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OAH
48-0325-21677-CV |
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STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
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Steve Abrahamson and Tim Kotzian,
Complainants, vs. The Bob Larson, Tom Beaudry, Darrell Bjerklie, Gary Rantala, Andrew
Larson, Chet Larson, and Zelda Bruns, in their capacity as School Board Members, Respondents. |
ORDER OF
DISMISSAL |
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TO: Eric
Kaardal, Attorney at Law, Mohrman & Kaardal, P.A.; and Respondents.
On
The Chief Administrative Law Judge assigned this
matter to the undersigned Administrative Law Judge on November 4, 2010, pursuant
to Minn. Stat. § 211B.33. A copy of the
Complaint and attachments were sent by
After reviewing the Complaint and attachments, the Administrative Law Judge finds that the Complaint does not state prima facie violations of Minn. Stat. §§ 211A.02, 211A.03, 211A.05, 211A.06, 211B.06 or 211B.15, subd. 9.
Based upon the Complaint and
for the reasons set out in the attached Memorandum,
IT IS ORDERED:
That the Complaint filed by Steve Abrahamson and Tim
Kotzian against the St. Louis County School District, Independent School
District No. 2142, and School Board Members Bob Larson, Tom Beaudry, Darrell Bjerklie, Gary
Rantala, Andrew Larson, Chet Larson, and Zelda Bruns is DISMISSED.
Dated: November 9, 2010
/s/
Kathleen D. Sheehy for ___
STEVE
M. MIHALCHICK
Administrative
Law Judge
This Campaign Complaint concerns the
According to the Complaint, St. Louis County Independent
School District No. 2142, through its School Board members, caused a ballot
question election seeking authorization to issue general obligation school
building bonds in an amount not to exceed $78.8 million. The Complaint alleges that the
To set forth a prima facie case that entitles a party to a hearing, the party must either submit evidence or allege facts that, if unchallenged or accepted as true, would be sufficient to prove a violation of chapter 211A or 211B.[2] For purposes of a prima facie determination, the tribunal must accept the facts alleged as true and the allegations do not need independent substantiation.[3] A complaint must be dismissed if it does not include evidence or allege facts that, if accepted as true, would be sufficient to prove a violation of chapter 211A or 211B.[4]
The Complaint alleges that the
The Complainants argue generally that the public funds entrusted
to the School District belong equally to proponents and opponents of the
December 2009 ballot question and that the
Specifically, the Complaint alleges that the
Chapter 211A Claims
Chapter 211A is applicable to ballot questions to be voted on by voters of one or more political subdivisions but not by all the voters of the state. Section 211A.02 requires that a candidate or committee who receives contributions or makes disbursements of more than $750 in a calendar year must submit an initial report to the filing officer within 14 days after the candidate or committee receives or makes disbursements of more than $750 and must continue to make reports as provided in Minn. Stat. §§ 211A.03 and 211A.05 until a final report is filed. The receipt of “contributions” or the making of “disbursements” is the threshold requirement for the filing obligation. Under Minn. Stat. § 211A.06, a treasurer who fails to keep a correct account of money received for a committee “with the intent to conceal receipts or disbursements, [or] the purpose of receipts or disbursements” is guilty of a misdemeanor.
Minnesota Statutes § 211A.01 defines a “candidate” to mean, in relevant part, an individual who seeks nomination or election to a county, municipal, school district, or other political subdivision office.[6] A “committee” is defined to mean “a corporation or association or persons acting together to influence the nomination, election, or defeat of a candidate or to promote or defeat a ballot question.”[7]
The Complaint maintains that the
In Barry,[9] a complaint similar to the one at hand was filed against a school district and school board members alleging that the district and board violated provisions of Chapter 211A by failing to file required financial reports relating to expenditures allegedly made to promote passage of a school bond referendum ballot questions. The complaint was dismissed by the administrative law judge on the grounds that neither the school district nor the school board met the statutory definition of a “committee.” On appeal, the Minnesota Court of Appeals did not determine whether a school district and school board may be considered a corporation or association of two or more people acting together for purposes of the definition of committee. Instead, the Court affirmed the dismissal of the complaint on the grounds that it failed to allege specific facts to support its general allegation that the expenditures and communications were made to promote passage of the ballot question.[10]
In this case, the Complainants have alleged specific facts to
support their claim that the Respondents disseminated publications and
otherwise acted to promote passage of the December 2009 ballot question. For example, the
A school district is a political subdivision of the state, and its board members are the elected governing body for the political subdivision.[12] School districts are classified as “public corporations.”[13] They are not operated for the principal purpose of conducting a business and they do not have shareholders or publicly traded stock.[14] School board members are charged with the responsibility of managing and operating the school district. Unlike an ad hoc citizens group formed for the specific purpose of promoting or defeating a ballot question, school board members are the elected policy-makers for the district.[15]
Consistent with prior decisions of the OAH on this issue,[16] the Administrative Law
Judge concludes that the
In addition, the Complaint alleges that the School District
violated Minn. Stat. § 211A.02 because it made disbursements of more than $750
in a calendar year relating to the December 2009 ballot question. A “disbursement” means money, property,
office, position, or any other thing of value that passes or is directly or
indirectly conveyed, given, promised, paid, expended, pledged, contributed, or
lent. “Disbursement” does not include
payment by a county, municipality, school district, or other political
subdivision for election-related expenditures required or authorized by law.[18] The expenditures described in the complaint (newsletter
publications and mailing costs) appear to be, at least in part, election-related
expenditures.[19]
Even if the school district were properly considered a
“candidate” or “committee” subject to the filing requirements of chapter 211A,
the specific expenses at issue fall within the statutory exemption for election-related
expenditures and are not “disbursements” for purposes of campaign finance
reporting. Accordingly, the Complaint
fails to state a prima facie allegation
that the
The Complainants also argue that the Respondents disseminated false campaign material to promote passage of the ballot question. Minn. Stat. § 211B.06 prohibits intentional participation 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.
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.[21] 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.[22] 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.[23]
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.[24] 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 it
“in fact entertained serious doubts” as to the truth of the publication or
acted “with a high degree of awareness” of its probable falsity.[25]
The Complainants argue that seven statements in various
Statement 1:
If residents vote no, their taxes will most likely still
increase – in some, by a large amount.
That’s because if the plan is not approved, the school district would
enter into “statutory operating debt” by June 2011, which means the State of
The Complainants argue that the statement that the school district “would need to dissolve” is false because entering into statutory operating debt does not require that a school district dissolve. According to the Complaint, dozens of school districts have entered into statutory operating debt over the past 30 years and none have opted or been required to dissolve.
The
Administrative Law Judge finds that the Complainants have failed to allege a prima facie violation of Minn. Stat. §
211B.06 with respect to this statement. According
to the statement, the State of
Statement 2:
[I]f a “no” vote passes, you’ll likely be paying taxes of the district shown here that’s closest to your home.[27]
The
Complainants argue that the statement is false and misleading because it based
on the assumption that the school district will dissolve in the event of a “no”
vote. In addition, the Complainants
maintain that the School District did not explain the full tax consequences in
the event the
The Administrative Law Judge finds that the Complainants have failed to allege a prima facie violation of Minn. Stat. § 211B.06 with respect to this statement. The statement that voters “will likely” pay taxes of a neighboring district is an inference or unfavorable deduction based on the assumption that the school district would dissolve. It is not a factually false statement.
Statement 3:
Projected annual deficit in 2011-12: $4.1 million.[28]
The Complainants contend that this projection was based on
worst case assumptions developed through the
The Administrative Law Judge finds that the Complainants have
failed to allege a prima facie violation
of Minn. Stat. § 211B.06 with respect to statement 3. To say that the Respondents’ budget forecast
was gloomy, unrealistic or improbable, is not to say that it was demonstrably
false. There is a difference. The Fair Campaign Practices Act does
not prohibit Respondents from disseminating campaign material that others
regard as pessimistic or uncharitable.[30] Because nothing in the record shows that the
Respondents’ statements are demonstrably false, and circulated with some
awareness of that falsity, they are not items that the State may reach,
regulate, outlaw or punish. Whether or not Respondents’ predictions are
reliable are matters that are committed to the judgment and sound discernment
of the voters within the
Statement 4:
The plan now up for a December 8 public vote was developed to not only save millions of dollars and ensure the district’s continued operation, its implementation will provide many new opportunities for our young people’s education.
Better learning spaces and materials.
Classrooms wired with advanced technology for computers, projection, recording, online learning, real-time interaction with distant learning/teaching resources, and the like.
Up-to-date textbooks and learning materials.
Flexible laboratory spaces for sciences, shops, and technical activities.
Computer access for every student as a basic tool for learning.
Learning centered on individual students.
Personalized learning in which each student has his/her own Individual Learning Plan guiding their education.
Advisors regularly working with individual students, communicating with parents.
Enrichment and remedial programs and support available to all students geared to their Individual Learning Plans.
Learning that is growth oriented and achievement based.
Focus on life skills.
Students will graduate with mastery of key life-career skills including work skills, social skills, interpersonal interaction, basic living skills (homemaking, household/consumer finance, healthy lifestyle choices, problem solving, critical thinking, etc.)
Career exploration will be a constant factor as students create and revise their Individual Learning Plans.
The passage continues by listing “Expanded elementary level programming,” “Solid core programming,” and “Enhanced potential for electives,” as other benefits of passage of the December 2009 ballot initiative.[31]
The Complainants contend that the entire passage under
statement 4 “makes numerous specific promises for educational improvement that
the district can in no way assure.” The
Complainants point out that under state law, none of the $78.8 million in
capital bonding funds approved by voters can be used for textbooks, educational
materials, teacher hiring, or new programming.
The Complainants acknowledge that
The Administrative Law Judge finds that the Complainants have
failed to allege a prima facie violation
of Minn. Stat. § 211B.06 with respect to the claims made in statement 4. As with statement 3, Respondents claims of
educational improvements that will result from the passage of the ballot
question may be unrealistic or speculative, but that does not make them factually
false. Moreover, Respondents’ alleged failure to explain the
speculative nature of the operational savings does not provide the basis for a
complaint under Minn. Stat. § 211B.06.
There is no requirement that campaign material be thorough or complete.
Statement 5:
“Bottom line is, if we don’t pass this bond referendum we’ll be putting our schools in hospice,” added Board Member Gary Rantala, who represents the Babbitt-Embarrass attendance area.[33]
Statement 6:
“Unlike the recommended plan where we are responsibly investing in a restructured district by closing some schools, these other options are close schools but don’t solve any of our financial challenges. These other options are not good for young people and our entire region,” said Board Chair Robert Larson.[34]
Statement 7:
“The school board has developed an affordable plan for restructuring the district, which would provide students with expanded curriculum in modern learning environments, so hopefully voters will approve the plan [emphasis ours] and the options discussed at this study session will never have to be implemented, said Superintendent Dr. Charles Rick. Unfortunately, no matter how you look at these options if a ‘no’ vote prevails, the board has little choice other than to close schools and make severe program cuts. It is becoming more apparent that our children would then ultimately have to attend school in other districts.”
The Complainants concede that statements 5, 6 and 7 are
statements of opinion. They argue,
however, that these opinions should not have appeared in
Statements of opinion do not come within the purview of Minn. Stat. § 211B.06. In addition, there is no requirement under § 211B.06 that the Respondents present both sides of the ballot question.[35] The Administrative Law Judge finds the Complainants have failed to allege a prima facie violation of Minn. Stat. § 211B.06 with respect to statements 5, 6 and 7.
Minn. Stat. § 211B.15,
subd. 9
The Complainants also allege that the
For all of these reasons, the Administrative Law Judge finds that the Complainants have failed to allege prima facie violations of Minn. Stat. §§ 211A.02, 211A.03, 211A.05, 211A.06, 211B.06 and 211B.15 on the part of the St. Louis County School District and/or its Board members. The Complaint is dismissed in its entirety.
S.M.M.
[1] Minn. Stat. § 211B.32, subd. 2 (Campaign complaints must be filed with the Office of Administrative Hearings within one year after the occurrence of the act or failure to act that is the subject of the complaint.)
[2] Barry and Spano v. St. Anthony-
[3]
[4]
[5] Complaint Exs. D-H (St. Louis County Schools Newsletters, October – December 2009).
[6]
[7]
[8]
781 N.W.2d 898 (
[9] 781 N.W.2d 898.
[10] 781 N.W.2d at 903.
[11] See, Complaint Exs. D-H (
[12] Minn. Stat. §§ 466.01 and 471.345 define school district as a “municipality” for purposes of Municipal Tort Liability Act and Uniform Municipal Contracting Law.
[13]
[14] See
[15] See
[16] See, Barry and Spano, v. St. Anthony-New Brighton Independent School District 282, OAH No. 3-6326-20564-CV, Dismissal Order (May 21, 2009); and Wigley v. Orono Public Schools, OAH No. 3-6326-19653-CV, Prima Facie Determination (May 1, 2008).
[17] See e.g., Minn. Stat. § 123B.10, subd. 1, and §§ 123B.75 - .77.
[18]
[19]
[20] See Complaint at 5-6.
[21]
Kennedy v. Voss, 304 N.W.2d 299 (
[22]Jadwin v.
[23]
Jadwin v. Minneapolis Star and Tribune Co.,
390 N.W.2d 437, 441 (Minn. App. 1986), citing
Old Dominion Branch No. 496, National Assoc. of Letter Carriers v. Austin,
418 U.S. 264, 284-86 (1974); Greenbelt
Coop. Publishing Assoc. v. Bresler, 398 U.S. 6, 13-14 (1970). See
also Milkovich v. Lorain Journal Co., 497
[24] New York Times v. Sullivan, 376
[25]
See St. Amant v. Thompson, 390
[26] Complaint Ex. E.
[27] Complaint Ex. E.
[28] Complaint Ex. H.
[29] Complaint at 9.
[30] Kennedy v. Voss, 304 N.W.2d 299 (
[31] Complaint Ex. E.
[32] See Bundlie v. Christensen, 276 N.W.2d at 71 (statements telling only one side of the story, while unfair and unjust, were not untrue and therefore not actionable under predecessor statute.)
[33] Complaint Ex. E.
[34] Complaint Ex. E.
[35] See Bundlie v. Christensen, 276 N.W.2d at 71 (statements telling only one side of the story, while unfair and unjust, were not untrue and therefore not actionable under predecessor statute.)
[36]