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

1. STATE OF MINNESOTA
February 24, 2012
IN SUPREME COURT
A12-0026
In re Petition to Seek Removal of
Wabasha County Second District
Commissioner Debra Roschen.
ORDER
Pursuant to Minn. Stat. § 351.16, subd. 1 (2010), the Wabasha County auditor has
forwarded a petition to remove Wabasha County Second District Commissioner
Debra Roschen. Under Minn. Stat. § 351.16, subd. 1, an elected county official is subject
to removal for “malfeasance or nonfeasance in the performance of official duties during
the current or any previous term in the office held by the elected county official.” The
statutory 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 the
petition properly alleges facts which, if proven, constitute malfeasance or nonfeasance in
the performance of official duties.” Minn. Stat. § 351.17. If this standard is not met, the
petition may be dismissed. But if the threshold standard is met, the chief justice refers
the petition to a special master for an evidentiary hearing. Id. If, after the hearing, the
special master determines that the elected official committed malfeasance or nonfeasance
in the performance of official duties, the county auditor must hold a removal election.
Minn. Stat. §§ 351.19, 351.20.
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2. Petitioners allege that Commissioner Roschen committed malfeasance in office,
justifying her recall. The statute defines “malfeasance” as “the willful commission of an
unlawful or wrongful act in the performance of a public official’s duties which is outside
the scope of the authority of the public official and which infringes on the rights of any
person or entity.” Minn. Stat. § 351.14, subd. 2. The statute also makes clear that an
elected 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 the
negligent failure to perform a specific act which is a required part of the duties of the
public official.” Minn. Stat. § 351.14, subd. 4. Nor can an elected county official be
subjected to a removal election “on the ground of disagreement[s] with actions taken that
were 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 against
the statute’s standards, alleges facts that, if true, demonstrate that Commissioner Roschen
committed malfeasance in office. See Minn. Stat. § 351.17. As explained below, the
petition does not.
Count 1. In Count 1, petitioners allege that Commissioner Roschen committed
malfeasance in office when she directed the Wabasha County Administrator to terminate
the employment of a county employee. The employee, who is not identified in the
petition, allegedly suggested that a county resident complain to Commissioner Roschen
about a delay in processing the resident’s application for county services. According to
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3. the petition, the county employee attributed the delay to “an under-staffed office dealing
with an overwhelming number of applications.” The petition does not allege that the
unnamed county employee was in fact terminated from employment, as
Commissioner Roschen allegedly directed.
Count 1 of the petition fails to allege facts that, if proven, amount to malfeasance
in office. The definition of malfeasance under Minn. Stat. § 351.14, subd. 2 requires that
the unlawful or wrongful act alleged to be malfeasance have been committed “willfully.”
Although the petition alleges that Commissioner Roschen “acted in direct and willful
contravention of” a Wabasha County Board resolution, the petition fails to allege specific
facts that, if proven, would establish that Commissioner Roschen (who first took office in
January 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 the
governor for, among other things, failure to “take care that the laws be faithfully
executed,” which petition failed to state facts indicating that the governor “even knew of
an alleged violation” of a statute requiring that oaths of office of members of the
legislature be filed with the secretary of state).
Moreover, “[t]he decision to terminate an employee is almost always a
discretionary act . . . because such decisions can involve the balancing of many complex
factors.” 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 cannot
be 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
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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 that
Commissioner Roschen “willfully committed a wrongful act in the performance of her
official duties that exceeded the scope of her authority when she made inappropriate and
potentially defamatory statements regarding [an unnamed county] employee at a public
meeting of the County Board.” Petitioners allege that during a meeting of the
Wabasha County board in June 2011 “to discuss the organization and operation of
various County departments, including the Wabasha County Highway Department,”
Commissioner Roschen stated that a particular county employee “was overweight, had
poor work ethic, stole County property several years ago, and falsified time cards,” and
that the employee should be terminated.
The allegations in Count 2 fail to allege malfeasance in office. Petitioners assert
that Commissioner Roschen’s alleged remarks “potentially rise[] to the level of criminal
defamation” and “likely” amounted to civil defamation. But the petition alleges that
Commissioner Roschen’s comments were made during a “public strategic planning
meeting” of the Wabasha County Board called “to discuss the organization and operation
of various County departments, including the Wabasha County Highway Department.”
Comments by a county commissioner concerning the job performance of a county
employee made during the county board’s discussion of the organization and operation of
county government, even if inappropriately expressed, do not rise to the level of
malfeasance under Minn. Stat. § 351.14, subd. 2. See In re Recall of Call, 749 P.2d 674,
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5. 677 (Wash. 1988) (holding that a city council member was not subject to recall based on
allegations that he knowingly made false statements during debate of a policy matter
conducted at a public meeting of the council).1
Count 3. Count 3 of the petition alleges that Commissioner Roschen “willfully
commits wrongful acts in the performance of her official duties with her continuous and
systematic attempts to circumvent the requirements of” the Minnesota Government Data
Practices 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 alleged
to have “raised an action item [in August 2011] that was not included on the Board
agenda and attempted to call a vote on it.” The petition alleges that
Commissioner Roschen failed to provide “any printed material explaining” her proposal,
in violation of the Open Meeting Law. The petition further alleges that the
Wabasha County Attorney recorded Board members’ votes on the measure over
Commissioner Roschen’s objections. According to the petition, failure to record Board
members’ votes would have been a violation of the Open Meeting Law and the Official
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The petition alleges that Commissioner Roschen’s comments did “not uphold the
public policy of promoting orderly and constructive relationships [with employees], nor
[did they] exhibit the need for cooperation and employment protection that the State of
Minnesota strives to achieve for public employees,” as expressed in Minn. Stat.
§ 179A.01 (2010). But the petition does not allege that the Commissioner’s comments
violated the statute.
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Although Count 3 of the petition recites that Commissioner Roschen violated the
Government Data Practices Act, the allegations of the petition themselves do not allege a
violation of any specific provision of that statute.
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6. Records Act. In the second example, the petition alleges that in October 2011
Commissioner Roschen distributed copies of a section of Minnesota law to members of
the county board without providing at least one copy for public inspection. The petition
alleges that this violated the Open Meeting Law. Minn. Stat. § 13D.01.
Although the petition alleges that similar behavior occurred “[o]n multiple
occasions—too numerous to recount individually herein,” the removal statute requires
that 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 in
October 2011, satisfy the statute’s specificity standard, but the general assertion that
similar behavior occurred on “multiple occasions” does not. The August 2011 and
October 2011 instances therefore are the only ones that can be considered in assessing
whether Commissioner Roschen committed malfeasance by violating the Open Meeting
Law.
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 noted
that removal from office under the Open Meeting Law must be not only in compliance
with 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
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7. removal was sought for violation of the Open Meeting Law “did not rise to the level of
malfeasance.” 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 not
allege malfeasance. This is so because the petition “allege[s] with specificity” only two
instances in which Commissioner Roschen, in her first year in office, allegedly violated
the Open Meeting Law. To support removal from office, there must be at least three
intentional, separate, and unrelated violations of the Open Meeting Law. Minn. Stat.
§ 13D.06, subd. 3(a) (2010). Because petitioners’ allegations, if proven, would not be
sufficient 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 demanded
that the Wabasha County Sheriff advocate on behalf of proposed legislation to give
county boards, rather than the Minnesota Department of Corrections, authority “to
determine the number of staff necessary to secure county jails properly,” and then
threatened “adverse action” when the sheriff declined.
The allegations in Count 4 of the petition, even if proven, do not constitute
malfeasance in office. Rather, these allegations are “political criticisms” of
Commissioner Roschen’s actions in office, which the supreme court has previously
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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 not
constitute malfeasance and there is no basis upon which to refer this matter to a special
master.
Now therefore, based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED that the petition for removal of
Commissioner Roschen be, and the same is, dismissed.
Dated: February 23, 2012
BY THE COURT:
/s/
Lorie S. Gildea
Chief Justice
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