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OAH
Docket No. 8-6301-19262-CV |
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STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
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Scott D. Wenzel,
Complainant, vs. Respondents. |
NOTICE OF DETERMINATION OF
PRIMA FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE
HEARING |
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TO: Warren
Harder, 1224 87th Avenue North, Brooklyn Park, MN 55444; Painter & Allied Trades District
Council 82, 3295 Country Drive, Little Canada, MN 55117; Jeffery Jewett, 411
Main Street, Suite # 204, St. Paul, MN
55102.
On October 10, 2007, Scott D.
Wenzel filed a Complaint with the Office of Administrative Hearings alleging
that Warren Harder, Painter and Allied Trades District Council 82, and Jeffery
Jewett, acting on behalf of St. Paul Painters and Allied Craftsman Local No. 61,
violated three provisions of Minnesota Statutes Chapters 211A and 211B. After reviewing the Complaint and attached
exhibits, the undersigned Administrative Law Judge has determined that the
Complaint sets forth prima facie
violations of Minnesota Statutes §§ 211A.12 and 211B.15, subd. 2.
THEREFORE, IT IS
HEREBY ORDERED AND NOTICE IS HEREBY GIVEN that this matter is scheduled for
a probable cause hearing to be held by telephone before Administrative Law
Judge Eric L. Lipman at 3:00 p.m. on
Tuesday, October 16, 2007.
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 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 or appear on their own behalf
without counsel. 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
faxed to Judge Lipman at 651-361-7936.
The probable cause hearing will be conducted
by telephone conference. The
Administrative Law Judge will initiate the conference by dialing the telephone
numbers listed in the Complaint Form. If
a party wishes to be reached at a number other than the one listed in the Form,
the alternate number shall be provided to the Administrative Law Judge by 12:00 p.m. on Tuesday, October 16, 2007.
At the conclusion of the
probable cause hearing, the Administrative Law Judge will either: (1) dismiss all
or part of the complaint based upon 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 a 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 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 pursuant to
Minn. Stat. § 211B.34, subd. 3.
A party who is disabled
and needs an accommodation in order to participate in the hearing process may
request an accommodation. Examples of
reasonable accommodations include wheelchair accessibility to the hearing
location, an interpreter, Braille materials 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: October 11, 2007
/s/
Eric L. Lipman__________
ERIC
L. LIPMAN
Administrative
Law Judge
The Complainant,
Scott D. Wenzel, is an incumbent member of the School Board from District 5 of
the
Respondent, Warren Harder, is a candidate for the School Board of the District from District 5. According to the Complaint, Harder maintains a website, www.warrenharder.org, which lists Harder’s cellular telephone number and email address.
The Complaint alleges that Respondents Painter and Allied Trade District Council 82 (“District Council 82”) and St. Paul Painters and Allied Craftsman Local Number 61 (“Local 61”) provided Harder with cellular phone services and the software and hardware to operate the email account. The Complainant maintains that by contributing these items of value to Harder’s school board campaign, Respondents violated Minnesota Statute § 211B.15, subd. 2. The Complaint further alleges candidate Harder unlawfully accepted the provision of the email and cellular telephone services, in violation of Minnesota Statute §§ 211A.12 and 211B.15, subd. 13. The allegations are addressed in turn below.
At this stage of the process,
when reviewing a Complaint to determine whether it sets forth a prima facie
violation of the Fair Campaign Practices Act, this Office 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.”[1]
Corporate Contribution by District Council 82
The Complaint alleges that District Council
82 is a corporation and provides both the software and hardware for Harder’s campaign
email account.
Section 211B.15, subd. 2 prohibits
corporations from making contributions to an individual to promote the
individual’s candidacy or election to political office. Whether in fact District Council 82 is a
corporation and thus subject to the limitations set forth in § 211B.15 is a
matter that will be determined at the probable cause hearing.
The Administrative Law Judge finds that the
Complaint alleges a prima facie
violation of Minnesota Statute § 211B.15, subd. 2 against District Council
82.
Corporate Contribution by Local 61
The Complaint alleges that the telephone
number listed on Harder’s website is registered to Jeffery Jewett, who is
employed as the Business Agent for the St. Paul Painters & Allied Craftsman
Local Number 61 (“Local 61”). Further,
the Complaint alleges that the billing address for this telephone number is
The Complainant names Jeffery Jewett as a
Respondent in this matter, but to the extent that the Complainant alleges
claims against Jewett in his individual capacity under § 211B.15, those claims
must fail. Section 211B.15, subd. 2
prohibits contributions from corporate entities but not from natural
persons.
The Complaint does, however, state a prima facie violation of § 211B.15
against Local 61 to the extent that Jewett is named in his official capacity as
the Business Agent for Local 61. Again,
as it is with District Council 82, whether or not Local 61 is a corporation that
is subject to the limitations set forth in § 211B.15 is a matter that is
deferred to the probable cause hearing.
Accordingly, the Administrative Law Judge
finds that the Complaint alleges a prima
facie violation of Minnesota Statute § 211B.15, subd. 2 against Local 61.
Aiding and Abetting Claim
Citing Minnesota Statute
§ 211B.15, subd. 13, the Complaint alleges that Respondent Harder violated the
Fair Campaign Practices Act by allowing District Council 82 and Local 61 to provide Harder
a campaign email account and cellular telephone services. Section 211B.15, subd. 13, prohibits the “aiding, abetting or advising” of a
violation of the prohibition on corporate contributions. While the Complainant’s submissions do not
make Mr. Harder’s role in securing the email account and cellular phone services clear,
the Complaint sets forth
sufficient allegations to state a prima
facie violation of § 211B.15.
Prohibited Contribution Claim
Finally, the Complaint
alleges that Harder violated Minnesota Statute § 211A.12 by permitting District Council 82 and
Local 61 to provide his campaign with cellular telephone and email account
services. Section 211A.12 prohibits
candidates from accepting aggregate contributions in excess of $300 in an
election year. The Complaint alleges the
value of the hardware and software which supports the email account and the
service contract for the cellular telephone exceed the $300 limit on in-kind
contributions. As such, the
Administrative Law Judge finds that the Complaint has stated a prima facie violation of § 211A.12.
This matter will proceed to a probable cause
hearing.
E.L.L.
[1] See, e.g., Halverson v. Nelson, OAH Docket No.
4-6301-16282-CV, slip op. at 2 (2004) (http://www.oah.state.mn.us/aljBase/630116282.primafacie.htm);
compare also, Elzie v. Commissioner of
Pub. Safety, 298 N.W.2d 29, 32 (