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7-6361-16947-CV |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
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Marvin Koppen, Complainant, vs.
Maplewood Firefighters Association and Erik Hjelle, Respondents.
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NOTICE OF DETERMINATION OF PRIMA FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE CAUSE HEARING
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TO: Maplewood Firefighters Association,4505 White Bear Parkway, Ste 1200, St. Paul, Minnesota 55110; Erik Hjelle, 874 Sterling St. S., Maplewood, Minnesota 55119 and Marvin Koppen by his attorney, Jay Benanav, Weinblatt & Gaylord PLC, 300 Kellogg Square, 111 East Kellogg Boulevard, St. Paul, Minnesota 55101:
On November 2, 2005, Marvin Koppen, incumbent Maplewood City Council member and candidate for reelection, filed a Complaint with the Office of Administrative Hearings alleging that:
1. both the Maplewood Firefighters Assoc. and Mr. Hjelle distributed campaign material without disclaimer language in violation of Minn. Stat. § 211B.04, clause b.;
2. there have been four separate statements by the Maplewood Firefighters Assoc. and Mr. Hjelle in campaign materials that are false statements in violation of Minn. Stat. § 211B.06, subd. 1;
3. both the Maplewood Firefighters Assoc. and Mr. Hjelle violated the limitations on aggregate contributions in violation of Minn. Stat. § 211A.12.
4. Mr. Hjelle failed to report receipt of money or goods from the Maplewood Firefighters Assoc in violation of Minn. Stat. §211A.02, subds. 1 and 2,;
5. that Mr. Hjelle is in violation of Minn. Stat. §211A.05 for failing to file a financial statement required by Minn. Stat. §211A.02;
6. the Maplewood Firefighters Assoc. failed to file a financial report in violation of Minn. Stat. § 211A.01, subds. 1 and 2, and;
7. the Maplewood Firefighters Assoc. made a corporate contribution in violation of Minn. Stat. § 211B.15, subd. 2.
After reviewing the Complaint, the undersigned Administrative Law Judge has determined that the Complaint sets forth prima facie violations of the sections 211B.04, clause b., 211B.06, subd. 1, 211A.12, 211A.02, subds. 1 and 2, 211A.01, subds. 1 and 2, and 211B.15, subd. 2. The basis for this determination is described in more detail in the attached Memorandum.
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 1:30 p.m. on Monday, November 7, 2005. The hearing will be held by call-in telephone conference. You must call: 651-284-3547 at that time. Follow the directions and enter the code “6924” 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 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 Judge Luis at 612-349-2665.
At the conclusion of the probable cause hearing, the Administrative Law Judge will either: (1) dismiss the complaint based on 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 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: November 3, 2005
/s/ Richard C. Luis
RICHARD C. LUIS
Administrative Law Judge
For purposes of a prima facie determination, the facts alleged in the Complaint are assumed to be true if they are not patently false or inherently incredible.
Pursuant to Minnesota Statutes § 211A.02, subds. 1 and 2, candidates or committees must file financial reports ten days prior to the general election. If a candidate or committee fails to file the required financial reports on the dates they are due, the filing officer shall immediately notify the candidate or committee of the failure to file.[1] According to the complaint filed by Marv Koppen, Erik Hjelle received lawn signs valued at $1308 paid for by the Maplewood Firefighters Association. The complaint also alleges that according to the Maplewood City Clerk, Karen Guilfoile, as of November 1, 2005, at date less than ten days prior to the general election, the City had not received the financial reports from either Mr. Hjelle or the Maplewood Firefighters Association. This states prima facie violations of Minn. Stat. §§ 211A.02 and 211A.05.
Minnesota Statutes § 211B.04, clause b, requires that material prepared by a person or committee other than a principal committee must include the name of the candidate being supported. According to the compliant filed by Marv Koppen, materials were distributed without the name of the candidate being supported. A sample of the material reveals that this seems to be the case. A prima facie violation of the statute is supported by Marv Koppen’s submission.
Minnesota Statute § 211B.06, subd. 1, provides that campaign material may not contain false statements. According to the complaint, material has had four different false statements. One item refers to “Budget/Taxes” and states “the current council including Will Rossbach, Kathy Juenemann, and Marv Koppen, have already voted on a 2006 levy request for another increase in city taxes.” (Emphasis in original) According to the complaint, the statement is false because the Maplewood city council has not yet approved or voted on the final 2006 city budget nor yet set the final tax levy or determined if an increase in taxes is required to support the 2006 Maplewood city budget. A second item refers to “Public Safety” and states that “Marv Koppen… voted to change out ambulance service from Police/CSO/Paramedics to Fire Paramedics.” According to the complaint, Marv Koppen voted against the change in ambulance service. A third item refers to “Parks and Open Spaces” and states that “(n)o current city council person (which would include the complainant) will affirmatively state how they stand or will vote on a proposed development plan for some public land in Maplewood.” According to the complaint, Marv Koppen stated publicly at a League of Women Voters candidates’ forum that he would not support the sale or development of public land in Maplewood. A fourth item refers to “Other Facts” and states that the number of Maplewood police officers has not increased in ten years. According to the complaint, since 1998 the number of Maplewood police officers has increased from 44 to 50. These four items state prima facie violations of the statute.
Minnesota Statute § 21B.15, subd 1, prohibits a corporation from directly or indirectly contributing money or property to promote the candidacy of an individual that is made with the cooperation or in concert with the candidate. The complaint alleges that Erick Hjelle and the Maplewood Firefighters Association are one in the same because the Association has conducted no other activity other than to influence Maplewood city elections. The complaint further alleges that Erick Hjelle is the only member of the Association. The Administrative Law Judge finds that this states a prima facie violation of the statute.
Pursuant to Minn. Stat. § 211B.34, this matter shall be set on for a probable cause hearing.
R.C.L.