Bismarck-Mandan Symphony Orchestra officials were trying to avoid being served lawsuit documents in March 2006 from terminated symphony employee Linda Olsrud, argued Olsrud's attorney Deb Carpenter at a North Dakota Supreme Court hearing Tuesday.

Olsrud - her suit dismissed by South Central District Judge Thomas J. Schneider in 2006 - then appealed to the Supreme Court.

The symphony's legal position has been that Olsrud, of Bismarck, the symphony's marketing and grants employee from September 2003 to Aug. 24, 2005, served papers improperly on the symphony by trying to serve the wrong people - by serving the symphony's attorney, Gary R. Wolberg, and also then symphony president Al Wolf, instead of its registered agent, Karen daSilva.

Carpenter told the Court that Wolberg on March 20, 2006, was served the papers because he had been the symphony's agent in Olsrud's administrative process and hadn't withdrawn from the case. And her interpretation of the state's civil procedures was they were the proper people and that the papers didn't have to be delivered in person. The papers were left with receptionists.

When she received a letter from Wolberg indicating he was the wrong person, she then served papers on Wolf.

Past the March 21 deadline of being able to serve anyone else, she received a letter from Wolberg on March 28 that Wolf was not available to accept service. Wolf was in Arizona at the time.

"Refusal of service is considered tantamount to service,"Carpenter told the Supreme Court justices.

Carpenter said that earlier in March she, within the time period required by law, had given notice to Wolberg of Olsrud's intention to file a lawsuit.

She said Wolberg then, in a March 8 letter, informed Carpenter that he "was not going to be here for awhile and Mr. Wolf would not be available for several weeks." He never indicated in the letter that he or Wolf were the wrong people to serve the complaint to, Carpenter said.

"He doesn't say anywhere in the letter 'Don't try to serve me,'" Carpenter said in a Tribune interview.

In Olsrud's lawsuit filed in April 2006 against the symphony, she asked for reinstatement as well as reinstatement for "any other employees terminated as a result of the illegal meetings."

Olsrud, prior to filing her lawsuit, requested an opinion from the North Dakota attorney general regarding whether the symphony was a public entity subject to open records and meetings law - and, if it was, whether it had violated laws by holding "secret" meetings, and by failing to provide the requested records and by failing to provide her with notices of the meetings.

In Attorney General Wayne Stenehjem's opinion, issued Feb. 21 2006, he ruled that the Bismarck-Mandan Orchestral Association, aka Bismarck-Mandan Symphony Orchestra, is a public entity because it is supported in part by public funds.

But he also concluded that "the association did not violate the state's open records law by refusing to provide copies of 'personnel records' because personnel records of a nonprofit corporation such as the association, which is a public entity solely because it is supported in whole or in part by public funds, are exempt from the open records law."

He also concluded the association did violate state law "by refusing to give copies of other records requested, with confidential or personnel information redacted."

Wolf's position was the symphony did provide the documents to Olsrud.

Wolf, past symphony president, said in a past interview that Olsrud's job disappeared after the symphony moved Susan Lundberg, the symphony's full-time executive director, into the role of fundraising consultant.

Wolf said the board had the right to take the action because "(Olsrud) was subject to review by the board at any time."

The Supreme Court is now considering the case. It usually takes an average of 80 to 85 days to make a ruling, according to a Supreme Court spokesman.

(Reach reporter Virginia Grantier at 250-8254 or at virginia.grantier@;bismarcktribune.com.)