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OAH
8-0325-20970-CV |
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STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Warren E. Kaari, Complainant,
v. Barbara Johnson, Respondent. |
FINDINGS
OF FACT, CONCLUSIONS AND
ORDER |
The above-entitled matter came on for an
evidentiary hearing on January 26, 2010, before a panel of three Administrative
Law Judges: Eric L. Lipman (Presiding
Judge), Bruce H. Johnson and William Johnson.
Following the receipt of post-hearing submissions from the parties, the hearing
record closed on February 16, 2010.
Warren E. Kaari (Complainant) appeared on his own behalf without counsel.
Corey J. Ayling, McGrann Shea Carnival Straughn & Lamb, Chartered, appeared on behalf of Barbara Johnson (Respondent).
STATEMENT OF ISSUE
Did Respondent Barbara Johnson violate Minnesota Statute § 211B.12 by converting to personal uses money that had been earlier contributed to her political committee?
The panel concludes that
the Complainant has established by a preponderance of the evidence that Respondent
did violate Minn. Stat. § 211B.12.
Based upon the entire
record, the panel makes the following:
FINDINGS OF FACT
1.
The Complainant, Warren Kaari, is a resident of
the Fourth Ward of the City of
2.
The Respondent, Barbara Johnson, is a current
member of the Minneapolis City Council and serves as the Council’s President. Ms. Johnson represents the City’s Fourth Ward
on the Council.[2]
3.
Ms. Johnson was first elected to the Minneapolis
City Council in 1997. Members of the
Minneapolis City Council serve four-year terms.
Ms. Johnson was re-elected to the City Council from the Fourth Ward in
2001 and 2005.[3]
4.
Ms.
Johnson uses the internet to communicate with her constituents by way of
electronic mail. She has access to the
internet at her
5.
Because
Ms. Johnson regards cellular telephone reception in the area of her cabin in
Tower as unreliable, she has standard land-line telephone service provided to
her cabin.[5]
6.
Ms.
Johnson subscribes to cable television.
She regularly watches the coverage of state legislative sessions and the
Hennepin County Board of Commissioners meetings. She likewise watches Minneapolis City Council
Committee meetings that she is unable to attend in person.[6]
7.
The
Dunkers Club is a civic organization that promotes economic development in
8.
Ms.
Johnson is a member of “Triple-A” (AAA), a not-for-profit automobile service
organization. The AAA Plus membership
that Ms. Johnson obtained provided roadside assistance coverage for both her
car and her husband’s sports utility vehicle (SUV).[8] On occasion, Ms. Johnson has used her
husband’s SUV to transport tables, chairs and lawn signs for campaign events.[9]
9.
Ms.
Johnson’s appearance, and in particular her hairstyle, has been the subject of
comment by the local media.[10] As a result of sometimes pointed critiques,
Ms. Johnson now makes a greater effort to look her best in public. Mindful of the press commentary, her practice
is to schedule hair cuts and hair coloring sessions on a more regular basis.[11]
10.
Because
Ms. Johnson was not a candidate on the ballot in calendar year 2008, her
campaign committee was only required to file a single, annual campaign finance
report of receipts and expenditures.[12]
11.
This
annual report was due on Monday, February 2, 2009.[13]
12.
On February
3, 2009, Ms. Johnson’s campaign committee filed its 2008 Annual Campaign
Finance Report. The report itemized the
total contributions received and the expenditures that her committee made
during calendar year 2008. Among others,
the committee listed the following expenditures in this report:
● $1,219.85
to Comcast for internet and cable television service provided to Ms. Johnson’s
home in North Minneapolis. [14]
● $1,345.42 to Qwest for cell phone, land line, and fax
services.[15]
● $1,030.53
to Frontier Communications for internet, telephone and fax service provided to
Ms. Johnson’s family cabin in Tower,
● $475
to Jackie Ann’s Salon for Ms. Johnson’s hair styling services.[16]
● $367.38 to Genies Magic Cleaners for dry-cleaning services.[17]
● $300 membership fee to the Twin Cities Dunkers Club.[18]
● $123.85
to the American Automobile Association (AAA) for roadside assistance coverage.[19]
13.
Ms.
Johnson was a candidate for re-election and her name appeared on the ballot in November
2009. Accordingly, her campaign
committee was required to file campaign finance reports ten days before the
primary and ten days before the general election.[20]
14.
On
September 10, 2009, Ms. Johnson’s campaign committee filed a campaign finance
report for the reporting period January 1, 2009 through September 1, 2009. In this report, the committee listed the
following expenditures:
● $270.00 to Jackie Ann’s Salon for hair care services for
photo opportunities and fundraiser.[21]
● $199.20
to Genies Magic Cleaners for dry-cleaning services.[22]
● $785.01
to Comcast for internet and cable television services.[23]
● $1,100
to Ms. Johnson to reimburse her for “campaign expenses.”[24]
● $500 to Ms. Johnson’s son-in-law, Jeff Piper, for bartending
at campaign fundraisers on May 15 and 25, 2009.[25]
● $376
to the Northside Arts Collection for membership and catalogs.[26]
15.
At the
March 2009 DFL Party endorsing convention, Ms. Johnson and three other
candidates vied for the DFL Party endorsement for the council seat from the
Fourth Ward in
16.
Ms.
Johnson’s campaigning included appearing at community, social and fundraising
events, and organizing volunteers to door-knock and drop campaign literature at
the homes of her constituents.[28]
17.
In her
September 10, 2009 report, Ms. Johnson disclosed that she had been reimbursed $1,100
for food and beverages (pizza, doughnuts, and soft drinks) that she had purchased
and served to campaign volunteers who worked on her behalf at the March DFL
convention and during the summer that preceded the election.[29]
18.
On one
occasion, when Ms. Johnson was campaigning at a neighborhood ice cream social, she
spilled chocolate sauce on her silk blouse.
Ms. Johnson charged the costs associated with dry cleaning her blouse to
her campaign.[30]
19.
On
several occasions in 2009, Ms. Johnson paid for dry cleaning services without
seeking reimbursement from her campaign fund.[31]
20.
The
September 10, 2009 campaign finance report listed a $500 payment in favor of
Mr. Jeff Piper, the Councilwoman’s son-in-law.
The disbursement includes wages for bartending services rendered at more
than one fundraising events during 2009, at a rate of $25 per hour, and
reimbursement for the expenses associated with purchase of the beer and wine
served at those events.[32]
21.
The
Northside Arts Collection is a non-profit organization that serves and promotes
artists and arts organizations living and working in the north side
neighborhoods of
22.
Ms.
Johnson included a copy of the Northside Arts Collection catalog (along with
other
23.
In her campaign
committee’s Campaign Finance Report filed on October 29, 2009, for the
reporting period September 2, 2009 through October 20, 2009. Ms. Johnson’s campaign committee reported an
additional expenditure of $337.05 for internet and cable television service
from Comcast; an expenditure of $39.16 for dry-cleaning services; and an
expenditure of $99.00 for hair styling services.[35]
24.
In that
same Campaign Finance Report filed October 29, 2009, Ms. Johnson’s campaign
committee reported an expenditure of $229.20 for cellular telephone expenses.[36]
25.
In
addition to their salary, members of the Minneapolis City Council are given an
annual “ward budget” to cover costs associated with running their offices. In 2009, the annual ward budget for each
Council member was approximately $11,000.
Under the City Council Ward Budget Guidelines, computer software and
hardware, cell phone charges, postage, printing, car allowance, and mileage
reimbursement are permitted ward budget expenditures.[37]
26.
Ms.
Johnson could seek reimbursement from the City for cellular telephone service,
but she chooses instead to charge these costs to her campaign.[38]
27.
During
the Instant Runoff Voting balloting on November 3, 2009, there were two
Democrat-Farmer-Labor candidates, one Green party candidate and one independent
seeking election to the City Council from the Fourth Ward. On November 3, 2009, Ms. Johnson won
re-election to her fourth term on the Minneapolis City Council.
28.
On
November 4, 2009, City Pages published
an article that focused on Ms. Johnson’s use of campaign funds for haircuts,
dry cleaning and cable television service.
Ms. Johnson is quoted in the article as defending these expenditures
because she is “campaigning continuously – all the time.”[39]
29.
On
November 18, 2009, Mr. Kaari filed this campaign complaint with the Office of
Administrative Hearings alleging that Ms. Johnson violated Minnesota Statutes §
211B.12 by using money collected by her campaign for non-permitted personal
expenditures.
Based upon the foregoing Findings of Fact,
the panel makes the following:
CONCLUSIONS
1.
Minn.
Stat. § 211B.35 authorizes the panel of Administrative Law Judges to consider
this matter.
2.
Minnesota
Statutes Chapter 211A governs the campaign financial reporting requirements for
local candidates. “Candidate” is defined
to mean “an individual who seeks nomination or election to a county, municipal,
school district, or other political subdivision office.”
3.
Because
the Respondent sought election to a municipal office, she was required to
report campaign expenditures and contributions pursuant to the provisions of
Minnesota Statutes Chapter 211A.
4.
Minn.
Stat. § 211A.02 requires candidates who receive contributions or make
disbursements of more than $750 in a calendar year to file financial reports
with the appropriate filing officer.[40] The reports must include the total amount of
receipts and expenditures for each time period covered, as well as the name,
address, and employer (or occupation if self-employed) of any individual or
committee that has made contributions of $100 or greater during the year.[41]
5. As a candidate for municipal office receiving contributions and making disbursements of more than $750, Ms. Johnson was required to file, and did file, campaign finance reports pursuant to Minnesota Statutes Chapter 211A.
6. As a municipal candidate, Ms. Johnson is not eligible to receive the public subsidies that are offered to candidates for certain state offices under Chapter 10A.[42] Ms. Johnson’s expenditures were drawn from money that was privately contributed to her campaign committee.
7. Minnesota Statutes § 211B.12 governs campaign expenditures. It provides as follows:
Use of money collected for political
purposes is prohibited unless the use is reasonably related to the conduct of
election campaigns, or is a noncampaign disbursement as defined in section
10A.01, subdivision 26. The following
are permitted expenditures when made for political purposes:
(1) salaries,
wages, and fees;
(2) communications,
mailing, transportation, and travel;
(3) campaign
advertising;
(4) printing;
(5) office
and other space and necessary equipment, furnishings, and incidental supplies;
(6) charitable
contributions of not more than $100 to any charity annually; and
(7) other
expenses, not included in clauses (1) to (6), that are reasonably related to
the conduct of election campaigns. In
addition, expenditures made for the purpose of providing information to
constituents, whether or not related to the conduct of an election, are
permitted expenses. Money collected for
political purposes and assets of a political committee or political fund may
not be converted to personal use.
8.
An act
is done for “political purposes” when the act is intended or done to
“influence, directly or indirectly, voting at a primary or other election.”[43]
9.
Money
collected by a candidate’s campaign committee may be used on items and services
“reasonably related to the conduct of election campaigns,” but may not be “converted
to personal use.”[44] However, Chapter 211B does not separately
define the terms “reasonably related” or “converted to personal use.”
10.
Minnesota Statutes Chapter 10A governs the
campaign finance and public disclosure requirements for candidates seeking
nomination or election as state constitutional officer, legislator or judge.[45]
11.
Minnesota Statutes § 10A.01, subd. 26,
defines “noncampaign disbursement,” in part, to mean payments by a campaign
committee for accounting and legal services, food, beverages, and entertainment
for fundraising events and campaign activities, and payment of a candidate’s expenses
for serving public office, “other than
for personal uses.”
12.
The prohibition on converting campaign funds
to personal use that is found in Chapter 211B was enacted on the same date as
the parallel prohibition on such conversion that is found in Minnesota Statutes
§ 10A.01, subd. 26.[46]
13. The burden of proving the allegations in the complaint is upon the Complainant. The standard of proof for a violation of Minn. Stat. § 211B.12 is a preponderance of the evidence.[47]
14. Under Minn. Stat. § 211B.32, subd. 2, campaign complaints must be filed within one year after the occurrence of the act or failure to act that is the subject of the complaint, except that if the act or failure to act involves fraud, concealment, or misrepresentation that could not be discovered during that one-year period, the complaint may be filed with the OAH within one year after the fraud, concealment, or misrepresentation was discovered.
15. The Complainant failed to establish that the Respondent’s expenditures for internet, telephone and cable television service, the Dunkers club membership, the Northside Arts Collective catalogs, food and beverages provided to campaign volunteers, and bartending services provided at fundraising events, violated Minn. Stat. § 211B.12. These expenditures were reasonably related to the conduct of Respondent’s 2009 campaign, and the personal benefit conferred upon Ms. Johnson, or her family members, was not so disproportionate as to amount to conversion of these disbursements to personal use.
16. The Complainant did establish that the Respondent’s expenditure of campaign funds for an AAA membership was not reasonably related to the conduct of the 2009 campaign, and that the personal benefit conferred upon the Johnsons was so disproportionate as to convert this disbursement to personal use. Mr. Kaari has established a violation of Minn. Stat. § 211B.12.
17. The Complainant did establish that not all of the $1,449.54 disbursed for hair-styling services and dry-cleaning was reasonably related to the conduct of Respondent’s 2009 campaign, and that the personal benefit conferred upon Ms. Johnson was so disproportionate as to convert this disbursement to personal use. Mr. Kaari has established a violation of Minn. Stat. § 211B.12.
Based upon the record
herein, and for the reasons stated in the following Memorandum, the panel of
Administrative Law Judges makes the following:
ORDER
IT IS ORDERED:
That having been found to have violated Minn.
Stat. § 211B.12, Respondent Barbara Johnson pay a civil penalty of two-hundred
dollars by April 10, 2010.[48]
Dated: March 2, 2010
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/s/ Eric L. Lipman |
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ERIC L. LIPMAN |
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Presiding Administrative Law Judge |
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/s/ Bruce H. Johnson |
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BRUCE H. JOHNSON |
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Administrative Law Judge |
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/s/ Paul Rieke for |
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WILLIAM R. JOHNSON |
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Administrative Law Judge |
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Reported: Digitally recorded,
no transcript prepared.
NOTICE
This is the final
decision in this case, as provided in Minn. Stat. § 211B.36, subd. 5. A party aggrieved by this decision may seek
judicial review as provided in
MEMORANDUM
The
Complainant, Mr. Kaari, argues that many of the expenditures listed on Ms. Johnson’s
2008 and 2009 campaign finance reports were for personal items and services
unrelated to the conduct of her 2009 campaign.
Kaari disagrees with Ms. Johnson’s underlying assumption that members of
the City Council are campaigning for re-election, and making campaign-related
expenditures, throughout their terms of office.
Mr. Kaari asserts that many of the disbursements made by the Johnson
campaign were for items that benefitted Ms. Johnson personally.
In
particular, the Complainant contends that Ms. Johnson’s expenditures for cellular
telephone service, cable television, internet service, dry-cleaning, hair
styling, AAA road-side service, and membership in the Dunkers club and
Northside Arts Collective were not reasonably related to her 2009 campaign and
should not be permitted.
Ms. Johnson makes two key
replies: The first is that all of the
expenditures made by her campaign were appropriate and for lawful
purposes. Secondly, Ms. Johnson argues
that any payment made by the campaign prior to November 18, 2008 may not be the
subject of a proper Fair Campaign Practices Act complaint.
The panel addresses each
of these claims and defenses in turn below.
I.
Time to Present Claims of Converting
Campaign Funds to Personal Use
Minnesota Statutes § 211B.32 requires that campaign complaints must be filed:
within one year after the occurrence of the act
or failure to act that is the subject of the complaint, except that if the act
or failure to act involves fraud, concealment, or misrepresentation that could
not be discovered during that one-year period, the complaint may be filed with
the office [of administrative hearings] within one year after the fraud,
concealment, or misrepresentation was discovered.
Ms. Johnson argues that only those campaign expenditures made after
November 18, 2008 – one year prior to the filing of the complaint – are
properly before the OAH. Any complaint
as to a payment made before November 18, 2008, continues Ms. Johnson, is
time-barred.
The panel disagrees.
In
non-election years, candidates for the Minneapolis City Council are required
only to file a single, annual campaign finance report – and this report is due
on or before January 31.[49] Until
this reporting was complete, only those with access to the Johnson campaign accounts,
and certainly no member of the public, could file a complaint under section
211B.12 claiming that Ms. Johnson had converted campaign funds during 2008.[50] In the view of the panel, absent some
circumstance not present in this record, the details of Ms. Johnson‘s campaign
expenditures were “concealed” as that term is used in section 211B.36, until
the required disclosures were made on February 3, 2009.
Importantly,
if Councilwoman Johnson’s reading of the statute was the rule, a candidate
could convert some or all of her campaign fund to personal uses on January 1,
and wait to disclose this conversion until January 31 of the following year; at
a time that was after the expiration of the statute of limitations. Such a reading is contrary to the Legislature’s
clearly stated intention to afford complaining parties one year after the
occurrence of acts is “discovered” in order to submit a complaint.
For this
reason, all of the expenditures challenged by Mr. Kaari as not reasonably
related to the conduct of a campaign shall be considered by the panel.
II. The
Applicable Legal Standard for Campaign Disbursements
Through counsel at the
evidentiary hearing and in her post-hearing brief, Councilwoman Johnson urged
the panel to adopt a reasonableness test for adjudging campaign expenditures
under Minn. Stat. § 211B.12.
Councilwoman Johnson argues that as to any disputed expenditures, the
statute only requires a “logical connection or relatedness between the expenditure
and the political purposes of [the] campaign.”
Concludes Ms. Johnson, “[i]t is enough … to articulate a rational,
legitimate basis for the expenditure to pass this test.”[51]
The panel disagrees.
In this context, Minn.
Stat. § 211B.12 contains two key obligations:
Candidates may only expend funds on items that are reasonably related to
a “political purpose,” as defined in Minn. Stat. § 211A.02, and must not
convert campaign resources to personal uses.
The argument that Councilwoman Johnson makes in her brief at best
conflates these separate obligations into one requirement, or at worst, reads
the second obligation entirely out of the statute. Neither approach is availing.
It
is important to note that the prohibition on conversion of campaign funds and
assets to personal use was amended into section 211B.12 five years after the
original enactment date. In the view of
the panel, the amendment narrowed the “reasonableness test” found in the 1988
version of the statute and is not mere surplusage.[52]
Likewise, the
Legislature’s choice of the term “conversion” is significant in relaying its
intentions. Conversion is a term of art
in
The best reading of Minn. Stat. § 211B.12 is
that it requires a reasonable relationship between an expenditure of campaign
funds and the political purposes of the campaign, and that the benefits derived
by any person following the expenditure not be so disproportionate that there
is a “conversion to personal use” as a result of the disbursement.[55]
In fact, as a witness during the evidentiary
hearing, Councilwoman Johnson described the twin requirements of the statute far
better than her later brief. She testified
that campaign funds could be properly used to communicate with her constituents
and supporters, but could not, for example, finance her travel to
It is easy to imagine a candidate asserting,
in genuine good faith, that engaging in certain foreign travel would contribute
to his or her prospects on Election Day.
We know this because this question has already presented itself, in a
very similar context, to the Campaign Finance and Public Disclosure Board.
In 2006, the Campaign Finance and Public
Disclosure Board rendered an advisory opinion on the use of campaign funds by a
state legislator for foreign travel. The
request for the opinion recited the following facts: The Jewish Community Relations Council
planned a trip to
This conclusion is helpful here because, no doubt, a candidate
could make a “logical connection” between the candidate’s broader political
purposes, and a trip to
The legislative history confirms this
view. The ban on conversion of campaign
funds to personal use was added to section 211B following the public outcry
over events during the 1993 legislative session – events which included
revelations of misuse of state telephone calling cards and travel by legislators
to a lobbyist-sponsored event at a winter resort.[59]
The bill that included the ban on a conversion of campaign funds
was part of a larger, comprehensive package on ethics reform.[60] This ethics reform
package followed after more than forty hours of testimony and deliberations by
the Senate Ethics and Campaign Reform Committee.[61] When approving these
reforms, legislative leaders of both parties pointed to the fact that
far-ranging campaign finance reform was very much on the public’s mind in 1993.[62]
Moreover, the Legislature simultaneously revised both section
211B.12 and section 10A.01 (26) (10), to establish a broad and interlocking set
of prohibitions on the conversion of campaign funds to personal use. Statutes are in pari materia if they relate to the same person or thing or have
a common purpose. Here, because the
provisions of sections 10A.01 (26) (10) and 211B.12 were enacted as part of the
same bill, the panel construes these provisions together, so as to effectuate
legislative intent, purpose, and policy.[63] Individually, and in
combination, these amendments were intended to narrow the range of items for
which campaign funds could be utilized.[64]
With that said, when
resolving complaints under section 211B.12 the Office of Administrative
Hearings does not sit as a super-campaign consultant. Absent allegations of self-dealing or sham
transactions, Chapter 211B does not authorize this tribunal to second-guess the
wisdom of particular campaign expenditures or to assess the value received from
transactions made during the course of a campaign for public office. Accordingly, whether re-printing copies of the
Northside Arts Collection catalog, for example, is a useful campaign technique,
is a matter that the statute and the constitution commit entirely to the
candidate and the campaign committee.
The sole question for the panel in this
matter is whether the personal benefits derived by Ms. Johnson, and members of
her family, following certain expenditures was so disproportionate that the
committee’s funds were converted to personal use.
III. Specific
Expenditures of the Johnson Campaign
Ms.
Johnson contends that every disbursement of campaign funds in 2008 and 2009 was
reasonably related to influencing the balloting in the 2009 election, and
therefore was lawful and proper.
A.
Telephone Expenses
Ms. Johnson asserts that the campaign
purpose underlying her cellular and “land-line” telephone charges was to permit
her to remain in close contact with her constituents on matters of public
concern and her supporters on the progress of the campaign. Upon a review of the hearing record, the
panel concludes that there is a reasonable relationship between these expenditures,
and the political purposes of the campaign, and that the benefits derived by Ms.
Johnson from these disbursements was not so disproportionate that there was a conversion
of campaign funds to personal use.
B.
Internet Expenses
Ms. Johnson
asserts that the campaign purpose underlying the internet service provided both
to her north
C.
Cable Television Expenses
Ms. Johnson
asserts that the campaign purpose underlying the expenditures for cable television service was to permit her to monitor
from home proceedings of other public bodies.
Upon a review of the hearing
record, the panel concludes that there is a reasonable relationship between these
expenditures, and the political purposes of the campaign, and that the benefits
derived by Ms. Johnson from these disbursements was not so disproportionate
that there was a conversion of campaign funds to personal use.
D.
Food and Beverage Service Expenses
The Respondent also maintains that the $1,100 campaign expenditure to reimburse Ms. Johnson for the cost of food and beverages paid to campaign supporters and volunteers is reasonably related to the conduct of the election campaign. Likewise, the payment of $500 to her son-in-law, Mr. Piper, for purchasing beverages and bartending at fundraising events was campaign-related and therefore permitted.
Upon a review of the hearing record, the panel
concludes that there is a reasonable relationship between these expenditures,
and the political purposes of the campaign, and that the benefits derived by either
Ms. Johnson or Mr. Piper from these disbursements was not so disproportionate
that there was a conversion of campaign funds to personal use.
E.
Dunkers Club Membership
Ms.
Johnson contends that the $300 expenditure for membership in the Twin Cities
Dunkers club was reasonably related to the valid campaign purpose of maintaining
regular communications with leaders in the Twin Cities business and nonprofit
community.
Upon a review of the hearing record, the panel concludes that there is a reasonable relationship between this expenditure, and the political purposes of the campaign, and that the benefits derived by Ms. Johnson from this disbursement was not so disproportionate that there was a conversion of campaign funds to personal use.
F.
Advertising and Catalogue Printing Expenses
Ms.
Johnson asserts that the $376 expenditure for placement of an advertisement in the
Northside Arts Collective catalogue, and printing copies of the catalogue for
later distribution to DFL convention delegates, was proper.
Upon a review of the hearing record, the
panel concludes that there is a reasonable relationship between this expenditure,
and the political purposes of the campaign, and that the benefits derived by Ms.
Johnson from this disbursement was not so disproportionate that there was a conversion
of campaign funds to personal use.
G.
AAA Membership Expenses
Ms.
Johnson argues that the expenditures for an AAA membership, including roadside
assistance for both her primary vehicle and her husband’s SUV, was an appropriate
campaign expense. She maintains that her
car and her husband’s car are used for campaign purposes, throughout the city,
at all hours of the day. Ms. Johnson
testified that her husband’s SUV was used for hauling lawn signs, coolers,
tables and chairs for various campaign events.
She contends that the ability to get roadside assistance for vehicles
used for campaign purposes, served a valid and permissible campaign
purpose.
Upon a review of
the hearing record, the panel concludes that there is not a reasonable
relationship between these expenditures, and the political purposes of the
campaign, and that the benefits derived by Mr. and Mrs. Johnson from these disbursements
was so disproportionate that there was a conversion of campaign funds to personal
uses.
H.
Hair Styling and Dry-Cleaning Expenses
Ms.
Johnson argues that the expenditures on hair styling and dry-cleaning services
were related to improving her appearance at public events and addressing the
critiques she had suffered on this point in the local media.
Upon a review of
the hearing record, the panel concludes that there is not a reasonable
relationship between all of these expenditures, and the political purposes of
the campaign, and that in many instances the benefits derived by Ms. Johnson
from these disbursements was so disproportionate that there was a conversion of
campaign funds to personal uses.
In this
context it is important to emphasize that there is a single legal standard that
applies to all candidates – regardless of the candidate’s gender.
At the evidentiary
hearing there was considerable testimony as to whether female candidates for
public office, like Ms. Johnson, are held to different (and more rigorous)
standards of appearance by members of the voting public; thereby obliging
different types of expenditures from the campaign committees of female
candidates.[65]
While there is much to commend this view, as well as evidence that male
candidates can likewise be subject to withering critiques of their attire and
grooming,[66] the panel need not resolve this debate in
order to render a decision in this case.
It suffices to say that if a candidate for office in
Moreover,
the record in this case shows precisely how such a rule can, and does, work in
practice. Undoubtedly, the reimbursement
for the dry cleaning expenses incurred following the soiling of Ms. Johnson’s
blouse at a campaign event was reasonable, proper and easily documented. The need to restore one garment does not,
however, authorize reimbursement of a candidate’s dry cleaning expenses more
generally.
V. Conclusion
The
panel concludes that there is not a sufficient nexus between the 2008 and 2009
campaign expenditures for hair styling, dry-cleaning services and the AAA membership
and Ms. Johnson’s 2009 re-election campaign.
The Complainant, Mr. Kaari, has established by a preponderance of the
evidence that these expenditures violated Minn. Stat. § 211B.12.
Having found that the Respondent violated Minn. Stat. §
211B.12 (7) with respect to certain campaign expenditures, the Panel may make
one of several dispositions: The panel
may issue a reprimand, may impose a civil penalty of up to $5,000, and may
refer the complaint to the appropriate county attorney for criminal prosecution.[67]
The panel imposes a civil penalty of $200. In reaching this disposition, the facts that
the impact of the violation upon voters in
E. L. L., B.H.J., W.R.J.
[1] See generally, Testimony of Barbara Johnson.
[2]
[3]
[4] Testimony of B. Johnson; Ex. 16.
[5] Ex. 15; Test. of B. Johnson.
[6] Test. of B. Johnson.
[7] Test. of B. Johnson.
[8] Test. of B. Johnson.
[9] Test. of B. Johnson.
[10] Ex. 13, City
Pages, January 14, 2004, at 15 (The article, entitled “Meet Barb Johnson:
the most powerful politician in
[11] Test. of B. Johnson.
[12] See Minn. Stat. § 211A.02, subd. 1.
[13] See id. January 31, 2009 was a Saturday.
[14] Ex. 4 (Schedule B, p. 4).
[15] Ex. 4 (Schedule B, p. 4).
[16] Ex. 4 (Schedule B, p. 4).
[17] Ex. 4 (Schedule B, p. 4).
[18] Ex. 4, (Schedule B, p. 4).
[19] Ex. 4 (Schedule B, p. 4); Ex. S.
[20] See, Minn. Stat. § 211A.02, subd. 1.
[21] Ex. 2 (Schedule B p. 4).
[22] Ex. 2 (Schedule B, p.4).
[23] Ex. 2 (Schedule B, p. 4).
[24] Ex. 2 (Schedule B, p. 4).
[25] Ex. 2 (Schedule B, p. 4).
[26] Ex. 2. (Schedule B, p. 4); Ex. 20.
[27] Testimoy of B. Johnson.
[28] Test. of B. Johnson.
[29] Test. of B. Johnson.
[30] Testimony o f B. Johnson.
[31] Test. of B. Johnson; Exs. 14C – 14F.
[32] Test. of B. Johnson.
[33] Ex. 20.
[34] Test. of B. Johnson; Ex. 20.
[35] Ex. 3 (Schedule B, p. 4).
[36] Ex. 3 (Schedule B, p. 4).
[37] Test. of B. Johnson; Ex. 5.
[38] Test. of B. Johnson.
[39] City Pages, Nov. 4, 2009 (“City Council President Barb Johnson Enjoys Perks of Office.”)
[40] Minn. Stat. § 211A.01, subd. 7, defines “filing officer” to mean the officer authorized by law to accept affidavits of candidacy or nominating petitions for an office or the officer authorized by law to place a ballot question on the ballot.
[41] Minn. Stat. § 211A.02, subd. 2(5).
[42]
See,
[43] Minn. Stat. § 211B.01, subd. 6.
[44]
[45] Minn. Stat. § 10A.01, subd. 10.
[46]
See,
1993 Laws of
[47] Minn. Stat. § 211B.32, subd. 4.
[48]
The check should be made payable to “Treasurer, State of
[49] Minn. Stat. § 211A.02, subd. 1.
[50] Compare, Minn. Stat. § 211B.33, subd. 2 (a) (“If the administrative law judge determines that the complaint does not set forth a prima facie violation of chapter 211A or 211B, the administrative law judge must dismiss the complaint”).
[51] Respondent’s Post-Hearing Memorandum, at 20.
[52] Compare, 1988 Laws of Minnesota, Chapter 578, Article 3, Section 12 with 1993 Laws of Minnesota, Chapter 318, Article 2, Section 48; see also, Minn. Stat. § 645.17 (1) and (2) (“In ascertaining the intention of the legislature the courts may be guided by the following presumptions ... the legislature does not intend a result that is absurd, impossible of execution, or unreasonable [and] the legislature intends the entire statute to be effective and certain”).
[53]
See,
Rudnitski v. Seely, 452 N.W.2d 664, 668 (
[54] See, Minn. Stat. § 645.17 (4) (“when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language”).
[55] See, Day v. Jungbauer, OAH Docket No. 11-0320-17509-CV (2006) (http://www.oah.state.mn.us/aljBase/032017509.rt.mbg.htm) (“The Complainant has established that the Respondent’s expenditures on airplane models did violate Minn. Stat. § 211B.12 (7). There was no convincing evidence that the models were originally purchased for a fundraiser, but even if they were, they were not used for that purpose and they were converted to personal use”).
[56] See, Test. of B. Johnson.
[57] See, Advisory Opinion 390, slip op. at 1 (Campaign Finance and Public Disclosure Board, 2006) (http://www.cfboard.state.mn.us/ao/AO390.pdf).
[58] Id, at 2.
[59] See generally, C. Allen and M. Linsky, Managing in a Crisis: Dee Long’s Tumultuous Year, at 3-9 (State Legislative Leaders Foundation, 1994) (http://www.sllf.org/media/file/20.4.pdf).
[60] See, Conference Committee Report on
House File 163 (1993); House File 201 (1993); 1993 Senate Journal 5530 - 5552.
[61] Remarks of Senator Dean Elton Johnson, Senate 78th
Session, Day 39, April 20, 1993 – Tape 2.
[62] Id; Remarks of Senator Douglas Johnson, Senate 78th Session, Day 39, April 20, 1993 – Tape 2 (”Things have changed and I think that the public in Minnesota has become more aware; that we have to change the way that we finance campaigns in Minnesota. As I have studied our system and read and followed it, I think that is what this bill is all about and the components of it….”); compare generally, Line Item Veto Message of Governor Carlson (May 20,1993) (“Despite its shortcomings, this bill represents the beginning of campaign reform) (http://www.leg.state.mn.us/archive/vetoes/1993veto_ch318.pdf).
[63] See, State v. McKown, 475 N.W.2d 63, 65
(
[64]
See,
1993 Laws of
[65] See, e.g., Testimony of Sarah Janecek.
[66] Compare, e.g., Extreme makeover, Iowa style, Star Tribune (October 28, 2007) (http://www.startribune.com/politics/11761271.html); Style becomes a real issue in '08 presidential race, USA Today (October 14, 2007) (http://www.usatoday.com/life/lifestyle/fashion/2007-10-14-campaign-fashion_N.htm).
[67] Minn. Stat. § 211B.35, subd. 2.