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3-6326-19653-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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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. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on July 9, 2008, before a panel of three Administrative Law
Judges: Kathleen D. Sheehy (Presiding
Judge), Steve M. Mihalchick and William R. Johnson. The OAH hearing record closed on July 22,
2008, with the filing of the parties’ written closing argument.
Erick G.
Kaardal and William H. Mohrman, Attorneys at Law, Mohrman & Kaardal, P.A.,
Robert J.
Hennessey and Carla Vehrs, Attorneys at Law, Lindquist & Vennum, 4200 IDS
Center,
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
STATEMENT OF ISSUES
Did Respondent fail to file a financial
report required by Minn. Stat. § 211A.02?
The panel concludes that the
Complainants have failed to establish that the Respondent violated Minn. Stat.
§ 211A.02, and therefore the Complaint is dismissed.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. The
2. According to the School District’s website, the
3. On November 8, 2007, the Orono school board
authorized a $39.4 million bond referendum and scheduled the referendum for a
special election to be held on February 12, 2008.[1]
4. Respondent Orono Kids Matter is an association of school
district residents formed to support the bond referendum. There are approximately 15 to 20 core members
of Orono Kids Matter, and about 100 other parents who are involved more
peripherally in the organization.[2]
5. Martha Van de Ven was elected to the Orono School Board
in 1991 and has served as a board member since that time. She is also a member of Orono Kids Matter.[3]
6. Kelly Shaughnessy is the Chairman and Treasurer of
Orono Kids Matter.[4]
7. The residents of the
8. On April 28, 2008, the Complainants filed a campaign
complaint in this matter, alleging in relevant part that Orono Kids Matter had
failed to file financial reports acknowledging contributions received from the
school district in the form of school district staff time used to produce a digital
video disk (DVD) regarding the referendum, blank disks used to reproduce the
DVD, and parent and guardian address lists used to mail campaign material
concerning the referendum.[5]
The DVD
9. In late November of 2007, the
10. Melanie
Deluca, the
11. The School
District originally intended to post the DVD as a link on its website; however,
the
12. On or about
December 20, 2007, Orono Kids Matter paid Penny Pease, a
13. On or about
January 22, 2008, Orono Kids Matter paid Ms. Pease $111.96 to make 100 more copies
of the DVD.[10]
14. Orono Kids
Matter distributed copies of the DVD to parent leaders and at informational
gatherings (“coffees”) arranged by members of the committee.[11]
15. Shortly
thereafter, Orono Kids Matter decided to distribute the DVD more broadly, and
it paid $1,757.25 to have an additional 1,500 copies of the DVD made
commercially.[12] Orono Kids Matter then mailed copies of the
DVD to residents of the district.[13] On the DVD envelopes, Orono Kids Matter
attached a label providing in relevant part “Prepared and paid for by: Orono Kids Matter
16. Orono Kids
Matter paid nothing to the
17. Orono Kids
Matter did not list the DVD on its campaign finance report as an in-kind
contribution from the
18. There is no
evidence that Orono Kids Matter received blank disks from the
19. In campaign
finance reports filed between January and July 2008, Orono Kids Matter reported
expenditures of $93.96, $111.96, and $1,757.25 for the cost of copying the DVD.[16]
Street
Addresses and Mailing Labels
20. On or about
December 17, 2007, Orono Kids Matter requested an electronic file containing “directory
information” from the
21. On or about
December 18, 2007, Orono Kids Matter requested an electronic file from the
school district containing the names and addresses of residents who had
graduated from
22. On or about
January 25, 2008, Orono Kids Matter requested from the
23. In prior
referendum elections, the
24. The
Complainants did not request these types of records from the
25. Orono Kids
Matter used the names and addresses it obtained from the
26. After
receipt of the complaint in this matter, Ms. Van de Ven examined the back-up documentation
for expenses Orono Kids Matter had reported.
She then realized that Orono Kids Matter had not yet paid for the
directory information and mailing labels it had requested and received in
December and January. Ms. Van de Ven asked
the
Email Lists
27. Orono Kids
Matter also sent written campaign material to school district residents via
email. The parents involved in Orono
Kids Matter collected email addresses known to each other and set up an email
marketing account for use by Orono Kids Matter.
Orono Kids Matter did not obtain any list of email addresses of school
district residents from the
28. Lisa James,
a resident of the school district, received an email message from Orono Kids
Matter urging residents to vote “yes” on the bonding referendum. Ms. James, who was active in a group opposed
to the referendum, does not know how or from whom Orono Kids Matter obtained
her email address.[27]
29. Some school district residents who received
paper mailings from Orono Kids Matter, including the DVD, received no email
messages from the group.[28]
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 Complainants. The standard of proof of a violation of Minn.
Stat. § 211A.02, is a preponderance of the evidence.[29]
3. “Preponderance”
means greater weight of the evidence. It
means that all of the evidence, regardless of which party may have produced it,
must lead the panel to believe that the fact at issue is more likely true than
not true. Greater weight of the evidence
does not necessarily mean the greater number of witnesses or the greater volume
of evidence. Any believable evidence may
be enough to prove that a disputed fact is more likely true than not.[30]
4. Minn. Stat. § 211A.01, subd. 4, defines “committee”
as “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.”
5. Respondent Orono Kids Matter is a “committee” as
defined in Chapter 211A.
6. Under
7. “Contribution” is defined as anything of monetary
value that is given or loaned to a candidate or committee for a political
purpose. “Contribution” does not include
a service provided without compensation by an individual.[31]
8. “Disbursement” means money, property, office,
position, or any other thing of value that passes or is directly or indirectly
conveyed, given, promised, paid, expended, pledged, contributed, or lent. “Disbursement” does not include payment by a
county, municipality, school district, or other political subdivision for election-related
expenditures required or authorized by law.[32]
9. Orono Kids Matter received contributions and made disbursements of over $750 in a calendar year, and it was therefore required to file campaign finance reports.
10. Orono Kids Matter filed all required campaign finance reports.
Based upon the record herein, and for
the reasons stated in the following Memorandum, the panel of Administrative Law
Judges makes the following:
ORDER
IT IS
ORDERED:
That the
Complaint in this matter is DISMISSED.
Dated: July
30, 2008
|
s/Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Presiding Administrative Law Judge |
|
s/Steve M.
Mihalchick |
|
STEVE M. MIHALCHICK |
|
Administrative Law Judge |
|
w/William R. Johnson |
|
WILLIAM R. JOHNSON |
|
Administrative Law Judge |
MEMORANDUM
Chapter 211A is applicable to ballot questions to be voted on by voters of one or more political subdivisions but not by all the voters of the state. Section 211A.02 requires that a committee or a candidate who receives contributions or makes disbursements of more than $750 in a calendar year shall submit an initial report to the filing officer within 14 days after the candidate or committee receives or makes disbursements of more than $750 and shall continue to make the reports until a final report is filed. The receipt of “contributions” or the making of “disbursements” is the threshold requirement for the filing obligation. Unlike Minn. Stat. § 10A.025, which is applicable to state-wide or judicial elections and which prohibits the filing of statements containing knowingly false information or omissions, there is nothing in § 211A.02 that provides for the assessment of penalties for inaccurate information, false statements, or poor record-keeping. Instead, the remedy is to require the filing of the report.[33]
The Complainants alleged, in relevant part, that Orono Kids Matter had failed to file financial reports under Minn. Stat. § 211A.02. In the summary of alleged violations by Orono Kids Matter, the Complaint provides “Minn. Stat. § 211A.02, failure to file a financial report (under reporting).”[34] Under-reporting could be a violation of § 211A.02, if a committee or candidate under-reported a contribution or disbursement that would have caused the committee or candidate to meet the threshold for filing a financial report.[35] In the course of the hearing, however, it became clear that Orono Kids Matter met the threshold requirements for filing financial reports before the election and had filed all the required reports.[36]
The
main issue the Complainants seek to address is whether, instead of reporting
the costs pertaining to distribution of the DVD, street addresses, and mailing
labels as expenditures made in support of the referendum, Orono Kids Matter
should have reported them as in-kind contributions received from the School
District having a far greater value than the amounts reported as expenditures. The allegation that a committee treasurer has
failed to keep correct accounts or has filed inaccurate information would be a
violation of Minn. Stat. § 211A.06.
Pursuant to
Even
if the Complainants had properly alleged a violation of Minn. Stat. § 211A.06, the panel would conclude that
the Complainants failed to show that Orono Kids Matter failed to keep correct
accounts with the intent to conceal either the receipt or purpose of any
contribution made by the School District.
The evidence submitted by the Complainants was that, if commercially
produced, the DVD would have cost between $5,000 and $10,000. The Complainants also argued that the street addresses
and mailing labels provided by the School District were worth much more than
the $135 charged by the
Orono Kids
Matter maintained, as a factual matter, that school district employees
volunteered their time to make the DVD for the
With regard to
the DVD, the Complainants presented speculative evidence that it would have cost
substantially more to make the DVD if the school district had hired professionals
and paid the going rate for the production.
Even assuming that market value were the appropriate standard for
determining whether a donation was correctly accounted for, however, the cost
of producing the DVD would not translate to the market value of a single
copy. Fair market value means the value one
would have to pay to obtain equivalent goods or services in the
marketplace. If this issue had been
properly presented to the panel as a claimed violation of § 211A.06, the panel
would conclude that Complainants failed to show that a 26-minute DVD depicting School
District board members, staff, and task force members discussing the need for
funding and facility maintenance would have any value in the marketplace. It is akin to the exception to the ban on
lobbyist gifts to legislators found at Minn. Stat. § 10A.071, subd. 3(a)(6),
for “informational material of unexceptional value.”[39]
With regard to
the street addresses and mailing labels, the Complainants’ evidence again was
that it would cost much more to purchase these items from a commercial list
seller on the open market. It would be
difficult to reconcile a “market value” standard with a school district’s
obligations under the Minnesota Government Data Practices Act. Under the Act, a school district is required
to provide copies of public data upon request and may charge only the actual
costs of searching for, retrieving and copying the data.[40] Information designated by a school district
as “directory information” is public data unless students and/or their parents
have informed the district not to treat the data as directory.[41] The record in this case reflects that the school
district has provided this type of information to groups both supporting and
opposing ballot questions in the past for similar fees. There is no evidence that the
With regard to email addresses, there is no credible
evidence that the School District provided any email addresses to Orono Kids
Matter, whether through its Honeywell Instant Alert System or otherwise. Even some of the individuals who objected to
receiving any mail from Orono Kids Matter, and who had provided their email
addresses to the School District, received no campaign material by email from Orono
Kids Matter.[42]
Orono Kids Matter filed detailed financial reports
between January and July 2008 disclosing approximately $20,000 in contributions
and $20,000 in expenditures. The costs
relating to the DVD were disclosed from the very first filing, and the expenses
for street addresses and mailing labels (totaling $135) were paid in June and
reported a few days later. In sum, Orono
Kids Matter properly filed all reports required under Minn. Stat. §
211A.02. Under
K.D.S.,
S.M.M., W.R.J.
[1] Complaint Ex. 3.
[2] Testimony of
Martha Van de Ven.
[3]
[4]
[5] Complaint at
7, 12-13, & 21.
[6] Ex. 16.
[7] Test. M. Van de
Ven.
[8]
[9] Id; Testimony of Kelly Shaughnessy.
[10] Test. of M. Van de Ven and K. Shaughnessy.
[11] Test. of M.
Van de Ven.
[12] Id; Test. of K. Shaughnessy; Ex. 5.
[13] Test. of M.
Van de Van.
[14]
[15] Test. of M.
Van de Ven.
[16] Exs. 1, 3-6. On two occasions, Orono Kids Matter double-reported expenditures for DVD reproduction. Orono Kids Matter filed amended reports to correct the reporting errors.
[17] “Directory information” is public data on individuals
under the Minnesota Government Data Practices Act. See
[18] Ex. 8.
[19]
[20]
[21]
[22] Test. of M. Van
de Ven.
[23] Test. of M. Vande Ven.
[24] Ex. 8.
[25] Test. of M. Van de Ven and K. Shaughnessy; Ex. 7.
[26] Test. of M. Van de Ven and K. Shaughnessy.
[27] Testimony of
Lisa James.
[28] Exs. 22, 24
& 25.
[29] Minn. Stat. § 211B.32, subd. 4.
[30] State v. Wahlberg, 296 N.W.2d 408, 418
(Minn.1980); Benson v. Northland Transp.
Co., 200
[31] Minn. Stat. §
211A.01, subd. 5.
[32] Minn. Stat. §
211A.01, subd. 6.
[33] Section
211A.05 requires each candidate or the treasurer of a committee to certify to
the filing officer either that all reports have been submitted as required or
that the candidate or committee is not obligated to make such reports. If a candidate or committee fails to file a
report with the appropriate filing officer within ten days of notification of
the failure to file, the filing officer is obligated to file a complaint under
Minn. Stat. § 211B.32.
[34] Complaint at
2.
[35] See Wenzel v. Harder, OAH No.
8-6301-19262-CV (Oct. 22, 2007).
[36] Exs. 1-7.
[37] Testimony of
Michael Wigley, Robert Jackson.
[38] The witness
list filed by the Complainants said only that the Complainants’ expected
testimony “relates to foundation of evidence supporting allegations of
complaint.”
[39] Cf. Advisory
Opinion 269 (Ethical Practices Board, May 23, 1997) (organization could provide
copies of an audio tape of a public policy forum to legislators without
charge. Board found that even though the
organization charges the public between $4 and $6 per tape, it fell within the
“material of unexceptional value” exception to the gift ban).
[40] Minn. Stat. §
13.03, subd. 3(c) (If one hundred or fewer paper copies are requested, the
government entity may charge no more than 25 cents per page).
[41] Minn. Stat. §
13.32, subd. 5. Whether the school
district properly obtained consent from residents whose names are in the
directory is not an issue before the panel.
[42] For example, Thomas and Betty Howes filed affidavits in this
matter objecting to the