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7-6361-16947-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Marvin Koppen, Complainant, vs. Respondents. |
PROBABLE
CAUSE ORDER |
The above-entitled matter came on for a probable cause hearing as provided by Minnesota Statute § 211B.34, before Administrative Law Judge Richard C. Luis on November 7, 2005, to consider a complaint filed by Marvin Koppen on November 2, 2005. The hearing was held by telephone, starting at approximately 1:30 p.m.
Jay
Benanav, Weinblatt & Gaylord, PLC,
During the telephone conference, Mr. Koppen, Mr. Hjelle and John Melander gave sworn testimony, and the record was supplemented with exhibits filed by both the Complainant and Respondents. Thirty-two exhibits were received and numbered after the telephone conference.[1] The parties agreed that, in the event that an evidentiary hearing was required, there would be an opportunity to provide additional testimony.
Based upon the record and all of the proceedings in this matter, including the Memorandum incorporated herein, the Administrative Law Judge finds that there is probable cause to believe that Respondent MFA violated Minnesota Statutes §§ 211A.12, 211B.06 and 211B.15, subd. 2 and Respondent Hjelle violated Minnesota Statute §§ 211A.12 and 211B.06.[2] Accordingly, the Administrative Law Judge makes the following:
ORDER
1. There is no probable cause to believe that Respondents MFA or Respondent Hjelle violated Minn. Stat. § 211B.04, clause b, by preparing and disseminating campaign material without the precise wording of the disclaimer required by the statute, and this allegation is dismissed.
2. There is no probable cause to believe that either Respondent (MFA or Hjelle) violated Minn. Stat. § 211B.06 by disseminating campaign material that included the “Budget/Taxes” statement identified in Complainant’s allegation number 2 (regarding a vote on a 2006 levy request). These allegations are dismissed, because there is no probable cause to believe that the “Budget/Taxes” statement is false.
3. There is no probable cause to believe that either Respondent MFA or Respondent Hjelle violated Minn. Stat. § 211B.06 by circulating material that included the “Public Safety” statement identified in Complainant’s allegation number 3, regarding changes to ambulance service. These allegations are dismissed because there is no probable cause to believe that the “Public Safety” statement is false.
4. There is no probable cause to believe that Respondent Hjelle violated Minn. Stat. § 211A. 05 and this allegation is dismissed.
5. There is no probable cause to believe that Respondent MFA violated Minn. Stat. § 211A. 05 and this allegation is dismissed.
6. There is no probable cause to believe that Respondent MFA violated Minn. Stat. § 211B.04 and this allegation is dismissed.
7. There is no probable cause to believe that Respondent Hjelle violated Minn. Stat. 211A.02, subds. 1 and 2 and this allegation is dismissed.
8. There is probable cause to believe that Respondent MFA and/or Respondent Hjelle violated Minn. Stat. § 211B.06 by preparing and circulating material that included the “Parks and Open Spaces” statement identified in Complainant’s allegation number 4, regarding the absence of any statement by a current council person on how they stand regarding development on public and park land.
9. There is probable cause to believe that Respondent MFA and/or Respondent Hjelle violated Minn. Stat. § 211B.06 by circulating material that included the “Other facts” statement identified in Complainant’s allegation number 5, regarding the total number of patrol officers.
10. There is probable cause to believe that Respondent MFA and/or Respondent Hjelle violated Minn. Stat. § 211 A.12 regarding contributions in excess of $300.
11. There is probable cause to believe that Respondent MFA violated Minn. Stat. § 211B.15 by making corporate contributions.
12. This matter is referred to the Chief Administrative Law Judge for assignment to a panel of three administrative law judges pursuant to Minnesota Statute § 211B.35.
Dated: November 10, 2005
_/s/
Richard C, Luis__________
RICHARD C. LUIS
Administrative Law Judge
Complainant has the right, under Minn. Stat. § 211B.34, subd. 3, to seek reconsideration of the dismissal of any allegations dismissed above. Such reconsideration shall be by the Chief Administrative Law Judge on the record. A petition for reconsideration must be filed with the Office of Administrative Hearings within two business days after this Order.
If the Chief Administrative Law Judge determines that the assigned Administrative Law Judge made a clear error of law and grants the petition, the allegations will be heard as part of the evidentiary hearing on the remaining allegations.
MEMORANDUM
The purpose of a probable cause hearing is to determine whether there are sufficient facts in the record to believe a violation of law has occurred as alleged in the complaint.[3] The test of probable cause is whether the evidence worthy of consideration brings the charge against the Respondents within “reasonable probability.”[4]
Marvin Koppen is
an incumbent who was seeking re-election as a member of the Maplewood City
Council in the November 8, 2005 election.
Erik Hjelle challenged Mr. Koppen for his seat on the Council.[5] The Maplewood Firefighters Association (“MFA”),
of which Mr. Hjelle is a member, distributed material and purchased lawn signs
during the election. The material
mailed by the MFA requested that
As a preliminary
matter, Complainant alleges that the MFA and Mr. Hjelle are one and the same
and that the actions of the MFA should be attributed to Mr. Hjelle’s
campaign. In support of this
contention, Mr. Koppen cites the fact that Mr. Hjelle signed the MFA articles
of incorporation and one of the MFA’s campaign finance reports.[7] The evidence shows that the MFA dates back
to the fall of 2003.[8] The first formal meeting of the MFA was
organized by Christopher Cahill in February 2004.[9] The MFA elected leaders in March 2004.[10] On March 10, 2005, Erick Hjelle signed the
MFA articles of incorporation.[11] On March 24, 2004, Mr. Furman, city manager
for
Instead, the evidence shows that MFA is a legitimate association with a membership. The MFA is not one and the same as Erik Hjelle. The Administrative Law Judge finds that the MFA is an association separate and apart from Mr. Hjelle and that the MFA’s major purpose has not been to support Mr. Hjelle’s campaign to a seat on the Maplewood City Council. The separate status of the MFA and Mr. Hjelle undermines a number of the Complainant’s allegations.
Disclaimer
Minn. Stat. § 211B.04 requires campaign material to 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 following form:
Prepared and paid for by the .......... committee, .........(address)" for material prepared and paid for by a principal campaign committee, or "Prepared and paid for by the .......... committee, .........(address), in support of .........(insert name of candidate or ballot question)" for material prepared and paid for by a person or committee other than a principal campaign committee.
On October 17, 2005, the MFA prepared campaign
material to be distributed to
False Campaign Material
Complainant alleges that the October 17th material contains four false statements. “Campaign material” means “any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election, except for news items or editorial comments by news media.”[21] Minn. Stat. § 211B.06, subd. 1 prohibits the preparation and dissemination of false campaign material. In order to be found to have violated the statute, a person must intentionally participate in the preparation or dissemination of false campaign material that the person knows is false or communicates with reckless disregard as to whether it is false.
The October 17th
campaign material included a statement under the heading Budget/Taxes which
reads: “The current council, including Will Rossbach, Kathy Juenemann, and Marv
Koppen, have already voted on a 2006 levy request with another increase
in city taxes.”[22]
(Emphasis in original). On September
12, 2005, the
In the section
titled “Public Safety,” the October 17th material stated: “Marv
Koppen, Kathy Juenemann, and Will Rossbach all voted to change ambulance
service from Police/CSO/Paramedics to Fire Paramedics.”[26] The
evidence presented established that on July 26, 2004, the Maplewood City
Council voted 4-1 to change the ambulance service as described in the October
17th material. The council
minutes for that date show that Mr. Koppen voted against the change in
ambulance service.[27] In minutes from a November 1, 2004
City Manager Fursman presented three Emergency Medial (sic) Services budget options. Council member Rossbach moved to pursue option A. Seconded by Mayor Cardinal, Ayes-All. City Manager Fursman will bring back the budget option which will include option A and a hybrid fire department.[28]
On December 15, 2004, the minutes of the Maplewood Civil Service Commission indicate that commission members questioned Maplewood Police Chief David Thomalla about a recent newspaper article regarding the change in the paramedic system.[29] The minutes state in part:
A few weeks ago, the City Council approved the hybrid program for the City. This would involve moving the 4 CSO /paramedics to the Fire Department and hiring a paramedic coordinator/firefighter and two additional full-time firefighter paramedics. [30]
With respect
to the “Budget/Taxes” and the “Public Safety” statements, the Administrative
Law Judge finds the statements are not false campaign material within the
meaning of Minn. Stat. § 211B.06, because they are true or inferences rather
than statements of fact. When
interpreting the prohibition against false statements in a predecessor statute,
the Minnesota Supreme Court observed that the statute was “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.” [31]
In that case, Kennedy v. Voss, 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.” 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.
Here, the material states that the Complainant has voted to support a
2006 levy increase. Evidence indicates
that Complainant voted in favor of the preliminary budget and levy. The evidence also could be reasonably
interpreted to support the inference that the Complainant supported the change
in ambulance service in
In the section titled “Parks and Open Space,” the October 17th material stated in part: “No current council person will affirmatively state where they stand or how they will vote when this plan comes before them this December.” [32] Mr. Koppen testified that in campaign material and in speeches that he opposed the plan.[33] The evidence is that Respondent MFA prepared the material. Based on the available evidence it is not possible to conclude whether this statement is false or not. Based on the available evidence it is not possible to conclude whether Respondent Hjelle disseminated the material. The Administrative Law Judge finds that there is probable cause to believe that a violation of Minn. Stat. § 211B.06, subd. 1 occurred.
In the section titled “Other facts,” the October 17th material stated in part: “Maplewood Police have not increased the number of patrol officers in 10 years.”[34] On October 31, 2005, Chief Thomalla sent a memo to Mr. Fursman, city manager, regarding staffing within the police department. The memo stated: “The total number of sworn positions (police patrol officers) in the Maplewood Police Department has increased from 44 in 1998 to 50 today.”[35] The Listing of Personnel Positions for budgeted full- time regular employees of the police department between 1997 and 2000 shows 29.7 patrol officers in 1997, 29.7 in 1998, 29.7 in 1999 and 30.10 in 2000.[36] The same document shows total police department employees of 58 in 1997, 59 in 1998, 59 in 1999 and 57 in 2000. On September 16, 2005, Chief Thomalla, in a memorandum regarding the restructuring of the police department, stated: “The number of supervisory positions in the department is the same today as it was in 1990 when there were only 39 sworn officers. The total number of sworn officers has increased to 50 today and potentially 52 in 2006.”[37] The memo goes on to describe the creation of two additional supervisory positions and states: “The promotions would be made from the existing positions without reducing the number of personnel assigned to the patrol division.”[38] Mr. Hjelle points to this documentation as the basis for his distinction between sworn officers and patrol officers. After reviewing the evidence in the light most favorable to the Complainant, the Administrative Law Judge concludes that there is probable cause to believe that Respondents MFA and Hjelle violated Minn. Stat. § 211B.06 with respect to this material.
Failure to report contributions
The Complainant alleges that Respondent Hjelle violated Minn. Stat. § 211A.02 by failing to report contributions received from the MFA, citing the value of lawn signs. The text of the signs purchased by the MFA is not in evidence. Based on the available evidence it is not possible to conclude the value of any benefit received by Mr. Hjelle, which is necessary in order to determine whether there has been a violation of Minn. Stat. § 211A.02, subds. 1 and 2. However, there are sufficient facts to establish a reasonable belief that Respondent Hjelle violated Minn. Stat. § 211A.02,subds. 1 and 2.
Mr. Hjelle prepared a campaign financial report covering the period to September 3, 2005, showing no contributions received or money paid on behalf of his campaign for city council.[39] Mr. Hjelle prepared a campaign financial report covering the period to October 28, 2005 which showed no contributions and the payment of $785.00 for printing costs.[40] Mr. Hjelle paid the $785.00 from his own pocket.[41] The Complaint alleged that Respondent Hjelle failed to file a statement of the committee expenses as required by Minn. Stat. § 211A.05. However, at the probable cause hearing, Hjelle testified that he filed the required documents with the Maplewood City Clerk on November 7, 2005.[42] Complainant presented no evidence to the contrary. There is no evidence that the City Clerk had notified the Respondents that they had not filed in a timely manner. Therefore, there is no probable cause to believe that Respondent Hjelle violated Minn. Stat. § 211A.02 by failing to file required documents. That allegation must be dismissed.
Contribution limits
The MFA prepared a
campaign finance report with the City of
The Complaint also alleges that Respondent MFA failed to file a financial statement as required by Minn. Stat. § 211A.02. It was determined in the Notice of Determination of Prima Facie Violations that the Complaint stated a prima facie violation by Respondent MFA of the reporting requirements of Minn. Stat. § 211A.02. However, at the probable cause hearing, Hjelle testified and presented evidence that MFA filed the required documents with the Maplewood City Clerk.[46] Complainant presented no evidence to the contrary. Therefore, there is no probable cause to believe that Respondent Hjelle violated Minn. Stat. § 211A.02 by failing to file required documents. That allegation must be dismissed.
Minn. Stat. § 211B.15, subd. 2 provides as follows:
Prohibited contributions. A corporation
may not make a contribution or offer or agree to make a contribution, directly
or indirectly, of any money, property, free service of its officers, employees,
or members, or thing 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. For the purpose of this subdivision,
"contribution" includes an expenditure to promote or defeat the
election or nomination of a candidate to a political office that is made with
the authorization or expressed or implied consent of, or in cooperation or in
concert with, or at the request or suggestion of, a candidate or committee
established to support or oppose a candidate.
Minn. Stat. § 211B.15, subd. 1 defines “corporation” for the purposes of the Fair Campaign Practices Act as (1) a corporation organized for profit that does business in this state; (2) a nonprofit corporation that carries out activities in this state; or (3) a limited liability company that does business in this state.
The purpose of a probable cause
hearing is to determine whether there are sufficient facts in the record to
believe that a violation of law has occurred as alleged in the complaint.[47] The material facts in this case are not in
dispute. Pursuant to Minn. Stat. § 211B.15, subd. 15, the prohibitions against
corporate contributions do not apply to a nonprofit corporation that:
(1)
is not
organized or operating for the principal purpose of conducting a business;
(2)
has no
shareholders or other persons affiliated so as to have a claim on its assets or
earnings; and
(3) was not established by a business
corporation or a labor union and has a policy not to accept significant
contributions from those entities.
Based on the available evidence it is not possible to conclude whether Respondent MFA is a nonprofit corporation entitled to the exemption. The evidence can be brought forth at the hearing to establish whether or not the MFA is entitled to this exemption. Therefore there remains probable cause to believe that Respondent MFA violated Minn. Stat. § 211B.15.
R.C.L.
[1] A table of exhibits is attached to this Order.
[2] Unless indicated otherwise, all reference to Minnesota Statutes are to the 2004 edition.
[3]
[4]
Gerstein v. Pugh, 420
[5] Testimony of Marvin Koppen and Erik Hjelle.
[6] The ALJ has accepted testimonial evidence of the contents of an unavailable document as a sufficient basis to establish probable cause. But the ALJ expresses no opinion of the sufficiency of that evidence if the same question arises in the evidentiary hearing.
[7] Testimony of M. Koppen; Complaint.
[8] Ex. 18.
[9]
[10] Exs. 18 and 19.
[11] Ex. 1.
[12] Exs. 20 and 21.
[13] Ex. 30.
[14] Exs. 32 and 31.
[15] Ex. 31.
[16] Ex. 31.
[17] Ex. 22.
[18]
See Ahlm v. Rooney, 143 N.W. 2d 65, 69 (
[19] Ex. 2.
[20] Ex. 2, p 1.
[21] Minn. Stat. § 211B.01, subd. 2.
[22] Ex. 2, p. 2.
[23] Ex. 7.
[24] Testimony of M. Koppen.
[25] Ex. 6 p. 2.
[26]
[27] Ex. 4.
[28]
[29] Ex. 9, p. 3.
[30] Ex. 9, p. 3.
[31] Kennedy
v. Voss, 304 N.W.2d 299 (
[32]
[33] Testimony of M. Koppen.
[34]
[35] Ex. 5.
[36] Ex. 16.
[37] Ex. 17.
[38] Ex. 17, p. 2.
[39] Ex. 26.
[40] Ex. 25.
[41] Testimony of E. Hjelle.
[42] Ex. 27.
[43] Ex. 3.
[44] Testimony of M. Koppen.
[45] Exs. 2 and 29.
[46] Exs. 27, 28 and 29.
[47] Minn. Stat. § 211B.34, subd. 2.