12-6301-16266-CV
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
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Michael Knight, Complainant,
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Andover Citizens Together (“ACT”), Rex Greenwald, and Ken Orttel, Respondents.
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NOTICE OF DETERMINATION OF PRIMA FACIE VIOLATIONS, DISMISSAL OF PART OF COMPLAINT, AND NOTICE OF AND ORDER FOR PROBABLE CAUSE HEARING
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TO: Michael Knight, Andover Citizens Together (“ACT”), Rex Greenwald, and Ken Orttel.
PLEASE TAKE NOTICE that on November 1, 2004, Complainant filed a Complaint with the Office of Administrative Hearings alleging violations of three sections of Minn. Stat. Chap. 211B by Respondents. After reviewing the Complaint and attached documents, the undersigned Administrative Law Judge has determined that Complaint sets forth prima facie violations of Minn. Stat. §§ 211A.02, 211B.04, and 211B.06 by ACT and violations of Minn. Stat. § 211B.06 by Greenwald. The Complaint fails to set forth any prima facie violation of Minn. Stat. § 211B.06 by Orttel.
THEREFORE, IT IS HEREBY ORDERED that the Complaint against Ken Orttel is DISMISSED.
IT IS FURTHER ORDERED AND NOTICE IS HEREBY GIVEN that this matter is scheduled for a probable cause hearing to be held before the undersigned Administrative Law Judge on Thursday, November 4, 2004 at 2:00 p.m. The hearing will be held by “call in” telephone conference. You must call 651-284-3547 at that time. Follow the directions and enter the number “1972” when asked for the meeting number. If that date or time is inconvenient, please call Staff Attorney Anne Becker at 612-341-7666 immediately.
The probable cause hearing will be conducted pursuant to Minn. Stat. § 211B.34. Information about the probable cause proceedings and copies of state statutes may be obtained 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 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 bring with them all evidence bearing on the case with copies for the Administrative Law Judge and the opposing party.
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 violations of law alleged in the Complaint has occurred; or (2) determine that there is probable cause to believe that any or the violations 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 Minn. Stat. § 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, under Minn. Stat. § 211B.34, subd. 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 100 Washington Avenue South, Suite 1700, Minneapolis, MN 55401, or call 612-341-7610 (voice) or 612-341-7346 (TTY).
Dated November 2, 2004
s/Steve M. Mihalchick
STEVE M. MIHALCHICK
Administrative Law Judge
For purposes of this determination, the facts alleged in the Complaint are assumed to be true because they are not patently false or inherently incredible.
Complainant is a member of the City Council of the City of Andover. He is up for election today. John Erar is the former City Manager of Andover. Erar filed a lawsuit in U.S. District Court in Minnesota alleging that the City, Complainant, and two other City Council members Don Jacobson and Julie Trude, illegally removed Erar from his position and committed other illegal acts. The City and three named Council members have filed an answer denying any illegal or wrongful acts. They have stated that Erar is a disgruntled former employee.
A person or group calling itself Andover Citizens Together (ACT) has sent out a mailer to households in Andover that states that the citizens of the City are being sued because of the actions of the three Council members. It then describes some of the allegations in the lawsuit complaint and provides a link to a website where ACT provides further detail on the allegations in the lawsuit complaint and makes statements based upon those allegations impugning the honesty and integrity of Complainant, Jacobson, and Trude. The Complaint here alleges that many of the statements are false. The mailer and website appear to be campaign material published with the intent of influencing an election. Thus, the Complaint sets forth prima facie violations by ACT of the prohibition in Minn. Stat. § 211B.06, subd. 1, on false statements in campaign material.
The mailer and website prominently include the name and address of ACT, but they do not state that they prepared and paid for by ACT in support of a certain candidate or candidates in the form required by Minn. Stat. § 211B.04(b). The website now contains a statement that it is not affiliated with any candidate, but that is not what the statute requires. Thus, the Complaint sets forth prima facie violations by ACT of the disclaimer requirements of Minn. Stat. § 211B.04.
The Complaint alleges that ACT has failed to file a statement of committee as required by Minn. Stat. § 211A.05. That statute requires every candidate or treasurer of a committee formed to promote or defeat a ballot question to certify to the filing officer that all reports required by Minn. Stat. § 211A.02 have been submitted to the filing officer or that the candidate or committee has not received contributions or made disbursements exceeding $750 in the calendar year, and to do so no later than seven days after the general or special election. ACT is not a committee formed to promote or defeat a ballot question, so Minn. Stat. § 211A.05 does not apply to it. However, under Minn. Stat. § 211A.01, subd. 4, "Committee" means 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. Under the allegations in the Complaint, ACT meets this definition of “Committee.” Further, it would be required by Minn. Stat. § 211A.02 to file the same reports referred to above. While there are some factual issues about whether a report is yet due, the Complaint states a prima facie violation by ACT of the reporting requirements of Minn. Stat. §§ 211A.02.
Rex Greenwald is a candidate for Andover’s City Council this year. The Complaint alleges that Greenwald has disseminated and broadcast information about the ACT website in his own emails and on his own website and has thereby disseminated false statements about Complainant with intent to harm Complainant’s campaign efforts and with knowledge that the statements are false. Greenwald passed the address of the site along, saying in his email that it provided information about what was going on at City Hall. In other words, Greenwald endorsed the information on the ACT site. Thus, the Complaint sets forth prima facie violations by Greenwald of the prohibition in Minn. Stat. § 211B.06, subd. 1, on false statements in campaign material.
Ken Orttel is also a candidate for Andover’s City Council this year. Orttel distributed a campaign piece in which he make several “pledges,” including:
Make certain all ethics and corruption issues are aired. Expose the favoritism, conflicts of interest, illegal meetings, etc, that tarnish our city image and cost you money.
The Complaint alleges this is contains false statements because no such improper activities have occurred. In this case, however, Orttel made no specific statements about Complainant or even specific events. This allegation does not set forth a prima facie violation by Orttel of the prohibition in Minn. Stat. § 211B.06, subd. 1, on false statements in campaign material.
Orttel made a statement during an interview on local cable TV about the lawsuit. He said there were serious allegations about favoritism with a particular developer who received several hundred thousand dollars in free improvements, “which they in fact did, but whether or not it is illegal, . . . that remains to be seen by the court.” The Complaint alleges the statement was false. An oral statement is not “paid political advertising or campaign material,” so Minn. Stat. § 211B.06 does not apply to it. Moreover, the statement does not appear to be false. This allegation does not set forth a prima facie violation by Orttel of the prohibition in Minn. Stat. § 211B.06, subd. 1, on false statements in campaign material.
S.M.M.