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15-6361-19193-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Robert Schmidt and Stephan Flister, Complainants, vs.
Respondents. |
FINDINGS
OF FACT, CONCLUSIONS,
AND ORDER |
The above-entitled matter came on for an evidentiary
hearing on Monday, October 1, 2007, before a panel of three Administrative Law
Judges: Beverly Jones Heydinger (Presiding
Judge), Bruce H. Johnson, and Kathleen D. Sheehy. The hearing record closed at the conclusion
of the hearing that day.
Robert Schmidt,
Chairman, Maplewood Voters Coalition, P.O. Box 9849, Maplewood, MN 55109-0849, and
Stephan Flister, Member, Maplewood Voters Coalition, P.O. Box 9849, Maplewood,
MN 55109-0849, (Complainants) appeared on their own behalf without
counsel.
Mark Wersal, Attorney at
Law, Wersal Law Office, P.A.,
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
The panel concludes that the
Complainants have established by a preponderance of the evidence that
Did Respondent Maplewood Firefighters
Association, Inc. violate Minn. Stat. § 211B.02 by stating on its lawn signs
that “Maplewood Fire” endorses
The panel concludes that the
Complainants have established by a preponderance of the evidence that
Respondent Maplewood Firefighters Association, Inc. violated Minn. Stat. §
211B.02.
Based upon the entire record, the panel makes the
following:
FINDINGS OF FACT
1. Robert Schmidt and Stephan Flister are members of the
Maplewood Voters Coalition. The
Maplewood Voters Coalition was formed in April 2007 as a voluntary association
of
2.
3. The Maplewood Fire Department is made up of
approximately 12 full-time firefighters and 80 paid-per-call firefighters. The Maplewood Fire Department does not
endorse any candidate for political office.[2]
4. The union representing the full-time firefighters is
the Minnesota Professional Firefighters Association (MPFA). As of October 1, 2007, the MPFA had not
endorsed any candidates for Maplewood City Council.[3]
5. The Maplewood Firefighters Association, Inc. (MFA) is
a non-profit corporation that was formed in 2005 by
6. Erik Hjelle is a Maplewood City Council member, a
founder and member of MFA and its witness in this proceeding.
7. MFA is an independent voluntary organization that
works on behalf of
8. Ms. Cave is endorsed by the MFA.
9. 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 and in its Voter’s
Guide. In her candidate profile, Ms.
Cave listed that she was endorsed by: “Maplewood Police; Maplewood Fire.”[6] The candidate profile was posted on the Star Tribune’s website on September 4,
2007.
10. The Star Tribune Voter’s Guide appeared in
the September 5, 2007, edition of the Star
Tribune North Metro section, which includes
11. After the complaint
in this matter was filed on September 6, 2007, Ms. Cave received a telephone
call from a representative of the Star
Tribune notifying her that it had received a complaint regarding her
“Maplewood Fire” endorsement claim on 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 on
her candidate profile posted on the Star
Tribune’s web page to read:
“Maplewood Police; Maplewood Firefighters Association, Inc.”[9] The change to Ms. Cave’s candidate profile was
made on or about September 7, 2007.
12. Ms. Cave claimed
at the probable cause hearing in this matter that she wrote that she was
endorsed by “Maplewood Fire” instead of the “Maplewood Firefighters
Association” because the space provided for endorsements on the candidate
profile form was limited.[10]
13. Other
candidates for Maplewood City Council listed several organizations in the
endorsement section of the Star Tribune’s
candidate profile form and were not limited by space restrictions.[11]
14. Ms. Cave also
submitted a written response to a questionnaire from the St. Paul Area Chamber
of Commerce in which she stated that she had received “the Maplewood Police and
Maplewood Fire endorsements.”[12]
15. Ms. Cave’s
campaign literature that was disseminated prior to the September 11, 2007,
primary election stated that she is endorsed by “the Maplewood Firefighters’
Association, Inc.”[13]
16. In support of
Ms. Cave’s candidacy, the MFA prepared and paid for lawn signs that stated the
following:
POLICE AND FIRE
ENDORSE
17. The MFA
included a disclaimer on the bottom of the lawn signs that stated in small font
size: “Prepared and paid for by Maplewood Firefighters Association, Inc. Dale
Solheid Treasurer,
18. Mr. Hjelle
participated in the design and preparation of the MFA lawn signs.[16]
19. Members of
the MFA placed approximately 35 lawn signs around the City of
20. For an
extended period of time before this election campaign, the City of
Maplewood
Fire is a combination paid-per-call
and full-time department. There are 80
paid-per-call firefighters that respond from their homes to answer
approximately 3,200 medical, fire and rescue calls per year. . . .
There are also 12 full-time firefighters.[19]
21. Some
22. The MFA has used the phrase “Maplewood Fire”
on baseball caps and T-shirts. After a
meeting with the Maplewood Fire Chief in 2005, some MFA members, including Mr.
Hjelle, understood that so long as they did not use the word “Department,” they
could use the phrase “Maplewood Fire” on clothing and other merchandise.[24]
23. After the probable cause hearing in this
matter, the MFA removed the lawn signs at issue. Sometime thereafter, “Citizens for
FIRE* POLICE**
ENDORSE
24. A disclaimer
running along the bottom of these new lawn signs states in small font size:
“Prepared and paid for by Citizens for Rebecca Cave, 2020 Prosperity,
Maplewood, MN 55109. *Maplewood Firefighters Association, Inc. is
a nonprofit organization and is not affiliated with the City of
25. On September
18, 2007, Mr. Hjelle filed a request on his own behalf to reserve the name
“Maplewood Fire” with the Minnesota Secretary of State’s Office. Mr. Hjelle also filed forms with the Minnesota
Secretary of State’s Office purporting to register for trademark the phrase “Maplewood
Fire” and the Maplewood Fire logo design used by the City of
26. As an elected
official and named party in two prior campaign practices complaints in which
violations were found, Mr. Hjelle is familiar with the law governing fair campaign
practices.[27] Ms. Cave is also an elected official who has
been supported by MFA in the past.[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. Minn. Stat. §
211B.02 provides in relevant part as follows:
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.
3. The burden of proving the allegations in the complaint is on the Complainants. The standard of proof of a violation of Minn. Stat. § 211B.02 is a preponderance of the evidence.[29]
4. The Complainants have demonstrated by a preponderance of the evidence that Respondent Rebecca Cave violated Minn. Stat. § 211B.02 by knowingly making a false claim implying that she was endorsed by the Maplewood Fire Department.
5. The Complainants have demonstrated that Respondent MFA violated Minn. Stat. § 211B.02 by knowingly making a false claim implying that Rebecca Cave has the endorsement of the Maplewood Fire Department.
6.
7. Respondent MFA shall be fined $1,000 for the violation.
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 having been found to have violated Minn. Stat. § 211B.02,
Respondents shall each pay a civil penalty of $1,000 by November 15, 2007.[30]
Dated: October 4, 2007
|
/s/ Beverly Jones Heydinger |
|
BEVERLY JONES HEYDINGER |
|
Administrative Law Judge |
|
/s/ Bruce H. Johnson |
|
BRUCE H. JOHNSON |
|
Administrative Law Judge |
|
/s/ Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
MEMORANDUM
Minn. Stat. §
211B.02 provides in relevant part that a person or candidate may not knowingly
make, directly or indirectly, a false claim stating or implying that a
candidate has the support or endorsement of a major political party or party
unit or of an organization. For a
violation to be established, the complainant must show that the respondent knowingly
stated or implied a false claim of endorsement. The issue before the panel is whether, by
stating on the lawn signs and candidate profile that
In Schmitt v. McLaughlin,[31]
the Minnesota Supreme Court held that a candidate’s use of the initials
“DFL” would imply to the average voter that the candidate had the endorsement,
or, at the very least, the support of the DFL party. To hold otherwise,
according to the court, would render the word “imply” meaningless.[32]
Accordingly, a false implication of support or endorsement is as much a
violation as an overtly false claim.
Further, in determining whether the candidate’s false implication of support was made knowingly, the Court has declined to interpret “knowingly” to mean “deliberately.”[33] Instead, the Court has held that a candidate may be said to have “knowingly” violated the statute “if he knew that his literature falsely claimed or implied that he had party support or endorsement.”[34] In order to make this determination, the Court explained that the candidate’s testimony must be examined together with the circumstances surrounding the preparation of the campaign material. In Matter of Ryan,[35] the Court found it significant that the candidate, who had used the initials “DFL” without the precise modifying language authorized by the Schmitt case, was an experienced party regular who had run in a number of elections and concluded he consciously took the risk that his interpretation of the law was not correct.[36]
The panel stresses that the conclusions reached here are based on the specific facts unique to this Maplewood City Council race – namely that the Maplewood Fire Department identifies itself and is known to the public as “Maplewood Fire,” and that both candidate Rebecca Cave and Erik Hjelle are members of the Maplewood City Council who are familiar with the manner in which the Department identifies itself and the distinctions between it and the MFA.
The evidence here established
that the phrase “Maplewood Fire” is used by the Maplewood Fire Department to
identify itself. The phrase is displayed
on its fire trucks, uniform badges, shield logos, station houses, and in
written material posted on its web page.
In fact, the home page of the Maplewood Fire Department’s web site
states that “Maplewood Fire” is a combination paid-per-call and full-time department. In addition, the Complainants presented
evidence that several
The panel has
concluded with regard to MFA that this was a knowingly false claim. Erik Hjelle testified on behalf of MFA. He is a founder and current member of MFA, as
well as a sitting member of the Maplewood City Council. As such he is keenly aware of the distinctions
between the MFA, the MPFA, and the Maplewood Fire Department, and he is well
aware of the Department’s use of the term “Maplewood Fire.” He testified repeatedly that by using the
phrase “Maplewood Police and
Mr. Hjelle
testified that he relied on the Fire Chief’s apparent permission to allow
paid-per-call firefighters to use the phrase “Maplewood Fire” on T-shirts and
other apparel as the basis for believing that he could use the same phrase in
an endorsement. This extrapolation is
unreasonable and illogical, as are his efforts to seek trademark protection, on
his own behalf, for a phrase and logo used by the City of
Ms. Cave chose not to testify at the evidentiary hearing and did not explain the circumstances surrounding her claim to be endorsed by “Maplewood Fire.” The panel has concluded that she also knew the implication of the phrase was false. At the probable cause hearing, Ms. Cave stated that she used the phrase “Maplewood Fire” instead of the Maplewood Firefighters Association, because the space for listing endorsements on the candidate profile form was limited. The evidence presented at the hearing, however, established that other candidates for Maplewood City Council were able to list more and longer endorsements without any space restrictions. Moreover, Ms. Cave is a Maplewood City Council member familiar with the Department’s use of the term “Maplewood Fire,” and an experienced candidate. Her campaign literature distributed prior to the primary, her dealings with the Star Tribune regarding correction of the endorsement listed on her candidate profile, and her new lawn signs reflect her awareness of the distinctions between the MFA, the MPFA, and the Maplewood Fire Department. Given that her only explanation for why she claimed to be endorsed by “Maplewood Fire” was space limitation, an explanation that does not ring true, and absent any other testimony from her, the panel concludes that the preponderance of the evidence establishes that Ms. Cave knowingly implied she was endorsed by the Maplewood Fire Department in violation of Minn. Stat. § 211B.02.
Having
found that the Respondents violated Minn. Stat. § 211B.02, the Panel may make
one of several dispositions.[37] The panel may issue a reprimand, may impose a
civil penalty of up to $5,000, and may refer the complaint to the appropriate
county attorney for criminal prosecution.
The panel concludes that both
B.J.H., B.H.J., K.D.S.
[1] Testimony of
Flister.
[2] Exs. 3 and 5.
[3] Ex. 8; Testimony of Hjelle.
[4] Testimony of
Hjelle; Ex. 4.
[5] Testimony of
Hjelle.
[6] Exs. 2, 40,
41, and 43. (At some point in time, Ms.
Cave received an endorsement from the Maplewood Police Officer’s
[7] Exs. 40, 43,
and 44B.
[8] Ex. 44A.
[9] Ex. 38.
[10] Testimony of
Cave at probable cause hearing.
[11] Exs. 41A and
42.
[12] Exs. 6A, 45A,
45B, 45C, 46, 48A and 48B.
[13] Exs. 31 and
34.
[14] Ex. 1.
[15] Ex. 13.
[16] Testimony of Hjelle.
[17] Testimony of
Hjelle at probable cause hearing.
[18] Exs. 8A, 8B,
9A, 9B, 10A, and 10B.
[19] Ex. 8A
(emphasis added).
[20] Testimony of
Rossbach, Flister and Copeland. Ex. 6B.
[21] Testimony of Flister.
[22] Testimony of
Rossbach.
[23] Testimony of
Copeland.
[24] Testimony of
Hjelle.
[25] Ex. 49;
Testimony of Hjelle.
[26] Exs. 50 and 51; Testimony of Hjelle.
[27] See, Rossbach
v. Hjelle and Hjelle & Associates, Inc., OAH File No. 11-6361-17155-CV
(Order June 6, 2006); Koppen v.
[28]
[29] Minn. Stat. §
211B.32, subd. 4.
[30] The check
should be made payable to “Treasurer, State of Minnesota” and sent to the
Office of Administrative Hearings, P.O. Box 64620, St Paul, Minnesota 554164-0620.
[31] 275 N.W.2d
587 (
[32] 275 N.W.2d at
591.
[33] In the Matter of Ryan, 303 N.W.2d 462,
467 (
[34]
[35]
[36]
[37] Minn. Stat. §
211B.35, subd. 2.