12-6326-16910-CV
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
Bob Fine, Complainant, vs. Jim Bernstein, Respondent. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary hearing on October 31 and November 2, 2005, before a panel of three Administrative Law Judges: Steve M. Mihalchick, (Presiding Judge), Barbara L. Neilson, and Bruce H. Johnson. The hearing record closed on November 3, 2005, with the filing of the parties’ post-hearing briefs.
Complainant Bob
Fine,
Alan W. Weinblatt,
Attorney at Law, Weinblatt and Gaylord, PLC,
NOTICE
This is the final decision in this case, as provided in Minn. Stat. § 211B.36, subd. 5. A party aggrieved by this decision may seek judicial review as provided in Minn. Stat. §§ 14.63 to 14.69.
STATEMENT OF ISSUES
Did Respondent violate Minn. Stat. §§ 211B.04 and 211B.06, by preparing and disseminating campaign material that failed to contain disclaimers and that Respondent knew was false or communicated to others with reckless disregard as to whether it was false?
If so, what remedy, if any, is appropriate?
The panel concludes that Respondent violated Minn. Stat. § 211B.06 by preparing and disseminating campaign material that contained three false statements that Respondent knew were false or communicated to others with reckless disregard as to whether they were false. No violation is found as to the remaining statements or the disclaimer.
Based upon the entire record, the panel makes the following:
FINDINGS OF FACT
Background
1.
Complainant and Respondent are candidates in the
November 8, 2005, election for the District 6 seat of the
2.
The
Complainant was first elected to the Park Board in 1997 as an “at-large” Park
Commissioner, and took office in January 1998.
He was again elected in 2001 and began serving his second term in
January 2002. The Complainant represents
the Sixth Park District in southwest
3.
The
Complainant has been selected by other Park Board members to be the President
of the Board and has served in that capacity since approximately 2002. The President of the Board does not serve on
committees and is not allowed to make motions at committee or Board meetings.[3]
4.
On
October 12, 2005, Complainant filed a complaint with the Office of
Administrative Hearings against Respondent alleging that Respondent had
violated Minn. Stat. §§ 211B.04 and 211B.06 by preparing and disseminating
campaign material without disclaimers and that contained false statements.
5.
On
October 14, 2005, Administrative Law Judge Steve M. Mihalchick determined that
the complaint set forth prima facie violations of Minn. Stat. §§ 211B.04 and
211B.06.
6.
By Order
dated October 20, 2005, Judge Mihalchick found that there was probable cause to
believe that the Respondent had violated Minn. Stat. §§ 211B.04 and 211B.06 in
certain regards. In that Order, Judge
Mihalchick determined that there was no probable cause to believe that a
violation had been committed regarding two of the alleged violations. On October 25, 2005, Complainant filed a
Petition for Reconsideration. On October
20, 2005, Chief Administrative Law Judge Raymond R. Krause denied the Petition
for Reconsideration.
7. On October 26, 2005, Respondent filed a Motion for Recusal arguing that it was improper for Judge Mihalchick to serve as the presiding judge on the three-judge panel assigned to hear the matter. On October 28, 2005, Chief Judge Krause issued an order denying the Motion for Recusal.
Exhibit 2—Southwest Journal Advertisement
8. Respondent placed a campaign advertisement in the October 10-23, 2005 edition of the Southwest Journal.[4] The advertisement was primarily prepared by Respondent himself, with some consultation with his committee. The campaign advertisement starts with the following language and two photographs:
9.
The photograph on the left is of
10. The advertisement does not contain any statement describing who prepared or paid for the advertisement. It does state, "My name is Jim Bernstein and I'm running for Park Board." It contains the web address of Respondent's campaign committee’s website, “bernsteinforparks.org.” That website contains the name and street address of Respondent's campaign committee.
Exhibit 3—The Comparison Flyer
11. The Respondent also prepared and distributed a campaign flyer that compared his position to the Complainant’s position on several issues.[5] The flyer states as follows:
Either Business As Usual For The
Compare The Differences … THEN YOU DECIDE!
Jim Bob
BERNSTEIN Fine
Allow building a retail “mini-mall” on the
southwest NO! “Neutral”
shore of
Vote to hire a Superintendent who never NO! YES[6]
applied and was never screened for the job?
Preserve Theo Wirth House at
Lyndale Farmstead YES!
Doesn’t
Park as a Historic Site and Interpretive
Center? Support
More funding for speedy removal of trees
infected YES! Doesn’t
by Dutch Elm disease and replant new trees? Support
Provide Superintendent with a $500,000 slush fund?
NO! Yes!
Accelerate replacement of worn out playground
HIGH Not A
equipment before kids get seriously
hurt? PRIORITY
Priority
Fund and finish
PRIORITY Priority
12.
The
Complainant first saw Exhibits 2 and 3 in early October, two to five days
before he filed his complaint. He has
talked to people about what he considered to be false statements and has spoken
to reporters about those concerns. He
has not, however, responded by putting out literature addressing his concerns
about Exhibits 2 and 3 because he considered having to respond to that material
to be below him.[7]
13.
The
Complainant has distributed some campaign literature during October 2005. He discussed funding for removal of trees
diseased by Dutch Elm in that literature and possibly issues relating to the
development of
Calhoun Yacht Club Proposal
14.
The
Complainant has lived near
15.
A
Minneapolis City Ordinance requires that buildings within 1000 feet of the
shoreline not exceed 35 feet in height.
The Complainant and other members of the Board have objected to the
City’s propensity to give variances to those height restrictions. In October of 2005, the Complainant directed
Board staff to send a letter to the City’s Planning Commission objecting to the
granting of such variances. The Board
has also unanimously approved resolutions asking the City to consider the
traffic impact of projects they have approved around
16.
The
Calhoun Yacht Club currently occupies a building on the north shore of
17.
The
Complainant has had a number of conversations with Marissa Lasky, a member of
the Windsurfing Association, about the Yacht Club proposal.[12] The Yacht Club proposal is opposed by many
windsurfers who use
18. In 2004, the Complainant attended a meeting of the Windsurfing Association, along with the Superintendent and representatives of the Yacht Club, to discuss the proposal. He was asked to, or offered to, describe the proposal that had been made by the Yacht Club to the Board because no one from the Windsurfing Association had attended the Board meeting where the Yacht Club was initially made its proposal. He did so. When asked for further details on the proposal, he explained that he only had information that had been presented to the Park Board. Members of the group were left with the impression that Complainant was “neutral” on the sailing village proposal. The proponents of the project indicated during the meeting that they anticipated that the retail activities to be included in the development would generate sufficient income to support the project. They mentioned that the project might include a cheese shop or an eating establishment.[14]
19.
The
Complainant was asked by two or three neighborhood groups, including the East
Calhoun neighborhood group (referred to as “ECCO”) and the East Harriet
Farmstead neighborhood group, to talk to them about the Calhoun Yacht Club
proposal. The Complainant gave a
presentation at those meetings concerning the proposal. When there was a negative reaction to the
proposal during the ECCO meeting, the Complainant reminded them that he was
“just the messenger” and said they should bring their concerns to the Yacht
Club.[15]
20.
The
Complainant called Ms. Lasky after a Linden Hills neighborhood meeting and told
her that he was concerned that she was inferring that he was in favor of the
Yacht Club proposal. She told him that
she and others inferred that he was in support because he had been presenting
the proposal. When Ms. Lasky asked the
Complainant for a “quotable” position, the Complaint told her that his position
was “neutral.” The Complainant told her
he was neutral on more than one occasion.[16]
21.
Ms.
Lasky later called the Respondent and told him that the Complainant had stated
that his position on the Yacht Club proposal was “neutral.”[17]
22.
An
article appearing the June 6, 2005, edition of the Skyway News reported that
the
23.
The
October 24 – November 6, 2005, edition of the Southwest Journal included a
discussion of the
24. The Calhoun Yacht Club proposal has never come before the Board or its Planning Committee as an item for a vote. The Park Board has never taken any action on the proposal other than to allow the supporters to make a presentation. Neither the Complainant nor other Board members have announced their positions concerning the project at a Board meeting.[20]
25. The Respondent opposes the Calhoun Yacht Club proposal.[21]
26.
The Respondent chose the photograph on the right
in Exhibit 2 because it included a marina-type building in the foreground that
he believed to be representative of one that has been proposed for the south
shore of Lake Calhoun. Respondent
testified that he was not alleging or trying to imply that the Complainant
would support high rise development on
27.
The advertisement by its language and
photographs implies that if the existing Park Board Commissioners are not
replaced, there will be additional high-rise development around
Dutch Elm Disease
28. It is the Park Board’s policy to retain a reserve of not less than 5% of its budget, which is approximately $2.5 million of the Board’s total budget of $50 million. Because the Park Board’s reserve fund exceeded the $2.5 million, one issue for the Board in setting its 2005 budget was to consider how to use the balance.[23]
29. During 2004, the City incurred unexpectedly high costs related to the removal of trees affected by Dutch Elm disease. The Board approved additional funding of approximately $800,000 during 2004.[24]
30. As part of the Board’s 2005 budget, the majority of the Board (including the Complainant) voted to spend an additional $1 million out of its reserve funds to address what was expected to be needed for tree and stump removal of Dutch Elm trees in calendar year 2005. Five hundred thousand dollars of that amount was to be spent in emergency one-time stump removals and another $500,000 was to be spent in establishing an emergency tree removal fund.[25] Park Board staff has subsequently told the Board that it will not be necessary to spend this entire amount during 2005.[26]
“Slush Fund”
31. In November or early December of 2004, Park Board staff prepared an overview of the Superintendent’s recommended budget for 2005. The overview was presented in writing and by Power Point presentation to the Park Board. The Superintendent’s recommended budget included the creation of a $500,000 “Investment Fund” (sometimes called the “Innovation Fund”) to provide funding for projects that would reduce operating costs or increase operating revenues. The source of funds for the Investment Fund was a reserve fund balance in excess of the Park Board’s 5% level. The Superintendent’s budget recommended that initial Investment Fund projects for 2005 include updating energy management systems at recreation centers, installing a well at the Neiman complex, and developing a mini-golf center at Lupient Waterpark. Based on annual savings in conjunction with these projects, each of these projects was expected to pay back the initial investment within two to five years.[27]
32. The Board, including the Complainant, voted on December 1, 2004, to approve the Superintendent’s recommended 2005 budget, including the idea of the Investment Fund.[28] However, on December 13, 2004, a friendly amendment was passed directing staff to “recommend guidelines on establishing the Investment Fund that would be brought to the Board for approval in March” 2005. The Board required that the guidelines “include the provision that any project in excess of $50,000 will require Board approval (with the exception of the headquarters payoff).”[29]
33. Don Siggelkow, General Manager for the Board, sent a memorandum to the Park Board Commissioners dated March 9, 2005, outlining some proposed policies to apply to the Investment Fund. The opening paragraph of the memo stated:
The Board approved establishing a $500,000
Innovation Fund as part of the 2005 budget process. The purpose of the Innovation Fund is to
provide a funding source for projects that will reduce our operating costs or
increase operating revenues. The initial
source of funds for the Innovation Fund is fund balance in excess of our 5%
reserve level.
The memo further indicated that the purpose of the Innovation Fund was “to provide a funding source for projects or initiatives between $5,000 and $100,000 that will provide for strategic investments that will reduce operating costs or increase operating revenues.” The policies proposed by Mr. Siggelkow required Board approval for projects in excess of $50,000, and reporting of all Innovation Fund projects under $50,000 to Park Board Commissioners in June and December. Mr. Siggelkow recommended in the memo that the purpose, scope, review and policies for the Innovation be approved effective March 16, 2005.[30]
34. The Investment Fund matter came before the Administration and Finance Committee of the Board on March 16, 2005. The Complainant is not a member of the Administration and Finance Committee. Mr. Siggelkow’s recommendations were not approved. Some Committee members wanted the Superintendent to be required to report quarterly to the Board rather than just twice a year. After some discussion, the Committee voted that day to table the establishment of the Investment Fund.[31]
35. The Investment Fund never returned to the full Board for consideration and has never been implemented.[32] No expenditures have been made out of the Investment Fund.[33]
36.
A group
of
37. Mr. Johnson typed up notes relating to the Investment Fund, posted them on the Park Watch website, and forwarded them to the Minneapolis Issues List. He probably referred to the fund as the “Superintendent’s Fund” or the “Superintendent’s Slush Fund” or the “Superintendent’s Discretionary Fund.” He believed that the fund would be used at the discretion of the Superintendent and that the Superintendent could spend up to $50,000 without any Board approval.[35]
38.
Another
group of
39. Beginning on approximately June 24, 2005, the Minneapolis Citizens for Park Board Reform began to hand out literature that resembled a $100 bill urging voters to vote for a new Park Board. (Ex. 27) One side of the bill included a list of items that the group believed supported the conclusion that the current Park Board had engaged in “wasteful spending, mismanagement, and poor planning.” The list included the following item: “New $500,000 Superintendent Slush Fund – no accountability.”[37] The group also passed out the $100 bill flyer at the City DFL convention. They have never received any written complaint from the Complainant about it.[38]
40. Michael Guest, who is involved with the Minneapolis Citizens for Park Board Reform, testified that he believed the comments on the $100 bill flyer to be true at the time he distributed it, but admitted that there is presently some doubt whether the “slush fund” exists.[39]
41. The Respondent testified that he first heard about the “slush fund” in June or early July of 2005 when he saw the $100 bill flyer. He asked Mr. Guest and Mr. Johnson if the statement was true and both said yes. The Respondent also saw a copy of the March 9, 2005, memo sent to the Board by Mr. Siggelkow (Ex. 26) and examined copies of the Board’s meeting minutes relating to the Investment Fund. The Respondent admitted during the hearing that it appeared that the fund was no longer in effect as of sometime in August or September of 2005.[40]
Superintendent’s Residence
42.
Theodore
Wirth became the superintendent of the
43. On September 5, 2001, the Complainant voted with other members of the Board in favor of authorizing Park Board staff to assist the Minneapolis Parks Legacy Society with the preparation of necessary application forms for national historic listing of the Superintendent’s Residence, at no cost to the Park Board.[43]
44.
The Legacy
Society wants to use the residence as an interpretive center focusing on the
45. The Complainant voted against placing a sign in front of the house changing its name to the Theodore Wirth house.[45]
46. The Complainant has participated in meetings with the Legacy Society regarding allowing tours of the residence. The Legacy Society has used the house for tours on approximately three occasions. The Complainant provided some assistance in arranging for the tours and ensuring that Park Board staff moved items out of the rooms used for the tours.[46]
47. Although the residence is currently designated as a historical site, the Complainant has not supported a proposal to use the house as an interpretive center and to discontinue its use as office space for Park Board staff.[47]
48. Ms. Berthiaume has told the Respondent that the Complainant was unsupportive regarding using the Wirth house as a historical and interpretive center.[48]
49.
A
pending project in the City of
50.
The
Complainant supported the Board in 1999 or 2000 when it passed a resolution to
place a referendum before the voters to raise the Board’s capital
spending. The Mayor vetoed the matter,
and the Board did not override the veto.
The Complainant thereafter succeeded in negotiating with Mayor Sayles-Belton
to allow the Park Board’s capital spending to increase from $2 million to $4
million, with the additional funds to be used for the
51.
The
Park Board has authority to issue bonds, but the Board has limitations of
$500,000 to $1,000,000 on selling bonds.
Thus, it would not be possible for the Board to issue bonds for $11
million. The Complainant has proposed
that the City issue bonds for the
52.
In
January of 2005, the Park Board, including the Complainant, adopted a
legislative agenda which assigned “A” priority to obtaining a $3 million
bonding appropriation for restoration of the
53.
The Park
Board has a paid lobbyist who supports items in the Board’s legislative
agenda. Through its lobbyist, the Board
attempted to secure funds from the Legislature for the
54.
As a
member of the Board of Estimate and Taxation, the Complainant has also made
numerous requests for more funding for the
55.
Under
the City’s Neighborhood Revitalization Program, city neighborhood groups submit
plans to spend money obtained from tax increment funds to the Neighborhood
Revitalization Program Board for approval.
It would be possible for neighborhood groups to submit NRP funds to
assist in the completion of the
56.
A
neighborhood group that uses the soccer field across the street from the
57.
58.
The
Complainant has attended numerous neighborhood meetings over the past eight
years and has spoken in favor of funding for the
Playground Equipment
59.
Park
Board staff inspects playground equipment in
60.
The
playground equipment in
61. The playground equipment in eleven of the twelve parks in District 6, which the Complainant represents, have been replaced with new equipment within the last ten years.[67] The photographs in Exs. 13-16 are typical of the new equipment that has been provided throughout the City.[68]
62. The Complainant has voted to replace playground equipment in the past. In addition, the Complainant has advocated for the installation of the best playground equipment whenever playground equipment is being replaced.[69] He has also moved or seconded motions for bonds to replace playground equipment through his participation on the Board of Estimate and Taxation throughout the last eight years.[70]
63. There is no evidence that the Complainant undertook any initiatives to increase or accelerate the pace of the replacement of playground equipment beyond the Board’s existing replacement policy.[71]
Based upon the foregoing Findings of Fact, the panel makes the following:
CONCLUSIONS
1. Minn. Stat. § 211B.35 authorizes the panel of Administrative Law Judges to consider this matter.
2. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence. The standard of proof as to all other violations is preponderance of the evidence.[72]
3. Minn. Stat. § 211B.01, subd. 2, amended in 2004, defines “campaign material” to mean “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, …” The Southwest Journal Advertisement and the Comparison Flyer are campaign material within the meaning of that statute.
4. Minn. Stat. § 211B.04 states, in relevant part: “A person who participates in the preparation or dissemination of campaign material … that does not prominently include the name and address of the person or committee causing the material to be prepared or disseminated in a disclaimer substantially in the form provided … is guilty of a misdemeanor.”
5. The Southwest Journal Advertisement substantially complied with the requirements of Minn. Stat. § 211B.04. The advertisement expressly states that it is from Respondent. It does not contain his street address, nor a disclaimer in the form specified in the statute, but it does contain the web address of his committee. The purpose of the statute is to identify the source of the campaign material and provide a mechanism for contacting the preparer of the material. It does so. There is no violation.
6. Minn. Stat. § 211B.06, subd. 1, provides, in part: “A person is guilty of a gross misdemeanor who intentionally participates in the preparation [or] dissemination … of … campaign material with respect to the personal or political character or acts of a candidate … that is designed or tends to elect, injure, promote, or defeat a candidate for nomination or election to a public office …, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.”
7. The Complainant has failed to show shown by clear and convincing evidence that Respondent violated Minn. Stat. § 211B.06, subd. 1, with regard to Exhibit 2, the Southwest Journal Advertisement, and with regard to the mini-mall statement, the Theodore Wirth House statement, and the accelerated replacement of worn out playground equipment statement in Exhibit 3, the Comparison Flyer.
8. The Complainant has shown by clear and convincing evidence that Respondent violated Minn. Stat. § 211B.06, subd. 1, by preparing and disseminating campaign material that contained the following false statements that Respondent knew were false or communicated to others with reckless disregard of whether they were false:
a. More funding for speedy removal of trees infected by Dutch Elm disease and replant new trees—Doesn't Support.
b. Provide Superintendent with a $500,000 slush fund—Yes!
c. Fund
and finish
9. The violations were multiple and were committed knowingly or with reckless disregard of the truth. They likely have had some impact on some voters, but could be countered by the Complainant fairly easily. A fine of $800 is appropriate for these violations.
Based upon the record herein, and for the reasons stated in the following Memorandum, the panel makes the following:
ORDER
IT IS ORDERED: That Respondent pay a civil penalty of $800 by December 9, 2005, for violating Minn. Stat. § 211B.06.[73]
Dated November 7, 2005
|
/s/ Steve M. Mihalchick |
|
STEVE M. MIHALCHICK |
|
Presiding Administrative Law Judge |
|
/s/ Barbara L. Neilson |
|
BARBARA L. NEILSON |
|
Administrative Law Judge |
|
/s/ Bruce H. Johnson |
|
BRUCE H. JOHNSON |
|
Administrative Law Judge |
MEMORANDUM[74]
Minn. Stat. § 211B.06 prohibits the preparation and dissemination of false campaign material. In order to be found to have violated this section, a person must intentionally participate in the preparation and dissemination of false campaign material that the person knows is false or communicates with reckless disregard as to whether it is false. Complainant alleges that several statements in campaign material prepared and disseminated by the Respondent are false and that Respondent either knew they were false or communicated them with reckless disregard as to whether they were false.
In Kennedy v. Voss,[75] the Minnesota Supreme Court observed that the statute is “directed against the evil of making false statements of fact and not against criticism of a candidate or unfavorable deductions derived from the candidate’s conduct.”[76] In that case, a candidate used an incumbent’s “no” vote on a county budget vote to infer that the incumbent did not support any of the individual items in that budget. In fact, the incumbent did support a number of the individual items, but voted “no” because the budget included an additional $18,000 appropriation, which the incumbent opposed. The Minnesota Supreme Court held that inferences based on fact (in this case, the incumbent’s “no” vote) did not come within the purview of the statute even if the inferences are “extreme and illogical.”[77] The Court pointed out that the public is protected from such extreme inferences by the candidate’s ability to rebut remarks during the campaign process.[78]
A challenged statement’s specificity and verifiability, as well as its literary and public context, are factors to be considered when distinguishing between fact and opinion.[79] The statement that must be proved false is not necessarily the literal phrase published but rather what a reasonable reader would have understood the author to have said; expressions of opinion, rhetoric, and figurative language are generally protected speech if, in context, the reader would understand the statement is not a representation of fact.[80] Here, Respondent concedes that he prepared and disseminated the campaign material at issue. Respondent denies, however, that the statements at issue are factually false, and Respondent maintains that they were not made with knowledge of their falsity or with reckless disregard for the truth.
The term “reckless disregard” is not defined in the statute. When considering the predecessor to this statute, the Minnesota Court of Appeals, in State v. Jude,[81] rejected the argument that section 211B.06 could constitutionally create an ordinary or gross negligence standard. At that time, § 211B.06 made it a crime to prepare or disseminate campaign material that a person knows “or has reason to believe is false.” The court found that extending criminal liability to those who have only a “reason to believe” the campaign material is false made the statute unconstitutionally overbroad. Instead, the court in Jude held that a criminal sanction could only be imposed for political speech that meets the “actual malice” standard of New York Times Co. v. Sullivan.[82] That is, the statement must be made with knowledge that it is false or with reckless disregard of whether it is false or not. The court explained further that the phrase “reckless disregard” involved a subjective element of “actual conscious disregard of the risk created by the conduct.”[83] In order to establish reckless disregard, there must be sufficient evidence that Respondent entertained serious doubts as to the truth of a statement, but published the statement anyway.[84]
Following the Jude decision, the Minnesota Legislature amended Minn. Stat. § 211B.06 in 1998 to incorporate the “reckless disregard” standard of Sullivan. Thus, it appears that the legislature intended, in accord with Jude, to require that complainants show by clear and convincing evidence that a statement is false and that respondents either knew it was false or acted with actual conscious disregard of whether it was false or not, in order to establish a violation of Minn. Stat. § 211B.06. With this in mind, each of the specific statements at issue is discussed below.
Southwest Journal Advertisement (Ex. 2)
The
panel concludes that the statements and photographs in Exhibit 2 reflect
Respondent’s opinion that if the composition of the Park Board does not change,
the future trend will be increased development of currently undeveloped
portions of the shorelines of the city’s lakes.
Although the “From This” photograph happens to be a photograph of
portions of the current shoreline of Lake Calhoun, the statement of opinion
itself is more generic—that is, it is not expressly directed solely at
shoreline development of Lake Calhoun but generally at shoreline development
along all Minneapolis lakes. Moreover,
since the statement does not identify any incumbent Park Board Commissioners by
name, it could be interpreted as referring to a viewpoint of the entire Board
and not to the positions of any particular Commissioners. In short, Exhibit 2 represents a statement of
opinion rather than a statement of fact.
Even if the material were to be considered a statement of fact, it would
fall short of being clearly and convincingly false because it lacks the
specificity required by the Minnesota Supreme Court in Diesen v. Hussberg.[85] Respondent’s opinion, however extreme or
illogical, is not a specific statement of fact that can be proven false. Rather, when viewed in its context, it is
reasonably understood as political commentary or opinion critical of
development around
The Comparison Flyer (Ex. 3)
“Allow building a retail “mini-mall” on the
southeast
The
panel concludes that this statement is not a false statement of fact. The Calhoun Yacht Club’s proposal included
construction of a deck, sailing school, concession stand with restrooms, and two
other seasonal facilities. The term
“retail mini-mall” does not have a generally accepted and commonly understood
meaning. What may be a “retail
mini-mall” to one person may not be to another.
An article in the Skyway News described the Yacht Club proposal as a
“five-building” complex that would include “an event center” and “three
retail/concession buildings.” The panel
finds that the use of the term “retail mini-mall” to describe the Calhoun Yacht
Club’s proposal is not unambiguously false.
Moreover, the evidence established that Complainant told a Southwest
Journal reporter and Ms. Lasky, a member of the Windsurfing Association, that
his position was “neutral” with respect to the proposal. The Panel concludes that the description of
the Yacht Club’s proposal as a “retail mini-mall” is opinion or hyperbole and
not a statement that can be verified or proven false in violation of Minn.
Stat. § 211B.06. The Complainant has
failed to establish by clear and convincing evidence a violation of Minn. Stat.
§ 211B.06 with respect to this statement.
“Preserve the Theodore
Wirth House at
The evidence established that the Park Board is currently using the Wirth House as office and storage space, but that it is willing to allow the Legacy Society to conduct occasional tours there. Mr. Fine has not expressed any position about the use of the Wirth House that varies from its current use. The Theodore Wirth House does not now contain “an interpretive center” in any sense of that term, and Mr. Fine has not indicated any support to create one there, much less convert the entire structure into an interpretive center. The statement is therefore not false. Complainant has failed to establish a violation of Minn. Stat. § 211B.06 with respect to this statement.
“More funding for speedy
removal of trees infected by Dutch Elm disease and replant new trees” (Bob Fine – “Doesn’t Support”)
Respondent
contends that the above statement is not false because Mr. Fine did not
indicate support for more funding than what staff recommended to address the
Dutch Elm disease problem. But that is
not what the statement says. It
explicitly states that Mr. Fine doesn’t support more funding at all. The evidence established that the Park Board
staff recommended $ 1 million in increased funding to deal with the Dutch Elm
disease problem in calendar year 2005, and further established that Mr. Fine
fully supported and voted for that additional funding. Therefore, a statement that Mr. Fine “doesn’t
support” “[m]ore funding for speedy removal of trees infected by Dutch Elm
disease and replanting new trees” is false.
The facts relating to Mr. Fine’s support of increased funding for the
Dutch Elm disease problem were readily ascertainable in the Park Board’s
official records. Mr. Bernstein
testified that he reviewed Park Board records with respect to this issue and
did not find any instance where Mr. Fine proposed more money beyond what staff
recommended. Again the statement in Mr.
Bernstein’s campaign literature does not make this distinction. It says that Mr. Fine doesn’t support more
funding period. This is a specific
statement of fact that can be and has been proven false. Complainant has established by clear and
convincing evidence that Mr. Bernstein knew the statement was false but
communicated it anyway in violation of Minn. Stat. § 211B.06.
“Provide Superintendent
with a $500,000 slush fund” (Bob Fine –
Yes!”)
The term “slush fund” is generally understood to be a fund that may be used at a party’s discretion for undesignated purposes. The term is defined as “a fund for bribing public officials or carrying on corruptive propaganda;[86] or “a fund raised for undesignated purposes, esp. one raised by a group for corrupt practices.”[87] The panel finds that the definitions are consistent with the sense in which the term “slush fund” would be understood by ordinary persons in this case. It would be understood as a fund to be used by the superintendent for undesignated purposes.
Here, Respondent characterized an Investment Fund that was in the Superintendent’s Recommended Budget for calendar year 2005 as a “slush fund.” The Investment Fund was tentatively passed as part of the overall budget by the Park Board, but later tabled in committee.
The Panel finds that the above “slush fund” statement is false in a number of regards. First, the fund, as described in the budget and tentatively adopted by the Park Board, could not be used for undesignated purposes. It was to be used to fund projects that would reduce operating costs or increase operating revenues and provide a short-term payback. So it was not a “slush fund” in that sense. Second, the superintendent was not authorized to spend $500,000, only the Park Board was authorized to do that. The superintendent could only make expenditures up to $50,000 without Board approval, and, again, only for the purposes of the fund. Third, the Board stopped short of providing the superintendent with the authority to make any expenditures from the fund. Even if the fund could be interpreted as a slush fund, the other incorrect statements make the entire statement false.
The Respondent testified that he based this statement on literature put out by the Minneapolis Citizens for Park Board Reform (Ex. 27), the March 9, 2005 memo to the Park Board from Siggelkow (Ex. 26), and Park Board voting records. Respondent knew at the time he published Exhibit 3 in October 2005, that the proposal for the fund had been tabled and that it had never been proposed that the Superintendent would have any discretionary authority beyond $50,000. Had Respondent just relied on the Reform group’s literature, his failure to conduct a reasonable investigation into the accuracy of their assertion would not alone establish reckless disregard.[88] But where Respondent has admitted seeing the March 9th memo and reviewing Park Board records prior to disseminating his campaign material, the evidence is sufficient to permit the conclusion that he knew the “slush fund” statement was false or entertained serious doubts as to the truth of the statement. The panel concludes that Complainant has established by clear and convincing evidence that the “slush fund” statement is false and that Respondent knew it was false or communicated it with reckless disregard as to whether it was false in violation of Minn. Stat. § 211B.06.
“Accelerate replacement of worn out playground
equipment before kids get seriously hurt”
(Bob Fine – “Not a Priority”)
The Panel concludes that this statement is not a false statement of fact. Complainant presented evidence that established that the Board has a policy to try to replace all playground equipment in the city on at least a 20-year cycle, that the playground equipment in the parks in District 6 is all less than ten years old, and that no playground in any district constitutes a safety hazard to children. The Complainant argues further that only the playground equipment in District 6 is relevant because that is the Board seat for which he and Mr. Bernstein are competing. The panel is not persuaded by Complainant’s argument and finds it takes too narrow a view of a Board member’s responsibilities. Although Commissioners elected to district seats may have a primary interest in what happens in their own districts, their authority and responsibility extends to all playground equipment throughout the city.
With that in mind, the panel concludes that the Complainant has failed to establish by clear and convincing evidence that Respondent’s statement is false. The evidence established only that the Complainant supported the replacement schedule that had been established by the Park Board or staff, rather than an accelerated schedule. From this evidence, Respondent can infer that acceleration of playground equipment was not a priority for the Complainant and such an inference does not violate Minn. Stat. § 211B.06.
“Fund and finish
Respondent
contends that funding and finishing the
Having found that the Respondent violated Minn. Stat. § 211B.06, with respect to the three statements in Exhibit 3 identified above, the Panel may make one of several dispositions.[89] The panel may issue a reprimand, may impose a civil penalty of up to $5,000, and may refer the complaint to the appropriate county attorney for criminal prosecution. In this case, the panel has decided to impose a civil penalty of $800. The panel concludes that Respondent’s violations were multiple and committed knowingly, but could have been countered by the Complainant fairly easily. As such, the panel concludes that a civil penalty of $800 is appropriate.
S.M.M., B.H.J., B.L.N.