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Judges dismiss complaint over Greenwood election ad

Say fire officials’ actions ‘cannot be condoned’

Marshall Helmberger
Posted 8/25/21

REGIONAL— A panel of administrative law judges has dismissed a complaint against Greenwood Fire Chief David Fazio and Assistant Chief Mike Indihar, but not without leveling a broadside against …

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Judges dismiss complaint over Greenwood election ad

Say fire officials’ actions ‘cannot be condoned’

Posted

REGIONAL— A panel of administrative law judges has dismissed a complaint against Greenwood Fire Chief David Fazio and Assistant Chief Mike Indihar, but not without leveling a broadside against the two fire officials for misusing their authority within the fire department.
The two faced the criticism after Fazio solicited support from fire department members last March for a political ad backing several candidates in an upcoming township election, including his wife Belinda. Indihar had followed up on Fazio’s request during a fire department business meeting held shortly before the election, asking again on behalf of Fazio for members to sign their names to the ad, which backed four specific candidates along with a ballot question.
One of the other candidates, Joanne Bassing, filed an immediate complaint with the Office of Administrative Hearings, or OAH, alleging a violation of Minn. Stat. 211B.09, which makes it a crime for a public official to use their official authority to compel another person to take part in political activity.
While the judges found evidence that both Fazio and Indihar may have attempted to compel others to sign onto the political advertisement, which Fazio placed in the March 5 Tower News, they determined that the preponderance of the evidence suggested those efforts had failed. In the end, they noted while 18 members of the department had ultimately agreed to sign the ad produced by Fazio, the three who did not could not identify any retaliation or threats of retaliation they had experienced as a result of their refusal.
While dismissing the complaint, the judges made clear that they found Fazio’s and Indihar’s actions unacceptable. “Calling subordinate employees to participate in a campaign advertisement is ill-advised and cannot be condoned,” wrote Chief Judge James Lefave, in an accompanying legal memorandum. “This is particularly true when one is in a position of authority and married to one of the candidates.”
Judge Ann O’Reilly, in a concurring opinion, delivered even harsher words for the two fire officials. “Chief Fazio and Assistant Chief Indihar’s actions, while not a violation of Minn. Stat. § 211B.09, under the specific facts of this case, present serious questions as to their professional judgment and the type of working environment they have created at the Greenwood Township Fire Department,” Judge O’Reilly wrote. “A fire chief and assistant chief have significant authority and control over their subordinates, including control over their subordinates’ continued employment and working conditions. Thus, it is entirely possible that a subordinate could feel compelled to reluctantly go along with an inappropriate political request from a superior, even if the subordinate disagrees, to prevent difficulties in the future.”
Judge O’Reilly even seemed to suggest that a change in the statute might be in order. “Had Minn. Stat. § 211B.09 been written to say, [an] employee or official of the state or of a political subdivision may not use official authority or influence to compel or attempt to compel (emphasis hers) a person to . . . to take part in political activity,’ a violation would certainly have been found in this case and a significant penalty imposed.”
But the judges agreed that given that no witness testified that they had felt forced or compelled to take part in the ad, the law, as written, requires dismissal. In doing so, however, Judge O’Reilly offered up a warning. “Finally, should any retaliation or other reprisal arise out of any member’s failure or refusal to lend his or her name to the political advertisement, it would likely trigger legal action beyond a campaign complaint – costly legal action into which the Fire Department and Township could be brought. Respondents are, thus, well advised to avoid this type of political action in the future and ensure that the members whose names did not appear on the ad do not suffer any negative consequences as a result.”
Complainant Joanne Bassing said she was disappointed with the ultimate decision, but said it was important to bring attention to the actions of the fire officials. “We knew it was going to be difficult to prove that they had compelled people to sign the ad, but we pushed ahead because of the unethical nature of their use of township resources,” said Bassing. While Fazio paid for the ad with his own funds, Bassing noted that the town’s firefighters were being paid while attending a business meeting, that later turned into a political rally, of sorts.
While disappointed in the decision, Bassing said she was pleased to see that the judges recognized the inappropriateness, if not criminality, of the actions described in court. “They indicated that there’s a real problem here.”
The Timberjay sent an email message to Greenwood Fire Chief David Fazio, seeking comment for this story. He did not respond.

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