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15-0325-20940-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Diane Lund, School Board Chair, Complainant, vs. Phil Fuchs, Respondent. |
NOTICE OF DETERMINATION OF PRIMA
FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
TO: Diane Lund, School Board
Chair, Byron School District, 1887 2nd Avenue NW, Byron, MN 55920; and Phil Fuchs, 821 2nd
Avenue NE, Byron, MN 55920.
On Friday, October 30,
2008, Diane Lund filed a Campaign Complaint with the Office of Administrative
Hearings alleging that Phil Fuchs violated Minnesota Statutes
§ 211B.06 by preparing and disseminating
false campaign material relating to the Byron School District’s operating levy
referendum. After reviewing the
Complaint and attached exhibits, the undersigned Administrative Law Judge has
determined that the Complaint sets forth prima facie violations of Minn. Stat.
§ 211B.06 with respect to the statements in the flyers concerning the amount of
revenue to be generated by the referendum.[1] The allegations concerning the other
statements in the flyers are dismissed.
THEREFORE, IT IS ORDERED AND NOTICE IS GIVEN that this matter is scheduled for a probable cause hearing to be held by telephone before the undersigned Administrative Law Judge at 2:00 p.m. on Wednesday, November 4, 2009. The hearing will be held by call-in telephone conference. You must call: 1-866-766-0067 at that time. When the system asks for your numeric pass code, enter “7649290” on your phone and you will be connected to the conference. The probable cause hearing will be conducted pursuant to Minnesota Statutes § 211B.34. Information about the probable cause proceedings and copies of state statutes may be found online at www.oah.state.mn.us and www.revisor.leg.state.mn.us.
At the probable cause hearing all parties have the right to be represented by legal counsel, by themselves, or by a person of their choice if that choice is not otherwise prohibited as the unauthorized practice of law. In addition, the parties have the right to submit evidence, affidavits, documentation and argument for consideration by the Administrative Law Judge. Parties should provide to the Administrative Law Judge all evidence bearing on the case, with copies to the opposing party, before the telephone conference takes place. Documents may be emailed to Judge Heydinger at Beverly.Heydinger@state.mn.us or faxed to 651-361-7936.
At the conclusion of the probable cause hearing, the Administrative Law Judge will either: (1) dismiss the complaint based on a determination that the complaint is frivolous, or that there is no probable cause to believe that the violation of law alleged in the complaint has occurred; or (2) determine that there is probable cause to believe that the violation of law alleged in the complaint has occurred and refer the case to the Chief Administrative Law Judge for the scheduling of an evidentiary hearing. Evidentiary hearings are conducted pursuant to Minnesota Statutes § 211B.35. If the Administrative Law Judge dismisses the complaint, the complainant has the right to seek reconsideration of the decision on the record by the Chief Administrative Law Judge pursuant to Minnesota Statutes § 211B.34, subdivision 3.
Any party who needs an accommodation for a disability in
order to participate in this hearing process may request one. Examples of reasonable accommodations include
wheelchair accessibility, an interpreter, or Braille or large-print
materials. If any party requires an
interpreter, the Administrative Law Judge must be promptly notified. To arrange an accommodation, contact the
Office of Administrative Hearings at
Dated:
/s/
Beverly Jones Heydinger
BEVERLY JONES HEYDINGER
Administrative Law Judge
MEMORANDUM
The
Complaint concerns a five-year operating levy referendum for the
the proposed levy override
The Complaint alleges that the Respondent violated Minn. Stat. § 211B.06 by preparing and disseminating false campaign material designed to defeat the levy referendum. The Complainant has identified six false statements on the first flyer and two false statements on the second flyer. Each allegation will be addressed below.
Legal Standards
Under the Fair Campaign Practices Act
Minnesota Statutes § 211B.06 is violated if a person: (1) intentionally participates in the preparation or dissemination of false campaign material with respect to the character or acts of a candidate, or with respect to the effect of a ballot question; and (2) prepares or disseminates the material knowing that the item is false, or acting with reckless disregard as to whether it is false. Thus, should this matter proceed to a hearing, the Complainant will have the burden 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.[3]
As interpreted by the Minnesota Supreme Court, the statute is directed against false statements of fact and not against unfavorable deductions or inferences based on fact.[4] Moreover, 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.[5] Finally, expressions of opinion, rhetoric, and figurative language are generally protected speech if, in context, the reader would understand that the statement is not a representation of fact.[6]
In determining whether a campaign complaint sets forth a prima facie violation of a statute, the Administrative Law Judge is required to credit as true all of the facts that are alleged in the Complaint, provided that those facts are not patently false or inherently incredible.
Campaign Flyer #1
Flyer 1 - Allegation 1
The Complainant alleges that the Respondent inaccurately refers to the referendum in the flyer as a “bond referendum” instead of an operating levy referendum.
Bond referendum levies are generally used by districts to construct facilities or buildings, while operating levies are used to support smaller class sizes or programs. The Complainant did not allege how the misidentification of the referendum as a bond referendum was designed to defeat the ballot measure. The Administrative Law Judge finds this misidentification to be an inaccuracy in detail and not a false statement of fact within the purview of Section 211B.06. The substance of the flyer is the comparative school district financial data and specifically what each district receives in operating revenue and spends per student. It does not address revenue generated from bond referenda. The Complainant has failed to establish a prima facie violation of Minn. Stat. § 211B.06 with respect to the Respondent’s mislabeling of the referendum as a bond referendum.
Flyer 1- Allegation
2
The flyer provides comparison data on 10 neighboring school districts’ revenue per student, expenditures per student, graduation rates, and teacher/student ratio. The flyer directs readers to confirm the data by going to the website: www.publicschoolreview.com.
The Complainant alleges that data is inaccurate. According to the Complaint, the domain name
of the website identified as the source of the data is registered to “Boarding
School Review,” an organization located in
The Administrative Law Judge finds that the Complainant has
failed to allege a prima facie violation of Minn. Stat. § 211B.06 with respect
to this allegation. The link provided in
the flyer directs readers to the website of Public School Review. Public School Review identifies itself as an
online resource providing detailed profiles of US public schools in the
Flyer 1 - Allegation 3
The Complainant maintains that in preparing the flyer, the
Respondent used an inaccurate source of data (www.publicschoolreview.com). According to the Complainant, the Respondent
should have obtained current accurate financial data for the
The Administrative Law Judge finds that the Complaint fails to allege a prima facie violation of Section 211B.06 with respect to this allegation. This allegation is essentially a critique of the Respondent’s methodology; not proof that the claims about the school district’s expenditures and resources are false. There is no requirement under 211B.06 that persons preparing campaign material use particular sources of data. The requirement is only that they not intentionally disseminate factually false statements. The fact that the Respondent did not use current data from the Minnesota Department of Education website is insufficient to support a finding that the Respondent either knew the financial figures were false or communicated them with reckless disregard as to whether they were false.
Flyer 1 - Allegation 4
The Complainant alleges that the following statements in the flyer are inaccurate:
“A short history lesson of the $49M school bond referendum that got done for $26M. That was a 47% reduction.”
According to the Complainant, the sentences refer to the $44 million three-part bond referendum question of 2002. The first part of that bond referendum concerned a proposed $37,500,000 for school construction/expansion and deferred maintenance, including $29,750,000 for a new high school. The second part concerned a proposed new auditorium at a cost of about $5,000,000. And the third part of that bond referendum concerned a proposed new high school athletic stadium at a cost of $1,500,000. In the end, voters approved a referendum for $27,600,000 toward the costs of a new high school (reduced in size and cost).
Apparently, the statements on the flyer are meant to suggest that the school district was able to operate with less than the amount sought by the school officials in 2002. The Complainant does not specifically identify what is false in these statements other than that the bond referendum referred to was for about $44 million instead of $49 million and that the amount approved was $27,600,000 instead of $26,000,000.
The Administrative Law Judge finds that this allegation is insufficient to support a prima facie violation of Minn. Stat. § 211B.06. The statements refer to a prior bond referendum and not to the effect of the ballot question at issue. The fact that the amount of the prior referendum is not recounted accurately is not enough to support a claim that the statements are factually false, that Respondent either knew they were false or published them with reckless disregard as to their falsity. If the statement is true in substance, inaccuracies of expression or detail are immaterial.[7] This allegation is dismissed.
Flyer 1 - Allegation 5
The flyer states: “The
A look at the Public School Review’s website identifies the
Flyer 1 - Allegation 6
The flyer states: “If referendum passes that would generate another $806,400 a year for the district to spend.” The Complainant contends that this is a false statement. According to the Complainant, if the referendum passes it will generate an estimated $682,794 a year.
The Administrative Law Judge finds the Complainant has alleged a prima facie violation of Minn. Stat. § 211B.06 with respect to this statement. The statement regarding the amount of money to be generated by the referendum is one that concerns the effect of the ballot question and one that is capable of being proven true or false. Whether the Respondent falsely stated the amount of money the operating levy referendum would generate is a question to be considered at the probable cause hearing. This allegation will proceed to a probable cause hearing as scheduled by this Order.
Flyer 2
Flyer 2 - Allegation 1
The Complainant asserts again that the reference to the operating levy referendum as a bond referendum is a false statement of fact and violative of Minn. Stat. § 211B.06. The Administrative Law Judge finds this misidentification to be an inaccuracy in detail and not a false statement of fact designed to defeat the ballot measure. The Complainant has failed to establish a prima facie violation of Minn. Stat. § 211B.06 with respect to this allegation.
Flyer 2 - Allegation 2
The flyer states: “Bottom line for the referendum is that $500,000 cut would generate $4 million over five years!!!” The Complainant states that this statement is false because a cut does not generate revenue. The Complainant further states that it is unclear what the Respondent means by this statement.
Although the identified statement is not the model of clarity, it appears the Respondent is claiming that the referendum will generate $4 million dollars over the five year life of the levy based on his prior assumption that the referendum will generate $806,400 a year. As with Allegation 6 in the first flyer, the Administrative Law Judge finds that the Complainant has alleged a prima facie violation of Minn. Stat. § 211B.06 with respect to this statement. Whether the Respondent knowingly stated falsely the amount of money the operating levy will generate for the school district is a question to be considered at the probable cause hearing.
The Complainant’s allegations relating to the statements in the flyers about the amount of money that will be generated by the referendum will proceed to a probable cause hearing as scheduled by this Order.[8] All of the other allegations are dismissed.
B.J.H.