7-6310-16288-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

 

Billie Jo Lillyquist,                                         Complainant, vs. Patsy Bernhjelm, Toni Gross, Mike Doro, and Jo Boblett,                                          Respondents.

FINDINGS OF FACT, CONCLUSIONS, ORDER AND MEMORANDUM

         

The above-entitled matter came on for hearing on December 17, 2004, at 9:30 a.m. before a panel of three Administrative Law Judges:  George A. Beck (Presiding Judge), Barbara L. Neilson and Allan W. Klein.  The hearing record closed on December 17, 2004 at the conclusion of the hearing.

William J. Mavity, Esq., 2835 South Service Drive, Suite 209, Red Wing, MN 55066, appeared representing the Complainant, Billie Jo Lillyquist.  Thomas A. Fitzpatrick, Esq., 411 Front Street, P.O. Box 367, Brainerd, MN 56401, appeared representing Respondent, Mike Doro.  James H. Patterson, Esq., 4800 IDS Center, 80 South 8^th St., Minneapolis, MN  55402, appeared representing Respondents Patsy Bernhjelm, Toni Gross and Jo Boblett.

NOTICE

          This is the final decision in this case, as provided for by Minn. Stat. § 211B.36, subd. 5.  A party aggrieved by this decision may seek judicial review as set out in Minn. Stat. § § 14.63 to 14.69.

STATEMENT OF ISSUE

          Did the Respondents violate Minn. Stat. § 211B.04 by preparing or disseminating campaign material that did not prominently include the name and address of the person or committee causing the material to be prepared or disseminated?

          The panel concludes that the Respondents Bernhjelm, Doro and Boblett did violate Minn. Stat. § 211B.04.

          Did Respondent Mike Doro violate Minn. Stat. § 211B.07 by threatening loss of employment or economic reprisal against an individual to compel him to vote for or against a candidate or ballot question?

          The panel concludes that Respondent Doro did not violate Minn. Stat. § 211B.07.

          Did Respondent Mike Doro violate Minn. Stat. § 211B.09 by using his official authority to influence a person to take part in political activity?

          The panel concludes that the Respondent Doro did not violate Minn. Stat. § 211B.09.

Based upon the entire record, the panel makes the following: 

FINDINGS OF FACT

1.           The Complainant, Billie Jo Lillyquist, was a candidate for the School Board in Independent School District #118, located in Cass County in the November 2, 2004 election.  Mike Doro is the Superintendent of Schools for ISD #118.  Patsy Bernhjelm and Jo Boblett were members of the Northland Vote Yes Committee.  Jo Boblett was also a write-in candidate for the School Board.  The committee endorsed candidates for the School Board election. 

2.           Toni Gross is a management aide with the School District in Remer, Minnesota.  She had no involvement in the violations alleged in this case and was dismissed as a party at the hearing.

3.           The school district covers 830 square miles with approximately 4370 residents.  Its largest city is Remer with 380 residents.  There are school buildings in both Remer and Longville. 

4.           The Northland Vote Yes Committee was a committee of approximately 14 people organized on an ad hoc basis to support approval of a school district bond issue.[1]  The committee was formed in mid-September of 2004 and met roughly once a week through mid-December.  Patsy Bernhjelm and her husband, Bill, were co-chairs of the committee.

5.           On October 26, 2004, the publisher of the Pine Cone Press-Citizen, published in Longville, Minnesota endorsed three candidates for the School Board, Mike Knapp, Tim Murphy and Tim Kunnari.  The publisher also stated that the Complainant had several children in district schools and that she could bring a parent’s perspective to the Board.  The publisher stated that he was skeptical of the school district’s claims of budget deficits.[2]

6.           After the newspaper endorsements appeared, a group of teachers contacted Patsy Bernhjelm and asked if her husband Bill would be a write-in candidate for the School Board.  This possibility had been favorably discussed at an earlier meeting of the Vote Yes Committee.  Patsy Bernhjelm talked to her husband and he agreed to be a write-in candidate.  She then talked to another member of the Vote Yes Committee, Bev Gaines, and concluded that the committee would endorse her husband.  The committee’s endorsement of her husband was confirmed at a later meeting on November 1, 2004.

7.           Ms.  Bernhjelm then prepared a flyer which stated as follows:

The “Northland Vote Yes Committee”

endorses the following candidates for

ISD #118 School Board:

Ross Holgate

Terry Gross

WRITE-IN:

Bill Bernhjelm

Remember, it is a vote for

UP TO  4 candidates.[3]

8.           The Vote Yes Committee had permission to use the school facilities for copying for which they paid a fee.  On October 27, 2004 Ms. Bernhjelm copied the flyer on blaze orange paper at the school.  She left copies of the flyer in the paraprofessional’s workroom at the school and told an employee that they were available for handing out.  She talked to Superintendent Doro to let him know about her efforts.

9.           Ms. Bernhjelm did not include an address for the Vote Yes Committee on the flyer because she did not know it was required.

10.       On the morning of October 29, 2004, biology teacher Dale Foss was in the School District office sending a fax.  After the fax was sent, Mr. Foss encountered Superintendent Doro in the hallway outside the office.  After some light-hearted small talk, Mr. Doro asked Mr. Foss if he had voted yet and Mr. Foss replied no.  Mr. Doro then said that he had some information for Mr. Foss and walked to his office down the hall.  When Mr. Doro returned to the hallway, he gave Mr. Foss a copy of the blaze orange flyer prepared by Ms. Bernhjelm.  Superintendent Doro also gave Mr. Foss a small white one and one-half inch by three inch card which had the following on it:

 

WRITE-IN VOTE

ISD #118 SCHOOL BOARD

 

WILLIAM

BERNHJELM[4]

 

11.       Mr. Foss took the two items from Mr. Doro, laughed, said “okay” and left.  The exchange was cordial.  The encounter lasted less than 15 seconds.

12.       In the afternoon of the same day Mr. Doro passed Mr. Foss in the hallway and asked him if he had felt pressured by Mr. Doro that morning.  Mr. Foss shrugged his shoulders and walked on.  There was no further discussion between them about the matter.  Mr. Foss had felt somewhat uncomfortable about the encounter in the morning.

13.       Mr. Foss is one of the most senior teachers in the School District having 19 years of seniority in the district.[5]  His tenure with the School District is protected by a union contract and the Teacher Tenure Act.  Given his seniority and licensure, it is unlikely that he would be laid off in the event of a reduction in funding.

14.       Mr. Foss’ direct supervisor is the high school principal who answers to the superintendent.  The superintendent would recommend disciplinary action of a teacher to the School Board.  The School Board would make any final decision.

15.       On October 31, 2004, another member of the Vote Yes Committee, Jo Boblett, talked to her husband about being a write-in candidate for the School Board.  On November 1, she decided to be a candidate and discussed the matter with Patsy Bernhjelm.  Ms. Boblett then prepared a flyer at her home, bought green paper to have it copied on, and copied it at the school.  She then distributed the flyer.

16.       Ms. Boblett’s two-sided flyer was similar to that prepared by Ms. Bernhjelm and indicated that the Northland Vote Yes Committee endorsed four candidates for ISD #118 School Board, namely, Ross Holgate, Terry Gross and write-in candidates Bill Bernhjelm and JoAnn Boblett.[6]  The flyer did not include an address for the Northland Vote Yes Committee. 

17.       Political ads placed in the Pine Cone Press-Citizen for School Board candidates, as well as County Commissioner candidates prior to the November 2, 2004 election, do not contain addresses for campaign committees since this is not required for newspaper ads.[7]  An ad placed in the newspaper by the Northland Vote Yes Committee contained only the name of the committee without an address.[8]

18.       Four candidates were elected to the School Board on November 2, 2004.  The winning candidates had between 1077 and 1422 votes.  The complainant received 1010 votes.  Another candidate had 1027 votes.  The write-in votes totaled 323.[9]

19.       The school bond issue referendum was originally scheduled for November 2, 2004, but was not held until December 15, 2004 due to an error on the ballot.  Prior to the election, the Vote Yes Committee added an address to its flyer supporting the referendum.[10]  The referendum did not pass.

Based upon the foregoing Findings of Fact, the Panel makes the following:

CONCLUSIONS

1.           The Administrative Law Judge panel has jurisdiction in this matter under Minn. Stat. § 211B.35.

2.           That the Respondents received proper notice of the hearing in this matter.

3.           The burden of proving the allegations in the Complaint is on the Complainant.[11]

4.           The standard of proof is proof by a preponderance of the evidence.[12]

5.           Minn. Stat. § 211B.04(a) and (b) requires that a person who participates in the preparation or dissemination of campaign material must prominently include the name and address of the person or committee causing the material to be prepared or disseminated, in a disclaimer. 

6.           That the flyers prepared by Patsy Bernhjelm (Exhibit C) and by JoAnn Boblett (Exhibit B) contained the name of the Northland Vote Yes Committee but did not include an address.

7.           That the small card with William Bernhjelm’s name (Exhibit A) distributed by Superintendent Doro (along with Exhibit C) lacked an address for either Mr. Bernhjelm or the Northland Vote Yes Committee.

8.           That the small card (Exhibit A) does not fall within the disclaimer exemption provided for “objects” by Minn. Stat. § 211B.04(e) because it stated more than the candidate’s name and office sought.

9.           That Respondents Bernhjelm, Boblett and Doro therefore violated Minn. Stat. § 211B.04(a) and (b).

10.       Minn. Stat. § 211B.07 prohibits the direct or indirect use of threat of 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.  It also provides that abduction, duress, or fraud may not be used to obstruct or prevent the free exercise of the right to vote or to compel a voter to vote.

11.       That Superintendent Doro’s conduct in handing the flyer and card to Mr. Foss did not violate Minn. Stat. § 211B.07.

12.       Minn. Stat. § 211B.09 prohibits an employee of a political subdivision from using official authority or influence to compel a person to apply for membership and or become a member of a political organization, to pay or promise to pay a political contribution, or to take part in political activity.

13.       That Superintendent Doro’s conduct in providing the flyer and card to Mr. Foss did not violate Minn. Stat. § 211B.09.

14.       Under Minn. Stat. § 211B.35, subd. 2 the panel is authorized to reprimand a respondent or to impose a civil penalty of up to $5,000 for a violation of Chapter 211B.

15.       Under Minn. Stat. § 211B.36, subd. 3, if the Administrative Law Judge panel determines that the Complaint is frivolous, it may order the Complainant to pay the Respondent’s reasonable attorney fees or to pay the costs of the Office of Administrative Hearings in the proceeding in which the Complaint was dismissed.

16.       That this panel does not find the application of Minn. Stat. § 211B.04 to the facts of this case to be unconstitutional.

          Based upon the record in this matter and for the reasons set out in the following Memorandum, the panel of Administrative Law makes the following:

ORDER

IT IS HEREBY ORDERED:

1.          The Complaint is dismissed as to Respondent Toni Gross.

2.          Respondents Patsy Bernhjelm, Mike Doro, and Jo Boblett are reprimanded.

 

Dated this

29th

day of

December

2004.

 

                                                                

/s/ George A. Beck

GEORGE A. BECK

Administrative Law Judge

 

 

/s/ Barbara L. Neilson

BARBARA NEILSON

Administrative Law Judge

/s/ Allan W. Klein

ALLAN W. KLEIN

Administrative Law Judge

 

Reported: Taped

No Transcript Prepared.

 

MEMORANDUM

          The Complainant has alleged a violation of the disclaimer requirements in Chapter 211B in three pieces of campaign material distributed prior to the November 2, 2004 School Board election.  Two flyers issued with the blessing of the Northland Vote Yes Committee indicated the name of the committee, but did not include an address for the committee as is required by statute.  The campaign material included endorsements for write-in candidates who also supported a bond issue referendum in the School District.  The Complainant, a candidate for the School Board, finished sixth in the voting for four seats on the School Board.  She believes that the votes directed to write-in candidates cost her the election.  This is her expressed motivation for the filing of the complaint.

          The evidence compels the conclusion that a technical violation of the disclaimer statute has been demonstrated.  Ms. Bernhjelm and Ms. Boblett prepared and disseminated flyers without an address for the Vote Yes Committee.  The evidence indicates that Superintendent Doro handed one of the flyers as well as a card with a write-in candidate’s name on it to a teacher and therefore technically violated the statute.  The panel views these violations as strictly de minimis.  In a small town the identity of persons involved in an effort such as this would not be difficult to determine.  The name of the committee was included and the failure to include the address was clearly inadvertent and not intentional.  The committee corrected the violation on a later flyer.  The Respondents were simply unaware of this requirement.  Similar newspaper ads were published prior to the election without addresses of committees.  Although the Complainant apparently believes that the write-in votes in the School Board election led to her failure to be elected, this could not be determined based on the record and there is clearly no nexus between the failure to include an address on campaign literature and the outcome of the election.

Nonetheless, since a technical violation was shown, the panel is required by the statute to choose one of the dispositions set out in the statute.  The panel concludes that it would be inappropriate to assess a civil penalty in this situation and therefore issues a reprimand, the least serious disposition, to the Respondents.  The panel acknowledges, however, that the Respondents were engaged in a good faith effort in a small school district without the benefit of advice on election laws.  The reprimands should not be viewed as anything more than an acknowledgment of a technical violation, especially in the case of Superintendent Doro, who was not involved in the preparation of the materials and passed along one flyer.

          Respondent Toni Gross was included as a Respondent in this case, apparently due to a failure to adequately investigate the facts of this matter prior to filing.  As a result, she needlessly was required to travel to Minneapolis for the hearing.  The panel would have awarded attorney fees to Ms. Gross had she not been fortunate enough to have been represented on a pro bono basis by Mr. Patterson.  The Complainant believes that the Respondents opposed her candidacy and apparently filed this complaint in response to that.  Compliance with the disclaimer statute could have been obtained in a much simpler manner by notifying the Respondents of their oversight, since they were willing to comply.

          The Complainant also has alleged that Superintendent Doro violated two statutes by providing a teacher with one of the handouts in question as well as a small card with the name of a write-in candidate.  The statutes in question prohibit serious conduct.  One (Minn. Stat. § 211B.07) prohibits the use or threat of force, coercion, violence, restraint, damage, harm, loss including loss of employment or economic reprisal, or undue influence to compel a person to vote for or against a candidate.  In this case the record makes it clear that Mr. Foss had no realistic fear of a loss of employment or economic reprisal due to his secure position with the School District.  More significantly, however, the exchange between Superintendent Doro and Mr. Foss was cordial and does not fit either within the spirit or the letter of the statute.  Superintendent Doro testified that his intent in this exchange merely was to let Mr. Foss know of a candidate whose name had been added to the election, namely Mr. Bernhjelm.  The friendly exchange cannot reasonably be characterized as “undue influence” or “duress.”  Even if Mr. Foss felt that he had been directed to vote in a particular way, his ballot was, of course, secret.

          The Complainant also argues that Superintendent Doro used his official authority to compel Mr. Foss to take part in political activity in violation of Minn. Stat. § 211B.09.  The statute doesn’t state whether “political activity” includes voting.  But, in interpreting the statute, the context of the statute has to be considered.  The statute also prohibits compelling a person to apply for membership in or become a member of a political organization, or to pay or promise to pay a political contribution.  Given the nature of the three matters made unlawful by this statute, it cannot reasonably be concluded that the legislature intended that “political activity” would encompass a citizen’s voting in an election.  In the context of the statute, “political activity” connotes participation in an organized effort by a political organization.  Accordingly, the Complainant has failed to demonstrate that this statute was violated by Superintendent Doro.

          Counsel for Respondents Bernhjelm, Gross and Boblett also argued at the hearing that the disclaimer statute which has been cited in this case has been found to be unconstitutional.  As Mr. Patterson noted, the United States District Court for the District of Minnesota recently declared the disclaimer requirements of Minn. Stat. § 211B.04 (2003) to be a facial violation of the First Amendment and enjoined the state from enforcing the statute.[13]  In that case, Minnesota Citizens Concerned for Life, Inc. v. Kelley,[14] the federal court focused on Minn. Stat. § 211B.04(f) as it relates to anonymous pamphleteering and found that the disclaimer requirement directly attacks core political speech “unsupported by an interest in avoiding the appearance of corruption.”[15]  The court reasoned that, unlike disclosure requirements related to lobbyists, “who have direct access to elected representatives” and thus “may well present the appearance of corruption” if their activities are not disclosed, Minnesota’s disclaimer requirement “rests on different and less powerful state interests,” such as ensuring responsible campaigning.[16]  With no overriding interest supporting the statute, the court found that Minn. Stat. § 211B.04 was unconstitutional under the First Amendment.

          The state did not appeal that decision.  The legislature amended section 211B.04(f) during the 2004 session, however, in a direct effort to cure the constitutional defects found by the federal court.[17]  Specifically, the legislature added the phrase “or association” to the exemption provided in subsection (f) and raised the monetary limit from $300 to $500.  Presumably these changes will permit organizations, such as MCCL, and not just individuals, to engage in anonymous political speech, provided they spend less than $500.[18]

          The case at hand does not concern subsection (f).  Instead, the issue in this case is whether the Respondents can be required to put disclaimers on campaign material.  The federal court’s decision in MCCL did not address whether requiring candidates to be accountable for the materials they distribute violates the First Amendment.  Since the constitutional concerns addressed in MCCL have no clear application to candidates themselves, and given the legislature’s amendments to the statute in direct response to the decision, the panel finds that the disclaimer requirements of Minn. Stat. § 211B.04(a) and (b) are valid as applied to the Respondents.[19]

                                                  G.A.B., B.L.N., A.W.K.