Roschen recall petition denied


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Minnesota Supreme Court Chief Justice Lorie S. Gildea denies a petition seeking a recall of Wabasha County Commissioner Debra Roschen.

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Roschen recall petition denied

  1. 1. STATE OF MINNESOTA February 24, 2012 IN SUPREME COURT A12-0026In re Petition to Seek Removal ofWabasha County Second DistrictCommissioner Debra Roschen. ORDER Pursuant to Minn. Stat. § 351.16, subd. 1 (2010), the Wabasha County auditor hasforwarded a petition to remove Wabasha County Second District CommissionerDebra Roschen. Under Minn. Stat. § 351.16, subd. 1, an elected county official is subjectto removal for “malfeasance or nonfeasance in the performance of official duties duringthe current or any previous term in the office held by the elected county official.” Thestatutory process for removal of elected county officials under Minn. Stat. §§ 351.14-23(2010) requires that the chief justice review the petition to determine “whether thepetition properly alleges facts which, if proven, constitute malfeasance or nonfeasance inthe performance of official duties.” Minn. Stat. § 351.17. If this standard is not met, thepetition may be dismissed. But if the threshold standard is met, the chief justice refersthe petition to a special master for an evidentiary hearing. Id. If, after the hearing, thespecial master determines that the elected official committed malfeasance or nonfeasancein the performance of official duties, the county auditor must hold a removal election.Minn. Stat. §§ 351.19, 351.20. 1
  2. 2. Petitioners allege that Commissioner Roschen committed malfeasance in office,justifying her recall. The statute defines “malfeasance” as “the willful commission of anunlawful or wrongful act in the performance of a public official’s duties which is outsidethe scope of the authority of the public official and which infringes on the rights of anyperson or entity.” Minn. Stat. § 351.14, subd. 2. The statute also makes clear that anelected county official cannot be subjected to a removal election on the basis of“misfeasance in the performance of official duties.” Minn. Stat. § 351.16, subd. 4.“Misfeasance” is “the negligent performance of the duties of a public official or thenegligent failure to perform a specific act which is a required part of the duties of thepublic official.” Minn. Stat. § 351.14, subd. 4. Nor can an elected county official besubjected to a removal election “on the ground of disagreement[s] with actions taken thatwere within the lawful discretion of the elected county official.” Minn. Stat. § 351.16,subd. 4. The threshold question presented is whether the petition, when assessed againstthe statute’s standards, alleges facts that, if true, demonstrate that Commissioner Roschencommitted malfeasance in office. See Minn. Stat. § 351.17. As explained below, thepetition does not. Count 1. In Count 1, petitioners allege that Commissioner Roschen committedmalfeasance in office when she directed the Wabasha County Administrator to terminatethe employment of a county employee. The employee, who is not identified in thepetition, allegedly suggested that a county resident complain to Commissioner Roschenabout a delay in processing the resident’s application for county services. According to 2
  3. 3. the petition, the county employee attributed the delay to “an under-staffed office dealingwith an overwhelming number of applications.” The petition does not allege that theunnamed county employee was in fact terminated from employment, asCommissioner Roschen allegedly directed. Count 1 of the petition fails to allege facts that, if proven, amount to malfeasancein office. The definition of malfeasance under Minn. Stat. § 351.14, subd. 2 requires thatthe unlawful or wrongful act alleged to be malfeasance have been committed “willfully.”Although the petition alleges that Commissioner Roschen “acted in direct and willfulcontravention of” a Wabasha County Board resolution, the petition fails to allege specificfacts that, if proven, would establish that Commissioner Roschen (who first took office inJanuary 2011) was aware of the unspecified Board resolution. See In re Pawlenty,673 N.W.2d 829, 830-31 (Minn. 2004) (dismissing a petition seeking to recall thegovernor for, among other things, failure to “take care that the laws be faithfullyexecuted,” which petition failed to state facts indicating that the governor “even knew ofan alleged violation” of a statute requiring that oaths of office of members of thelegislature be filed with the secretary of state). Moreover, “[t]he decision to terminate an employee is almost always adiscretionary act . . . because such decisions can involve the balancing of many complexfactors.” Janklow v. Minn. Bd. of Exam’rs for Nursing Home Adm’rs, 552 N.W.2d 711,717 (Minn. 1996). The legislature has made it clear that elected county officials cannotbe subject to removal elections for disagreements with discretionary decision-making.See Minn. Stat. § 351.16, subd. 4. The conduct alleged in Count 1 of the petition—the 3
  4. 4. Commissioner’s unsuccessful attempt to engage in what would be a discretionary act—therefore does not constitute malfeasance. Count 2. In Count 2 of the recall petition, petitioners allege thatCommissioner Roschen “willfully committed a wrongful act in the performance of herofficial duties that exceeded the scope of her authority when she made inappropriate andpotentially defamatory statements regarding [an unnamed county] employee at a publicmeeting of the County Board.” Petitioners allege that during a meeting of theWabasha County board in June 2011 “to discuss the organization and operation ofvarious County departments, including the Wabasha County Highway Department,”Commissioner Roschen stated that a particular county employee “was overweight, hadpoor work ethic, stole County property several years ago, and falsified time cards,” andthat the employee should be terminated. The allegations in Count 2 fail to allege malfeasance in office. Petitioners assertthat Commissioner Roschen’s alleged remarks “potentially rise[] to the level of criminaldefamation” and “likely” amounted to civil defamation. But the petition alleges thatCommissioner Roschen’s comments were made during a “public strategic planningmeeting” of the Wabasha County Board called “to discuss the organization and operationof various County departments, including the Wabasha County Highway Department.”Comments by a county commissioner concerning the job performance of a countyemployee made during the county board’s discussion of the organization and operation ofcounty government, even if inappropriately expressed, do not rise to the level ofmalfeasance under Minn. Stat. § 351.14, subd. 2. See In re Recall of Call, 749 P.2d 674, 4
  5. 5. 677 (Wash. 1988) (holding that a city council member was not subject to recall based onallegations that he knowingly made false statements during debate of a policy matterconducted at a public meeting of the council).1 Count 3. Count 3 of the petition alleges that Commissioner Roschen “willfullycommits wrongful acts in the performance of her official duties with her continuous andsystematic attempts to circumvent the requirements of” the Minnesota Government DataPractices Act, Minn. Stat. ch. 13 (2010),2 the Minnesota Open Meeting Law, Minn. Stat.§ 13D.01 (2010), and the Minnesota Official Records Act, Minn. Stat. § 15.17 (2010).The petition gives two examples. In the first example, Commissioner Roschen is allegedto have “raised an action item [in August 2011] that was not included on the Boardagenda and attempted to call a vote on it.” The petition alleges thatCommissioner Roschen failed to provide “any printed material explaining” her proposal,in violation of the Open Meeting Law. The petition further alleges that theWabasha County Attorney recorded Board members’ votes on the measure overCommissioner Roschen’s objections. According to the petition, failure to record Boardmembers’ votes would have been a violation of the Open Meeting Law and the Official1 The petition alleges that Commissioner Roschen’s comments did “not uphold thepublic policy of promoting orderly and constructive relationships [with employees], nor[did they] exhibit the need for cooperation and employment protection that the State ofMinnesota strives to achieve for public employees,” as expressed in Minn. Stat.§ 179A.01 (2010). But the petition does not allege that the Commissioner’s commentsviolated the statute.2 Although Count 3 of the petition recites that Commissioner Roschen violated theGovernment Data Practices Act, the allegations of the petition themselves do not allege aviolation of any specific provision of that statute. 5
  6. 6. Records Act. In the second example, the petition alleges that in October 2011Commissioner Roschen distributed copies of a section of Minnesota law to members ofthe county board without providing at least one copy for public inspection. The petitionalleges that this violated the Open Meeting Law. Minn. Stat. § 13D.01. Although the petition alleges that similar behavior occurred “[o]n multipleoccasions—too numerous to recount individually herein,” the removal statute requiresthat the petition “allege with specificity” the malfeasance. Minn. Stat. § 351.16, subd. 1.The two specifically identified instances, one in August 2011 and the other inOctober 2011, satisfy the statute’s specificity standard, but the general assertion thatsimilar behavior occurred on “multiple occasions” does not. The August 2011 andOctober 2011 instances therefore are the only ones that can be considered in assessingwhether Commissioner Roschen committed malfeasance by violating the Open MeetingLaw. Minnesota’s Open Meeting Law provides several penalties for its violation,including the following: If a person has been found to have intentionally violated this chapter in three or more actions brought under [chapter 13D] involving the same governing body, such person shall forfeit any further right to serve on such governing body or in any other capacity with such public body for a period of time equal to the term of office such person was then serving.Minn. Stat. § 13D.06, subd. 3(a) (2010). In Claude v. Collins, the supreme court notedthat removal from office under the Open Meeting Law must be not only in compliancewith the statute, but “also in conformity with our constitution.” 518 N.W.2d 836, 842(Minn. 1994). The court concluded that the actions of the city council members whose 6
  7. 7. removal was sought for violation of the Open Meeting Law “did not rise to the level ofmalfeasance.” Id. The court further concluded: For the constitutional removal of a public official [for nonfeasance] under the Open Meeting Law, it must be established that three intentional, separate, and unrelated violations of the law occurred after the official had a reasonable amount of time to learn the responsibilities of the office.”Id. at 843. Applying the rule from Claude compels the conclusion that Count 3 does notallege malfeasance. This is so because the petition “allege[s] with specificity” only twoinstances in which Commissioner Roschen, in her first year in office, allegedly violatedthe Open Meeting Law. To support removal from office, there must be at least threeintentional, separate, and unrelated violations of the Open Meeting Law. Minn. Stat.§ 13D.06, subd. 3(a) (2010). Because petitioners’ allegations, if proven, would not besufficient to require Commissioner Roschen’s removal under the Open Meeting Law,they cannot support her removal from office. Claude, 518 N.W.2d at 842-43. Count 4. Count 4 of the petition alleges that Commissioner Roschen demandedthat the Wabasha County Sheriff advocate on behalf of proposed legislation to givecounty boards, rather than the Minnesota Department of Corrections, authority “todetermine the number of staff necessary to secure county jails properly,” and thenthreatened “adverse action” when the sheriff declined. The allegations in Count 4 of the petition, even if proven, do not constitutemalfeasance in office. Rather, these allegations are “political criticisms” ofCommissioner Roschen’s actions in office, which the supreme court has previously 7
  8. 8. distinguished from malfeasance. See Jacobsen v. Nagel, 255 Minn. 300, 304-05,96 N.W.2d 569, 573 (1959). In sum, the allegations in the petition for removal, even if proven, do notconstitute malfeasance and there is no basis upon which to refer this matter to a specialmaster. Now therefore, based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that the petition for removal ofCommissioner Roschen be, and the same is, dismissed. Dated: February 23, 2012 BY THE COURT: /s/ Lorie S. Gildea Chief Justice 8