue 2003). each
year, the county board of equalization has the power to levy
the necessary taxes for the current year if within the limit of
the law and may also act to correct a clerical error which has
resulted in the calculation of an incorrect levy by any entity
otherwise authorized to certify a tax request under Neb. rev.
Stat. § 77-1601.02 (reissue 2003). Neb. rev. Stat. § 77-1601
(reissue 2003).
[6,7] Thus, while the county board of commissioners and
the county board of equalization have the same membership,
they have entirely different functions and duties, and clearly
the powers of the board of commissioners are far more expan-
sive, whereas the powers of the board of equalization are
rather strictly limited. We hold that the duties and functions of
the boards, rather than their membership, determine whether
the board of commissioners and the board of equalization are
the same body or separate and distinct bodies. We hold that
they are the latter, because each of the two boards has its own
“well-defined public duties and functions” which do not over-
lap between the two boards, and thus the BOC and the BOe
are separate.
2. R equiRements foR notice , aGenda , and minutes
[8,9] every meeting of a public body shall be open to the
public. § 84-1408. Included in the definition of a public body
are governing bodies of all agencies created by statute, or other-
wise pursuant to law, of the executive department of the State
of Nebraska, and all independent boards created by statute,
or otherwise pursuant to law. § 84-1409(1). As stated previ-
ously, the county board of equalization is an administrative
agency of the county, see, Ev. Luth. Soc. v. Buffalo Cty. Bd. of
Equal., 243 Neb. 351, 500 N.W.2d 520 (1993); Speer II. As an
302 	17 NeBrASkA AppeLLATe repOrTS

administrative agency, a county board of equalization is itself a
public body as defined by § 84-1409.
[10,11] public bodies are required to give advance publi-
cized notice of their meetings. The notice requirements are set
out in § 84-1411, which states in part:
(1) Each public body shall give reasonable advance
publicized notice of the time and place of each meeting
by a method designated by each public body and recorded
in its minutes. . . . Such notice shall contain an agenda of
subjects known at the time of the publicized notice or a
statement that the agenda, which shall be kept continually
current, shall be readily available for public inspection
at the principal office of the public body during normal
business hours.
(emphasis supplied.)
[12,13] The effect of this statute is that when an agenda is
not made part of the notice, the citizen must go look at the
agenda to determine if there are matters in which he or she is
interested to determine if he or she wants to attend the meet-
ing. On the other hand, a citizen who wishes to attend all
meetings regardless of the agenda likely does not care what
is on the agenda. “The open meetings laws should be broadly
interpreted and liberally construed to obtain their objective
of openness in favor of the public.” State ex rel. Newman v.
Columbus Township Bd., 15 Neb. App. 656, 660, 735 N.W.2d
399, 404 (2007). We find that it is not necessary that the
BOC and the BOe post separate meeting notices, in the sense
of two pieces of paper, when such notice contains only the
time and place that the boards meet and directs an interested
citizen to where the agendas for each board can be found. In
this instance, if there is no agenda for the BOe, a procedure
that is clearly permissible under § 84-1411, then the citizen is
informed that nothing will be taken up by the BOe, absent an
emergency matter, a topic we address in some detail later. We
need not address the situation of a joint notice when specific
agenda items are set forth in the notice, because all of the
notices in this case direct citizens to the agenda on file, rather
than including the agenda in the notice—as said, a perfectly
legal situation. Thus, we limit our holding to the notice issue
WOLF v. grUBBS 	303
Cite as 17 Neb. App. 292

presented here, and hold that separate notices are not necessary
when the notice states only the time and place that the boards
meet and directs a citizen to where the agendas for each board
can be found.
[14] That said, we turn to the matter of agendas and con-
clude that a citizen should be able to discern which items are
to be discussed and decided by each board. While a separate
agenda for each board seems to be the better practice, we
conclude that a “combined” agenda for both boards can pass
muster under the Open Meetings Act, provided the agenda
makes it clear which items are to be addressed by the BOC
and which items are to be addressed by the BOe. We believe
this holding is consistent with the objective of the Open
Meetings Act, openness in favor of the public, see State ex
rel. Newman v. Columbus Township Bd., supra, because the
citizen can ascertain what each board intends to take up at
the meeting.
[15] Section 84-1413 provides in part:
(1) each public body shall keep minutes of all meetings
showing the time, place, members present and absent, and
the substance of all matters discussed.
. . . .
(4) The minutes of all meetings and evidence and docu-
mentation received or disclosed in open session shall be
public records and open to public inspection during nor-
mal business hours.
(5) Minutes shall be written and available for inspec-
tion within ten working days or prior to the next convened
meeting, whichever occurs earlier.
[16] While having separate minutes for each board seems to
be the better practice, like “combined” agendas, “combined”
minutes can pass muster if it is clear which matters were
addressed by the BOC and which matters were addressed by
the BOe. Thus, as long as a citizen can readily discern which
matters were taken up by each board, and the content require-
ments for minutes of § 84-1413(1) are met, “combined” min-
utes, in the sense of one document, are permissible under the
Open Meetings Act. If the foregoing requirements are satisfied,
the objective of the Open Meetings Act—openness in favor
304 	17 NeBrASkA AppeLLATe repOrTS

of the public—is met. See State ex rel. Newman v. Columbus
Township Bd., supra.
3. unlaWful actions void oR voidaBle
[17,18] When there has been a violation of the Open
Meetings Act, a violation may be void or voidable within 1
year of the violation. § 84-1414. If the suit is commenced
within 120 days of the meeting at which the violation occurred,
the improper action is void. Id. If the suit is commenced more
than 120 days but within 1 year of the meeting at which the
violation occurred, the action is voidable, but only if it was
a substantial violation of the Open Meetings Act. Id. In this
case, the suit was filed August 30, 2005. Section 84-1414 pro-
vides in part:
(1) Any motion, resolution, rule, regulation, ordinance,
or formal action of a public body made or taken in vio-
lation of the Open Meetings Act shall be declared void
by the district court if the suit is commenced within one
hundred twenty days of the meeting of the public body at
which the alleged violation occurred. Any motion, reso-
lution, rule, regulation, ordinance, or formal action of a
public body made or taken in substantial violation of the
Open Meetings Act shall be voidable by the district court
if the suit is commenced more than one hundred twenty
days after but within one year of the meeting of the public
body in which the alleged violation occurred. A suit to
void any final action shall be commenced within one year
of the action.
Nebraska case law shows that voiding an entire meeting is
a proper remedy for violations of the Open Meetings Act.
See, Steenblock v. Elkhorn Township Bd., 245 Neb. 722, 515
N.W.2d 128 (1994) (finding that meeting was void and unlaw-
ful and failed to comply with requirements of public meetings
law, because meeting was held in closed session, no member
of public was allowed to attend, and meeting was held without
reasonable advance notice for action which did not constitute
emergency); Pokorny v. City of Schuyler, 202 Neb. 334, 275
N.W.2d 281 (1979) (effect of invalidity of meetings is same as
if meetings had never occurred; no action authorized at those
WOLF v. grUBBS 	305
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meetings could be sustained by reliance upon proceedings of
council at those meetings).
[19] More recently, this court has held that “once a meeting
has been declared void pursuant to Nebraska’s public meetings
law, board members are prohibited from considering any infor-
mation obtained at the illegal meeting.” Alderman v. County
of Antelope, 11 Neb. App. 412, 422-23, 653 N.W.2d 1, 9-10
(2002). The procedural and factual history of Alderman is not
crucial to understanding our reasoning and holding, and thus
in the interest of trying to author a manageable opinion, we
dispense with such. Therefore, we quote the rationale and core
holding of Alderman:
It is unthinkable that after a court has voided a board’s
action after determining that a meeting was held in viola-
tion of the public meetings law, the law would still allow
members of that board to consider information obtained
at that illegal meeting. To do so would completely con-
tradict the stated intent of the public meetings law, which
is to ensure that the formation of public policy is public
business, not conducted in secret, and to allow citizens
to exercise their democratic privilege of attending and
speaking at meetings of public bodies. We simply do
not know the content and extent of the information that
was presented at the illegal meeting. Furthermore, offi-
cial reports of closed meetings, “‘even if issued, will
seldom furnish a complete summary of the discussion
leading to a particular course of action. . . .’” Grein v.
Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718,
722 (1984).
To allow board members to consider information
obtained at a meeting that has been judicially deter-
mined to be in violation of the public meetings law
would allow those board members to consider informa-
tion that has not been brought before the public and thus
would deprive citizens of both hearing said information
and speaking either for or against it. Thus, we hold
that once a meeting has been declared void pursuant
to Nebraska’s public meetings law, board members are
306 	17 NeBrASkA AppeLLATe repOrTS

prohibited from considering any information obtained at
the illegal meeting.
11 Neb. App. at 422-23, 653 N.W.2d at 9. Accordingly, we
hold that voiding an entire meeting is a proper remedy for
violations of the Open Meetings Act, and we reject the appel-
lants’ contention to the contrary. With the foregoing holdings
on core issues of law in place, we now turn to the specifics of
this case.
4. meetinG aGenda foR feBRuaRy 15, 2005
The appellants argue that the district court erred in finding
that the BOC failed to provide an agenda which gave reason-
able notice of the matters to be considered at its meeting of
February 21, 2005. After reviewing the appellants’ argument
in their brief, it is clear that they, and the district court, are
actually referring to the meeting of February 15, 2005, and our
analysis will relate to the February 15 meeting. Specifically,
the appellants argue that the agenda for the February 15 meet-
ing gave sufficient notice to the public that the board wanted to
change the method of publicizing meetings.
On September 18, 2001, the BOC, in accordance with
§ 84-1411, designated its method of public notice as follows:
“that the notices of meetings be published in the official news-
paper and posted at the Harrisburg post Office, the Banner
County Courthouse, and the Banner County School.” On the
agenda for the February 15, 2005, meeting, new business item
No. 5 stated, “Meeting notice.” At the February 15 meeting, the
BOC voted to stop posting notices at the school. Such action
was recorded in the BOC’s minutes, pursuant to § 84-1411.
Following the February 15 meeting, notice of BOC and BOe
meetings were no longer posted at the school. Thus, the ques-
tion for us is whether an agenda item stating “Meeting notice”
was sufficient to alert a citizen that the BOC would take up the
method of providing notice of upcoming meetings and that a
different sort of meeting notice could result.
In its current form, Neb. rev. Stat. § 84-1411 (reissue
2008) states in part that “[a]genda items shall be sufficiently
descriptive to give the public reasonable notice of the matters
to be considered at the meeting.” However, that sentence was
WOLF v. grUBBS 	307
Cite as 17 Neb. App. 292

added to the statute effective July 14, 2006, and does not apply
to the present case. Therefore, we look to what the law was in
2005, when the agenda for the February 15, 2005, meeting was
made available.
[20] In 2005, the law required that agendas give “some notice”
of matters to be considered at the meeting. See Hansmeyer v.
Nebraska Pub. Power Dist., 6 Neb. App. 889, 578 N.W.2d 476
(1998). In Hansmeyer, this court stated:
The purpose of the agenda requirement of the public
meetings laws is to give “some notice of the matter to be
considered at the meeting so that persons who are inter-
ested will know which matters will be for consideration
at the meeting.” Pokorny v. City of Schuyler, 202 Neb.
334, 339-40, 275 N.W.2d 281, 285 (1979). We have little
hesitancy in concluding that an agenda item stating only
“work order reports,” which results in a public body’s
approving a $47 million, 3-year construction project tra-
versing private land for nearly 100 miles with a major
power transmission line, violated the notice requirements
for an agenda under the public meetings laws. Whether
intentional or not, the seemingly innocuous agenda item,
“Work Order reports,” camouflaged the true nature of
what would be discussed and voted upon and did not give
the public meaningful notice so as to enable the public to
observe and participate in the decisionmaking process. It
does not even hint of the magnitude or nature of the mat-
ter to be taken up.
6 Neb. App. at 895-96, 578 N.W.2d at 481. On further hearing,
the Nebraska Supreme Court affirmed “on the published opin-
ion of the Nebraska Court of Appeals.” Hansmeyer v. Nebraska
Pub. Power Dist., 256 Neb. 1, 588 N.W.2d 589 (1999).
And while the BOC agenda item of “Meeting notice” is not
ideal, it does provide “some notice” that the BOC would con-
sider the subject of notice for meetings. In Hansmeyer, a matter
of major import in terms of cost as well as impact on citizens
and landowners was hidden by the nebulous and innocuous
term “work order reports.” Here, an interested citizen would
have some notice of the topic involved, although in hindsight,
a more informative description could have easily been written.
308 	17 NeBrASkA AppeLLATe repOrTS

But the standard is not “perfect notice,” and in any event,
the February 15, 2005, meeting occurred more than 120 days
before suit was filed. Thus, to void the change in the method
of notice, we would have to find the violation “substantial.”
We find that the agenda item stating “Meeting notice” was
marginally sufficient under the Open Meetings Act to describe
the action considered and taken—i.e., that notice would no
longer be posted at the school—but that if considered a viola-
tion, the violation was not substantial. As a result, because the
minutes of the February 15 meeting were also proper, the BOC
was/is no longer required to publish/post notice of meetings at
the school.
5. postinG of notices
(a) posting Notice at Two Locations
Instead of Three
[21] In their cross-appeal, the appellees argue that Neb. rev.
Stat. § 23-154 (reissue 2007) sets out the requirements for
notice of special sessions, which include “posting up notices
in three public places in the county.” The appellees then query,
“If the board must post at three locations for a special session,
why could the board post at only two locations for other regu-
lar sessions?” Brief for appellees on cross-appeal at 50. The
answer is simply that the Legislature has not required posting
at three locations for regular sessions of county boards, but
has so required for special meetings. County board meetings
are generally presumed to be regular meetings unless the
challenging party carries the burden of proving otherwise.
See Green v. Lancaster County, 61 Neb. 473, 85 N.W. 439
(1901). Clearly, as evidenced by the language of § 23-154,
the Legislature knew how to draft a three-location posting
requirement, but chose not to impose such a requirement for
regular meetings. Therefore, the notice requirement for regular
meetings is “by a method designated by each public body and
recorded in its minutes.” Neb. rev. Stat. § 84-1411(1) (Cum.
Supp. 2004). And following the February 15, 2005, meeting,
that method included publishing in the official newspaper and
posting at the Harrisburg post office and the Banner County
courthouse. The appellees argue that posting at the school
WOLF v. grUBBS 	309
Cite as 17 Neb. App. 292

is the best posting because that is where residents of Banner
County are most likely to go and see a notice. But the location
of a posting is a policy decision for the BOC which we do not
second-guess. This assignment of the appellees in their cross-
appeal is without merit.
(b) Notice Actually posted?
[22] In their cross-appeal, the appellees also argue that the
district court erred in not finding that the BOC substantially
violated the Open Meetings Act by failing to post notice of
its meetings at (1) the courthouse and the post office between
January 6 and August 30, 2005, and (2) the Banner County
School between January 6 and February 15, 2005. The appel-
lees argue that there was no evidence the BOC posted notice of
its meetings anywhere. However, “[i]n the absence of evidence
to the contrary, it may be presumed that public officers faith-
fully performed their official duties and that absent evidence
showing misconduct or disregard of law, the regularity of offi-
cial acts is presumed.” KLH Retirement Planning v. Okwumuo,
263 Neb. 760, 764, 642 N.W.2d 801, 805 (2002).
The appellees argue that there is a general rule that “‘what
ought to be of record must be proved by the record,’” Barrett
v. Hand, 158 Neb. 273, 282, 63 N.W.2d 185, 191 (1954), and
that “[t]he omission of essential facts may not be supplied by
presumptions,” brief for appellees on cross-appeal at 49 (cit-
ing Smith v. City of Omaha, 49 Neb. 883, 69 N.W. 402 (1896),
and City of Scottsbluff v. Kennedy, 141 Neb. 728, 4 N.W.2d
878 (1942)). The problem with the appellees’ argument is that
there is no requirement that the location of posted notices for
each meeting be made of record by inclusion in the minutes.
Section 84-1413 states that the minutes of all meetings must
show the time, place, members present and absent, and the
substance of all matters discussed—there is no requirement
that a public body make a record of where notice was pub-
lished or posted. Therefore, we can presume that the county
clerk properly posted notice in accordance with the method
adopted by the BOC—at the courthouse and the post office
between January 6 and August 30, 2005, as well as at the
310 	17 NeBrASkA AppeLLATe repOrTS

Banner County School prior to the change made on February
15, 2005.
[23] The appellees then argue that “[o]nce [they] presented
this testimony and raised the issue that the notices were not
posted, the burden shifted to the BOC and BOe to show that
notices were, in fact, posted in accordance with the September
2001 [and amended February 2005] adopted method and pol-
icy.” Brief for appellees on cross-appeal at 48. This is not the
law. Neb. evid. r. 301, Neb. rev. Stat. § 27-301 (reissue
1995), states in relevant part that “a presumption imposes on
the party against whom it is directed the burden of proving
that the nonexistence of the presumed fact is more probable
than its existence.” Thus, the burden never shifts and was at all
times on the appellees to show that it is more probable that the
notices were not posted than probable that they were posted.
The district court found that the appellees “did not meet [their]
burden of proof concerning the adequacy of posting after
February [15], 2005.” And even though this is an equity case
in which we review factual questions de novo, see Alderman v.
County of Antelope, 11 Neb. App. 412, 653 N.W.2d 1 (2002),
we still give weight to the fact that the trier of fact heard and
observed the witnesses and accepted one version of the facts
rather than another, see Shoemaker v. Shoemaker, 275 Neb.
112, 745 N.W.2d 299 (2008).
We accept the district court’s factual finding regarding the
adequacy of the postings of meeting notice after February
15, 2005, and we extend such finding to include the postings
beginning January 6, 2005. The testimony from several wit-
nesses that they did not happen to see the posted notices does
not overcome the presumption that the county clerk posted the
notices as required. These assignments of error in the appel-
lees’ cross-appeal are without merit.
6. meetinGs of July 5, 12, and 22, 2005
The appellants argue that the district court erred in find-
ing that the BOC and the BOe failed to give adequate notice
of their meetings of July 5, 12, and 22, 2005. We find that
there was not advance publicized notice of the July 12 and 22
WOLF v. grUBBS 	311
Cite as 17 Neb. App. 292

meetings as required by § 84-1411, but that there was proper
notice for the July 5 meeting.
[24] We first address the July 12, 2005, meeting. The BOC
and the BOe claim that the published minutes from the July 5
meeting which state that the next meeting of the BOe will be
held on July 12 satisfy the notice requirement. We disagree.
First, the minutes of the prior meeting do not meet the tech-
nical requirements of § 84-1411 for meeting notice, because
they do not give the place and time of the future meeting,
nor is there any mention of the agenda for the future meet-
ing. Second, true notice of a meeting is not given by burying
such in the minutes of a prior board proceeding, remembering
that minutes and notice serve different purposes—the former
to memorialize for the citizenry what has happened and the
latter to tell them what is going to happen, as well as when
and where. Citizens should not be made to sift through every
past meeting’s minutes relating to the BOC or the BOe to see
whether a future meeting is mentioned. placing notice of future
meetings in minutes of a prior meeting does not comport with
the objective of the Open Meetings Act, openness in favor of
the public. See State ex rel. Newman v. Columbus Township
Bd., 15 Neb. App. 656, 735 N.W.2d 399 (2007). Because the
meeting occurred within the 120 days prior to the suit’s being
filed, the entire meeting of July 12 is void and board members
are prohibited from considering any information obtained at
the illegal meeting of July 12. See, § 84-1414; Alderman v.
County of Antelope, supra.
[25,26] As for the July 22, 2005, BOe meeting, it was a
reconvening or continuation of the BOe meeting of July 19,
but it nonetheless was a “meeting.” No separate notice for the
July 22 meeting was published. And,
[w]here no notice of particular meeting was ever posted
at place designated and only public announcement of
intention of board to reconvene was verbal announcement
by chairman of board to persons present, there was not
giving of notice as required by statute, either for separate
meeting or for continuation of recessed meeting.
73 C.J.S. Public Administrative Law and Procedure § 34, oral
announcement at 214 (2004) (citing Cooper v. Arizona Western
312 	17 NeBrASkA AppeLLATe repOrTS

College, Etc., 125 Ariz. 463, 610 p.2d 465 (1980)). We note
that Arizona has a specific statute dealing with the recessing
and resumption of a public meeting within 24 hours, which
is permissible, if the notice for the original meeting includes
the information about the when and where of a reconvened
meeting “and if, prior to recessing, notice is publicly given as
to the time and place of the resumption of the meeting or the
method by which notice shall be publicly given.” See Ariz.
rev. Stat. Ann. § 38-431.02(e) (2001). Under this statute,
the Arizona Court of Appeals in Cooper, supra, held that the
mere verbal announcement by the chairman of the board of
the time and place that the recessed meeting would reconvene
was not sufficient notice, thereby voiding the action taken at
the reconvened session. While Nebraska does not have such
a statute, § 84-1411 requires notice of “each” meeting, and
construing that statute to accomplish openness in public meet-
ings, we are compelled to hold that notice of recessed and
reconvened meetings must be given in the same fashion as the
original meeting, absent action by the Legislature permitting
lesser notice. Thus, the July 22 meeting fails with respect to
the notice and agenda requirements of § 84-1411. Because
the meeting occurred within the 120 days prior to the suit’s
being filed, the entire meeting of July 22 is void and board
members are prohibited from considering any information
obtained at the illegal meeting of July 22. See, § 84-1414;
Alderman v. County of Antelope, 11 Neb. App. 412, 653
N.W.2d 1 (2002).
Finally, we address the July 5, 2005, meeting. The pub-
licized notice of the July 5 meeting was proper. The notice
complied with the requirements of § 84-1411, giving the
place and time of the meeting, as well as a statement that
the agenda is kept current and can be found at the county
clerk’s office during normal business hours. Nothing more
was required.
7. meetinGs of June 7, 21, and 29, 2005
[27] In their cross-appeal, the appellees argue that the min-
utes of June 7, 21, and 29, 2005, were not timely published
and that all actions at those meetings should automatically be
WOLF v. grUBBS 	313
Cite as 17 Neb. App. 292

voided because they occurred within the 120 days prior to the
suit’s being filed. The appellees cite § 23-122 in support of
their argument. Section 23-122, which is applicable to Banner
County, states:
The county board of all counties having a population
of less than one hundred fifty thousand inhabitants shall
cause to be published, within ten working days after
the close of each annual, regular, or special meeting of
the board, a brief statement of the proceedings thereof
which shall also include the amount of each claim
allowed, the purpose of the claim, and the name of the
claimant . . . .
The BOC was required to “publish” minutes within 10 work-
ing days, which it did not—minutes for the June 7 meeting
were published on June 23, and minutes for the June 21 and 29
meetings were published on July 21. However, § 84-1414 only
makes violations of the Open Meetings Act void or voidable.
And § 84-1407 states that the Open Meetings Act includes
§§ 84-1407 to 84-1414. Thus, a violation of § 23-122 is not
a violation of the Open Meetings Act, and is thus not void or
voidable under § 84-1414.
The Open Meetings Act does require that minutes be writ-
ten and available for inspection within 10 working days or
prior to the next convened meeting, whichever occurs earlier.
§ 84-1413(5). even though it is clear that the minutes to the
June 7, 21, and 29, 2005, meetings were not “published” within
10 days as required by § 23-122, we have found no evidence,
nor have the appellees cited us to such in the record, that the
minutes were not “written and available” within 10 days or
prior to the next convened meeting, which is all that the Open
Meetings Act requires under § 84-1413(5). And “[i]n the
absence of evidence to the contrary, it may be presumed that
public officers faithfully performed their official duties and
that absent evidence showing misconduct or disregard of law,
the regularity of official acts is presumed.” KLH Retirement
Planning v. Okwumuo, 263 Neb. 760, 764, 642 N.W.2d 801,
805 (2002). This assignment is without merit.
314 	17 NeBrASkA AppeLLATe repOrTS

8. R emaindeR of meetinGs fRom JanuaRy 6
to auGust 16, 2005
Other than the July 12 and 22, 2005, BOC and BOe meet-
ings that we have specifically found void in this opinion,
the remainder of BOC and BOe meetings from January 6 to
August 16, 2005, were generally conducted in compliance
with the Open Meetings Act. We have reviewed the record and
determined that such meetings met the notice requirements of
§ 84-1411 and that there were proper agendas and minutes.
Therefore, to the extent that the district court determined that
BOC and BOe meetings other than those of July 12 and 22
were void—and we note that the district court specified meet-
ings through August 16, while the cross-appeal uses the date of
August 30—we reverse the district court’s order voiding BOC
and BOe meetings other than those of July 12 and 22.
9. emeRGency items
In their cross-appeal, the appellees argue that the “emergency
items” added to meetings without being listed on the agenda
between January 6 and August 30, 2005, were not appropriate
emergencies and that thus the district court erred in not find-
ing that the BOC substantially violated the Open Meetings Act
in this regard by taking up and acting upon nonagenda items
under the guise of emergencies.
[28,29] The public body shall have the right to modify the
agenda to include items of an “emergency nature” at public
meetings. See § 84-1411(1). An emergency has been defined
as “‘“[a]ny event or occasional combination of circumstances
which calls for immediate action or remedy; pressing necessity;
exigency; a sudden or unexpected happening; an unforeseen
occurrence or condition.”’” Steenblock v. Elkhorn Township
Bd., 245 Neb. 722, 726, 515 N.W.2d 128, 130 (1994). each
public body shall keep minutes of all meetings showing the
time, place, members present and absent, and the substance of
all matters discussed. § 84-1413(1). We now look at each of
the eight emergency items challenged by the appellees in their
brief on cross-appeal to determine whether such items violated
the Open Meetings Act, and if so, whether the violation was
WOLF v. grUBBS 	315
Cite as 17 Neb. App. 292

substantial, when the matter was dealt with more than 120 days
before the filing of the lawsuit on August 30, 2005.
(a) personnel Letter
On March 1, 2005, the BOC authorized the county attorney
to prepare a letter to employees explaining the complaint sys-
tem. This item did not appear on the agenda prior to the March
1 meeting. However, in that meeting’s minutes, the following
entry appears:
NB #2 - Personnel - The admonishments and reprimands
placed in personnel files in previous years were discussed.
grubbs made a motion that employees be allowed to
review their files with the county attorney and Chairman
Sandberg with the right to purge complaints. grubbs
withdrew the motion. The county attorney is to prepare a
letter to the employees explaining the complaint system
and any possible recourse available to employees.
reading this entry, the minutes do not contain any explana-
tion as to why this topic was an emergency, nor can we infer
why it was an emergency from the minute entry. There is no
explanation as to why this action could not wait until the next
BOC meeting on March 15, 2005, at which time it could be
properly placed on the agenda in advance of the meeting.
Because there was no indication, either explicitly or implicitly,
as to why this item required immediate action or was of press-
ing necessity, it was not an “emergency” that could be taken
up without first appearing on the agenda. That said, the matter
discussed and the action was inconsequential insofar as we can
tell. Because the action occurred more than 120 days but within
1 year of this suit’s being filed, the action is voidable, but only
if it was a substantial violation of the Open Meetings Act. See
§ 84-1414. We have no hesitancy in concluding that the matter
was insubstantial, and thus not voidable.
(b) Homeland Security resolution
On March 1, 2005, the BOC approved a homeland security
resolution. This item did not appear on the agenda prior to the
March 1 meeting. However, in that meeting’s minutes, the fol-
lowing entry appears:
316 	17 NeBrASkA AppeLLATe repOrTS

NB #3 - Resolution of Support for Homeland Security
Grants - Sherry Blaha, emergency Manager, sent a letter
describing the grants for Banner County that had been
submitted and ask[ed] that the board review the grants
and sign a resolution of support. gifford made a motion
that the resolution be approved. Second by grubbs. roll
call vote: grubbs, yes; gifford, yes; M Sandberg, yes.
grubbs made a motion to authorize the chairman to sign.
Second by gifford. roll call vote: grubbs, yes; gifford,
yes; M Sandberg, yes.
The minutes do not explicitly state why this item was an emer-
gency, nor can we infer why it was an emergency. Noting that
the grants had already been submitted, there is no explanation
as to why this action, simply requesting a resolution of sup-
port, could not wait until the next BOC meeting on March 15,
at which time it could be properly placed on the agenda in
advance of the meeting. That said, on the record before us, the
matter discussed and the action taken without proper notice on
an agenda can hardly be classified as a substantial violation
of the Open Meetings Act. This assignment of error from the
cross-appeal is without merit.
(c) Transfer of Funds
On March 15, 2005, the BOC approved a resolution trans-
ferring $25,000 from the inheritance tax fund to the general
fund. This item did not appear on the agenda prior to the
March 15 meeting. However, in that meeting’s minutes, the
following entry appears: “NB #7 - Transfer of Funds -
grubbs made a motion to approve the resolution transferring
$25,000 from the inheritance tax fund to the general fund.
Second by gifford. roll call vote: grubbs, yes; gifford, yes;
M Sandberg, yes.”
reading this entry, the minutes do not explicitly state why
this item was an emergency, nor can we infer why it was an
emergency. There is no explanation as to why the funds needed
to be transferred, nor is there an explanation as to why they
needed to be transferred at that time. We cannot discern from
this entry as to why the transfer of funds could not wait until
the next BOC meeting on April 5, 2005, at which time it could
WOLF v. grUBBS 	317
Cite as 17 Neb. App. 292

be properly placed on the agenda in advance of the meeting.
Because there was no indication, either explicitly or implicitly,
as to why this item required immediate action, it was not an
appropriate emergency. Because the action occurred more than
120 days but within 1 year of the suit’s being filed, the action
is voidable, but only if it was a substantial violation of the
Open Meetings Act. See § 84-1414. Because this item involved
the handling of public money, a key portion of the BOC duties,
we conclude that doing so without prior notice via an agenda
is a substantial violation of the Open Meetings Act, and thus
the action taken is void. When reaching this conclusion, we
cannot help noting the ease of compliance, given that under
§ 84-1411, the BOC agenda can be amended as late as 24
hours prior to the meeting.
(d) Letter Concerning Wind energy
On April 5, 2005, the BOC authorized the chairman to sign
and send a letter to local energy companies concerning wind
energy. This item did not appear on the agenda prior to the
April 5 meeting. However, in that meeting’s minutes, the fol-
lowing entry appears:
NB #6 - Letter concerning wind energy - ron Moore
has drafted a letter concerning the proposed wind energy
project. grubbs made a motion to authorize the chairman
to sign this letter and send it to all local energy com-
panies. Second by gifford. roll call vote: grubbs, yes;
gifford, yes; M Sandberg, yes.
reading this entry, the minutes do not explicitly state why
this item was an emergency, nor can we infer why it was an
emergency—and moreover, a reader of the minutes would
have no idea what the “wind energy project” is, nor what the
chairman’s letter would say, and importantly, whether public
funds are involved. There is no explanation as to why this
action could not wait until the next BOC meeting on April
19, 2005, at which time it could be properly placed on the
agenda in advance of the meeting. Thus, this item and action
taken was not an appropriate emergency, and such is voidable
if it was a substantial violation of the Open Meetings Act. See
§ 84-1414. We find that such action was a substantial violation
318 	17 NeBrASkA AppeLLATe repOrTS

and, thus, void the action, noting that the letter has undoubt-
edly been sent and that the BOC can hardly “unsend” the letter.
Thus, while the assignment of error is well taken, it ultimately
serves only to remind the BOC of the requirements of the Open
Meetings Act.
(e) grant for pagers
On May 3, 2005, the BOC voted to accept a $24,184 grant
to purchase pagers for the fire department. This item did not
appear on the agenda prior to the May 3 meeting. However, in
that meeting’s minutes, the following entry appears:
NB # 5 - Grant - Sherry Blaha met with the board to
discuss the grant of $ 24,184.00 recently awarded for the
purchase of 25 pagers for the fire department. gifford
made a motion to accept this grant and to authorize the
chairman to sign the agreement. Second by grubbs. roll
call vote: grubbs, yes; gifford, yes; M Sandberg, yes.
This entry on its face shows the substance of the matter
discussed. It is not a stretch to infer that the pagers would
be a “pressing necessity,” because it would enable the fire-
fighters of Banner County to perform their very important
duties more efficiently. This was an appropriate emergency,
and it did not involve the expenditure of the Banner County
taxpayers’ funds.
(f) Waiver of Notification
On May 17, 2005, the BOC voted to grant a waiver of noti-
fication of subdivisions where the tax refund was less than
$200. This item did not appear on the agenda prior to the May
17 meeting. However, in that meeting’s minutes, the following
entry appears: “NB #8 - Waiver of notification of subdivi-
sions of refund less than $200.00 - gifford made a motion
to grant a waiver of notification of subdivisions where the tax
refund was less than $200.00. Second by grubbs. roll call
vote: grubbs, yes; gifford, yes, M Sandberg, yes.”
reading this entry, we are not sure what this matter was
really about—What notification was being waived? Who was
getting the refunds, and how extensive were the refunds? Why
is it an emergency? The minutes do not explicitly state why
WOLF v. grUBBS 	319
Cite as 17 Neb. App. 292

this item was an emergency, nor can we infer why it was an
emergency, as we could with the pagers above. Because there
was no indication, either explicitly or implicitly, as to why this
item required immediate action, it was not an appropriate emer-
gency. Because the action occurred within the 120 days prior to
the suit’s being filed, the action is void. See § 84-1414.
(g) Constitution With Cooperative extension Service
On June 29, 2005, the BOC adopted a constitution with
“University of Nebraska Cooperative extension Service.” This
item did not appear on the agenda prior to the June 29
meeting. However, in that meeting’s minutes, the following
entry appears:
NB #3 - Approval of change to constitution with
University of Nebraska Cooperative Extension Service
- Aaron Berger, extension educator, met with the board
to explain the proposed changes in combining Cheyenne,
kimball and Banner County extension boards. gifford
made a motion to adopt the constitution with University
of Nebraska Cooperative extension Service. Second by
grubbs. roll call vote: grubbs, yes; gifford, yes; M
Sandberg, yes.
reading this entry, the minutes do not explicitly state why
this item was an emergency, nor can we infer why it was an
emergency. Because there was no indication, either explicitly
or implicitly, as to why this item required immediate action, it
was not an appropriate emergency. Because the action occurred
within the 120 days prior to the suit’s being filed, the action is
void. See § 84-1414.
(h) road resolution
On June 29, 2005, the BOC signed a road closing that was
approved at a prior meeting. This item did not appear on the
agenda prior to the June 29 meeting. However, in that meet-
ing’s minutes, the following entry appears: “NB #4 - Signing
of road resolution - The road closing approved at a prior
meeting was signed.”
Clearly, the information in this entry is short on detail, such
as which road, which prior meeting, and how the road would
320 	17 NeBrASkA AppeLLATe repOrTS

be closed. But, we do note that at the immediately preceding
meeting on June 21, 2005, a road closing was requested by
an adjacent landowner because of “vandalism at the old home
site.” Here, all the board did was agree to administratively
effectuate a prior decision, and in that context, we agree the
action taken was of pressing necessity. This assignment of error
is without merit.
10. discoveRy oRdeR and discoveRy sanction
The appellants argue that the district court erred in ordering
them to deliver public documents to the appellees’ attorney.
In its order, the district court said: “The Defendants are in
control and responsible for the accuracy and availability of the
requested items. As the Defendants are parties to this action
it is their responsibility to have the items available to the
plaintiffs at the plaintiffs’ attorneys [sic] office for inspection
and reproduction.” The question for us is whether this was a
proper order.
[30,31] It does not appear that the Nebraska Supreme
Court has ruled on the question of the place of inspection of
documents. However, “[i]nasmuch as the Nebraska rules of
Discovery are generally and substantially patterned after the
corresponding discovery rules in the Federal rules of Civil
procedure, Nebraska courts will look to federal decisions inter-
preting corresponding federal rules for guidance in construing
similar Nebraska rules.” Gernstein v. Lake, 259 Neb. 479, 480,
610 N.W.2d 714, 716 (2000). And “under [Fed. r. Civ. p.] 34,
a responding party need only make requested documents avail-
able for inspection and copying; it need not pay the copying
costs.” Cardenas v. Dorel Juvenile Group, Inc., 230 F.r.D. 611,
619-20 (D. kan. 2005) (emphasis in original). Additionally, an
order for discovery of writings “should generally provide that
the inspection should be made at defendant’s place of business
without removal,” and “[t]he court will not order writings to be
taken from one party and delivered to his adversary.” 27 C.J.S.
Discovery § 108 at 197 (1999).
[32] Applying these concepts, we conclude that the district
court’s order requiring the appellants to make the requested
items available to the appellees at the office of their attorney
WOLF v. grUBBS 	321
Cite as 17 Neb. App. 292

for inspection and copying was inconsistent with the opera-
tive discovery rules, and therefore an abuse of discretion.
Moreover, to the extent that any of the requested documents
were public records, “[a]s a general rule, under statutes autho-
rizing discovery no discovery can be required of documents
of public record, as they are equally accessible to all parties
. . . .” 27 C.J.S., supra, § 91 at 177. See, also, Securities and
Exchange Com’n v. Samuel H. Sloan & Co., 369 F. Supp. 994
(S.D.N.Y. 1973).
11. summaRy of ouR findinGs
Before we address the issue of attorney fees, we think it
appropriate to summarize our conclusions and holdings made
in this opinion.
The BOC and the BOe are separate and distinct bod-
ies, and each is required to comply with the Open Meetings
Act—although this does not mean separate pieces of paper are
required. The BOC and the BOe did not have to post separate
notices under the circumstances of this case, because such
notices contained only the time and place that the boards met
and directed interested citizens to where the agendas for each
board could be found. The combined agendas and minutes of
the BOC and the BOe were valid because they clearly stated
which items and issues each board would or did address.
We find that the agenda for the February 15, 2005, meet-
ing, which removed the requirement that meeting notices
be posted at the school, was marginally adequate, but even
if considered a violation, the violation was not substantial.
Therefore, we reverse the decision of the district court on
this issue.
We find that there was not adequate notice of the July 12
and 22, 2005, meetings of the BOC and the BOe. Because the
meetings occurred within the 120 days prior to the lawsuit’s
being filed, the meetings are void in their entirety. Thus, we
affirm the district court’s findings in this regard.
We find that there was adequate notice of the July 5, 2005,
meeting of the BOC and the BOe. Thus, we reverse the district
court’s findings that the notice was inadequate and that the
meeting was void.
322 	17 NeBrASkA AppeLLATe repOrTS

We affirm the district court’s findings that the appellees did
not meet their burden of proving that notices were not posted
as required for all BOC and BOe meetings from January
through August 2005. We also find that the appellees did not
meet their burden in proving that minutes from the BOC and
BOe meetings of June 7, 21, and 29, 2005, were not “written
and available” within the required time, distinguishing that
term from “publishing” the minutes.
We find that other than the July 12 and 22, 2005, meet-
ings that we have specifically found void in this opinion, the
remainder of the BOC and BOe meetings from January 6 to
August 16, 2005, were generally valid and did not involve
voidable actions. We reverse the order of the district court to
the extent that it found otherwise.
We find that the following items addressed by the BOC were
appropriate emergency items or not substantial violations of
the Open Meetings Act: (1) personnel letter of March 1, 2005;
(2) homeland security resolution of March 1, 2005; (3) grant
for pagers of May 3, 2005; and (4) road resolution of June 29,
2005. Thus, we affirm the district court’s findings with regard
to these items.
We find that the following were not appropriate emergency
items addressed by the BOC: (1) transfer of funds of March
15, 2005; (2) letter concerning wind energy of April 5, 2005;
(3) waiver of notification of May 17, 2005; and (4) constitu-
tion with cooperative extension service of June 29, 2005.
We find that actions taken on these matters are void, and
thus we reverse the district court’s findings with regard to
these items.
We find that the district court’s order regarding the produc-
tion of documents was incorrect and an abuse of discretion. We
also find that the district court’s award of attorney fees in the
amount of $720 as a discovery sanction was unwarranted and
improper, and we vacate and set aside such award.
12. attoRney fees
[33-35] The appellants argue that the district court erred
in awarding the appellees attorney fees and expenses in the
amount of $27,457.46. “As a general rule, attorney fees and
WOLF v. grUBBS 	323
Cite as 17 Neb. App. 292

expenses may be recovered in a civil action only where pro-
vided for by statute or when a recognized and accepted uni-
form course of procedure has been to allow recovery of attor-
ney fees.” Alderman v. County of Antelope, 11 Neb. App. 412,
424, 653 N.W.2d 1, 10 (2002). In the instant case, the relevant
statutory provision is § 84-1414(3), which declares that citizens
of this state may commence actions in district court for the
purpose of requiring compliance with or preventing violations
of the public meetings laws or for the purpose of declaring an
action of a public body void. Section 84-1414(3) also provides
that “[t]he court may order payment of reasonable attorney’s
fees and court costs to a successful plaintiff in a suit brought
under this section.” “The fact that the [plaintiffs] did not
accomplish the full objective of their lawsuit does not prevent
them from being ‘successful plaintiffs,’ but, rather, goes to the
extent of an award for attorney fees, as the results obtained
are an appropriate consideration on that issue.” Hansmeyer v.
Nebraska Pub. Power Dist., 6 Neb. App. 889, 903, 578 N.W.2d
476, 485 (1998).
[36] Discretionary decisions of the trial courts on attorney
fees will be upheld on appeal absent a showing of abuse of
discretion. Alderman v. County of Antelope, supra. However,
in this case, given the substantial change in the district court’s
decision we have made, the district court’s award of fees and
costs must be carefully scrutinized. That said, it is worthy
of note that the court in Airport Inn v. Nebraska Equal Opp.
Comm., 217 Neb. 852, 863, 353 N.W.2d 727, 734 (1984), in
the portion of its opinion dealing with whether attorney fees
should be awarded, acknowledged that “success can sometimes
be measured in small ways.”
[37] As stated above, we found that only the July 12 and
22, 2005, meetings of the Banner County BOC and BOe
were void. Insofar as we can discern, the various appellees
were personally interested only in the subject of assessments
of value of their properties. The following appellees did not
have their property assessments addressed at the July 12
and/or 22, 2005, meetings of the BOe: Nile and roma gene
greathouse, robert and Betty Newell, Scott and Lita Delcamp,
Don L. Lease II, Joe Singleton, Charles Singleton, and James
324 	17 NeBrASkA AppeLLATe repOrTS

C. Mcgowan. Thus, these appellees were unaffected by the
voiding of those meetings, and the outcome of this litigation
only tangentially affects them, remembering that “[t]he pur-
pose of the open meeting law is to insure that public policy
is formulated at open meetings of the bodies to which the
law is applicable.” Pokorny v. City of Schuyler, 202 Neb. 334,
339, 275 N.W.2d 281, 284 (1979). We include this quote from
Pokorny because the matter of these taxpayers’ property valua-
tions is not really public policy, because the Legislature has
already determined that their real estate will be taxed based
on valuation—that is, the public policy of the State and these
meetings did not affect the formulation of that policy. rather,
the meetings at issue dealt with the administration and applica-
tion of that public policy to individual landowners. And those
landowners, despite some imperfections in the way the county
government of this sparsely populated rural county operated
with respect to notice and agendas of its meetings, were able
to participate and be heard on the matters which concerned
them. This observation impacts the award of costs and fees,
because in our view, it goes to the issue of “results obtained.”
It is apparent from our summary of what we have affirmed
and what we have reversed from the district court’s decision
that we have substantially altered, and materially lessened, the
positive “results obtained.” Additionally, it is not insignificant
to the question of the award of fees and costs that the govern-
mental body can “repair” action taken at defective meetings. In
Pokorny, the court said:
It is a general principle of law that where a defect
occurs in proceedings of a governmental body, ordinarily
the defect may be cured by new proceedings commencing
at the point where the defect occurred. See 5 McQuillin,
Municipal Corporations, § 16.93, p. 299; 56 Am. Jur. 2d,
Municipal Corporations, § 508, p. 559, § 510, p. 560; 63
C. J. S., Municipal Corporations, § 1009, p. 597. We think
this principle is applicable here.
The effect of the invalidity of the meetings of March
16 and March 25 is the same as if the meetings had
never occurred. No action authorized at those meetings
could be sustained by reliance upon the proceedings of
WOLF v. grUBBS 	325
Cite as 17 Neb. App. 292

the council at those meetings. This does not mean the
council could not authorize the purchase of the land at
a subsequent meeting which complied with all statutory
requirements.
202 Neb. at 341, 275 N.W.2d at 285. Thus, the result obtained
here is not that the appellees whose property assessments were
voided escape taxation of their property, assuming the BOe
takes up these matters anew with proper notice and agendas.
That said, the results obtained affect all Banner County citi-
zens by giving real meaning to the requirement for open and
transparent government, which is the overall purpose of the
Open Meetings Act, and in that sense, the “results obtained”
have a larger benefit than their impact on the various appel-
lees, and thus an award of costs and fees to some extent
is appropriate.
The following appellees had their property assessments
addressed at the voided meetings: Billie and David Wolf,
Lane and robin Darnall, gary and emilie Darnall, robert and
Lisa Brenner, and Darnall ranch, Inc. Thus, these appellees
were affected by the voiding of those meetings and can be
considered “successful litigants.” We turn to how these appel-
lees were affected by the voiding of the two meetings, so that
the results of our decision are clear, and so that the matter of
“results obtained” within the context of the appellants’ chal-
lenge to the award of fees and costs by the district court can
be analyzed.
Lane and robin Darnall presented their protest at the BOe’s
July 12, 2005, meeting, which we have declared void. And
while the BOe’s findings were made at the July 19 meeting,
which was not a void meeting, the BOe could not make its
finding in reliance on any information obtained at the illegal
July 12 meeting, see Alderman v. County of Antelope, 11 Neb.
App. 412, 653 N.W.2d 1 (2002), and we think it is a reasonable
inference that there was such reliance.
gary and emilie Darnall and Darnall ranch presented their
six protests at the BOe’s July 12, 2005, meeting, which we
have declared void, and again the board members are prohib-
ited from considering any information obtained at the illegal
326 	17 NeBrASkA AppeLLATe repOrTS

meeting. See id. The BOe made findings with regard to two of
the Darnalls’ protests at the July 19 meeting, which, as stated
previously, was not a void meeting. However, as stated above,
the BOe could not make its July 19 findings in reliance on any
information obtained at the illegal July 12 meeting. See id. The
BOe made findings with regard to the Darnalls’ four remaining
protests at the meeting on July 22. We have found that the July
22 meeting is void, and thus so are the BOe’s findings made
that day. Thus, the BOe’s actions regarding all six Darnall pro-
tests are hereby voided.
robert and Lisa Brenner presented their protest at the
BOe’s July 12, 2005, meeting, which we have declared void.
Thus, the board members are prohibited from considering
any information obtained at the illegal meeting. See id. The
BOe made findings with regard to the Brenners’ protests at
the meeting on July 22. We have found that the July 22 meet-
ing is void, and thus so are the BOe’s findings made that
day. Therefore, the BOe’s findings on the Brenner protest are
hereby voided.
Billie and David Wolf presented their protest to the BOe at
its meeting on July 19, 2005, and the BOe made findings that
day—remembering that the July 19 meeting was a valid and
proper meeting. However, the BOe voted to amend its findings
at the July 22 meeting. We have found that the July 22 meeting
is void, and thus, so are the BOe’s July 22 amendments regard-
ing the Wolfs’ assessment—even though such were favorable
to the Wolfs. Therefore, the findings made concerning the Wolf
protest on July 19 are valid, but the amendment thereto is not.
In summary, it is important to note that despite the flawed
notice, all landowners whose assessments are void as a conse-
quence of this litigation did, in fact, appear and present their
protests to the assessments.
[38] We are aware of the doctrine that “any person who
has notice of a meeting and attends the meeting must object
specifically to the lack of public notice at the meeting, or that
person will be held to have waived the right to object on that
ground at a later date.” Wasikowski v. Nebraska Quality Jobs
Bd., 264 Neb. 403, 417, 648 N.W.2d 756, 767 (2002). The
WOLF v. grUBBS 	327
Cite as 17 Neb. App. 292

district court found that the appellees did not waive their objec-
tion, and we find that there is evidence in the record to support
such finding. Furthermore, the appellants did not specifically
assign as error the failure of the district court to find that the
appellees waived their objection on notice grounds. “To be
considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error.” Scurlocke v. Hansen, 268 Neb. 548,
551, 684 N.W.2d 565, 568 (2004).
In the trial court, counsel for the appellees submitted
an accounting of time spent on this case, asserting a fair
and reasonable hourly rate of $150 per hour, and $60 per
hour for paralegal time, with a total of 210 hours equaling
$28,899. Counsel also sought reimbursement of $3,326.46 for
expenses—the majority of which was for the copying of docu-
ments charged at 25 cents a page. After credit for the award
of $720 in fees awarded by the district court and a $4,000
“courtesy discount,” counsel sought $27,457.46, which the
trial court awarded.
Concerning fees, the appellants argue, citing Hansmeyer
v. Nebraska Pub. Power Dist., 6 Neb. App. 889, 578 N.W.2d
476 (1998), that if the results obtained at trial are reduced
on appeal, then the attorney fees must be likewise reduced.
This proposition is sound and logical. The appellees’ counsel
(who was a plaintiff himself) received an award of all that he
requested from the district court. But, on appellate review, we
have reversed much of the results obtained at trial. Moreover,
the “concrete result” of this case is likely to come to little or
nothing, in that it is permissible to “repair” voided actions dur-
ing new proceedings. Thus, in a very real sense, this extensive
and protracted litigation accomplished only a reminder to local
government that compliance with the Open Meetings Act is
important to the ideal of open and transparent governance,
and that to violate the act’s provisions carries a substantial
cost—certainly in litigation costs. In other words, this litiga-
tion is a victory for open and transparent governance, but the
victory is not nearly of the magnitude handed down by the dis-
trict court. And the fee award must reflect these considerations
and the outcome on appeal. Therefore, while agreeing that fees
328 	17 NeBrASkA AppeLLATe repOrTS

and costs should be awarded at the trial level, we reduce the
district court’s award by $10,000 and thereby award the sum
of $17,457.46.
Counsel for the appellees has filed a motion for fees and
costs in this court. Without repeating what we have done, we
believe it fair to say that in this appellate proceeding, includ-
ing the appellees’ cross-appeal, the appellees lost far more than
was upheld, and their cross-appeal was largely unsuccessful.
An award of fees, here as in the trial court, is discretionary.
We decline to award fees and costs and, therefore, overrule the
appellees’ motion for an award of such.
affiRmed in paRt, ReveRsed in paRt,
and in paRt vacated and set aside .
WOLF v. grUBBS 	329
Cite as 17 Neb. App. 292