October 12, 2022

VIA EMAIL & U.S MAIL VIA EMAIL & U.S MAIL
Troy Kenneth Scheffler Rosemary Franzen
26359 Shandy Tr 14732 Inglewood Dr
Merrifield, MN 56465 Baxter, MN 56425
[email protected] [email protected]

Re: In the Matter of Troy Kenneth Scheffler (Rosemary Franzen)

OAH 71-0325-38723

Dear Parties:

Enclosed and served upon you please find the NOTICE OF DETERMINATION
OF PRIMA FACIE VIOLATION AND NOTICE OF AND ORDER FOR PROBABLE
CAUSE HEARING in the above-entitled matter.

If you have any questions, please contact me at (651) 361-7943,

[email protected], or via facsimile at (651) 539-0310.

Sincerely,

DARA XIONG
Legal Assistant

Enclosure

cc: Docket Coordinator

 OAH 71-0325-38723

STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS

Troy Kenneth Scheffler, NOTICE OF DETERMINATION OF

PRIMA FACIE VIOLATION
Complainant, AND
NOTICE OF AND ORDER FOR
vs. PROBABLE CAUSE HEARING
Rosemary Franzen,

Respondent.

On October 10, 2022, Troy Kenneth Scheffler (Complainant) filed a Fair Campaign
Practices Complaint (Complaint) with the Office of Administrative Hearings (OAH). The
Complaint alleges that Rosemary Franzen (Respondent) violated Minn. Stat. §§ 211A.02
and 211B.04 (2022) in connection with her campaign for Crow Wing County
Commissioner for District 4 in the general election to be held on November 8, 2022.

Following a review of the Complaint and attached documents, the undersigned

Administrative Law Judge determines that the Complaint establishes prima facie
violations of Minn. Stat. §§ 211A.02 and 211B.04. For the reasons detailed in the
Memorandum below, the Complaint will proceed to a probable cause hearing.

THEREFORE, IT IS HEREBY ORDERED AND NOTICE IS GIVEN that this matter

is scheduled for a probable cause hearing to be held before the undersigned
Administrative Law Judge at 11:00 a.m. on Tuesday, October 18, 2022. The hearing will
be held by call-in telephone conference. At the appointed time, the parties are directed to
do the following:

(a) Call 877-304-9269

(b) And enter conference code 260088#

The probable cause hearing will be conducted pursuant to Minn. Stat. § 211B.34
(2022). Information about the probable cause proceedings and copies of state statutes
may be found online at http://mn.gov/oah and www.revisor.leg.state.mn.us.

At the probable cause hearing, all parties have the right to be represented by legal
counsel or appear on their own behalf. In addition, the parties have the right to submit
evidence, affidavits, documentation, and argument for consideration by the Administrative
Law Judge.
 By 11:00 a.m. on Monday, October 17, 2022, the parties shall provide to the
Administrative Law Judge all evidence bearing on the case, with copies of the same
items sent to the opposing party.

Any document filed with the Office of Administrative Hearings, or any documents
that a party wishes to make part of the hearing record, may be filed in one of the following
ways: (1) by eFiling through the Office of Administrative Hearings’ eFiling system;
(2) by mail; (3) by facsimile; or (4) by personal delivery.

The eFiling system is accessible at: http://mn.gov/oah/forms-and-filing/efiling/.

The Office of Administrative Hearings’ facsimile number is (651) 539-0310.

After the probable cause hearing, the Administrative Law Judge will either:
(1) dismiss the Complaint based on a determination that the Complaint is frivolous, or that
there is no probable cause to believe that the violation of law alleged in the Complaint
has occurred; or (2) determine that there is probable cause to believe that the violation of
law alleged in the Complaint has occurred and refer the case to the Chief Administrative
Law Judge to schedule an evidentiary hearing. Evidentiary hearings are conducted
pursuant to Minn. Stat. § 211B.35 (2022).

If the Administrative Law Judge dismisses the Complaint, the Complainant may
seek reconsideration of the decision on the record by the Chief Administrative Law Judge
pursuant to Minn. Stat. § 211B.34, subd. 3.

Any party who needs an interpreter or an accommodation for a disability to

participate in this hearing process may request one. Please advise the OAH in writing as
soon as possible if either an accommodation or an interpreter is needed. The OAH
requires that any party requesting an accommodation for a disability fill out a request for
accommodations form as soon as possible to ensure that all accommodation requests
are fulfilled. That form can be found at: https://mn.gov/oah/assets/ada-accommodation-
request-form-title-ii_tcm19-440435.pdf.

A failure by any party to participate and appear by telephone at the probable

cause hearing may result in a finding of default, and the Complaint may be
dismissed or disposed of pursuant to Minn. Stat. § 211B.35, subd. 2.

Dated: October 12, 2022

___________________________
JESSICA A. PALMER-DENIG
Administrative Law Judge

[181294/1] 2
 MEMORANDUM

Respondent is the incumbent candidate seeking re-election to the Crow Wing

County Commissioners, District 4 seat, in the general election to be held on November 8,
2022. The Complaint alleges that Respondent violated campaign financial reporting
requirements under Minn. Stat. § 211A.02, and prepared and disseminated campaign
material lacking disclaimers substantially in the form required by Minn. Stat. § 211B.04.1

Complainant alleges that:

(1) Respondent violated Minn. Stat. § 211A.02, subd. 1(a), by failing to file a
campaign financial report within 14 days after exceeding $750 in contributions or
disbursements;

(2) Respondent violated Minn. Stat. § 211A.02, subd. 2(6), by failing to provide
the information required for contributions exceeding $100;

(3) Respondent violated Minn. Stat. § 211B.04, by disseminating campaign

lawn signs with disclaimers printed in a font size that is too small and by disseminating
campaign material (“door knockers”) with disclaimers that lack an address.

I. Standard for Prima Facie Determinations

To establish a prima facie violation of the Fair Campaign Practices Act, a

complainant must allege sufficient facts to show that a violation of law has occurred.2 The
complaining party must submit evidence or allege facts that, if accepted as true, would
be sufficient to prove a violation of Minn. Stat. §§ 211A.01-.14, 211B.01-.37 (2022).3

For purposes of a prima facie determination, this tribunal must accept the facts
that are alleged in the Complaint as true, without independent substantiation, provided
that those facts are not patently false or inherently incredible.4 In determining whether a
complaint alleges sufficient facts to state a prima facie case, reasonable inferences must
be drawn in the light most favorable to the complainant.5

A complaint must be dismissed if it does not include evidence or allege facts that,
if accepted as true, would be sufficient to prove a violation of Minn. Stat. §§ 211A.01-.14,
211B.01-.37.6

1
Complaint (Oct. 10, 2022). On page 1 of the Complaint, Complainant identified four statutory provisions
allegedly violated by Respondent: Minn. Stat. §§ 211A.02, 211B.02, 211B.04 and 211B.06 (2022). The
Complaint, however, only addresses and alleges facts related to the two violations considered in this order.
The Administrative Law Judge, therefore, considered only the two statutory violations addressed in the
Complaint.
2
Minn. Stat. § 211B.32, subd. 3 (2022).
3
Barry v. St. Anthony-New Brighton Indep. Sch. Dist. 282, 781 N.W.2d 898, 902 (Minn. Ct. App. 2010).
4
Id.
5
Abrahamson v. St. Louis Cty. Sch. Dist., 819 N.W.2d 129, 136 (Minn. 2012).
6
Barry, 781 N.W.2d at 902.
[181294/1] 3
II. Campaign Financial Reporting (Minn. Stat. § 211A.02)

Under Minn. Stat. § 211A.02, subd. 1, candidates or committees who receive

contributions or make disbursements of over $750 in a calendar year must file financial
reports with the appropriate filing officer.7 A candidate or committee who receives
contributions or makes disbursements of more than $750 in a calendar year must submit
an initial report to the filing officer within 14 days after the candidate or committee receives
or makes disbursements of more than $750.8

Thereafter, the candidate or committee shall continue filing the reports listed in
Minn. Stat. § 211A.02, subd. 1(b), until a final report is filed.9 These reports include a
report filed ten days before the primary election, ten days before the general election, and
30 days after the general election.10

Minn. Stat. § 211A.02, subd. 2, governs the information a candidate or committee

is required to include in the campaign financial report. Candidates or committees are
required to report their total cash on hand, the total amount of contributions and
disbursements, and the amount, date, and purpose of each disbursement.11 They are
also required to provide the name, address, employer, or occupation if self-employed, of
each individual contributor who made a contribution that exceeds $100.12

In support of his Complaint, Complainant submitted a campaign financial report

filed by Respondent.13 The report is dated October 3, 2022, and covers the period from
August 26, 2022, through October 3, 2022.14 The report identifies a total of $600 in
contributions received and $0 cash on hand.15 The report also identifies one disbursement
in the amount of $1,065.97 for “door hangers” made on August 26, 2022.16

Complainant alleges that Respondent should have filed her campaign financial
report within 14 days of her disbursement for the door hangers on August 26, 2022.
Complainant contends that Respondent’s failure to file her report by September 9, 2022,
violated section 211A.02, subd. 1(a).

Complainant also asserts that Respondent failed to report and provide the required
information for donations received in amounts greater than $100. Complainant does not
allege any facts to support his claim that Respondent received such donations. Instead,
Complainant states that the “odds of [Respondent] receiving numerous smaller donations

7
The “filing officer” is the officer authorized to accept affidavits of candidacy or nominating petitions for an
office. See Minn. Stat. § 211A.01, subd. 7.
8
Minn. Stat. § 211A.02, subd. 1(a).
9
Id.
10
Id., at subd. 1(b).
11
Id. at subd. 2(3)-(5).
12
Id. at subd. 2(6).
13
Complaint, Attachment 1.
14
Id.
15
Id.
16
Id. (“Door hangers” are typically campaign material distributed while door knocking and hung on residents’
doors.)
[181294/1] 4
to coincidentally amount to the maximum individual donation of $600 is incredibly
unlikely.”17

Accepting the facts alleged as true, which is required at this stage of review, the
Administrative Law Judge finds Complainant has alleged sufficient facts to support finding
a prima facie violation of section 211A.02, subd. 1(a) by Respondent. If August 26, 2022,
was the date Respondent first met the $750 reporting threshold as a local candidate, her
initial report should have been filed on or before September 9, 2022. This claim will
proceed to the probable cause hearing.

The Administrative Law Judge notes, however, that the “initial report” is a one-time
report for candidates or committees. Thereafter, in each year following “the year when
the initial report was filed,”18 the candidate or committee files reports required by section
211A.02, subd. 1(b). Filing the initial report is a singular event that sets in motion the
annual reporting required by a candidate or committee until a final report is filed.19
Therefore, if Respondent made an initial report as a candidate prior to August 26, 2022,
she is now only required to file campaign financial reports pursuant to section 211A.02,
subd. 1(b). The record as it stands does not provide sufficient facts to permit a
determination as to Respondent’s filing history. Respondent may address this issue at
the probable cause hearing.

As for the alleged violation of Minn. Stat. § 211A.02, subd. 2(6), Complainant did
not provide any facts to support finding Respondent received contributions in amounts
greater than $100 that would require reporting additional donor information.
Complainant’s speculation that it seems unlikely Respondent received numerous small
contributions is insufficient to support a prima facie violation of this provision. This claim
is dismissed.

III. Disclaimer Requirement (Minn. Stat. § 211B.04)

Under Minn. Stat. § 211B.04, subd. 1, it is unlawful to prepare or disseminate most

types of campaign material without prominently disclosing the name and address of the
person or committee causing the material to be prepared or disseminated.20 The statute
requires inclusion of a disclaimer providing the name and address of the committee that
prepared and paid for the material, and the disclaimer must read substantially as follows:
“Prepared and paid for by the ________ committee ________ (address).”21

The address must be either the committee’s mailing address or the committee’s
website, if the website includes the committee’s mailing address.22 For written campaign

17
Complaint at 2.
18
Minn. Stat. § 211A.02, subd. 1(b) (emphasis added). See Snope v. Harris, OAH No. 60-0325-36443,
ORDER OF DISMISSAL at *4 (Oct. 17, 2019).
19
See Minn. Stat. § 211A.03.
20
Minn. Stat. § 211B.04, subd. 1(a). The word “prominent” is not defined in the statute. However,
subdivision 5 provides that for written communications other than an outdoor sign, website, or social media
page, the disclaimer must be in 8-point font or larger.
21
Id. at subd. 1(b).
22
Id.
[181294/1] 5
material other than signs, websites, or social media pages, the disclaimer must be printed
in 8-point font or larger.23

“Campaign material” is defined, in relevant part, as any literature, publication, or

material disseminated for the purpose of influencing voting.24 The purpose of the
disclaimer requirement is to “identify who or what committee prepared, disseminated and
paid for the campaign material.”25

Complainant submitted images of Respondent’s campaign lawn signs in support

of his Complaint.26 Complainant asserts that the signs have a disclaimer in “microscopic”
font listing “Volunteers for Franzen” as the responsible committee and Respondent’s
home address.27 The disclaimer is not visible in the images Respondent submitted.28
Complainant did not submit an image of Respondent’s door hangers but he maintains
that the disclaimer on these materials states only “Volunteers for Franzen” and does not
include an address.29

Respondent’s door knockers and signs are campaign material that must
“prominently include” a disclaimer “substantially in the form” provided under Minn. Stat.
§ 211B.04, unless the materials qualify for an exception provided by the statute.30
Accepting the facts alleged as true, Respondent’s campaign material does not include
disclaimers substantially in the form required by section 211B.04. Respondent’s door
knockers include a disclaimer that lacks an address, and Respondent’s signs have a
disclaimer that is too small to be considered “prominent.” Complainant has alleged
sufficient facts to support prima facie violations of section 211B.04.

IV. Conclusion

Complainant has established prima facie violations of Minn. Stat. §§ 211A.02,

subd. 1(a), and 211B.04 by Respondent. These claimed violations will proceed to a
probable cause hearing as ordered above.

J. P. D.

23
Minn. Stat. § 211B.04, subd. 5.
24
Minn. Stat. § 211B.01, subd. 2.
25
Hansen v. Stone, OAH No. 4-6326-16911, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER at 4 (Minn.
Off. Admin. Hearings Oct. 28, 2005).
26
Complaint, Attachments 2-4.
27
Complaint at 2-3.
28
Id.
29
Id.
30
See Minn. Stat. § 211B.04, subd. 3.
[181294/1] 6