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Lubke mailer with CLC postage basis of Sylvester campaign complaint

The order issued by Administrative Law Judge Eric L. Lipman stated some of Robin Sylvester’s claims did not establish prima facie — or on their face — violations of the Fair Campaign Practices Act, while other claims were beyond the jurisdiction of the Minnesota Office of Administrative Hearings.

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BRAINERD — A fair campaign practices complaint filed by Crow Wing County Board candidate Robin Sylvester stemming from a Central Lakes College postage marking on her opponent’s campaign mailer was dismissed Monday, Oct. 24, by an administrative law judge.

The order issued by Administrative Law Judge Eric L. Lipman stated some of Sylvester’s claims did not establish prima facie — or on their face — violations of the Fair Campaign Practices Act, while other claims were beyond the jurisdiction of the Minnesota Office of Administrative Hearings. Sylvester, running to represent District 2, registered the complaint against the campaign for County Board candidate Jon Lubke, Central Lakes College and the Brainerd Dispatch.

While the decision is final, state law provides Sylvester the opportunity to seek judicial review with the Minnesota Court of Appeals.

Closeup of Jon Lubke's mailer
Central Lakes College's permit imprint for nonprofit mail is seen on a candidate mailer for Jon Lubke, a candidate for the Crow Wing County Board.
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At issue

CLC issued an Oct. 14 statement describing the use of its nonprofit permit imprint on the political mailer as a mistake of the CLC Print Shop, which it described as an enterprise of the college that prints most of the college’s publications and produces printing at the request of community members at market rate.

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“The full cost of the printing and appropriate postage was paid for by the candidate,” according to the CLC statement. “No state or college dollars were used for the mailing. The college regrets this mistake and does not endorse or support any political candidate.”

The Dispatch published this statement in an online story the same day and an Oct. 15 print story, alongside comments from Lubke, who also described the imprint as a mistake and said he paid the appropriate postage rate.

Robin Sylvester headshot
Robin Sylvester, candidate for Crow Wing County Board District 2.
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Sylvester filed the complaint with the Office of Administrative Hearings on Wednesday and notice was sent to parties Thursday. Reached Wednesday, Sylvester declined to comment on the matter to the Dispatch, which she said was on the advice of her attorney.

In Sylvester’s filing, she describes the nature of the complaint as the following: “College employee was acting on behalf of the Lubke campaign and the college paid for the labor, material and postage. It was not until after the Sylvester campaign started to inquire with the College on 10/10/22 and after a number of requests that the college provided an excel document with the summary of the Lubke customer payments. Which the payment for this job was posted to CLC on 10/13/22.”

Sylvester submitted a data request to CLC President Hara Charlier the night of Oct. 15, seeking documents related to the printing and postage for the mailer. Documents sought included proof approvals, work orders, quote documents, invoice documents, proof of payment, method of payment and posting of the payment in the business office. Sylvester also sought training records for the last year for the person or people responsible for printing and adding the inappropriate postage to the mailer and postage records from the college and the U.S. Postal Service.

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The documents Sylvester received Oct. 17 and Oct. 18 — presented as exhibits with her complaint — included email exchanges between Erich Heppner, director of student life at CLC, and Leon Dahlvang, a CLC graphic arts instructor associated with the Print Shop. In those exchanges, Heppner appears to be acting on behalf of the Lubke campaign while coordinating the printing and mailing of the postcards between Sept. 19 and Oct. 3. Reached Wednesday, Heppner declined to comment to the Dispatch.

Jon Lubke headshot
Jon Lubke, candidate for Crow Wing County Board District 2.
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Sylvester included a timeline of the email exchanges in her complaint and noted the confusing nature of postal service and work order documents, describing discrepancies in the quantities printed and postage costs.

“The college, CLC, paid for the labor, materials and postage. The Campaign accepted benefits from the college. The payment of services and supplies is an expenditure for services of a campaign and candidate. This is a violation of (state statutes),” Sylvester’s complaint stated, with specific statutes listed.

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“A state employee using his position for personal gain, for campaigning for a friend and the use of state resources for one candidate over another violates so many statutes that will need to be address (sic) through other avenues. However, the state college has provided an unfair advantage for … one candidate (Lubke) over the other (Sylvester).”

Sylvester also noted the potential violation of another state statute governing deposit receipts, if the college received payment from Lubke prior to the Oct. 13 posting date.

In her complaint about the Dispatch, Sylvester took issue with the Oct. 15 story containing CLC’s statement and Lubke’s comments. She described it as an ad printed on behalf of Lubke and asserted violations of multiple state statutes.

“When the Sylvester campaign asked the Brainerd Dispatch what research they had done, they said they spoke to Jon Lubke and trust his statement. The Dispatch provided Lubke additional media attention without researching any facts and skewing their message in favor of Lubke,” the complaint stated. “ … The Dispatch gave Mr. Lubke media time without charge thus providing an unfair advantage for candidate Lubke over Sylvester.”

The campaign also violated statutes and committed actions resulting in “misleading the public with an appearance of the state college, CLC, endorsing and providing an in-kind donation to candidate Lubke,” according to Sylvester’s complaint.

In the order

In the order dismissing Sylvester’s complaint, Lipman first dismisses all claims based on any other statutes than those within Chapter 211A or 211B, which together constitute the Fair Campaign Practices Act. Lipman said the Office of Administrative Hearings does not have subject-matter jurisdiction on those claims.

Lipman dismissed Sylvester’s claim of false political and campaign material based on the implication of an endorsement for Lubke by CLC because of the use of the bulk mailing permit. Lipman said federal courts declared the state statute prohibiting false information in campaign material void and unenforceable in 2014, and a void statute cannot be the basis for relief.

Another claim in Sylvester’s complaint alleges the use of the college’s bulk mailing permit and reduced-rate mailing privileges was intentional and amounted to an unlawful corporate contribution to Lubke’s campaign. Lipman dismissed this claim as well on the basis of CLC being a subunit of the Minnesota State Colleges and University system rather than a corporation.

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“To make that observation is not to imply that it is permissible for government entities to give public resources to political campaigns; it isn’t,” Lipman wrote. “The point is merely that because Central Lakes College is not a corporation, any campaign activity by it is not prohibited by (the statute at issue). The statute simply does not reach such activity.”

The claim about the Dispatch was legally problematic in two respects, Lipman stated, including because the newspaper did not appear to be a corporation but rather an assumed name held by Forum Communications Co. But Lipman said even if one assumed the Dispatch were a corporation, the Legislature specifically exempted the news media from the prohibitions listed within the statute concerning corporate political contributions.

“Ms. Sylvester may decry the Brainerd Dispatch’s journalism, its methods and its conclusions, but those disputes are not actionable under the Fair Campaign Practice Act,” the order stated.

As for Sylvester’s complaint based on a false claim of support by the Lubke campaign, Lipman opined the mailer did not directly state the campaign had the support or endorsement of CLC. He wrote the question closer to the matter at hand was whether the postage indirectly asserted support from CLC, and in that case, the element of “obviousness” was absent and the mailer did not impersonate the college.

“Apart from the postal permit, the mailer does not in any other way hint that the college is responsible for the messages, supports Mr. Lubke’s election, or rendered an endorsement in the District 2 commissioner race. In the view of the Administrative Law Judge, the postal permit alone is not enough to imply an endorsement by the permit holder or to summon an opposing political campaign to court,” the order stated.

Lipman wrote the U.S. Supreme Court has cautioned administrative tribunals on the use of the probable cause standard to regulate campaign-related speech.

“The Court has expressed ‘particular concern’ that use of very modest pleading standards can permit private parties to ‘target’ and distract their political opponents on the eve of an election,” Lipman wrote. “In order to maintain a constitutional system of state campaign regulation, Administrative Law Judges must be sensitive to the boundaries of the First Amendment.”

CHELSEY PERKINS, community editor, may be reached at 218-855-5874 or chelsey.perkins@brainerddispatch.com . Follow on Twitter at twitter.com/DispatchChelsey .

Chelsey Perkins is the community editor of the Brainerd Dispatch. A lakes area native, Perkins joined the Dispatch staff in 2014. She is the Crow Wing County government beat reporter and the producer and primary host of the "Brainerd Dispatch Minute" podcast.
Reach her at chelsey.perkins@brainerddispatch.com or at 218-855-5874 and find @DispatchChelsey on Facebook, Twitter and Instagram.
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