7-6361-16947-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

Marvin Koppen,

                          Complainant,

vs.

 

Maplewood Firefighters Association and Erik Hjelle,

                          Respondents.

 

 

 

ORDER ON MOTION TO

AMEND COMPLAINT

 

The above-entitled matter came on before the panel of Administrative Law Judges on January 18, 2006, on Complainant’s second motion to amend the Complaint.  Respondent Hjelle filed a response on January 20, 2006.  

Jay Benanav, Weinblatt & Gaylord, PLC, Suite 300 Kellogg Square, 111 East Kellogg Boulevard, St. Paul, MN 55101, represents Marvin Koppen (Complainant). Jill Clark, P.A., 2005 Aquila Avenue North, Golden Valley, MN 55427 represents Erik Hjelle.   The Maplewood Firefighters Association (MFA), 4505 White Bear Parkway, Ste. 1200, St. Paul, MN  55110 is not represented by counsel.

Based on the file, record and proceedings herein, and for the reasons set for the in the accompanying Memorandum, the panel makes the following:

IT IS ORDERED:

ORDER

1.              That Complaint’s motion to amend the Complaint to add an allegation that Respondent Hjelle violated Minn. Stat. § 211B.13 is GRANTED.

2.              That this matter remains scheduled for hearing at 9:30 a.m. at the Office of Administrative Hearings on Friday, January 27, 2006.

 

Dated: January 23, 2006

/s/ Richard C. Luis                                   

RICHARD C. LUIS

Presiding Administrative Law Judge

 

/s/ Bruce H. Johnson

BRUCE H. JOHNSON

Administrative Law Judge

 

/s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

MEMORANDUM

On November 2, 2005, Marvin Koppen filed a complaint with the Office of Administrative Hearings alleging that the Respondents violated provisions of Minnesota Statutes Chapters 211A and 211B.  On November 3, 2005, Administrative Law Judge Richard C. Luis determined that the complaint set forth prima facie violations of Minn. Stat. §§ 211B.04, 211B.06, 211B.15, 211A.02, 211A.05, and 211A.12.  By Order dated November 10, 2005, the Administrative Law Judge found that there was probable cause to believe that Respondent Maplewood Firefighters Association (MFA) violated Minn. Stat. §§ 211B.06, 211B.15, subd. 2, and 211A.12, and that Respondent Hjelle violated Minn. Stat. §§ 211B.06 and 211A.12.   The matter is scheduled for hearing on January 27, 2006.

On January 10, 2006, the Complainant filed a motion to amend the complaint to add an allegation that Respondent violated Minn. Stat. § 211B.09 by using his official authority or influence to compel certain persons to participate in campaign activities at a city-owned fire station on or about October 17 and October 25, 2005.  By order dated January 11, 2006, the panel of Administrative Law Judges denied Complainant’s motion to amend because the new claim was based on new and different facts and alleged a different statutory violation than was in the original complaint.  

The Complainant now seeks to amend the Complaint to add an allegation that Respondent Hjelle violated Minn. Stat. § 211B.13, subd. 2, by receiving and accepting campaign signs and literature from the Maplewood Firefighters Association.    

Minn. Stat. § 211B.13, subd. 2, provides as follows:

A person may not knowingly solicit, receive, or accept any money, property, or other thing of monetary value, or a promise or pledge of these that is a disbursement prohibited by this section or section 211B.15.

Minn. Stat. § 211B.15 prohibits corporations from making contributions of money, property, or things of monetary value to a major political party, organization, committee, or individual ‘to promote or defeat the candidacy of an individual for nomination, election, or appointment to a political office.”  Section 211B.15 defines “corporation” to include “a nonprofit corporation that carries out activities in this state.”[1] 

In the original complaint, Complainant alleged that the Maplewood Firefighters Association violated Minn. Stat. § 211B.15, subd. 2, by contributing money and property to Hjelle’s campaign.  Administrative Law Judge Richard Luis found that there was probable cause to believe that the Association violated Minn. Stat. § 211B.15 by making corporate contributions.  Now Complainant seeks to amend the Complaint to allege that by accepting MFA’s contributions, Respondent Hjelle violated Minn. Stat. § 211B.13.

Respondent Hjelle opposes Complainant’s motion to amend.  Respondent Hjelle points out that, as the panel noted in its January 11th decision, the statute does not provide affirmatively for amendment of a filed complaint; nor does it adopt the procedures of contested case hearings under chapter 14 or refer to the Minnesota Rules of Civil Procedure.[2]   In addition, Hjelle claims that the Probable Cause Order dismissed paragraph 10 of the Complaint attachment, which contained the allegation that MFA violated the prohibition against corporate contributions.  Accordingly, Hjelle maintains that there is nothing left to amend.  In addition, Hjelle argues that he will be prejudiced if the panel permits this new claim to be added without prima facie or probable cause determinations.  Finally, Hjelle contends that the motion is futile as it is “quite probable” that Respondent MFA will be able to establish at the hearing that it is exempt under Minn. Stat. § 211B.15, subd. 15. 

Contrary to Hjelle’s argument, paragraph 10 of the attachment to the Complaint was not dismissed.  Rather, Administrative Law Judge Luis found that there is probable cause to believe that Respondent MFA violated Minn. Stat. § 211B.15 by making corporate contributions.[3]  Because Complainant’s proposed amendment alleges no new or additional facts and is instead based on the same facts found sufficient to support the allegation against Respondent MFA, the panel will allow the Complainant to amend his Complaint.  Motions to amend campaign complaints have been granted in at least two other instances based on this rationale and the panel is not persuaded that Respondent Hjelle will be prejudiced by the amendment.  However, Hjelle correctly notes that Minn. Stat. § 211B.15 provides an exemption for certain nonprofit corporations.  If MFA were to establish that it is not organized or operated for the principal purpose of conducting a business; has no shareholders or other persons affiliated so as to have a claim on its assets or earnings; and was not established by a business corporation or a labor union and has a policy not to accept “significant contributions” from those entities,[4] the prohibitions against contributions would not apply and the claim that Hjelle violated Minn. Stat. § 211B.13 would be unsupported.

R.C.L.  B.H.J.  B.L.N. 


[1] Minn. Stat. § 211B.15, subd. 1.

[2] Minn. Stat. § 211B.09, subd. 5(2005). (proceedings on a complaint filed under section 211B.32 are not a contested case within the meaning of chapter 14 and are not otherwise governed by chapter 14).

[3] Probable Cause Order dated November 10, 2005, at 11.

[4] Minn. Stat. § 211B.15, subd. 15.