4-6301-16282-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

Elaine Halvorson,                                        Complainant, vs.   Richard Nelson,                                        Respondent.

NOTICE OF DETERMINATION OF PRIMA FACIE VIOLATION   AND   NOTICE AND ORDER FOR EVIDENTIARY HEARING

         

To:  Elaine Halvorson, 705 North 2^nd St., Warren, MN 56762, and Richard Nelson, 715 East Fletcher Ave., Warren, MN 56762.

On November 4, 2004, Elaine Halvorson filed a Complaint with the Office of Administrative Hearings against Richard Nelson alleging violations of Minn. Stat. §§ 211B.07 and 211B.09.  The complaint alleges that Ms. Halvorson is an employee of the City of Warren, and that Richard Nelson, the mayor of Warren, made threats against her because she had expressed support for Mr. Nelson’s opponent in a mayoral election.   

 

The Chief Administrative Law Judge assigned the matter to the undersigned Administrative Law Judge on November 4, 2004, under Minn. Stat. § 211B.33.  A copy of the Complaint was sent by facsimile transmission and United States mail to the Respondent the same day. 

 

After reviewing the Complaint, the undersigned Administrative Law Judge has determined that the Complaint does not set forth a prima facie violation of Minn. Stat. § 211B.07, but that portions of the Complaint set forth a prima facie violation of Minn. Stat. § 211B.09.  Those determinations are described more particularly in the attached Memorandum.

          THEREFORE, IT IS HEREBY ORDERED that the Complaint, insofar as is alleges violations of Minn. Stat. § 211B.07 is DISMISSED; and

AND IT IS FURTHER ORDERED AND NOTICE IS HEREBY GIVEN that this matter will be scheduled for an evidentiary hearing on alleged violations of Minn. Stat. § 211B.09 to be held at the Office of Administrative Hearings, 100 Washington Avenue South, Suite 1700, Minneapolis, Minnesota 55401, before three Administrative Law Judges.  The evidentiary hearing must be held within 90 days of the date the complaint was filed, pursuant to Minn. Stat. § 211B.35.  You will be notified of the date and time of the evidentiary hearing, and the three judges assigned to it, within one week of the date of this Order.  The evidentiary hearing will be conducted pursuant to Minnesota Statutes § 211B.35.  Information about the evidentiary hearing procedures and copies of state statutes may be obtained online at www.oah.state.mn.us and www.revisor.leg.state.mn.us.

          At the evidentiary 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 opposing party.

          At the conclusion of the evidentiary hearing, the Administrative Law Judges will choose to: (1) dismiss the complaint, (2) issue a reprimand, (3) find a violation of 211B.06, and/or (4) impose a civil penalty of up to $5,000.  The panel may also refer the complaint to the appropriate county attorney for criminal prosecution. A party aggrieved by the decision of the panel is entitled to judicial review of the decision as provided in Minn. Stat. §§ 14.63 to 14.69.

          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 5, 2004

 

                                                                

S/ Bruce H. Johnson

BRUCE H. JOHNSON

Administrative Law Judge

 

 

MEMORANDUM

 

For purposes of these determinations, the facts alleged in the Complaint are assumed to be true because they are not patently false or inherently incredible.

The Complainant alleges is that she is an employee of the City of Warren and was asked by a candidate running against the incumbent mayor in the local mayoral election for permission to place a lawn sign for the opponent in her yard.  The Complainant further alleges that after seeing the lawn sign, the Respondent, who is the incumbent mayor, has made threats of reprisal against her, including a threat to terminate her employment with the City.  Finally, the Complainant alleges that those threats of reprisal violate both § 211B.07 and § 211B.09.  

The first statute, Minn. Stat. § 211B.07 provides that:

A person may not directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question.  Abduction, duress, or fraud may not be used to obstruct or prevent the free exercise of the right to vote of a voter at a primary or election, or compel a voter to vote at a primary or election.  Violation of this section is a gross misdemeanor.  [Emphasis supplied.]

That statute is directed toward a specific kind of political coercion¾namely, coercion directed toward the specific act of voting.  The statute is not directed at preventing acts designed to compel someone to support or oppose a candidate in more general way, such as by displaying a lawn sign.  The Complaint, insofar as is alleges violations of Minn. Stat. § 211B.07, should therefore be dismissed.

The second statute, Minn. Stat. § 211B.09 provides that:

An employee or official of the state or of a political subdivision may not use official authority or influence to compel a person to apply for membership in or become a member of a political organization, to pay or promise to pay a political contribution, or to take part in political activity.  A political subdivision may not impose or enforce additional limitations on the political activities of its employees.

If the evidence at a hearing were to establish that the Respondent did, in fact, threaten reprisals against the Complainant for allowing a lawn sign for the Respondent’s opponent to be displayed in the Complainant’s yard, those facts would arguably establish a violation of Minn. Stat. 211B.09.  The Administrative Law Judge therefore determines that the Complain establishes a prima facie violation of Minn. Stat. 211B.09, which must therefore be the subject of an evidentiary hearing.

B.H.J.