[PDF] 0325-35461 Mathes Hayes Campaign Violation Report

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OAH 80-0325-35461

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

Justin Mathes,

Complainant,

v.

Bukata Hayes,

Respondent.

FINDINGS OF FACT,

CONCLUSIONS OF LAW,

AND ORDER

This Fair Campaign Practices complaint (Complaint) is pending before the following Panel of three Administrative Law Judges: LauraSue Schlatter (Presiding

Judge), Barbara J. Case, and James R. Mortenson.

The matter was submitted to the Panel based on the record created at the Probable Cause hearing and the underlying record, including the Complaint, the Prima Facie Determination, the Probable Cause Order, and written submissions from the parties. The hearing record closed on September 4, 2018. Justin Mathes (Complainant) appeared on his own behalf and without legal c ounsel. Bukata Hayes (Respondent) also appeared on his own behalf and without legal counsel.

STATEMENT OF THE ISSUE

S

1. Did Respondent disseminate campaign material that lacked a disclaimer in

violation of

Minn. Stat. § 211B.04

(2018)?

2. If so, what penalty is appropriate?

SUMMARY OF CONCLUSIONS

Respondent violated Minn. Stat. § 211B.04 by disseminating campaign material that lacked a disclaimer.

For this violation,

a $500 civil penalty is appropriate. Based on the record and proceedings herein, the undersigned panel of

Administrative Law Judges makes the following:

[118209/1] 2

FINDINGS OF FACT

1. Respondent is a current candidate for Mankato mayor.

1

This is his second

mayoral campaign. 2

2. As part of his campaign advertising, Respondent placed campaign lawn

signs around Mankato. Photographs of some of Respondent's campaign signs appear on his campaign Facebook page, "Hayes for Mayor." One Facebook screen shot shows what appears to be a professionally printed campaign sign which states: "Vote Bukata Hayes for Mankato Mayor." The sign does not include a disclaimer. 3

Additional images of

Respondent's 2018 campaign signs lack disclaimers. 4

3. By Order dated August 10, 2018, the Presiding Administrative Law Judge

found the Complaint alleged a prima facie violation of Minn. Stat. § 211B.04. 5 The Presiding Judge set this matter on for a probable cause hearing to be conducted by telephone on August 15, 2018. 6

4. Respondent previously ran for mayor in 2014. A second Facebook screen

shot shows two individuals holding a 2014 campaign sign with the words "Hayes for Mayor," and what appears to be a disclaimer at the bottom. 7

5. Complainant filed his Complaint on August 7, 2018. The Complaint alleges

that Respondent failed to include the disclaimer required by Minn. Stat. § 211B.04 on his

2018 mayoral race campaign signs.

8

6. Respondent admits that his 2018 campaign signs lacked the required

disclaimers. 9 When preparing campaign materials, Respondent and campaign staff members discussed the need for disclaimers in partisan versus non-partisan races.

Respondent also consulted with other

politicians. Following these conversations,

Respondent chose not to include disclaimers.

10 1

Complaint (Aug. 7, 2018); Respondent was a candidate in the August 14, 2018 primary election and will

continue on in the November 6, 2018 general election. See Minnesota primary election results at Office of the Minnesota Secretary of State's web site:

http://electionresults.sos.state.mn.us/Results/MunicipalRaces/114?districtid=39878 (last visited Sept. 4,

2018). This race was considered "non-partisan." Id.

2

Complaint Ex. 2.

3

Complaint Exhibit (Ex.) 1.

4

Complaint Exs. 3-5.

5

Notice of Determination of Prima Facie Violation and Notice of and Order for Probable Cause Hr'g (Aug.

10, 2018).

6 Id. 7

Complaint Ex. 2.

8

Complaint (Aug. 7, 2018).

9

Testimony (Test.) of Bukata Hayes at probable cause hearing (Aug. 15, 2018) (digital recording on file

with the Minn. Office Admin. Hearings). 10

Test. of B. Hayes.

[118209/1] 3

7. By Order dated August 20, 2018, the Presiding Administrative Law Judge

found probable cause to believe that the advertisement is "campaign material" and that

Respondent violated Minn. Stat.

§ 211B.04 by failing to include a disclaimer.

11

8. Following the probable cause hearing, the parties agreed to waive their right

to an evidentiary hearing and submit this matter to the Panel based on the record and subsequent written argument. The record closed on

September 4, 2018

9. As of September 4, 2018, Respondent had not added disclaimers to his

signs. 12

Based upon the foregoing Fin

dings of Fact, the undersigned Panel of

Administrative Law Judges makes the following:

CONCLUSIONS OF LAW

1. The Administrative Law Judge Panel is authorized to consider this matter

pursuant to Minn. Stat. § 211B.35 (2018).

2. Complainant bears the burden of proving the allegations in the complaint.

The standard of proof of a violation of Minn. Stat. § 211B.04 is a preponderance of the evidence. 13

3. Minn. Stat. § 211B.01, subd. 2 (2018), 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, except for news items or editorial comments by the news media."

4. Respondent's campaign signs were disseminated for the purpose of

influencing voting and are campaign material within the meaning of Minn. Stat.

§ 211B.01,

subd. 2.

5. Minn. Stat. § 211B.04 makes it unlawful for a person to participate in the

preparation or dissemination of most types of campaign material that does not prominently disclose the person or committee causing the material to be prepared or disseminated. 14

6. Pursuant to Minn. Stat. § 211B.04, subd. 1(b), the required form of

disclaimer is: "Prepared and paid for by the committee, .......... (address)" for material prepared and paid for by a principal campaign committee, or "Prepared and paid for by the .......... committee, .......... (address), in support of .......... (insert name of candidate or ballot question)" for material prepared and paid for by a person or committee other than a principal campaign committee. 11

Order on Probable Cause (Aug. 20, 2018).

12

Resp't's Closing Argument (Sept. 4, 2018).

13

Minn. Stat. § 211B.32, subd. 4 (2018).

14

See Minn. Stat. § 211B.04, subd. 1(a) and (b).

[118209/1] 4

7. Respondent's campaign signs were required to include disclaimers

substantially in the form required by Minn. Stat. § 211B.04 , subd. 1(b).

8. Complainant has established by a preponderance of the evidence that

Respondent violated Minn. Stat. § 211B.04

, subd. 1 (b) by failing to include a disclaimer substantially in the form required on his campaign signs.

9. Based on the above violation, it is appropriate to impose a civil penalty

against Respondent in the amount of $ 500.
Based on the record herein, and for the reasons stated in the following Memorandum, the panel of Administrative Law Judges makes the following: ORDER Respondent Bukata Hayes shall pay a civil penalty of $500 by October 31, 2018 based on his violation of Minn. Stat. § 211B.04 15

Dated: September 7, 2018

_______________________________

LAURASUE SCHLATTER

Presiding Administrative Law Judge

_______________________________

BARBARA J. CASE

Administrative Law Judge

_______________________________

JAMES R. MORTENSON

Administrative Law Judge

NOTICE

Pursuant to Minn. Stat. § 211B.36, subd. 5 (2018), this is the final decision in this case. Under Minn. Stat. § 211B.36, subd. 5, a party aggrieved by this decision may seek judicial review as provided in Minn. Stat. §§ 14.63 -.69 (2018). 15 The check should be made payable to "Treasurer, State of Minnesota" and sent to the Office of Administrative Hearings, PO Box 64620, St. Paul MN 55164-0620. The OAH docket number should be included on the check. [118209/1] 5

MEMORANDUM

The Fair

Campaign Practices Act

16 defines campaign material as "any literature, publication, or material that is disseminated for the purpose of influencing voting at a primary or other election 17 Under Minn. Stat. § 211B.04, subd. 1(a) and (b), campaign material is required to include a disclaimer identifying the name and address of the person or committee that prepared or disseminated the material.

The purpose of

the disclaimer requirement is to "identify who or what committee prepared, disseminated and paid for the campaign material." 18 The campaign signs prepared and disseminated by Respondent meet the definition of "campaign material" and were required to "prominently include" a disclaimer substantially in the form provided in Minn. Stat. § 211B.04 , subd. 1(a) and (b). The record establishe d that Respondent disseminated campaign signs throughout Mankato. Respondent admitted his campaign signs lacked required disclaimers. 19 Respondent stated he learned disclaimers were required after receiving the

Complaint.

20 At the probable cause hearing, Respondent explained that his campaign discussed the need for disclaimer language for partisan versus non-partisan races at the time the campaign signs were produced 21

Respondent ultimately decided not to include

disclaimer language on his signs. 22

The Panel finds Respondent's explanation

un persuasive . Respondent ran for Mankato mayor in 2014 and included disclaimers on his campaign signs. The evidence supports the conclusion that Respondent was aware of the disclaimer requirements when he chose not include disclaimers on his 2018 campaign signs. 23
There is no provision in law distinguishing between partisan and non- partisan races. Respondent has not fully remedied this violation. Complainant asserts

Respondent's camp

aign signs still lack the required disclaimers, almost a month after the filing of the Complaint. 24
In his closing argument, Respondent admits that at least some of his campaign signs still lack disclaimers, stating he intends to place stickers on the campaign signs that lack the disclaimer language. 25
In order to ensure consistency in the application of administrative penalties across types of violations of the Fair Campaign Practices Act, the Office of Administrative Hearings uses a "penalty matrix" to guide decision-making. The matrix categorizes 16

Minn. Stat. §§ 211B.01-.37 (2018).

17

Minn. Stat. § 211B.01, subd. 2.

18 See Hansen v. Stone, No. 4-6326-16911, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER, slip op. at 4 (Minn. Office Admin. Hearings Oct. 28, 2005). 19

Test. of B. Hayes.

20 Id. 21
Id. 22
Id. 23

Complaint Ex. 2.

24
See Complainant's Closing Argument (Sept. 4, 2018), noting that as of August 31, 2018, Respondent had not placed required disclaimers on his campaign signs. 25

Resp't's Closing Argument (Sept. 4, 2018).

[118209/1] 6 violations based upon the willfulness of the misconduct and the impact of the violation upon voters. 26
Because every case is unique, however, the Panel may depart from the presumptive pena lty listed in the matrix. 27
The Panel concludes that Respondent's violation was ill-considered or careless, but had minimal impact on voters. Respondent included the required disclaimer language during his previous mayoral campaign, yet opted not to do so in his current campaign. Respondent asserted that he and his campaign staff discussed the need for a disclaimer when preparing his campaign materials. Minn. Stat. § 211B.04 does not differentiate between partisan and non -partisan races. Respondent chose not to include the disclaimer despite the clear language in the statute . In addition, Respondent failed to promptly correct the violation by affixing stickers or otherwise modifying his campaign signs to comply with the disclaimer requirement despite having several weeks to do so. The Panel concludes that a civil penalty in the amount of $500 is appropriate for

Respondent's violation.

L.S., B.J.C., J.R.M.

26

See Penalty Matrix (https://mn.gov/oah/self-help/administrative-law-overview/fair-campaign.jsp); Fine v.

Bernstein

, 726 N.W.2d 137, 149 -50 (Minn. Ct. App.), review denied (Minn. 2007). 27
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