8-6384-17629-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
|
Bruce Reed Jr., Complainant, vs. Todd Ouellette, Respondent. |
FINDINGS OF FACT, CONCLUSIONS, AND ORDER |
This matter came on before
the undersigned panel of Administrative Law Judges to consider the appropriate
disposition of the Complaint, which was filed on
November 6, 2006. The Respondent was
earlier adjudged to be in default after failing to appear at the probable cause
hearings, and the allegation in the Complaint that the Respondent violated Minnesota
Statutes § 211B.06 was deemed proved without further evidence.[1]
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 ISSUE
Having adjudged Respondent in violation
of Minn. Stat. § 211B.06, what is the appropriate disposition of the Complaint?
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1.
Respondent,
Todd Ouellette, ran unsuccessfully as a candidate for Winona City Council in
2006. He was
challenging incumbent councilman, Gerry Krage, who was serving in
2.
On
November 6, 2006, Bruce Reed, Jr., filed a Complaint with the Office of
Administrative Hearings alleging that the Respondent prepared and
disseminated false campaign material in violation of Minnesota Statutes § 211B.06. Attached to the Complaint was a copy of a
page from the Respondent’s website, which was entitled “Winona Debate?” On this
page, the Respondent discussed his proposal to debate Mr. Krage and charge an
admission price of $5 plus one can of soup, with all of the proceeds to be
donated to local organizations that help underprivileged children. The web page stated in part the following:
So Why Do You Think That Councilman Krage
Would Pass Up a Chance To Raise Funds for Underprivileged Kids?
Maybe He Doesn’t Want Me Talking About Bruce
Reed’s Role In Extorting Over $100,000 From The American Legion Veteran’s
Organization?
3.
On
November 7, 2006, Administrative Law Judge Eric Lipman determined that the
Complaint set forth a prima facie
violation of Minnesota Statutes § 211B.06 and ordered that the matter be
scheduled for a probable cause hearing to be
held by telephone conference at 9:30 a.m. on Monday, November 13, 2006. A
Notice of and Order for Hearing was sent by
4.
On
November 10, 2006, the Respondent submitted, by facsimile transmission, a
five-page response to the Complaint. In
it he argued that because the statement regarding Mr. Reed’s alleged extortion
of $100,000 was phrased as a question, it could not be considered a false
statement of fact. The Respondent also included
a request that Administrative Law Judge Lipman recuse himself from presiding
over this matter due to “possible conflicts of interests.”
5.
On
November 13, 2006, at 9:30 a.m., the Complainant participated in the
probable cause hearing by telephone on his own behalf without counsel. The Respondent failed to call into the
telephone conference and participate in the probable cause hearing and no appearance
was made on his behalf. The Administrative
Law Judge waited approximately 15 minutes to begin the hearing while OAH Staff
Attorney Mary Beth Gossman attempted to reach the Respondent by telephone
without success. Ms. Gossman left a
message on the Respondent’s voice mail directing him to call into the scheduled
conference.
6.
At approximately 2:15 p.m. on November 13, 2006,
the Office received an e-mail from a Kara Stroud on behalf of Mr.
Ouellette. Ms. Stroud stated in her
e-mail that the Respondent was ill and bed-ridden and that he was unable to leave
his apartment to use a pay phone to participate in the probable cause
hearing. Ms. Stroud also stated that the
Respondent would be incapacitated for “at least a few more days.”
7.
On November 14, 2006, the Respondent sent an
e-mail to the Office, which stated the following:
“Sorry I
couldn’t make it to a phone on Monday morning.
I was bed-ridden due to my disability since Friday evening. You got an email yesterday from my
girlfriend, right? What exactly is the
status of the case?”
8.
On
November 14, 2006, Administrative Law Judge Lipman issued a Notice and Order rescheduling
the probable cause hearing in this matter to November 22, 2006, at 9:30 a.m. The Order further directed the Respondent to
submit an affidavit of prejudice by 4:30 p.m. on November 20, 2006, explaining the
basis for this belief that Administrative Law Judge Lipman was disqualified by
reason of bias or prejudice. Lastly, the
Order directed the Respondent to show cause at the rescheduled hearing why his failure
to appear at the hearing on November 13, 2006, should not result in the entry
of a default judgment against him.
9.
The Notice and Order Rescheduling the Probable
Cause Hearing and Order to Show Cause informed the Respondent in bold-face type
that:
A failure by the Respondent to participate
and appear by telephone at this probable cause hearing may result in a finding
that the Respondent is in default, that the Complainant’s allegations contained in the Complaint may be accepted as
true, and that the Presiding Administrative Law Judge may dispose of the
Complaint according to Minn. Stat. § 211B.35, subd. 2.
10. The
Order Rescheduling the Probable Cause Hearing and Order to Show Cause was sent
to the parties by
11. Pursuant
to Judge Lipman’s Order of November 14, 2006, the Respondent filed an Affidavit
of Prejudice by facsimile transmission on November 20, 2006.
12. By
Order dated November 21, 2006, the Chief Administrative Law Judge denied the
Respondent’s request to remove or disqualify Judge Lipman based upon the
Respondent’s Affidavit of Prejudice. The
Order further directed that the matter proceed to the probable cause hearing as
scheduled at 9:30 a.m. on November 22, 2006.
This Order of the Chief Administrative Law Judge denying the
Respondent’s request to remove Judge Lipman was sent to the parties by
13. On
November 21, 2006, at 4:00 p.m., the Respondent sent a responsive e-mail to Ms.
Gossman. The Respondent asked, “how can
a question be considered a statement?,” and then closed the email by stating that
he looked forward to the “same old politicazed [sic] farcicle [sic] hearing as
I always get.”
14. On
November 22, 2006, at 9:30 a.m., the Complainant participated in the
probable cause hearing by telephone on his own behalf without counsel. The Respondent failed to appear and
participate at the probable cause hearing.
He did not contact the Administrative Law Judge or Staff Attorney to
request a continuance or to make any other response to the order to show cause. The Administrative Law Judge waited
approximately 15 minutes to begin the hearing while OAH Staff Attorney Gossman
attempted to reach the Respondent by telephone without success.
15. Because the Respondent failed to participate
in the probable cause hearing as ordered, he is in default, and the allegation in
the Campaign Complaint that the Respondent violated Minn. Stat. § 211B.06 by
preparing and disseminating false campaign material is taken as true and is deemed
proved without further evidence. The
allegation is hereby incorporated into the Finding of Facts.[3]
16. By
Order dated November 30, 2006, the parties were notified that this matter had
been assigned to the undersigned panel of Administrative Law Judges to
determine the appropriate disposition of the Complaint. The parties were further notified that they
could submit to the panel by December 6, 2006, any written argument or
documentation that they wished the panel to consider, limited to the issue of
the disposition of the Complaint.
17. On November 30, 2006, the Respondent sent an
email notifying the Office that he was “forced to flee
18. On December 6, 2006, the panel received a
written submission from the Respondent regarding the disposition of the
Complaint. In it the Respondent stated
that he believes the case should be turned over to the Winona County Attorney
Chuck MacLean “so he can explain to a jury how a question can be considered a
‘statement.’” The Respondent also stated
that he “will not be silenced by fines, jail or any other act of retaliation
for my efforts to expose corruption in
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. Minn. Stat. § 211B.34 authorizes the
undersigned Administrative Law Judge to consider this matter.
2. A complaint alleging a violation of chapter
211A or 211B must be filed with the Office of Administrative Hearings and
finally disposed by the Office before the alleged violation may be prosecuted
by a county attorney.[4]
3. The Respondent was given proper notice of
the complaint and hearings in this matter and all relevant procedural
requirements of law and rule were satisfied.
4. Minn. Stat. § 211B.01, subd. 2, defines campaign
material to mean any literature, publication, or material that is disseminated
for the purpose of influencing voting at a primary or other election. The Respondent’s web page is campaign
material within the meaning of the statute.
5. Minn.
Stat. § 211B.06, subd. 1, provides, in part:
“A person is guilty of a gross misdemeanor who intentionally
participates in the preparation, dissemination … of … campaign material with
respect to the personal or political character or acts of a candidate … that is
designed or tends to elect, injure, promote, or defeat a candidate for
nomination or election to a public office …, that is false, and that the person
knows is false or communicates to others with reckless disregard of whether it
is false.”
6. The burden of proving the allegations in the complaint is on the Complainant. The standard of proof of a violation of Minn. Stat. § 211B.06, relating to false campaign material, is clear and convincing evidence.[5]
5.
The Respondent
is in default as a result of his failure to appear and participate at the
scheduled Probable Cause hearing. The panel
of Administrative Law Judges therefore takes the allegation set out in the
Complaint that the Respondent prepared and disseminated false campaign material
in violation of Minn. Stat. § 211B.06 as true and deemed proved.
6. The Respondent’s violation of Minn. Stat. § 211B.06 constitutes grounds for the
imposition of a civil penalty of up to $5,000.[6]
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
ORDER
IT IS HEREBY ORDERED that Respondent Todd Ouellette pay a civil penalty of $600 by January 16, 2007, for violating Minn. Stat. § 211B.06.[7]
Dated: December 12, 2006.
|
/s/ Eric L. Lipman |
|
ERIC L. LIPMAN |
|
Presiding Administrative Law Judge |
|
/s/ Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
|
/s/ Janice Culnane |
|
JANICE CULNANE |
|
Administrative Law Judge |
MEMORANDUM
Respondent was adjudged to be in default by virtue of his failure to appear at two scheduled probable cause hearings as ordered. Therefore, the allegation in the Complainant that the Respondent violated Minn. Stat. § 211B.06 by preparing and disseminating false campaign material was deemed proved without further evidence.
In
Respondent’s written submission regarding the disposition of the Complaint, he
argues that a question cannot be a false statement of fact. The Respondent’s web page provides:
So Why Do You Think That Councilman Krage
Would Pass Up a Chance To Raise Funds for Underprivileged Kids?
Maybe He Doesn’t Want Me Talking About Bruce
Reed’s Role In Extorting Over $100,000 From The American Legion Veteran’s
Organization?
These
words, regardless of their punctuation, amount to a statement that Councilman
Krage would not engage in debate with the Respondent because Krage’s associate,
Bruce Reed, extorted more than $100,000 from the American Legion. Putting a question mark at the end of the
statement does not transform it into an interrogatory or place such a statement
beyond the reach of the Fair Campaign Practices Act. To hold otherwise would effectively repeal
Minn. Stat. § 211B.06; because any false statement, no matter how outrageous or
defamatory, could be disseminated with impunity if it were placed in the form
of a question. The Legislature did not
intend such an absurd result.
Having
found that the Respondent violated Minn. Stat. § 211B.06, the Panel may make
one of several dispositions.[8] 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 Respondent’s violation was deliberate and
unapologetic, and that the deliberate nature of the misconduct militates
against the imposition of a more modest penalty. In fact, in his final written submission, the
Respondent states that he will not be silenced by fines or jail and that he
“stands by his question.”
After
considering the entire record in this matter, the panel determines that a civil
penalty of $600 is an appropriate
disposition.
E.L.L.,
K.D.S., J.M.C.
[1] See, Probable Cause Order, OAH File No. 8-6384-17629-CV (November 29, 2006).
[2] Respondent’s Ex. 1 submitted November 10, 2006.
[3]
See
[4]
[5] Minn. Stat. § 211B.32, subd. 4 (2006).
[6]
[7]
The check should be made payable to “Treasurer, State of
[8] Minn. Stat. § 211B.35, subd. 2.