A lawsuit filed against the Bismarck-Mandan Symphony Orchestra by a terminated employee has been dismissed by South Central District Judge Thomas J. Schneider.

"Defendant's motion to dismiss for insufficiency of service of process is granted," stated Schneider in a recent order, issued about two weeks after hearing arguments from both sides.

The symphony's legal position had been that Linda Olsrud, of Bismarck - the symphony's marketing and grants employee from September 2003 to Aug. 24, 2005 - served papers improperly on the symphony.

"The lawsuit was thrown out on a technicality,"said Gary R. Wolberg, the symphony's attorney. "The law requires actual personal service on the registered agent, or upon an office, director or other authorized person."

Wolberg said papers were left with his receptionist, as well as with the receptionist for the thensymphony President Al Wolf.

Wolberg said Wolf, as an officer, would have been a proper person to serve. But Wolf needed to be served the papers personally, not have them left with a receptionist. Wolf was out of town for his annual four- or five-week stay in Arizona, Wolf said Wednesday.

Wolberg is only the symphony's attorney and not authorized by the symphony to accept service of papers. So it wouldn't have mattered if the papers had been left with him personally or with the receptionist, he said.

Wolberg said service would have been successful if the papers had been left with the symphony's registered agent, Karen daSilva, but that wasn't done.

Olsrud's attorney, Deborah J. Carpenter, didn't agree with that interpretation of the law, Wolberg said.

Carpenter, who is in trial in Fargo this week and couldn't be reached Tuesday or Wednesday, said in a past interview that, according to the rules of civil process, "You only need to serve either someone who has acted as an agent or attorney for the association - and that would be the people we served."

Schneider ordered that the "plaintiff's entire complaint dated March 20, 2006,"be dismissed with prejudice, meaning it can't be refiled. He also ordered that the symphony may recover its costs and disbursements as allowed by law.

Wolberg said Olsrud's only option now is to appeal to the North Dakota Supreme Court.

Olsrud referred the Tribune to Carpenter for comment, but did say she planned to appeal to the Supreme Court.

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

Wolf, past symphony president, said 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."

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, 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 said Wednesday that the symphony did provide the documents to Olsrud. Wolf said the symphony board was surprised about Stenehjem's decision that the symphony was a public entity. He said that decision was based on results of Stenehjem's legal research from which he concluded that if a nonprofit organization had received funds from taxpayer organizations' funds that weren't committed for a specific purpose, the nonprofit was then considered a public entity.

Wolf said the symphony had about $3,000 or $4,000 in grant money from either the state or local arts council that wasn't designated for a specific purpose - and that's what made the symphony a public entity.

Wolf said that money now has been designated in the symphony's budget for a specific purpose, and it's his view that that has moved the symphony out of the public entity classification.

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