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 Commissioner
Debra 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 district
where 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 COMMISSIONER
ROSCHEN

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

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

It should be noted that Petitioners also believe there are many more incidents and supporting data
that indicate Commissioner Roschen has committed additional acts of malfeasance. This
information has been discovered through extensive research of public documents, as well as review
of minutes and videos documenting Wabasha County Board Meetings. The counts recited in this
petition are those that best illustrate Commissioner Roschen's repeated and willful behavior in
contravention 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 body
politic and corporate. See generally Mnw. STAT. §§ 373.01 - 373.51 (2010). Section 373.02 of
this chapter explicitly states that a county's powers "shall only be exercised by the county board or
in pursuance of a resolution adopted by the county board." MINN. STAT. § 373.02 (2010) (emphasis
added). 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, and
exercise county powers. See HANDBOOK FOR MINNESOTA COUNTIES, Ch. 6, § II(A). As
individuals, board members have no administrative authority. Id. This means that individual
county commissioners cannot give orders or otherwise supervise county employees unless they are
doing so at the direction of the board or in pursuance of a resolution adopted by the board. Id.; see
also MINN. STAT. § 373.02 (2010).





Chapter 375 of Minnesota Statutes establishes the existence of the county board and enumerates its
powers 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 of
governance. See generally MINN. STAT. §§ 375A.01 - 375A.13 (2010). Section 375A.01 in
particular 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 under
the county administrator plan.

The county administrator plan allows the county board to appoint and employ a county
administrator. 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 an
indefinite period of time at the pleasure of the county board. Id. The Wabasha County
Administrator 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 of
any county department that requires an appointed director. Id. The Wabasha County Board
requires Mr. Johnson to act as the department head of the Wabasha County Human Resources
Department. Accordingly, Mr. Johnson oversees all of the County's human resources functions
from personnel management to employee benefits and, in this capacity, is responsible for
approximately 175 full-time County employees.

If the county board decides to remove a county administrator after he has served in his capacity for
more than one year, the county administrator is entitled to demand written charges and a public
hearing 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 in
February 2008. Accordingly, he is entitled to demand that written charges of any alleged
misconduct be presented to him and to demand that a public hearing be held to discuss such charges
before 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 county
commissioners elected to serve on the county board. See e.g. MINN. STAT. §§ 384.01 (county
auditor), 387.01 (sheriff), 388.01 (county attorney). Each of these elected officials is imbued with
specific powers and duties that are unique to their respective offices. Id.





Chapter 351 of Minnesota Statutes addresses the removal of elected county officials in Sections
351.14 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 appointed
from a commissioner district." MINN. STAT. § 351.14. subd. 5 (2010). Under Minnesota law:

Any registered voter may petition the county auditor requesting a removal election
and setting forth facts which allege with specificity that an elected county official
committed 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,
except that a petition may not be submitted during the 180 days immediately
preceding a general election for the office which is held by the county official named
in the petition.

MINN. STAT. § 351.16, subd. 1 (2010). Malfeasance is defined 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 (2010).

In addition to alleging specific facts to support a charge or charges of malfeasance, the petition must
include signatures from registered voters. MINN. STAT. § 351.16, subd. 1 (2010). The number of
signatures must total at least twenty-five percent (25%) of the number of people who voted in the
election that placed the named county official in office. MINN. STAT. § 351.16, subd. 1 (2010). The
registered voters signing the petition must be residents of the commissioner district from which the
named 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 District
Two, the district that Commissioner Roschen was elected to represent. Additionally, this petition
sets forth below the specific facts to allege that Commissioner Roschen committed malfeasance in
the performance of her official duties during her current term in the office of Wabasha County
Commissioner. These facts allege that Commissioner Roschen acted outside the scope of her
authority as a Wabasha County Commissioner in the performance of her official duties and that she
infringed on the rights of multiple people in so doing. Commissioner Roschen was elected in 2010
and 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 preceding
election for her office.





BACKGROUND: BASIC RIGHTS OF MINNESOTA CITIZENS

Much like its federal counterpart, the Constitution of the State of Minnesota provides certain basic
rights to its citizens. MINN. CONST., Art. !,§§!- 17. Citizens of Minnesota shall not "be deprived
of life, liberty, or property without due process of law." Id. at § 7. Courts consistently have
interpreted this language as protecting the right of an individual to pursue the occupation or career
of 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. International
Brotherhood of Boilermakers, 114 N.W.2d 647, 653 (Minn. 1962) (citing Gray v. Building Trades
Council, 97 N.W. 663, 667 (Minn. 1903)).

The rights of Minnesota citizens also are protected in specific statutes, such as the Minnesota
Government 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 to
know what the government is doing," while balancing certain other privacy rights and interests of
government employees. KSTP-TVv. Ramsey County, 787 N.W.2d 198, 200 (Minn. App. 2010); see
also 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 fully
informed 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 District
No. 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 official
activities." 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 her
official duties that exceeded the scope of her authority when she unilaterally directed the
County Administrator to terminate a County employee. In so doing, she infringed on the
right 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 with
his application for certain public services. The social worker explained to the applicant that it
would take her about two weeks to process his application due to her department's backlog of case
filings. She also explained that the backlog arose from an under-staffed office dealing with an
overwhelming 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 a
situation beyond the social worker's control, the social worker directed him to speak with his
elected county commissioner to express his concerns and complaint. The applicant then contacted
the 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 to
Commissioner Roschen. Commissioner Roschen interpreted the social worker's comment about
under-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 did
Commissioner Roschen seek to implement the Wabasha County Personnel Policy § 210 that was
adopted by resolution of the County Board which in large part provides that the County
Administrator and County department heads are to oversee the County's disciplinary policy.
Rather, Commissioner Roschen contacted County Administrator Johnson about this situation and
directed him to terminate the social worker.

These facts allege with specificity that Commissioner Roschen committed malfeasance. First, she
attempted to exercise county powers—here, the supervision of an employee—unilaterally and
without the consent of or at the direction of the Board as a whole. Second, Commissioner Roschen
did not act in pursuance of a resolution adopted by the Board. In fact, she acted in direct and willful
contravention of the Board's resolution to pursue employee disciplinary matters in a consistent
manner and in accordance with the County's Personnel Policy. This demonstrates that
Commissioner Roschen willfully committed the wrongful act of exercising county powers as an
individual in the performance of her official duties and that this act exceeded her scope of authority
as County Commissioner. Third and finally, Commissioner Roschen's unilateral decision to
terminate a County employee in violation of a Board-adopted resolution infringed on the right of the
social 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 her
official duties that exceeded the scope of her authority when she made inappropriate and
potentially defamatory statements regarding the employee at a public meeting of the County
Board. In so doing, she infringed on the right of an individual to pursue the occupation of his
choice.

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





Highway Department. As the Board proceeded to discuss the Highway Department and its
organization, Commissioner Roschen focused on the behavior of a specific employee in the
Highway Department. Commissioner Roschen made specific statements that this employee was
overweight, 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 Commissioner
Roschen'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 and
who is charged with supervising this employee, did not terminate this employee. In fact, the County
Highway Engineer never took any disciplinary action against this employee and believes him to be
a competent member of his staff.

wrongfully made false accusations in a public forum about a County employee in the performance
of her official duties as a County Commissioner at a Board planning meeting. This act likely rises
to the level of civil defamation, a long-recognized tort under Minnesota law, and potentially rises to
the 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 about
another person, communicates the false statement to a third person or persons, and the false
statement "tends to harm the [subject's] reputation and to lower the [subject] in the estimation of the
community.") (citations omitted); MINN. STAT. § 609.765, subd. 2 (2010) (stating that, "Whoever
with knowledge of its defamatory character orally, in writing or by any other means, communicates
any defamatory matter to a third person without the consent of the person defamed is guilty of
criminal defamation.").

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

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





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

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


Count 3: 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, the Minnesota Open Meeting Law, and the
Minnesota Official Records Act. In so doing she infringes on the rights of the citizens of the
County to know what their government is doing.

On multiple occasions—too numerous to recount individually herein—Commissioner Roschen
willfully and wrongfully distributed printed materials to each of the Board members, but did not
provide at least one copy for inspection by the public as required by the Minnesota Open Meeting
Law. 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 Commissioner
Roschen's official duties and exceeded the scope of her authority because county commissioners are
not entitled to keep public, non-classified documents secret. In fact, as noted above, public officials
such as Commissioner Roschen are required to make and preserve records to inform the public
about 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 the
activities of their government.

A specific example of this behavior occurred as recently as October 25, 2011, when Commissioner
Roschen distributed copies of a Minnesota Statutes Section to each Board member. This particular
document 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 inspection
while 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 to
comply with this particular statutory provision, Commissioner Roschen again flagrantly and
willfully violated the Minnesota Open Meeting Law. Again, this behavior occurred during the
performance of Commissioner Roschen's official duties while participating in a Board meeting and
obviously exceeded the authority granted to her because she is not entitled to violate Minnesota law
as a county commissioner. Additionally, this behavior infringed on the rights of each and every
Wabasha 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, Commissioner
Roschen raised an action item that was not included on the Board agenda and attempted to call a
vote on it. This particular action item was a motion to adopt a resolution in favor of a
comprehensive strategic planning proposal. This proposal encompassed sixty-nine different
provisions that affected matters ranging from budget and staffing cuts in Wabasha County Veterans
Services 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 the
commissioners and each commissioner put a circular sticker on any provision with which they
agreed and wanted to adopt. Commissioner Roschen then made a motion to adopt all provisions
that received three or more "dots"—which, of course, actually were votes on these particular
provisions. The Wabasha County Attorney, James Nordstrom, informed Commissioner Roschen
and the rest of the Board that these votes needed to be recorded pursuant to Minnesota Statutes
Sections 13D.01 and 15.17. See MINN. STAT. § 13D.01, subd. 4 (2010) (stating that "The votes of
the 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 and
preserve 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 should
not 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 adopt
the resolution, but delay the date that the sixty-nine provisions would take effect. The note cards
eventually were surrendered to County Administrator Johnson, but only after significant argument
from Commissioner Roschen about whether the votes should be "recorded."

Commissioner Roschen not only willfully and wrongfully raised an item for discussion and
adoption that was not on the agenda, she also willfully and wrongfully did so without providing any
printed 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 matter
would be discussed. Furthermore, certain of these provisions actually may have subjected the
County to civil liability. This behavior was exacerbated by Commissioner Roschen's willful and
wrongful attempt to circumvent the mandates of Minnesota law by refusing to have the votes
recorded 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 official
duty 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 the
rights of the citizens of Wabasha County to be informed and aware of the activities of their
government, she actively attempted to prevent the public from gaining knowledge about these
activities.


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

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

Commissioner Roschen responded to Sheriff Bartsh's decision by sending a series of threatening
electronic mail messages. Specifically, she indicated that Sheriff Bartsh's decision would have a
negative impact on the budget of the Sheriffs Office: "Without the cooperation of department
heads on opportunities like this, the cuts will likely be deep and painful. Something for you to
ponder 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 of
keeping and preserving the peace of Wabasha County.

willfully committed the wrongful act of supervising a County employee—in fact, not just a County
employee, but an elected County official—in the performance of her official duties and without the
consent of or in pursuance of a resolution adopted by the Board. In fact, Commissioner Roschen
mentioned this proposed legislation at a Board meeting and the Board decided not to take any action
on the matter or adopt a resolution in favor of lobbying for its passage. Accordingly, Commissioner
Roschen exceeded the scope of her authority when she attempted to exercise the powers of the
county 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 her
duties and exceeded the scope of her authority when she implied that Sheriff Bartsh's budget would
be reduced if he did not "do the right thing." Minnesota law specifically provides that a Board's
decision regarding the sheriffs budget shall not be arbitrary, capricious, unreasonable or
oppressive. See e.g. MINN. STAT. § 387.20, subd. 7 (2010); Stenslandv. Faribault County, 365
N.W.2d 224, 227 (Minn. 1985). It is hard to imagine a more unreasonable or capricious situation
than 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 that
does 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 his
choice by questioning his professional opinion and implicating that negative consequences would
occur unless he did as she asked. Furthermore, Commissioner Roschen infringed on the right of the
Wabasha County Sheriffs Office as an entity to receive a budget in accordance with Minnesota law
that takes into account the duties and responsibilities it is required to perform. Commissioner
Roschen's suggestion that Sheriff Bartsh's budget could be compromised not because of a shift in
his department's workload but because of a professional opinion in conflict with the
commissioner's personal politics was a direct infringement on the rights of a County entity to
receive the necessary and statutorily required funding to keep it functional.


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