15-6361-19193-CV

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

Robert Schmidt, individually and as Chairperson of Maplewood Voters Coalition,

Complainant,

vs.

Candidate Rebecca Cave and the Maplewood Firefighters Association, Inc.,

Respondents.

PROBABLE CAUSE

ORDER

The above-entitled matter came on for a probable cause hearing as provided by Minn. Stat. § 211B.34, before Administrative Law Judge Beverly Jones Heydinger, on September 11, 2007, to consider a complaint filed with the Office of Administrative Hearings on September 6, 2007, by Robert Schmidt, as Chairperson of Maplewood Voters Coalition. The parties participated by telephone conference call.

Robert Schmidt, Chairperson, Maplewood Voters Coalition, P.O. Box 9849, Maplewood, MN 55109-0849, appeared on his own behalf and on behalf of the Maplewood Voters Coalition (Complainant). He was assisted by Stephan Flister, Member, Maplewood Voters Coalition. Will Rossbach and Marlene Palkovich, Members, Maplewood Voters Coalition, were also present on the telephone. Rebecca Cave (Respondent), 2020 Prosperity Road, Maplewood, MN 55109, appeared on her own behalf without counsel. Erik Hjelle, 874 Sterling Street South, Maplewood, MN 55119, appeared on behalf of the Maplewood Firefighters Association, Inc. (Respondent) without counsel.

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 the Respondents violated Minnesota Statute § 211B.02 by claiming that Ms. Cave’s candidacy for Maplewood City Council is endorsed by “Maplewood Fire.”

ORDER

IT IS HEREBY ORDERED:

1. That there is probable cause to believe that Respondent Rebecca Cave violated Minnesota Statute § 211B.02 by claiming on her candidate profile that she was endorsed by “Maplewood Fire.”

2. That there is no probable cause to believe that Respondent Maplewood Firefighters Association, Inc., violated Minn. Stat. § 211B.02 with respect to the preparation or dissemination of Ms. Cave’s candidate profile.

3. That there is probable cause to believe that Respondent Maplewood Firefighters Association, Inc., violated Minn. Stat. § 211B.02 by stating on its lawn signs that “Maplewood Fire” endorses Rebecca Cave’s candidacy.

4. That there is no probable cause to believe that Respondent Rebecca Cave violated Minn. Stat. § 211B.02 with respect to the preparation or dissemination of the lawn signs.

5. That this matter is referred to the Chief Administrative Law Judge for assignment to a panel of three Administrative Law Judges for hearing pursuant to Minnesota Statute § 211B.35.

6. That one week prior to the evidentiary hearing, Respondent Maplewood Firefighters Association Inc. will notify the OAH that it has either obtained legal counsel who will file a Notice of Appearance form, or it will file a resolution of its Board authorizing Erik Hjelle to represent its interests at the evidentiary hearing.

7. That at the evidentiary hearing, the Complainants shall provide evidence that the Maplewood Voters Coalition is a legal entity. If it is not, it shall be dropped as a named Complainant and this matter shall proceed with Robert Schmidt as the Complainant.

Dated: September 14, 2007

/s/ Steve M. Mihalchick for

BEVERLY JONES HEYDINGER

Administrative Law Judge

MEMORANDUM

Respondent Rebecca Cave is a candidate for the Maplewood City Council. Ms. Cave is endorsed by the Maplewood Firefighters Association (MFA). The MFA is a non-profit corporation that was formed in 2005 by Maplewood pay-per-call firefighters.[1] Ms. Cave’s husband, George Cave, is a Maplewood pay-per-call firefighter and the Secretary of MFA. MFA does not represent the Maplewood Fire Department, is not a union, and does not have any official role in representing Maplewood’s fire department or firefighters. Rather, it is an independent organization that works on behalf of Maplewood’s paid-per-call firefighters, and claims to have approximately 30-40 members.[2] Ms. Cave does not have the endorsement of the Maplewood Fire Department. The Maplewood Fire Department does not endorse any candidate.[3]

Prior to the September 11, 2007, primary election, Ms. Cave filled out and submitted a “candidate profile” for publication on the Star Tribune’s website. In the profile, Ms. Cave claimed that she was endorsed by “Maplewood Police; Maplewood Fire.”[4] Ms. Cave filled out and submitted the “candidate profile” on her own, without any assistance from or involvement by Respondent MFA.[5]

In support of Rebecca Cave’s candidacy, Respondent MFA prepared and paid for lawn signs which state as follows:

MAPLEWOOD

POLICE AND FIRE

ENDORSE

Rebecca Cave

MAPLEWOOD CITY COUNCIL[6]

A disclaimer printed in small font size at the bottom of the lawn sign states that the sign was prepared and paid for by the MFA.[7] Members of MFA placed approximately 35 of these lawn signs around the City of Maplewood.[8] Ms. Cave played no role in the preparation or dissemination of the lawn signs.

The Complaint alleges that the campaign lawn signs prepared and paid for by Respondent MFA, and Ms. Cave’s candidate profile that was submitted to and posted on the Star Tribune’s website falsely imply that Ms. Cave’s candidacy is endorsed by the Maplewood Fire Department. The Complaint further alleges that the Respondents knowingly made the false claim implying endorsement by the Maplewood Fire Department in violation of Minn. Stat. § 211B.02.

Minn. Stat. § 211B.02 provides in relevant part as follows:

211B.02 False Claim of Support.

A person or candidate may not knowingly make, directly or indirectly, a false claim stating or implying that a candidate or ballot question has the support or endorsement of a major political party or party unit or of an organization.

Ms. Cave testified that she wrote in her candidate profile that she was endorsed by “Maplewood Fire” instead of “Maplewood Firefighters Association” because the space provided for endorsements on the candidate profile form was limited. Since this Complaint was filed, Ms. Cave received a phone call from a representative of the Star Tribune notifying her that it too had received a complaint regarding her “Maplewood Fire” endorsement claim in her candidate profile. In response to that complaint and after discussing the matter with Ms. Cave, the Star Tribune representative changed the wording of Ms. Cave’s endorsements to read: “Maplewood Police; Maplewood Firefighters Association, Inc.”[9] Ms. Cave denied that she intentionally tried to confuse voters or falsely imply that the Maplewood Fire Department endorsed her candidacy. Ms. Cave submitted examples of her campaign literature and flyers, which state that she is endorsed by the Maplewood Firefighters Association not “Maplewood Fire.”[10]

Erik Hjelle, a member of the MFA who appeared at the probable cause hearing on MFA’s behalf, similarly stated that the reason MFA used the phrase “Maplewood Fire” on the lawn signs in support of Ms. Cave instead of “Maplewood Firefighters Association” was due to the limited space available on the signs. Mr. Hjelle pointed out that the signs contain a disclaimer that identifies MFA as the organization that paid for and prepared the lawn signs. In addition, Mr. Hjelle argued that the phrase “Maplewood Fire” is generic and does not refer to the Maplewood Fire Department. He maintains that during a meeting two years ago with the Maplewood Fire Chief, the Fire Chief allowed paid-per-call firefighters to use the phrase “Maplewood Fire” on t-shirts and baseball caps.[11] According to Mr. Hjelle, the paid-per-call firefighters were only prohibited from using the word “Department” in order to distinguish official Maplewood Fire Department clothing and accessories from non-official clothing and accessories.

The Complainant, however, submitted copies of photographs of the Maplewood Fire Department’s trucks, uniform badges and logos which do employ the phrase “Maplewood Fire” instead of “Maplewood Fire Department.”[12] These photos support the Complainant’s contention that the phrase “Maplewood Fire” is a phrase that is commonly associated with and used by the Maplewood Fire Department. In addition, the Complainant submitted a letter from a Maplewood resident who stated that the lawn signs led him to believe that the Maplewood Fire Department had endorsed Ms. Cave for City Council.[13]

The purpose of a probable cause determination is to determine whether, given the facts disclosed by the record, it is fair and reasonable to require the respondent to go to hearing on the merits.[14] If the judge is satisfied that the facts appearing in the record, including reliable hearsay, would preclude the granting of a motion for a directed verdict of acquittal, a motion to dismiss for lack of probable cause should be denied.[15] A judge’s function at a probable cause hearing does not extend to an assessment of the relative credibility of conflicting testimony. As applied to these proceedings, a probable cause hearing is not a preview or a mini-version of a hearing on the merits; its function is simply to determine whether the facts available establish a reasonable belief that the Respondents have committed a violation. At a hearing on the merits, a panel has the benefit of a more fully developed record and the ability to make credibility determinations in evaluating whether a violation has been proved, considering the record as a whole and the applicable evidentiary burdens and standards.

The Administrative Law Judge concludes that based on the record presented, the Complainants have demonstrated probable cause to believe that the Respondents violated Minn. Stat. § 211B.02. Specifically, the Complainants have established probable cause to believe that Rebecca Cave violated Minn. Stat. § 211B.02 by claiming on her candidate profile that she was endorsed by “Maplewood Fire.” The Complainants have also established probable cause to believe that Respondent MFA violated Minn. Stat. § 211B.02 by claiming on its lawn signs that Ms. Cave was endorsed by “Maplewood Fire.” There is, however, no evidence that Ms. Cave had any involvement with preparing, paying for, or disseminating the MFA lawn signs, and there is no evidence that MFA was involved in any manner in preparing Ms. Cave’s candidate profile.

Unlike the phrase, “Maplewood Police,” which could suggest endorsement by individual police officers, the phrase “Maplewood Fire” can only refer to an organization. Given that the Maplewood Fire Department employs that phrase on its fire trucks and other gear, the facts are sufficient to support finding probable cause that, by using the phrase “Maplewood Fire,” the Respondents knowingly implied falsely that Ms. Cave was endorsed by the Maplewood Fire Department. In addition, the facts presented in this case are distinguishable from those of an earlier campaign complaint entitled Meinzer v. Jasicki.[16] In Meinzer, a candidate for the Brooklyn Park City Council, who happened to be a Brooklyn Park firefighter, disseminated campaign literature which included a photo of himself in his fire fighting uniform and the logo of the Brooklyn Park Fire Department. The complaint alleged that by disseminating the campaign literature with the photos, the candidate falsely implied that the Brooklyn Park Fire Department endorsed his candidacy. The Administrative Law Judge dismissed the complaint holding that the uniform and logo, without more, did not falsely imply that the candidate had the endorsement of the Brooklyn Park Fire Department. Unlike that case, both Ms. Cave’s candidate profile and the MFA’s lawn signs state explicitly that “Maplewood Fire” endorses Ms. Cave. It is therefore reasonable to require the Respondents to go to hearing on the merits and to allow a panel of three Administrative Law Judges to determine whether the Respondents violated Minn. Stat. § 211B.02.

The Administrative Law Judge notes that since the filing of this Complaint, the phrase “Maplewood Fire” has been removed from Ms. Cave’s candidate profile and replaced with “Maplewood Firefighters Association Inc.”[17] In addition, after the probable cause hearing, Mr. Hjelle represented in writing to the parties and the Administrative Law Judge that the MFA will remove the lawn signs at issue in order to avoid any further possible confusion. Given these recent measures taken by the Respondents, should the Complainants decide to withdraw the Complaint, they should notify the OAH so that the evidentiary hearing may be cancelled.

B.J.H.

[14] State v. Florence, 239 N.W.2d 892, 902 (Minn. 1976).

[15] Id. at 903. In civil cases, a motion for a directed verdict presents a question of law regarding the sufficiency of the evidence to raise a fact question. The judge must view all the evidence presented in the light most favorable to the adverse party and resolve all issues of credibility in the adverse party’s favor. See, e.g., Minn. R. Civ. P. 50.01; LeBeau v. Buchanan, 236 N.W.2d 789, 791 (Minn. 1975); Midland National Bank v. Perranoski, 299 N.W.2d 404, 409 (Minn. 1980). The standard for a directed verdict in civil cases is not significantly different from the test for summary judgment. Howie v. Thomas, 514 N.W.2d 822 (Minn. App. 1994).

[16] 15-6326-17587-CV, OAH Dismissal Order, (October 20, 2006). This case may also be distinguished from Schulte v. Lampi, et al, 15-6326-17627-CV, OAH Dismissal Order (November 7, 2006). In Schulte, a candidate disseminated campaign literature that included the phrase “Police Endorsed” alongside a personal endorsement from the former Brooklyn Park Police Chief and an endorsement from the Brooklyn Park Police Federation. Given that context, the Administrative Law Judge found the phrase “Police Endorsed” did not falsely imply endorsement of the Brooklyn Park Police Department.