11-6318-17949-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

Timothy Burke, Chairman, NoSportsplex.org, Complainant, vs. Bradley Meeks, Superintendent ISD 192, Aaron Tinklenberg, Communications Specialist ISD 192, and the ISD 192 School Board Members, Respondents.

NOTICE OF DETERMINATION OF PRIMA FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE HEARING

On March 29, 2007, Timothy Burke, Chairman of NoSportsplex.org, filed a Complaint with the Office of Administrative Hearings alleging Independent School District 192’s Superintendent, Communications Specialist, and School Board Members violated Minnesota Statutes § 211B.06. After reviewing the Complaint and attached exhibits, the undersigned Administrative Law Judge has determined that the Complaint sets forth a prima facie violation of Minnesota Statutes § 211B.06.

THEREFORE, IT IS ORDERED AND NOTICE IS GIVEN that this matter is scheduled for a probable cause hearing to be held by telephone before the undersigned Administrative Law Judge at 9:30 a.m. on Wednesday, April 4, 2007. The hearing will be held by call-in telephone conference.  You must call: 1-888-677-7804 at that time. Follow the directions and enter the numeric pass code “17949” when asked for the meeting number. 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, by themselves, or by a person of their choice if that choice is 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 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 Administrative Law Judge Barbara L. Neilson at 612-349-2665.

At the conclusion of the probable cause hearing, the Administrative Law Judge will either: (1) dismiss 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 the 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 presiding 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.

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: April 2, 2007

/s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

MEMORANDUM

The Complaint concerns a proposed $24 million bond referendum for the Farmington School District (ISD 192) to finance the construction of a “Sports and Wellness Center” at the District’s new High School. The special election on the bond referendum is scheduled to take place on May 8, 2007. The Complainant is the Chairman of an organization opposed to the bond referendum (“NoSportsplex.org”). The Complaint alleges that the School District’s Superintendent (Bradley Meeks), Communications Specialist (Aaron Tinklenberg), and School Board members prepared and disseminated false campaign material about the bond referendum in violation of Minnesota Statutes § 211B.06. Specifically, the Complaint alleges that the Respondents intentionally placed misleading information on the School District’s web site to suggest that the proposed bond referendum will finance facilities far in excess of what it will actually finance, and that failure to approve the referendum will result in the new High School not having any athletic or recreational facilities at all.

According to the Complaint, voters approved a bond referendum back in February of 2005, to finance the construction of a new High School for ISD 192. The design plan for the new High School includes certain athletic and recreational facilities. The new High School is currently under construction and is scheduled to open in the fall of 2009. On February 12, 2007, the School Board called for a special election to authorize an additional $24 million bond referendum to finance the construction of the proposed Sports and Wellness Center. According to documents the School District filed with the Commissioner of Education, the proposed Sports and Wellness Center will include a 50-meter swimming pool, a four-court auxiliary gymnasium and tennis courts, and a hockey complex with two sheets of artificial ice and arena seating.

The Complaint asserts that information on the School District’s website devoted to the proposed Sports and Wellness Center incorrectly lists all of the recreation and athletic facilities of the new High School that were already approved as part of the 2005 bond referendum as part of the facilities proposed for the new Center. The result, according to the Complainant, is that a voter viewing the School District’s website will be misled into believing that the proposed bond referendum will finance all of the athletic and recreational facilities listed, not realizing that many of the facilities listed have already been financed by the 2005 bond referendum. Additionally, the Complaint asserts that a voter will also be misled into believing that the failure to pass the proposed bond will mean that the new High School will have none of the recreational and athletic facilities listed.

The Complaint has attached the “Review and Comment” documents the School District filed with the Commissioner of Education in support of its proposed Sport and Wellness Center, as well as paper copies of pages from the School District’s website. The documents filed with the Commissioner identify the following as the only facilities to be included in the proposed Sports and Wellness Center:

● 50 meter pool;

● four-court auxiliary gymnasium;

● hockey complex (2 sheets);

● “Support bay”; and

● outdoor amenities (Tennis, etc.).

On the School District’s website, these same facilities are identified as the only facilities of the proposed Center. Visitors to the School District’s website get information about the proposed Center by clicking on the “Sports and Wellness Center” icon displayed on the District’s home page. Under the heading “General Information,” the School District states: “The proposed facility would include two sheets of ice, a 50-meter pool, a four-court auxiliary gymnasium, and tennis courts.” This page also includes several links, including “Frequently Asked Questions,” and “Project Overview.”

If a visitor clicks on the link “Frequently Asked Questions,” he or she is brought to a page of questions and answers concerning the proposed Center and its costs. The first question on the page is: “What facilities will be built if the bond referendum passes?” The School District’s response to this question is:

A: Proposed to be built if voters approve the May 8 referendum are:

Two-rink skating center

50-meter pool

Four-court auxiliary gymnasium

Tennis courts

The second question on this page is: “What athletic facilities are already being constructed at the new high school?” The School District’s response to this question is:

A: The facilities that are already planned to be built at the new high school include:

Three-court competition gymnasium

Indoor walking/jogging track

7,000 square foot fitness center (cardio exercise, dance/aerobics area)

Weight training room

Wrestling room

Stadium field, track, field event spaces

Three softball fields

Two baseball fields

Eight outdoor fields (soccer, football, other uses)

However, if a visitor clicks on the link “Project Overview,” he or she is brought to a pdf file entitled “Farmington Sports and Wellness Center Proposal February 2007.” This document appears to consist of graphics from some type of powerpoint presentation. It is the information presented in this document that the Complainant finds objectionable. Specifically, the second page of the Proposal is entitled “Proposed Facilities Overview” and under the heading “Outdoor Facilities” is a list of items that includes facilities that are already being constructed at the new High School (such as the soccer/recreation fields, softball and baseball complex, and field and track spaces). Likewise, on the fourth page of the Proposal is a list of indoor facilities that includes the 7,000 square foot fitness center, weight room, and wrestling room, which are also items that are already being constructed at the new high school.

The Complainant maintains that the information contained in the “Farmington Sports and Wellness Proposal” is false and that by including this document on its website the Respondents intentionally misrepresented the scope of proposed bond referendum in order to promote the referendum’s passage in the upcoming special election.

Minnesota Statutes § 211B.06 prohibits a person from intentionally preparing or disseminating false campaign material with respect to the effect of a ballot question that the person knows is false or communicates to others with reckless disregard of whether it is false.

The Administrative Law Judge finds that the Complainant has made a prima facie showing that the Respondents violated the prohibition against false campaign material found at Minn. Stat. § 211B.06. Although the majority of the material on the School District’s website concerning the proposed 2007 bond referendum appears to be correct, the material contained in the pdf file entitled “Farmington Sports and Wellness Proposal” states that a number of athletic facilities that are already being constructed at the new High School will be financed by the 2007 bond referendum. If the evidence at the hearing were to establish that these statements are false and that Respondents knew the statements were false or communicated them with reckless disregard of whether the statements were false, that may be sufficient to demonstrate a violation of Minn. Stat. § 211B.06. Therefore, this matter will proceed to a probable cause hearing.

B.L.N.