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3-6385-17601-CV |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
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Glen Posusta and Clint Herbst, Complainants, vs. Susie Wojchouski and Fred Patch, Respondents. |
PROBABLE
CAUSE ORDER |
This matter came on for a probable cause hearing under Minnesota Statutes § 211B.34, before Administrative Law Judge Kathleen D. Sheehy on October 30, 2006, to consider a complaint filed by Glen Posusta and Clint Herbst on October 25, 2006. The probable cause hearing was conducted by telephone conference call. The record closed on November 1, 2006, upon receipt of additional exhibits from the Complainants.
Glen Posusta,
2330
Susie
Wojchouski,
J. Robert Keena,
Esq., Hellmuth & Johnson, PLLC,
Based on 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 Minn. Stat. § 211B.06.
IT IS ORDERED:
1. That there is probable cause to believe that Respondents violated Minnesota Statute § 211B.06 as alleged in the Complaint.
2. That 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 6, 2006
/s/
Kathleen D. Sheehy
KATHLEEN D. SHEEHY
Administrative Law Judge
Tape recorded. One
tape.
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.[1] The Office
of Administrative Hearings looks to the standards governing probable cause
determinations under Minn. R. Crim. P. 11.03 and by the Minnesota Supreme Court
in State v.
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.
This case involves
a campaign flyer, critical of the Complainants, that was apparently distributed
to some number of residents of
On or about October
15, 2006, Wojchouski had a campaign meeting at her home. At the end of the meeting, when everyone else
had left besides Rhonda and Bruce Thielen, she showed the Thielens the document
prepared by Patch. She maintains she
told them she did not want the document to be distributed, but when Rhonda
Thielen asked if she could keep one of the two copies, Wojchouski allowed her
to do so. Bruce Thielen is the former
mayor of
The Patch document
differs from the flyer attached to the Complaint in that the flyer’s headline
is different, two bullet points (nos. 4 and 9) were added, and additional
sentences were added to bullet point nos. 7 and 8. Patch and Wojchouski maintain they have no
idea who made the changes to the document and distributed it further after it
left Wojchouski’s home. Both argue that
there is insufficient evidence that they were involved in the ultimate
distribution of the document to other residents of
Minn. Stat. § 211B.06 prohibits a person from intentionally participating in the “preparation, dissemination, or broadcast” of campaign material with respect to the personal or political character or acts of a candidate that is designed or tends to injure or defeat a candidate, and which the person knows is false or communicates to others with reckless disregard of whether it is false (emphasis added). Patch testified that Wojchouski asked him to prepare the document and that he did so, but says he believed everything in it was factually true. He gave it to Wojchouski. She in turn, although believing parts of it to be false, gave it to the Thielens. From there, it apparently was supplemented and received broader distribution. There is sufficient evidence that Patch and Wojchouski intentionally participated in the preparation or distribution of campaign material that contains statements the Complainants maintain are false. The fact that unknown others may have also participated in supplementing or disseminating this material does not mean that the Complaint should be dismissed as to Patch and Wojchouski.
In the prima facie review, the Administrative Law Judge concluded that some of the statements contained in bullet point nos. 2, 3, 7, 8, and 10 were sufficient to state violations of Minn. Stat. § 211B.06.
Election 2004—Your Mayor Herbst accepted substantial political contributions from his township cronies to pay for election expenses—including all his BIG SIGNS. After the election, Posusta, Herbst, Mayer and Perrault provided a little political pay-back by settling a lawsuit, awarding that resident nearly $100,000! Of course, that same township resident remains a faithful campaign contributor this election, and the sign litter is there to prove it this campaign as well!
The Complainants vigorously dispute that the settlement
of a wrongful termination lawsuit filed by Rebecca Young against the City was
“political payback.” Young was
terminated from her job as a receptionist after using a city copy machine to
make 50 copies of a petition for a Monticello Township Citizens Against
Annexation meeting. At the time, the
City was involved in a bitter annexation dispute with
The Administrative Law Judge concludes there is probable cause to believe that Bullet Point No. 2 contains a false statement that the agreement to settle the lawsuit was connected to a political contribution to Herbst and that Patch and Wojchouski either knew the statement was false or communicated it to others with reckless disregard for whether it was false.
November 30, 2004—According to a written report from the Minnesota State Auditor, your councilman Posusta had a conflict of interest when he purchased city property along Hwy 25 while he was seated on the City Council. From his council seat, he reduced the purchase price and wrongly benefited in thousands of dollars to buy prime Highway 25 frontage from the City in a closed sale.
The Complainants contend this statement is false. Patch testified that in preparing this bullet point he relied on the letter from the State Auditor’s office, which concluded that there was no conflict of interest when Posusta executed the original purchase agreement on July 11, 2002, because he was not elected until the following fall and did not take office until January 2003. There was a delay of 15 months in closing the sale, because the City had difficulty obtaining clear title. At the time of the closing, the City Council decided to split the interest owed with Posusta, which resulted in $2,232 reduction to the purchase price. The State Auditor’s office concluded that that this change in the terms after Posusta’s election to office “could be viewed” as a conflict of interest and that the auditor could not determine how a court would resolve the issue.[7]
At the probable cause hearing, the Complainants testified that then-mayor Bruce Thielen offered to reduce the price because of the City Administrator’s delay in closing the transaction. They allege that at this time, Patch was still employed as the building official and attempted to insert himself into the dispute and that he himself made the complaint to the State Auditor. They further maintain that Posusta abstained from voting on the issue.[8] Wojchouski attended the meeting and recalls that the City had caused the delay in the closing.
The bullet point in the flyer misstates the critical facts and the auditor’s conclusions regarding a conflict of interest. The Administrative Law Judge concludes there is probable cause to conclude that Bullet Point No. 2 contains false statements and that Patch and Wojchouski either knew the statements were false or communicated the statements to others with reckless disregard of whether it was false.
Fall 2005—Posusta and Herbst concluded a bullying and retaliatory crusade by creating a new policy that ended in wrongful termination of a city employee, resulting in another dismal lawsuit against the City to the tune of approximately $3 million taxpayer dollars. While the city does have insurance for such lawsuits, it is still a taxpayer expense to pay attorneys through the League of Minnesota Cities membership.
This bullet point concerns Fred Patch’s own lawsuit against the City. Patch contends that he did not write the italicized portion above, which is the portion that survived prima facie review. The Complainants allege that Patch has used the $3 million figure to describe his damages in the wrongful termination litigation. In addition, the City’s attorney in the federal litigation submitted an affidavit stating that the City’s attorney’s fees are paid by its insurer, the League of Minnesota Cities Insurance Trust, not by the City.[9] At this stage, the Administrative Law Judge’s function is not to resolve conflicts in testimony. There is sufficient evidence to connect the Respondents to the material and there is probable cause to believe the statement violates Minn. Stat. § 211B.06.
Winter 2005—At the Lions Club holiday party Herbst and one of his club mates participated in an explicitly sexual performance that was demeaning to women and offensive to nearly all Lions Club members, for which Mayor Herbst later wrote a letter of apology to try to cover up his antics. At another local meeting, while discussing trees, Mayor Herbst made an inappropriate comment in front of females, referring to his own “woody.”
Patch maintains he did not write the italicized portion above, which again is the only part of this bullet point that survived prima facie review. Wojchouski agrees that this is a false statement with regard to Mayor Herbst, because it was a different member of the City Council (not Herbst or Posusta) who reportedly used this terminology in a local meeting. At this point, the evidence is sufficient to find probable cause that this bullet point contains a false statement and that Patch and Wojchouski either knew it was false or communicated it to others with reckless disregard for whether it was false. It is for the panel, not just this ALJ, to make the credibility determination as to Patch’s responsibility for writing the statement.
September 29, 2006—Posusta accosted and battered a senior high school girl in front of the High School for moving one of his many political signs that are unlawfully located in the public right of way.
Patch testified that he had a good-faith basis for making this statement because his teen-age daughter was one of the three girls involved in moving the sign. He also maintains he was told by Kim Nygren, the girls’ cross-country coach, who was present at the time of this incident, that Posusta had grabbed one of the girls by the arm and shook her. Posusta denies that he touched any of the girls, and he further denies that the sign was unlawfully located on the public right of way. He also submitted a sworn statement from Kim Nygren that she was not present during the incident and had no first-hand knowledge of it. He alleges that a teacher who did witness the incident, Kim Emmanual, stopped and talked to the girls about how dangerous their actions were in running across the street in traffic. There is probable cause to believe that this statement is false and that the Respondents either knew it was false or communicated it to others with reckless disregard of whether it was false.
Having found probable cause with regard to the above statements, this matter will be referred to the Chief Administrative Law Judge for assignment to a panel of three administrative law judges for an evidentiary hearing. A notice of evidentiary hearing will be issued, assigning this matter to a panel of administrative law judges, and setting the date and time for the evidentiary hearing and the exchange of witness and exhibit lists.
K.D.S.
[1] Minn. Stat. § 211B.34, subd. 2.
[2]
239 N.W.2d 892 (
[3]
[4]
[5] State v.
[6] The document Patch admits to preparing is Attachment D to Ex. 5.
[7] Ex. 5, Attachment C.
[8] The minutes of the City Council meeting reflect that Bruce Thielen recommended splitting the interest, and Posusta advocated the position that he should pay less than half of the interest, but that no vote was taken on the matter. See Ex. 2.
[9] Ex. 4, Affidavit of Julie Fleming-Wolfe.