By MaryHelen Swanson

Itís back to square one, said Chisago County Attorney Katherine Johnson Tuesday, while discussing the report of Washington County Assistant Attorney George Kuprian with the Post Review.

The report was conclusions drawn on the issue of possible malfeasance by Chisago County Commissioner Mike Robinson and Clerk of Board Deanna Lilienthal.
The issue surrounds the signing of an amendment for the East Central Solid Waste Commission which was allegedly done without the county boardís approval last January.

At the Oct. 20 board meeting, it was brought to the attention of the commissioners that the amendment had been signed without their formal approval.

At that time, allegations of malfeasance arose and county attorney Johnson sent the issue to an outside attorney for review.
In his report, dated Dec. 6, 2004, Kuprian concluded that the evidence appears to vindicate Robinsonís action.

Kuprian wrote, ìWhile not giving total absolution from fault, a review of the facts and an analysis of the law indicate that Chairman Robinsonís actions in executing the amendment and Ms. Lilienthalís act of endorsing the signature did not constitute malfeasance in office.î

Kuprian goes on to say that because Robinson signed the amendment without the formal action of the board, the amendment is void ab initio and not binding. In other words, the actions of the board chairman does not bind the county to the solid waste commission amendment.

Therefore, attorney Johnson said the board is back to either formally approving the amendment or taking other action as it wishes.
In his research, Kuprian viewed a video tape of the October board meeting.

He noted that state statute prohibits a county commissioner from receiving money or any other valuable thing as an inducement to vote for any contract under consideration by the board.

A violation of the prohibition would be malfeasance in office and, Kuprian noted, voids any contracts made contrary to Section 375.09.
However, he said, there is nothing found in the evidence of this case that warrants use of Section 375.09 to prosecute a charge against Robinson.

Kuprian stated that the malfeasance allegation was used as a means ìfor getting out of the contract.î

He said that from the evidence gathered, it is clear that the only substantive act committed by Robinson is that he executed the amendment without first obtaining authority of the board.

But he also said that while the bulk of evidence tends to exonerate Robinson from any wrongdoing, the investigation did uncover evidence that ìdoes give one pause.î

He mentioned a personal relationship between Robinson and an alleged ìprimary beneficiaryî of the landfill operated by ECSWC and the fact that certain documents regarding the amendment were unaccounted for.

He went on to say that this evidence consisted ìmostly of uncorroborated statements and conjecture, which frankly led nowhere.î

Kuprian said if the investigation were to ìblindly follow a path unmarked by substantive evidence in the hopes of finding culpability, this investigation would take on a ëKen Starrî quality.î

Kuprian noted four provisions in state statutes that may apply to Robinsonís actions:
Minn. Stat. 351.14, subdivision 2 defines malfeasance as the ìwillful commission of an unlawful act in the performance of a public officialís duties outside the scope of the authority of the public official and which infringes on the rights of any person or entity.î

A showing of malfeasance under this provision is grounds for removal from office. If removal were contemplated, Kuprian said, his office would not initiate it, but it would need to come from a petition of a registered voter submitted to the county auditor requesting a removal election.

Another provision is Minn. Stat. 375.09, however, Kuprian noted that the applicability of this statutory provision had been discussed and discounted.

A third provision is Minn. Stat. 471.87 which makes it a gross misdemeanor for a public officer who takes part in a contractual transaction in his or her official capacity to have a personal financial stake in such contract or to personally benefit financially from it. Kuprian said the investigation uncovered no credible evidence that Robinson had a personal financial interest in the amendment to the joint powers agreement for the ECSWC or that he personally benefitted financially from its execution.

The final provision is Minn. Stat. 609.43 (2) which makes it a crime for a public officer or employee to do an act knowing it is in excess of his lawful authority or which he is forbidden by law to do in his official capacity.

The only issue in contention, Kuprian said, is whether Robinson knew he was acting in excess of his legal authority.
He said it would have to be shown beyond a reasonable doubt that Robinson knew he had not gained authority to sign the amendment.

Kuprian said a study of the case seems to indicate that the legislature intended the statute to punish an abuse of authority and not every ìmistaken misuse.î

If it could be shown that Robinson knowingly executed the amendment in disregard to the wishes of the board, then there might be a case against him under section 609.43(2).

Kuprian noted that evidence indicates that in discussion with other county board members at a September 2003 joint meeting (of the 5-counties in the ECSWC) Robinson believed, ìalbeit erroneouslyî that he had approval from the other county commissioners to commit Chisago County to a continuation of the joint powers agreement.

Kuprian stated that ìit could be reasonably argued that this belief translated to a grant of authority to execute the amendment.î

Kuprian concluded that the Washington County attorneyís office sees no prosecutable offense against either Robinson or Lilienthal.
And, he said, the amendment, erroneously signed by Robinson, is void.

The six-page report from Kuprian is expected to be brought to the county board for review.

Kuprian suggests that the Chisago County Board ìact immediately to give notice to the other members of ECSWC of its Oct. 20 repudiation of the amendment.î

Top of Page

©ECM Post Review

6448 Main Street
North Branch, MN 55056
Telephone: 651-674-7025
Fax: 651-674-7026
E-mail: editor.postreview@ecm-inc.com