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3-6326-19653-CV |
STATE OF
OFFICE
OF ADMINISTRATIVE HEARINGS
|
Michael
Wigley and Robert Jackson,
Complainants, vs. Orono Public Schools, ISD 278, Jack
Veach, Dick Lewis, Martha Van de Ven, John Malone, Michael Bash, Michele
Kunz, Karen Orcutt, and Orono Kids Matter,
Respondents. |
NOTICE OF DETERMINATION OF PRIMA FACIE VIOLATION AND NOTICE OF AND ORDER FOR EVIDENTIARY HEARING |
TO: The Above-Named Parties.
On April 28, 2008, Michael Wigley and Robert Jackson filed a Complaint with the Office of Administrative Hearings alleging that the Orono Public Schools violated Minn. Stat. §§ 211A.02 (financial reporting), 211A.05 (financial filing), and 211B.06 (false campaign material). The Complaint also alleges that each of the Orono School Board members and Superintendent Karen Orcutt violated Minn. Stat. §§ 211A.02, 211A.05, 211B.06 and 211B.09 (prohibited public employee activities). Lastly, the Complaint alleges that the organization “Orono Kids Matter” violated Minn. Stat. § 211A.02, 211A.05, and 211B.06.
After reviewing the
Complaint and attached documents, the undersigned Administrative Law Judge has
determined that the Complaint sets forth prima facie violations of Minnesota
Statutes § 211A.02 with respect to Respondent Orono Kids Matter. All of the other allegations and parties are
dismissed. This determination is
described in more detail in the attached Memorandum.
THEREFORE, IT IS HEREBY ORDERED AND NOTICE IS HEREBY GIVEN that this matter will be scheduled for a prehearing conference and evidentiary hearing to be held at the Office of Administrative Hearings, 600 North Robert Street, St. Paul, Minnesota 55101, 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 prehearing conference and evidentiary hearing, and the three judges assigned to it, within approximately two weeks 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.
After the evidentiary hearing, the Administrative Law Judges may dismiss the complaint, issue a reprimand, or 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
Dated:
May 1, 2008
s/Kathleen
D. Sheehy
_____________________________
KATHLEEN
D. SHEEHY
Administrative
Law Judge
This Campaign
Complaint concerns the February 12, 2008, special election on the
In reviewing the Complaint to determine whether it sets forth a prima facie violation of the statute, the Administrative Law Judge 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. The allegations against each Respondent are addressed in turn below.
The Complaint alleges that
the
Under Minnesota Statutes § 211A.02, subd. 1, a committee or candidate acting to promote or defeat a ballot question who makes disbursements of over $750 in a calendar year, must file financial reports with the appropriate filing officer. The reports filed by a candidate or committee must include the total amount of expenditures for each time period covered.[1] In addition, under Minn. Stat. § 211A.05, each candidate or treasurer of a committee is required to certify to the filing officer that all required financial reports have been filed.
The Complaint
maintains that the School District, by acting on behalf of the Board of
Education and with the Superintendent, constitutes a “committee” under Minn.
Stat. § 211A.01, and is therefore subject to the campaign finance reporting
requirements. Minnesota Statutes §
211A.01 defines “committee” to mean “a corporation or association or persons
acting together to influence the nomination, election, or defeat of a candidate
or to promote or defeat a ballot question.”
School districts are political subdivisions of the state. The
In addition, Minn.
Stat. § 211A.01, subd. 6, explicitly excludes from the definition of
“disbursement” payments by school districts for election-related expenses
required or authorized by law. The
Complainants argue that only the election-related expenses identified in Minn.
Stat. § 204B.32 are required or authorized by law. That section requires school districts to pay
for certain election expenses such as compensation for election judges and sergeants-at-arms,
the cost of printing ballots, providing ballot boxes, and equipping polling
places. The Complainants point to no
authority for the proposition that expenditures are limited to those listed in
§ 204B.32 or that the
For all of these
reasons, the Administrative Law Judge finds that the Complainants have failed
to allege prima facie violations of Minn. Stat. §§ 211A.02 and 211A.05 on the
part of the
The Complaint also
alleges that the
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. A school district is a political subdivision
of the state and is not a person.
Because the prohibition against preparing or disseminating false
campaign material is directed to persons, a school district cannot be found to
have violated Minn. Stat. § 211B.06.
This allegation is dismissed, and the
Superintendent Karen Orcutt and
The Complaint alleges
that Superintendent Orcutt, “with the apparent approval of Board members,”
directed staff and used
According to the Complaint, by creating and disseminating campaign material and by providing School District resources to Orono Kids Matter, Superintendent Orcutt and the School Board members made disbursements of more than $750 and were required to report these disbursements under Minn. Stat. §§ 211A.02 and 211A.05.
Superintendent Orcutt
is an employee of the
The Complaint also
alleges that Superintendent Orcutt and the School Board members violated Minn.
Stat. § 211B.09.[5] This section prohibits employees or officials
of a political subdivision from using their official authority or influence to
compel a person to take part in political activity. The Complaint alleges that Superintendent
Orcutt instructed
In order to allege a prima facie violation of Minn. Stat. § 211B.09, the Complaint must put forward facts that would support a finding that Superintendent Orcutt or the School Board members used their influence to “compel” persons to take part in a political activity. The Merriam Webster Dictionary defines “compel” to mean “to drive or urge forcefully or irresistibly;” or “to cause to do or occur by overwhelming pressure.”[6] Complainant has alleged no facts to support finding that the Respondents used forceful or overwhelming pressure to compel anyone to create and disseminate campaign material or to take part in some other political activity. The Complainants have failed to allege sufficient facts that would support finding a prima facie violation of Minn. Stat. § 211B.09 on the part of Respondent Orcutt and the School Board members. This allegation is dismissed, and Superintendent Karen Orcutt and the named School Board members are dismissed as parties in this matter.
Orono Kids Matter
The Complaint alleges
that Orono Kids Matter is an organization of individuals formed to support the
bonding referendum, and that this organization also formed a sub-committee
known as “The ‘Vote Yes’ Group.”[7] The Complaint asserts that Orono Kids Matter received
in-kind contributions from the
As an association or persons acting together to promote the passage of a ballot question, Orono Kids Matter meets the definition of a “committee” under Minn. Stat. § 211A.01, subd. 4. “Contribution” is defined as anything of monetary value that is given or loaned to a candidate or committee for a political purpose.[9] The Administrative Law Judge finds that the Complaint does allege a prima facie violation of Minn. Stat. § 211A.02 with respect to Orono Kids Matter. If the evidence at the hearing were to establish that Orono Kids Matter received contributions of more than $750 and that it did not identify the in-kind contributions it received from the School District on its campaign financial reports, this may be a violation of Minn. Stat. § 211A.02.
The Complaint fails, however, to allege a prima facie violation by Orono Kids Matter of Minn. Stat. § 211A.05. This section governs the penalty and process for candidates and committees who fail to timely file financial reports required by Minn. Stat. § 211A.02. Minn. Stat. § 211A.05, subd. 2 provides as follows:
If a candidate or committee fails to file a report on the date it is due, the filing officer shall immediately notify the candidate or committee of the failure to file. If a report is not filed within ten days after the notification is mailed, the filing officer shall file a complaint under section 211B.32.
Only filing officers may
file complaints under section 211A.05, and such complaints must be filed only ten
days after the filing officer has sent written notification to the candidate or
committee of the failure to file a report.
The statute gives the filing officer the discretion to allow untimely
filings without resorting to the complaint process. The Complainants lack standing to bring this
claim. Moreover, they have failed to
allege that the filing officer for the
The Complaint also alleges that Orono Kids Matter disseminated false campaign material via an e-mail communication on February 11, 2008. The e-mail communication included the following statement: “The bad news is: “No” voters have already submitted hundreds of absentee ballots.” The Complaint asserts that this is a false statement of fact because absentee ballots may not be counted before the election. Therefore, Orono Kids Matter could not know that hundreds of “No” absentee ballots were submitted. The Complaint contends that this statement was a deliberate falsification of information to promote the passage of the ballot question.
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 is designed to promote or defeat a ballot question and that the person knows is false or communicates to others with reckless disregard of whether it is false. The alleged false statement at issue in this matter does not concern the effect of the ballot question. It is a statement about the number of votes cast. Moreover, Complainants have failed to allege any facts to support an allegation that the person who made this statement knew it was false or likely knew it was probably false.[10] While the intent of the statement was no doubt to encourage those who support the ballot question to get out and vote, it falls outside of the purview of Minn. Stat. § 211B.06 and is not actionable as a false statement of fact. This allegation is dismissed.
This matter will proceed to a prehearing conference and evidentiary hearing to be scheduled in the near future on the alleged violations of Minn. Stat. § 211A.02 by Respondent Orono Kids Matter.
[1]
[2] See e.g., Minn.
Stat. § 123B.10, subd. 1.
[3] Complaint at 6.
[4]
[5] Complaint at 19.
[6] Merriam Webster Online Dictionary.
[7] Complaint at 5; Complaint Ex. 1.
[8] Complaint at 12, 17 and 21.
[9] Minn. Stat. § 211A.01, subd. 5.
[10] See, Riley v.
Jankowski, 713 N.W.2d 379 (