15-0325-20940-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Diane Lund, School Board Chair, Byron School District,

                                           Complainant,

vs.

 

Phil Fuchs,

                                             Respondent.

 

 

DISMISSAL

 ORDER

 

This matter came on for a probable cause hearing under Minnesota Statutes § 211B.34, before Administrative Law Judge Beverly Jones Heydinger on November 4, 2009, to consider a complaint filed by Diane Lund on October 30, 2009.  The probable cause hearing was conducted by telephone conference call.  The record closed on November 4, 2009. 

Eric Quiring, Attorney at Law, Ratwik, Rozak & Maloney, P.A., 730 Second Avenue South, Suite 300, Minneapolis, MN 55402, appeared on behalf of Diane Lund, School Board Chair, Byron School District (Complainant). 

Steven E. Rolsch, Attorney at Law, 423 Third Avenue Southeast, P.O. Box 189, Rochester, MN 55903, appeared on behalf of Phil Fuchs (Respondent).    

Based on the record and all of the proceedings in this matter, including the Memorandum incorporated herein, the Administrative Law Judge finds that there is not probable cause to believe that the Respondents violated Minn. Stat.           § 211B.06.     

ORDER

          IT IS ORDERED:  That there is not probable cause to believe that Respondent violated Minnesota Statute § 211B.06 as alleged in the Complaint, and this matter is accordingly DISMISSED.

 

Dated:  November 9, 2009

 

 

                                                  /s/ Beverly Jones Heydinger       

                                                  BEVERLY JONES HEYDINGER

                                                  Administrative Law Judge

 

Digitally recorded; no transcript prepared

 

NOTICE OF RECONSIDERATION AND APPEAL RIGHTS

Minnesota Statutes § 211B.34, subdivision 3, provides that the Complainant has the right to seek reconsideration of this decision on the record by the Chief Administrative Law Judge.  A petition for reconsideration must be filed with the Office of Administrative Hearings within two business days after this dismissal.

          If the Chief Administrative Law Judge determines that the assigned Administrative Law Judge made a clear error of law and grants the petition, the Chief Administrative Law Judge will schedule the complaint for an evidentiary hearing under Minnesota Statutes § 211B.35 within five business days after granting the petition.

If the Complainant does not seek reconsideration, or if the Chief Administrative Law Judge denies a petition for reconsideration, then this order is the final decision in this matter under Minn. Stat. § 211B.36, subd. 5, and a party aggrieved by this decision may seek judicial review as provided in Minn. Stat.    §§ 14.63 to 14.69.

 

 

MEMORANDUM

This case involves two campaign flyers prepared and disseminated by Phil Fuchs in opposition to the Byron School District’s operating levy referendum ballot question.[1]  The flyers were published in local newspapers and disseminated on October 23, 2009.  The levy referendum question was on the November 3, 2009, ballot.  It was defeated by residents of the district by a vote of 1,200 to 837.    

The allegations in the Complaint that survived prima facie review concern statements in the flyers that the five-year levy referendum would generate $806,400 annually for the School District.  The School District argued that these statements were false and that the referendum would have generated only $682,794 a year.

The evidence developed at the probable cause hearing established that Mr. Fuchs arrived at his $806,400 figure by multiplying the number of students enrolled in the district by the proposed levy amount of $504 per student.  Mr. Fuchs obtained the number of enrolled students from the website of Public School Review.  Public School Review identifies itself as an online resource providing detailed profiles of public schools in the United States.  According to this website, the number of students enrolled in the Byron School District is 1,609.  Mr. Fuchs rounded this number down to 1,600 and multiplied it by $504 to arrive at the $806,400 figure stated in his flyers. 

Dr. Wendy Shannon, the Superintendent of Byron Public Schools, and School Board Member Matthew Prigge both testified at the probable cause hearing that sometime shortly after the flyers were published they informed Mr. Fuchs that his financial information was not accurate and they both requested that Mr. Fuchs meet with them to discuss the matter.  Mr. Fuchs declined to do so.  However, Dr. Shannon and Mr. Prigge conceded that they did not specifically identify as inaccurate or false the statements in the flyers concerning the amount of revenue to be generated by the referendum.    

Mr. Fuchs admits that his calculation based on 1,600 enrolled students may not have been completely accurate but he denies that he intentionally and knowingly published false statements.  In fact, Mr. Fuchs maintains that rounding down the number of enrolled students to 1,600 favored the School District since more than 1,600 students are currently enrolled in the district this academic year.  Moreover, Mr. Fuchs notes that the Rochester Post Bulletin referred to the School District’s levy referendum as an “$800,000 override levy referendum” in an article published on October 24, 2009. 

The Complainant acknowledged that she would have no additional evidence to offer in the event a determination of probable cause was made and this matter proceeded to an evidentiary hearing.

Legal Analysis

The purpose of a probable cause hearing is to determine whether there are sufficient facts in the record to believe that a violation of law has occurred as alleged in the complaint.[2]  The Office of Administrative Hearings looks to the standards governing probable cause determinations under Minn. R. Crim. P. 11.03 and by the Minnesota Supreme Court in State v. Florence.[3]  The purpose of a probable cause determination is to answer the question whether, given the facts disclosed in the record, it is fair and reasonable to require the respondent to go to hearing on the merits.[4]

 

          Minn. Stat. § 211B.06 prohibits a person from intentionally participating in the preparation, dissemination, or broadcast of campaign material with respect to the effect of a ballot question that is designed to promote or defeat the ballot question, that is false and which the person knows is false or communicates to others with reckless disregard of whether it is false.  The term “reckless disregard” was added to the statute in 1998 to expressly incorporate the “actual malice” standard applicable to defamation cases involving public officials from New York Times v. Sullivan.[5]  Based upon this standard, the Complainant has the burden at the hearing to prove by clear and convincing evidence that the Respondent either published the statements knowing the statements were false, or that he “in fact entertained serious doubts” as to the truth of the publication or acted “with a high degree of awareness” of its probable falsity.[6]  In addition, the burden of proving the falsity of a factual statement cannot be met by showing only that the statement is not literally true in every detail.  If the statement is true in substance, inaccuracies of expression or detail are immaterial.[7]

To be found to have violated section 211B.06, therefore, two requirements must be met: (1) a person must intentionally participate in the preparation or dissemination of false campaign material; and (2) the person preparing or disseminating the material must know that the item is false, or act with reckless disregard as to whether it is false.  As interpreted by the Minnesota Supreme Court, the statute is directed against false statements of fact.  It is not intended to prevent unfavorable deductions or inferences based on fact.[8]

 

           The Complainant has failed to show that the Respondent published the flyers either knowing his statements were false or with reckless disregard as to whether they were false.  Instead the evidence established that the Respondent based his calculation of the amount of revenue to be generated by the levy referendum on the number of students enrolled in the school district multiplied by the school district’s request of $504 per student.  In addition, the Respondent made the effort to source his calculations and provided an internet link on the flyers to the public school resource website whose data he used.  The fact that the number of enrolled student may have been outdated and not completely accurate, is not enough to establish a knowing violation under Minn. Stat.
§ 211B.06.   Both parties acknowledged that even if there was a determination of probable cause, neither had any additional evidence to offer at an evidentiary hearing.  Accordingly, this matter must be dismissed.    

                                                                                B.J.H.


[1] The Byron School District is located in Olmsted and Dodge Counties.

[2] Minn. Stat. § 211B.34, subd. 2.

[3] 239 N.W.2d 892 (Minn. 1976); see also Black’s Law Dictionary 1219 (7th ed. 1999) (defining “probable cause” as “[a] reasonable ground to suspect that a person has committed or is committing a crime.”)

[4] State v. Florence, 239 N.W.2d at 902.

[5] New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964); State v. Jude, 554 N.W.2d 750, 754 (Minn. App. 1996).

[6] See St. Amant v. Thompson, 390 U.S. 727, 731 (1968); Garrison v. Louisiana, 379 U.S. 64, 74 (1964); see also Riley v. Jankowski, 713 N.W.2d 379, 401 (Minn. App. 2006), rev. denied (Minn. July 20, 2006).

[7]Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn. App. 1986).

[8] Kennedy v. Voss, 304 N.W.2d 299 (Minn. 1981); Hawley v. Wallace, 137 Minn. 183, 186, 163 N.W. 127, 128 (1917); Bank v. Egan, 240 Minn. 192, 194, 60 N.W.2d 257, 259 (1953); Bundlie v. Christensen, 276 N.W.2d 69, 71 (Minn. 1979) (interpreting predecessor statutes with similar language).