STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS PO Box 64620 St.

Paul, MN 55164-0620

COMPLAINT FORM FOR VIOLATION OF THE FAIR CAMPAIGN PRACTICES AND CAMPAIGN FINANCE ACTS
Information about complaint filer
Name of complaint filer

(Complainant)

Common Cause Minnesota

Address

2323 East Franklin Avenue

City, state, zip

Minneapolis, MN 55406
Fax no.

Daytime telephone no. E-mail address

Identify person/entity you are complaining about (Respondent #1)

Name of person/entity being complained about

Republican Party of Minnesota

Address

525 Park St. Suite 250

City, state, zip

Saint Paul, MN 55103

Fax no.

Daytime telephone no.

651-

222-0022
E-mail address

(Respondent #2)
Name of person/entity being complained about

Tony Sutton
Address

8540 Bechtel Avenue

City, state, zip

Inver Grove Heights, Minnesota 55076

Fax no.

Daytime telephone no. E-mail address

(Respondent #3)
Name of person/entity being complained about

Ron Huettl
Address

1905 Blue Stem Lane

City, state, zip

Shoreview, Minnesota 55126

Fax no.

Daytime telephone no. E-mail address

(Respondent #4)
Name of person/entity being complained about

Count Them All Properly, Inc.

Address

165 Western Ave N. #210

City, state, zip

St. Paul, MN 55102

Fax no.

Daytime telephone no. E-mail address

(Respondent #5)
Name of person/entity being complained about

Mary Igo
Address

165 Western Ave N. #210

City, state, zip

St. Paul, MN 55102

Fax no.

Daytime telephone no. E-mail address

(Respondent #6)
Name of person/entity being complained about

Tom Datwyler
Address

740 Regal Ridge Circle

City, state, zip

Hudson, Wisconsin 54016

Fax no.

Daytime telephone no. E-mail address

(Respondent #7)
Name of person/entity being complained about

Fred E. Meyer
Address

2177 Rosewood Lane North

City, state, zip Daytime telephone no. E-mail address

Roseville, Minnesota 55113

Fax no.

Respondent #7)
Name of person/entity being complained about

Dan Puhl
Address

1533 Crowell Road,

City, state, zip Daytime telephone no. E-mail address

Vienna, Virginia 22182

Fax no.

Statues violated: Minn. Stat. 211B.15, subd. 2. and Minn. Stat. 211A.06 Date(s) of violation: November 2010 December 2011. Date of election or ballot question: November 2, 2010. Elected office or ballot question involved: Gubernatorial Race 2010: Tom Emmer (R) vs. Mark Dayton (D). If allowed by law, do you wish to request an expedited probable cause hearing (within 3 business days)? No. I. SUMMARY OF COMPLAINT

On July 13, 2012, the Minnesota Campaign Finance and Public Disclosure Board (Board) issued Findings and Order in the Matter of the Complaint of Common Cause Minnesota regarding the Republican Party of Minnesota and others (Findings and Order). A true and accurate copy of the Findings and Order is attached to this Complaint as Exhibit A.1 The Findings and Order concluded, at least for now, the Boards seven-month investigation into the activities of Count Them All Properly, Inc. (CTAP), a Minnesota corporation, the Republican Party of Minnesota (RPM), and their principals, officers, attorneys, and representatives, in connection with the 2010 gubernatorial election recount. As part of its investigation, the Board took thirteen depositions and received documents from at least eight persons or entities. (Findings and Order at 3.)2 All of that evidence is incorporated herein by reference. Based on its investigation or CTAP, the RPM, and their principals, officers, and representatives, the Board found, among other things, that: The Findings and Order also are available at: http://www.cfboard.state.mn.us/ bdinfo/investigation/07_13_2012_RPM_and_Others.pdf.
1

The Board has made transcripts of these deposition and other discovery documents available at: http://www.cfboard.state.mn.us/bdinfo/investigation/ Public%20Documents/Documents_Index.pdf.
2

1. CTAP made three $9,000 contributions to the RPM, totaling $27,000, when it paid the RPMs obligations to three different law firms, which RPM incurred in connection with the election recount;3 2. CTAP existed for the major purpose of making contributions to the RPM in the form of payments for recount costs that were RPMs obligations;4 3. The RPM omitted its election recount legal fees and other unpaid obligations from its 2010 campaign reports to the Board;5 and 4. The RPM failed to maintain records that would provide in sufficient detail the necessary information from which the RPMs filed campaign reports and statements could be verified, explained, clarified, and checked for accuracy and completeness.6 For these and other violations of Chapter 10A of the Minnesota Statutes, the Board imposed civil penalties on RPM, CTAP, and officers of RPM. (Findings and Order at 26-27.) Common Cause files this Complaint seeking referral to the appropriate County Attorneys Office for criminal prosecution of CTAP, the RPM, and the principals, officers, and representatives of those entities who were responsible for the conduct described above, which violates Minn. Stat. 211B.15 and 211A.06.7 II. A. RELEVANT STATUTORY PROVISIONS

Minn. Stat. 211B.15. Corporate Political Contributions. Subdivision 1. Definitions. For purposes of this section, "corporation" means: (1) a corporation organized for profit that does business in this state; (2) a nonprofit corporation that carries out activities in this state; or

3 4

Ex. A at 26; see also id. at 18-23. Id. at 26. Id. at 25. Id.; see also id. at 10-17.

5 6 7

A review of previous decisions of this Office seems to permit filing against respondents separately or in one complaint. In the event we have erred in combining respondents, Common Cause Minnesota respectfully requests to be informed as soon as possible in order to file two separate complaints. 4

(3) a limited liability company formed under chapter 322B, or under similar laws of another state, that does business in this state. Subd. 2. Prohibited contributions. A corporation may not make a contribution or offer or agree to make a contribution directly or indirectly, of any money, property, free service of its officers, employees, or members, or thing of monetary value to a major political party, organization, committee, or individual to promote or defeat the candidacy of an individual for nomination, election, or appointment to a political office. For the purpose of this subdivision, "contribution" includes an expenditure to promote or defeat the election or nomination of a candidate to a political office that is made with the authorization or expressed or implied consent of, or in cooperation or in concert with, or at the request or suggestion of, a candidate or committee established to support or oppose a candidate but does not include an independent expenditure authorized by subdivision 3. *** Subd. 6. Penalty for individuals. An officer, manager, stockholder, member, agent, employee, attorney, or other representative of a corporation acting in behalf of the corporation who violates this section may be fined not more than $20,000 or be imprisoned for not more than five years, or both. Subd. 7. Penalty for corporations. A corporation convicted of violating this section is subject to a fine not greater than $40,000. A convicted domestic corporation may be dissolved as well as fined. If a foreign or nonresident corporation is convicted, in addition to being fined, its right to do business in this state may be declared forfeited. *** Subd. 13. Aiding violation; penalty. An individual who aids, abets, or advises a violation of this section is guilty of a gross misdemeanor. Subd. 14. Prosecutions; venue. Violations of this section may be prosecuted in the county where the payment or contribution was made, where services were rendered, or where money was paid or distributed. *** B. Minn. Stat. 211A.06. Failure to Keep Account; Penalty. 5

A treasurer or other individual who receives money for a committee is guilty of a misdemeanor if the individual: (1) fails to keep a correct account as required by law; (2) mutilates, defaces, or destroys an account record; or (3) in the case of a committee, refuses upon request to provide financial information to a candidate; and (4) does any of these things with the intent to conceal receipts or disbursements, the purpose of receipts or disbursements, or the existence or amount of an unpaid debt or the identity of the person to whom it is owed. III. A. FACTUAL BASIS FOR ESTABLISHMENT OF A PRIMA FACIE CASE The Respondents.

CTAP was organized on December 3, 2010, and it is registered as a domestic corporation under Minn. Stat. Ch. 302A.8 During the relevant time period: (1) Mary Igo was the CEO of CTAP;9 (2) Tom Datwyler was the secretary of CTAP and a member of its board of directors;10 (3) Fred Meyer was a member CTAPs board of directors;11 and (4) Dan Puhl was the original incorporator of CTAP.12 CTAP is a corporation for purposes of Minn. Stat. 211B.15.13 In its Findings and Order, the Board found that CTAP existed for the major purpose of making contributions to the RPM in the form of payments for recount costs that were RPM obligations.14 The RPM is a major political party. See Minn. Stat. 10A.01, subd. 23 and 200.02, subd. 7. During the relevant time period: (1) Tony Sutton was the chair of the RPM;15 and (2) Ron Huettl was its finance director.16 See Exhibit D, Business Record Details for CTAP obtained from the Minnesota Secretary of States website.
8 9 10 11 12 13 14 15 16

Id; see also Ex. A at 3. Ex. A at 3. Id. Id. See Minn. Stat. 211B.15, subd. 1. Ex. A at 26. Ex. A at 3. Id. 6

B.

Respondents Violations of Minn. Stat. 211B.15.

In its recent Findings and Order, the Board found, among other things, that in 2010, CTAP made three $9,000 payments for attorneys fees [incurred by the RPM], resulting in three contributions to the RPM.17 Although the Board imposed civil penalties on certain of the Respondents for their involvement in this and related conduct under Chapter 10A of the Minnesota Statutes, the Board does not have the authority to enforce Chapter 211B. Instead, that power is vested in the county attorneys. Minn. Stat. 211B.16. Because CTAPs contribution to the RPMas determined by the Board following a thorough seven month investigationviolates the prohibition on corporate contributions included in Minn. Stat. 211B.15, subd. 2, this matter should be referred to the appropriate county attorney for prosecution. As noted above, corporations are expressly prohibited from making direct or indirect contributions to a political party or individual to promote or defeat the candidacy of an individual for election to a political office. Minn. Stat. 211B.15, subd. 2. Corporations that violate this statute, and the principals, officers, and representatives of a corporation that violate or aid and abet a violation of this statute, are subject to significant penalties. CTAP is a corporation, and it existed for the major purpose of making contributions to the RPM in the form of payments for recount costs that were RPM obligations.18 In other words, CTAP existed for the major purpose of violating Minn. Stat. 211B.15, and the Boards Findings and Order demonstrate that RPM and its officers knowingly accepted these illegal contributions from CTAP. As a result of their violation of the Minn. Stat. 211B.15, CTAP and the RPM both are subject to a fine of not more than $40,000, corporate dissolution, and/or an order revoking their right to do business in Minnesota.19 Similarly, for the same conduct, the principals, officers, and representatives of CTAP and the RPM are subject to a fine of not more than $20,000, may be imprisoned for not more than five years, or both.20 And finally, any person found to have aided, abetted, or advised a violation of the statute is guilty of a gross misdemeanor.21 Given their involvement in the violation of Minn. Stat. 211B.15 by CTAP and the RPM, the individual Respondentsin addition to CTAP and the RPM should be referred to the appropriate county attorney for prosecution. Evidence

17 18 19 20 21

Ex. A at 26. Id. Minn. Stat. 211B.15, subd. 7. Minn. Stat. 211B.15, subd. 6. Minn. Stat. 211B.15, subd. 13. 7

of the individual Respondents involvement in these violations includes, but is not limited to, the following: 1. Respondent Tony Sutton Mr. Sutton was the chair of the RPM from 2009 through 2011. The alleged violations occurred during that time period. The Board describes Mr. Suttons involvement in the following way: Mr. Sutton and Mr. Puhl arranged to direct a contribution of $30,000 from Robert Cummins to CTAP with the understanding that CTAP would use that contribution to retire RPM debt. These facts constitute redirection of a contribution by Mr. Sutton through a third party, CTAP, for the benefit of a registered association, the RPM.22 2. Respondent Ron Huettl Mr. Huettl was the finance director of the RPM during the relevant time period. He was responsible for managing the financial records of the RPM and presenting campaign report material to the party Treasurer, Mr. David Storrock. In its Findings and Order, the Board stated: Mr. Sturrock's failure to require sufficient financial recordkeeping and the failure of the party chair [i.e., Mr. Sutton] and finance director [i.e., Mr. Huettl] on their own to develop and maintain those records results in a violation of[the record keeping requirements included in] Minnesota Statutes section 10A.025, subdivision 3.23 The Board also found that along with Mr. Sutton, Mr. Huettl participated in the intentional withholding of information from the treasurer and executive committee of the RPM.24 In fact, Mr. Huettl has admitted his involvement in the intentional withholding of information.25 Mr. Huettl also played a direct role in bringing about the illegal contribution at issue. In fact, he along with Mr. Sutton asked the three law firms that conducted recount work on behalf of the RPM to reissue their invoices to CTAP, which CTAP then paid.26 Those invoices initially were issued to the RPM. 3. Respondent Mary Igo Ms. Igo was the CEO of CTAP at all times relevant, and CTAP existed for the major purpose of making contributions that are prohibited under Minn. Stat. 211B.15.27 Additionally, according to CTAPs corporate documents, which were obtained by the Board, Ms. Igo approved CTAPs illegal contribution to
22 23 24 25

Ex. A at 21. Id. at 7. Id. at 17. Id. Id. at 25. Ex. A at 26. 8

26

27

the RPM.28 4. Respondent Tom Datwyler Mr. Datwler was the secretary and a board member of CTAP during the relevant time period, and CTAP existed for the major purpose of making contributions that are prohibited under Minn. Stat. 211B.15.29 Additionally, according to CTAPs corporate documents, which were obtained by the Board, Mr. Datwyler approved CTAPs illegal contribution to the RPM.30 5. Respondent Fred Meyer Mr. Meyer was a board member of CTAP during the relevant time period, and CTAP existed for the major purpose of making contributions that are prohibited under Minn. Stat. 211B.15.31 Additionally, according to CTAPs corporate documents, which were obtained by the Board, Mr. Meyer approved CTAPs illegal contribution to the RPM.32 6. Respondent Dan Puhl Mr. Puhl is the founder and original incorporator of CTAP, and he founded the corporation for the purpose of using CTAP to pay RPM bills.33 Mr. Puhl also conspired with Mr. Sutton to funnel a $30,000 contribution from Mr. Robert Cummins to CTAP, which in turn was used to pay $27,000 of legal expenses incurred by the RPM in connection with the recount.34 In its Findings and Order, the Board stated: On April 16, 2011, CTAP made payments of $9,000 each to the firms associated with Tony Trimble and Michael Toner. A similar payment was made to the firm associated with Eric Magnuson on May 20, 2011. No subsequent payments to the firms for costs related to the recount have been made by either CTAP or the RPM.35 The illegal contributions from CTAP to the RPM were made after November 4, 2010.36 On that date, the Board issued a staff advice memo cautioning party units not to accept contributions from corporations to support their recount

28 29 30 31 32 33 34

Ex. B. Ex. A at 26. Ex. B. Ex. A at 26. Ex. B. Ex. A at 26. Id. at 21. Id. Id. 9

35

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efforts.37 This advisory memorandum was known to the Respondents before CTAP made its illegal contributions to the RPM.38 Prior OAH decisions have concluded that a prima facie case warranting a probable cause hearing under Minn. Stat 211B.34 arises when an entity or individual pleads that a corporation made a prohibited contribution under Minn. Stat. 211B.15, subd. 2.39 This Complaint does far more than that. The fact of the violation at issue is well documented. In fact, OAH should take judicial notice of the Findings and Order recently issued by the Board, quickly determine that a prima facie case has been established, and set this case for a probable cause hearing without delay. C. Respondents Violation of Minn. Stat. 211A.06. The Findings and Order also demonstrates that a prima facie case exists against Respondents Sutton and Huettl for violation of Minn. Stat. 211A.06. This statute provides that the treasurer or any other individual who receives money for political party committee is guilty of misdemeanor if the individual: (1) fails to keep a correct account as required by law; (2) with the intent to conceal receipts or disbursements, the purpose of receipts or disbursements, or the existence or amount of an unpaid debt or the identity of the person to whom it is owed. Id. In the Findings and Order, the Board concluded that the RPM failed to keep a correct account of its receipts and expenditures. Specifically, the Board stated: The Board concludes that in 2010 the RPM failed to maintain records, including worksheets, that would provide in sufficient detail the necessary information from which the filed reports and statements may be verified, explained, clarified, and checked for accuracy and completeness. The treasurer sets the tone for interaction between the party unit's professional staff and the elected party
37 38

Id. at 4; see also Ex. C. Id. at 4 and 18.

See, e.g., Notice of Determination of Prima Facie Violation and Notice and Order For Probable Cause Hearing, Adams v. Klatt True Value Hardware, 120320-19975-CV (complainant alleged that hardware store was a corporation and had made an in-kind contribution by allowing candidate yard signs on corporate property); Probable Cause Order, Weinlick v. Natalie Johnson Lee Campaign, 3-6326-16948-CV (finding probable cause for violation of 211B.15. subd. 2 even when campaign realized error in accepting corporate contributions and returned contributions before complaint was filed).
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10

officers. In this matter, it appears that Mr. Sturrock maintained a hands-off approach demanding nothing from his staff other than what they chose to provide. Although Mr. Sturrock complained in his letter of resignation that he was not being fully informed, it was incumbent on him to establish the parameters of his own involvement. He failed to do so, resulting in inadequate disclosure of RPM financial activities and in the lack of records to explain the data on the reports. Mr. Sturrock's failure to require sufficient financial recordkeeping and the failure of the party chair [Mr. Sutton} and finance director [Mr. Huettl] on their own to develop and maintain those records results in a violation of Minnesota Statutes section 10A.025, subdivision 3. Section 10A.025, subdivision 3, subjects a person in violation to prosecution for a misdemeanor. Although the Board believes that a violation occurred and that Mr. Sturrock, Mr. Huettl, Mr. Sutton, and Mr. Puhl all bear some responsibility, it does not believe that they "knowingly" violated the statute, which is the threshold for misdemeanor prosecution. Therefore, the Board will not specifically urge criminal prosecution in this matter.40 The elements of 211A.06 are different from those included in 10A.025, subd. 4. According, the Boards conclusion as to whether Respondents Sutton and Huettl knowingly violated the campaign reporting requirements included in Chapter 10A has no bearing on this Complaint, or whether either Respondent violated 211A.06. Indeed, the first element of a 211A.06 violation by Respondents Sutton and Huettl is evident in the above excerpt and other sections of the Findings and Order, which conclude that the RPM, under the direction of these Respondents, failed to maintain statutorily sufficient records because of the indifference or ineffectiveness of the officers, staff, and contractors of the RPM. . . .41 In fact, the Board found that these Respondents worked together to intentionally withhold information from the RPMs treasurer and executive committee, which would have rendered the RPMs campaign reports true and accurate.42
40

Ex. A at 7. Ex. A at 26. Id. at 17. 11

41

42

Thus, the only question is whether either of these Respondents acted with the intent to conceal receipts or disbursements, the purpose of receipts or disbursements, or the existence or amount of an unpaid debt or the identity of the person to whom it is owed. And, on the question of the Respondents intent, the record establishing a prima facie case under 211A.06 is equally clear. For example, as explained above, Respondents Sutton and Huettle conspired in the intentional redirection of a contribution to the RPM through CTAP for the purpose of avoiding disclosure, which the Board noted is punishable by criminal sanctions at the discretion of the appropriate county attorney.43 Although the Board suggested that only Mr. Sutton could be held criminally responsible, the same is true of Mr. Huettl, given his involvement in the illegal contribution scheme. In other important excerpts from the Findings and Order, the Board stated: There is no question that the reports filed by the RPM in 2009 and 2010 omitted required information which included both recount expenditures and other unpaid obligations44
***

The Board . . . finds Mr. Huettls testimony that he was instructed by Mr. Sutton to withhold certain information from Mr. Sturrock, to be of great concern. Under oath, Mr. Huettl explained that the RPM Chair ordered him to keep certain expenses from the RPM treasurer. The Board understands that Mr. Sutton challenges Mr. Huettl's testimony as being inaccurate. However, the Board has found that significant expenditures were not included on the RPM's 2010 reports. While Mr. Sutton cannot be charged by this Board with causing the filing of an inaccurate report (because no such violation exists [for a party chair] under Chapter 10A), the Board is compelled to point out that Mr. Suttons conduct, if accurately portrayed by Mr. Huettl, goes to the heart of the campaign disclosure system. That the Chair of one of Minnesotas major political parties would order information withheld from the partys treasurer not only damages the party itself, but undermines citizens'
43

Id. at 26. Id. at 11. 12

44

confidence in Minnesota's system of campaign finance disclosure as a whole.45 As with the above described violations of Minn. Stat 211B.15, OAH should take judicial notice of the Findings and Order recently issued by the Board, quickly determine that a prima facie case has been established for violation of 211A.06 as well as 211B.15, and set this case for a probable cause hearing without delay. Oath: I, Mike Dean, under penalty of perjury, swear or affirm that the statements I have made in this complaint are true and correct to the best of my knowledge. _____________________________ Signature of person filing complaint (Sign in front of Notary Public) Sworn/affirmed before me this ____ day of _________, 201_. ___________________________ Notary Public/Seal ____________________ Date

45

Ex. A at 17. 13