Debra Roschen recall petition

Title: Petition to Seek Removal of Wabasha County Commissioner Debra Roschen

Summary: The purpose of this petition is to seek the removal of Wabasha County CommissionerDebra Roschen based on the alleged acts of malfeasance described in this petition.

Signer's Oath: "I solemnly swear (or affirm) that I am an eligible voter residing in the districtwhere the county officer serves; I know the purpose and content of the petition; and I signed

the petition only once and of my own free will."

All information on this petition is subject to public inspection.

PETITION FOR THE RECALL OF A WABASHA COUNTY COMMISSIONERROSCHEN

This petition requests the removal of Wabasha County Commissioner Debra Roschen for fourcounts of alleged malfeasance occurring throughout the course of her brief ten-month period inoffice. The alleged violations all relate to acts committed by Commissioner Roschen during theperformance of her official duties. It is the Petitioners' position that these acts exceeded the scopeof Ms. Roschen's authority, which is both granted and limited by statute, and infringed upon therights of others.

This petition first provides an overview of the relevant Minnesota statutes governing the duties ofelected public officials and the rights of the people who elected them to serve on their behalf. Itthen sets forth four separate incidents that Petitioners allege to be malfeasant based on thesestatutes.

It should be noted that Petitioners also believe there are many more incidents and supporting datathat indicate Commissioner Roschen has committed additional acts of malfeasance. Thisinformation has been discovered through extensive research of public documents, as well as reviewof minutes and videos documenting Wabasha County Board Meetings. The counts recited in thispetition are those that best illustrate Commissioner Roschen's repeated and willful behavior incontravention of Minnesota law.

BACKGROUND: THE LAWS GOVERNING COUNTIES AND THEIR OFFICIALS

Chapter 373 of Minnesota Statutes governs the powers, duties, and privileges of counties as a bodypolitic and corporate. See generally Mnw. STAT. §§ 373.01 - 373.51 (2010). Section 373.02 ofthis chapter explicitly states that a county's powers "shall only be exercised by the county board orin pursuance of a resolution adopted by the county board." MINN. STAT. § 373.02 (2010) (emphasisadded). It does not authorize individual board members or citizens to exercise county powers. Id.For example, the board as a whole must supervise administrative officers, formulate policies, andexercise county powers. See HANDBOOK FOR MINNESOTA COUNTIES, Ch. 6, § II(A). Asindividuals, board members have no administrative authority. Id. This means that individualcounty commissioners cannot give orders or otherwise supervise county employees unless they aredoing so at the direction of the board or in pursuance of a resolution adopted by the board. Id.; seealso MINN. STAT. § 373.02 (2010).






Chapter 375 of Minnesota Statutes establishes the existence of the county board and enumerates itspowers and responsibilities. See generally MINN. STAT. §§ 375.01 -351.87, 375.18 (2010).Additionally, Chapter 375A of Minnesota Statutes authorizes the county board to select its form ofgovernance. See generally MINN. STAT. §§ 375A.01 - 375A.13 (2010). Section 375A.01 inparticular authorizes the county board to adopt the "county administrator plan." MINN. STAT.§ 375A.01, subd. 2(a)(4) (2010). For the past eighteen years, Wabasha County has operated underthe county administrator plan.

The county administrator plan allows the county board to appoint and employ a countyadministrator. MINN. STAT. § 375A.06, subd. 1 (2010). The county administrator must be selected"solely on the basis of training, experience, and administrative qualifications" and serves for anindefinite period of time at the pleasure of the county board. Id. The Wabasha CountyAdministrator is David Johnson. In addition to his experience working for Wabasha County, Mr.Johnson has a graduate degree in public administration, a graduate degree in American government,and thirty-four years' experience in municipal administration.

The county administrator serves as the "administrative head of the county" and is responsible for"the proper administration of the affairs of the county." MINN. STAT. § 375A.06, subd. 4 (2010).The county administrator also may be required by the county board to act as the department head ofany county department that requires an appointed director. Id. The Wabasha County Boardrequires Mr. Johnson to act as the department head of the Wabasha County Human ResourcesDepartment. Accordingly, Mr. Johnson oversees all of the County's human resources functionsfrom personnel management to employee benefits and, in this capacity, is responsible forapproximately 175 full-time County employees.

If the county board decides to remove a county administrator after he has served in his capacity formore than one year, the county administrator is entitled to demand written charges and a publichearing on such charges before final removal occurs. MINN. STAT. § 375A.06, subd. 1 (2010). Mr.Johnson has served in his capacity as Wabasha County Administrator since his appointment inFebruary 2008. Accordingly, he is entitled to demand that written charges of any allegedmisconduct be presented to him and to demand that a public hearing be held to discuss such chargesbefore the Wabasha County Board takes final action to remove him from his position.

Minnesota Statutes provide for the existence of other elected county officials besides the countycommissioners elected to serve on the county board. See e.g. MINN. STAT. §§ 384.01 (countyauditor), 387.01 (sheriff), 388.01 (county attorney). Each of these elected officials is imbued withspecific powers and duties that are unique to their respective offices. Id.






Chapter 351 of Minnesota Statutes addresses the removal of elected county officials in Sections351.14 through 351.23. See generally MINN. STAT. §§351.14-351.23 (2010). The definition of"elected county official" in Section 351.14 includes "a county commissioner elected or appointedfrom a commissioner district." MINN. STAT. § 351.14. subd. 5 (2010). Under Minnesota law:

Any registered voter may petition the county auditor requesting a removal electionand setting forth facts which allege with specificity that an elected county officialcommitted malfeasance or nonfeasance in the performance of official duties duringthe current or any previous term in the office held by the elected county official,except that a petition may not be submitted during the 180 days immediatelypreceding a general election for the office which is held by the county official namedin the petition.

MINN. STAT. § 351.16, subd. 1 (2010). Malfeasance is defined as, "The willful commission of anunlawful or wrongful act in the performance of a public official's duties which is outside the scopeof the authority of the public official and which infringes on the rights of any person or entity."MINN. STAT. § 351.14, subd. 2 (2010).

In addition to alleging specific facts to support a charge or charges of malfeasance, the petition mustinclude signatures from registered voters. MINN. STAT. § 351.16, subd. 1 (2010). The number ofsignatures must total at least twenty-five percent (25%) of the number of people who voted in theelection that placed the named county official in office. MINN. STAT. § 351.16, subd. 1 (2010). Theregistered voters signing the petition must be residents of the commissioner district from which thenamed county official was elected if the petition seeks the removal of a county commissioner. Id.

The undersigned Petitioners are registered voters who are residents of Wabasha County DistrictTwo, the district that Commissioner Roschen was elected to represent. Additionally, this petitionsets forth below the specific facts to allege that Commissioner Roschen committed malfeasance inthe performance of her official duties during her current term in the office of Wabasha CountyCommissioner. These facts allege that Commissioner Roschen acted outside the scope of herauthority as a Wabasha County Commissioner in the performance of her official duties and that sheinfringed on the rights of multiple people in so doing. Commissioner Roschen was elected in 2010and the next general election for the office she currently holds will be held in November 2014.Accordingly, this Petition is not being submitted during the 180 days immediately precedingelection for her office.






BACKGROUND: BASIC RIGHTS OF MINNESOTA CITIZENS

Much like its federal counterpart, the Constitution of the State of Minnesota provides certain basicrights to its citizens. MINN. CONST., Art. !,§§!- 17. Citizens of Minnesota shall not "be deprivedof life, liberty, or property without due process of law." Id. at § 7. Courts consistently haveinterpreted this language as protecting the right of an individual to pursue the occupation or careerof his choice and to seek damages or other relief against one who interferes with this right. See e.g.Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Brooks v. InternationalBrotherhood of Boilermakers, 114 N.W.2d 647, 653 (Minn. 1962) (citing Gray v. Building TradesCouncil, 97 N.W. 663, 667 (Minn. 1903)).

The rights of Minnesota citizens also are protected in specific statutes, such as the MinnesotaGovernment Data Practices Act and the Minnesota Open Meeting Law. See generally MINN. STAT.§§ 13.01 - 13.99; 13D.01 - 13.07 (2010). These particular laws protect "the right of the public toknow what the government is doing," while balancing certain other privacy rights and interests ofgovernment employees. KSTP-TVv. Ramsey County, 787 N.W.2d 198, 200 (Minn. App. 2010); seealso Channel 10, Inc. v. Independent School District No. 709, 215 N.W.2d 814, 821 (Minn. 1974).The Minnesota Open Meeting Law protects this right by ensuring that the public can "become fullyinformed concerning board decisions [and] detect improper influences," as well as by "affording]the public an opportunity to present its views to the board." Lindahl v. Independent School DistrictNo. 306, 133 N.W.2d 23, 26 (Minn. 1965); Sullivan v. Credit River Township, 217 N.W.2d 502, 506(Minn. 1974). Furthermore, the Minnesota Official Records Act requires all public officers to"make and preserve all records necessary to a full and accurate knowledge of their officialactivities." MINN. STAT. § 15.17, subd. 1 (2010).

FOUR REASONS TO REMOVE WABASHA COUNTY COMMISSIONER ROSCHEN

Count 1: Commissioner Roschen willfully committed a wrongful act in the performance of herofficial duties that exceeded the scope of her authority when she unilaterally directed theCounty Administrator to terminate a County employee. In so doing, she infringed on theright of an individual to pursue the occupation of her choice.

In June 2011, a social worker with Wabasha County Social Services assisted a County resident withhis application for certain public services. The social worker explained to the applicant that itwould take her about two weeks to process his application due to her department's backlog of casefilings. She also explained that the backlog arose from an under-staffed office dealing with anoverwhelming number of applications and filings with Social Services—both of which are caused






by the current economic climate. Because the applicant exhibited frustration and anger with asituation beyond the social worker's control, the social worker directed him to speak with hiselected county commissioner to express his concerns and complaint. The applicant then contactedthe two commissioners he believed represented him, one of whom was Commissioner Roschen.

The applicant apparently conveyed the content of his conversation with the social worker toCommissioner Roschen. Commissioner Roschen interpreted the social worker's comment aboutunder-staffing in Social Services as an insubordinate act and as a personal attack against her.Commissioner Roschen did not raise this concern to the Wabasha County Board, nor didCommissioner Roschen seek to implement the Wabasha County Personnel Policy § 210 that wasadopted by resolution of the County Board which in large part provides that the CountyAdministrator and County department heads are to oversee the County's disciplinary policy.Rather, Commissioner Roschen contacted County Administrator Johnson about this situation anddirected him to terminate the social worker.

These facts allege with specificity that Commissioner Roschen committed malfeasance. First, sheattempted to exercise county powers—here, the supervision of an employee—unilaterally andwithout the consent of or at the direction of the Board as a whole. Second, Commissioner Roschendid not act in pursuance of a resolution adopted by the Board. In fact, she acted in direct and willfulcontravention of the Board's resolution to pursue employee disciplinary matters in a consistentmanner and in accordance with the County's Personnel Policy. This demonstrates thatCommissioner Roschen willfully committed the wrongful act of exercising county powers as anindividual in the performance of her official duties and that this act exceeded her scope of authorityas County Commissioner. Third and finally, Commissioner Roschen's unilateral decision toterminate a County employee in violation of a Board-adopted resolution infringed on the right of thesocial worker to pursue employment in the occupation of her choice.

For the foregoing reasons, Petitioners assert and allege that these acts constitute malfeasance.

Count 2: Commissioner 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 the employee at a public meeting of the CountyBoard. In so doing, she infringed on the right of an individual to pursue the occupation of hischoice.

The Wabasha County Board held a public strategic planning meeting on June 14, 2011, to discussthe organization and operation of various County departments, including the Wabasha County






Highway Department. As the Board proceeded to discuss the Highway Department and itsorganization, Commissioner Roschen focused on the behavior of a specific employee in theHighway Department. Commissioner Roschen made specific statements that this employee wasoverweight, had poor work ethic, stole County property several years ago, and falsified time cards.These statements were made without any evidence to support them other than CommissionerRoschen's opinion. Commissioner Roschen also stated that this employee should be terminated.The County Highway Engineer, the individual who acts as head of the Highway Department andwho is charged with supervising this employee, did not terminate this employee. In fact, the CountyHighway Engineer never took any disciplinary action against this employee and believes him to bea competent member of his staff.

These facts allege with specificity that Commissioner Roschen committed malfeasance. First, shewrongfully made false accusations in a public forum about a County employee in the performanceof her official duties as a County Commissioner at a Board planning meeting. This act likely risesto the level of civil defamation, a long-recognized tort under Minnesota law, and potentially rises tothe level of criminal defamation. See e.g. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919-20(Minn. 2009) (stating that defamation occurs when an individual makes a false statement aboutanother person, communicates the false statement to a third person or persons, and the falsestatement "tends to harm the [subject's] reputation and to lower the [subject] in the estimation of thecommunity.") (citations omitted); MINN. STAT. § 609.765, subd. 2 (2010) (stating that, "Whoeverwith knowledge of its defamatory character orally, in writing or by any other means, communicatesany defamatory matter to a third person without the consent of the person defamed is guilty ofcriminal defamation.").

Second, this act clearly was outside Commissioner Roschen's scope of authority because Minnesotalaw does not grant county commissioners the right or power to defame individuals—particularlyindividuals who are County employees. In fact, Minnesota law explicitly describes its position onthe relationship between public employers and public employees:

It is the public policy of this state and the purpose of [the Public Employment LaborRelations Act] to promote orderly and constructive relationships between all publicemployers and their employees . . . The relationships between the public, publicemployees, and employer governing bodies involve responsibilities to the public anda need for cooperation and employment protection which are different from thosefound in the private sector.






MINN. STAT. § 179A.01, subd. 1 - 2 (2010 (emphasis added). Certainly announcing at a publicmeeting that a County employee is "fat" and "lazy" and broke the law by stealing from the Countydoes not uphold the public policy of promoting orderly and constructive relationships, nor does itexhibit the need for cooperation and employment protection that the State of Minnesota strives toachieve for public employees.

Third and finally, Commissioner Roschen's wrongful act of making entirely inappropriate andlikely defamatory statements regarding this employee infringed on his right to pursue employmentin the occupation of his choice. While it is true that the County Highway Engineer did not take anydisciplinary action against the employee, it well could have resulted in a negative impact on theemployee's ability to retain his position. Furthermore, because this information was disseminated ata public meeting, it still may have ramifications on future employment that the employee chooses toseek these statements tend to harm his reputation and standing in the community.


Count 3: Commissioner Roschen willfully commits wrongful acts in the performance of herofficial duties with her continuous and systematic attempts to circumvent the requirements ofthe Minnesota Government Data Practices Act, the Minnesota Open Meeting Law, and theMinnesota Official Records Act. In so doing she infringes on the rights of the citizens of theCounty to know what their government is doing.

On multiple occasions—too numerous to recount individually herein—Commissioner Roschenwillfully and wrongfully distributed printed materials to each of the Board members, but did notprovide at least one copy for inspection by the public as required by the Minnesota Open MeetingLaw. See MINN. STAT. § 13D.01, subd. 6 (2010). Clearly, this willful violation of a fairly straight-forward and easily attainable statutory provision occurred in the performance of CommissionerRoschen's official duties and exceeded the scope of her authority because county commissioners arenot entitled to keep public, non-classified documents secret. In fact, as noted above, public officialssuch as Commissioner Roschen are required to make and preserve records to inform the publicabout what their government—and, specifically, their elected officials—are doing. Furthermore,this type of behavior infringes on the public's right to be informed about and have knowledge of theactivities of their government.

A specific example of this behavior occurred as recently as October 25, 2011, when CommissionerRoschen distributed copies of a Minnesota Statutes Section to each Board member. This particulardocument addressed various responsibilities and duties of a county attorney's office. Commissioner






Roschen did so without providing at least one copy of the printed material for public inspectionwhile an agenda item related to the Wabasha County Attorney's Office was being discussed.Notwithstanding the fact that she has been informed on multiple occasions that she is required tocomply with this particular statutory provision, Commissioner Roschen again flagrantly andwillfully violated the Minnesota Open Meeting Law. Again, this behavior occurred during theperformance of Commissioner Roschen's official duties while participating in a Board meeting andobviously exceeded the authority granted to her because she is not entitled to violate Minnesota lawas a county commissioner. Additionally, this behavior infringed on the rights of each and everyWabasha County citizen to be informed of what their government and elected officials are doing.

Another example of this behavior occurred on August 9, 2011. On this occasion, CommissionerRoschen raised an action item that was not included on the Board agenda and attempted to call avote on it. This particular action item was a motion to adopt a resolution in favor of acomprehensive strategic planning proposal. This proposal encompassed sixty-nine differentprovisions that affected matters ranging from budget and staffing cuts in Wabasha County VeteransServices to elimination of an entire division of the Wabasha County Public Health Department.Each provision was set forth on a separate note card. Each note card was circulated among thecommissioners and each commissioner put a circular sticker on any provision with which theyagreed and wanted to adopt. Commissioner Roschen then made a motion to adopt all provisionsthat received three or more "dots"—which, of course, actually were votes on these particularprovisions. The Wabasha County Attorney, James Nordstrom, informed Commissioner Roschenand the rest of the Board that these votes needed to be recorded pursuant to Minnesota StatutesSections 13D.01 and 15.17. See MINN. STAT. § 13D.01, subd. 4 (2010) (stating that "The votes ofthe members . . . of the governing body . . . must be recorded in a journal kept for that purpose.")(emphasis added); MINN. STAT. § 15.17, subd. 1 (2010) (requiring all public officials to, "make andpreserve all records necessary to a full and accurate knowledge of their official activities.")(emphasis added). County Attorney Nordstrom also informed the Board that the proposal shouldnot be adopted that was not on the agenda and of which the public had not been provided notice.Commissioner Roschen then amended her motion to adopt the proposal and made a motion to adoptthe resolution, but delay the date that the sixty-nine provisions would take effect. The note cardseventually were surrendered to County Administrator Johnson, but only after significant argumentfrom Commissioner Roschen about whether the votes should be "recorded."

Commissioner Roschen not only willfully and wrongfully raised an item for discussion andadoption that was not on the agenda, she also willfully and wrongfully did so without providing anyprinted material explaining or even outlining the sixty-nine different provisions that would have far-reaching consequences for the County. It is difficult to imagine how the public could exercise its






right to voice its opinion on a matter at a meeting when no notice was given that such a matterwould be discussed. Furthermore, certain of these provisions actually may have subjected theCounty to civil liability. This behavior was exacerbated by Commissioner Roschen's willful andwrongful attempt to circumvent the mandates of Minnesota law by refusing to have the votesrecorded until begrudgingly persuaded by continued and accurate advice from the County Attorney.These willful and wrongful acts occurred in the performance of Commissioner Roschen's officialduty of participating in a County Board meeting and exceeded the authority granted to her because,once again, she is not entitled to violate Minnesota law in her capacity as a county commissioner.In committing these willful and wrongful acts, Commissioner Roschen not only infringed on therights of the citizens of Wabasha County to be informed and aware of the activities of theirgovernment, she actively attempted to prevent the public from gaining knowledge about theseactivities.


Count 4: Commissioner Roschen willfully committed wrongful acts in the performance of herofficial duties that exceeded her authority when she demanded another elected official toperform an act not required by law and indicated she would take adverse action if he failed tocomply. In so doing, she infringed on the right of an individual to perform his official dutiesand exercise his authority in a manner he deemed appropriate.

In April 2011, Commissioner Roschen approached Sheriff Rodney Bartsh regarding proposedlegislation authored by a Minnesota State Representative. The effect of this proposed legislation, ifenacted, would be to remove the authority of the Minnesota Department of Corrections to determinethe number of staff necessary to secure county jails properly and place that authority in the hands ofcounty boards. After reviewing the proposed legislation on his own and consulting with theMinnesota Sheriffs Association on their opinion, Sheriff Bartsh determined that this legislation, ifenacted, would have an adverse impact on the citizens of Wabasha County and jeopardize the safetyof jail staff, inmates, and the County community as a whole. Accordingly, Sheriff Bartsh deniedCommissioner Roschen's request that he appear at the Minnesota State Legislature and advocate onthe legislation's behalf.

Commissioner Roschen responded to Sheriff Bartsh's decision by sending a series of threateningelectronic mail messages. Specifically, she indicated that Sheriff Bartsh's decision would have anegative impact on the budget of the Sheriffs Office: "Without the cooperation of departmentheads on opportunities like this, the cuts will likely be deep and painful. Something for you toponder while there is still time to do the right thing!" She also made assorted comments related to






the equipment necessary for Sheriff Bartsh to perform his statutorily mandated official duties ofkeeping and preserving the peace of Wabasha County.

These facts allege with specificity that Commissioner Roschen committed malfeasance. First, shewillfully committed the wrongful act of supervising a County employee—in fact, not just a Countyemployee, but an elected County official—in the performance of her official duties and without theconsent of or in pursuance of a resolution adopted by the Board. In fact, Commissioner Roschenmentioned this proposed legislation at a Board meeting and the Board decided not to take any actionon the matter or adopt a resolution in favor of lobbying for its passage. Accordingly, CommissionerRoschen exceeded the scope of her authority when she attempted to exercise the powers of thecounty as an individual without consent of or pursuant to the resolution of the Board.

Second, Commissioner Roschen willfully committed a wrongful act in the performance of herduties and exceeded the scope of her authority when she implied that Sheriff Bartsh's budget wouldbe reduced if he did not "do the right thing." Minnesota law specifically provides that a Board'sdecision regarding the sheriffs budget shall not be arbitrary, capricious, unreasonable oroppressive. See e.g. MINN. STAT. § 387.20, subd. 7 (2010); Stenslandv. Faribault County, 365N.W.2d 224, 227 (Minn. 1985). It is hard to imagine a more unreasonable or capricious situationthan one in which a county official, duly elected to keep and preserve the peace of the community,is threatened with a reduced budget if he fails to advocate on behalf of proposed legislation thatdoes not conform with his professional opinion of how to preserve such peace.

Third, Commissioner Roschen infringed on Sheriff Bartsh's right to pursue the occupation of hischoice by questioning his professional opinion and implicating that negative consequences wouldoccur unless he did as she asked. Furthermore, Commissioner Roschen infringed on the right of theWabasha County Sheriffs Office as an entity to receive a budget in accordance with Minnesota lawthat takes into account the duties and responsibilities it is required to perform. CommissionerRoschen's suggestion that Sheriff Bartsh's budget could be compromised not because of a shift inhis department's workload but because of a professional opinion in conflict with thecommissioner's personal politics was a direct infringement on the rights of a County entity toreceive the necessary and statutorily required funding to keep it functional.


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Debra Roschen recall petition

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