County places assistant attorney on unpaid leave
Mille Lacs County Board has placed Assistant County Attorney Mark Herzing on unpaid administrative leave until he is no longer a candidate for the Mille Lacs County Attorney job held by his supervisor, Jan Jude.
The County Board took the action July 15, unanimously passing the motion that concurred with a recommendation by the county’s Personnel Board of Appeals. The PBA released a ruling that morning stating Herzing’s active duty as assistant county attorney while running for county attorney would be a conflict of interest.
Herzing and Joe Walsh, of Princeton, are running against Jude in her bid for re-election. The Aug. 12 primary election will narrow the race to two candidates for the November general election. The earliest that Herzing could be allowed to return to his job would be if he loses in the primary election.
The PBA process was set in motion after Herzing filed for the county attorney election on June 3, the last day for filing. Herzing said that after he filed, he notified Jude of his filing by email at 4:50 p.m. June 3. He also said he called Mille Lacs County Administrator Roxy Traxler during the noon hour on June 2 and asked Traxler if it would be a conflict of interest for him to file. Traxler and the county’s personnel director, Lisa Herges, told Herzing it was their opinion it wouldn’t be a conflict of interest, according to the written decision of the PBA board submitted to the Mille Lacs County Board.
Jude suggested otherwise in a June 6 letter to Herzing stating: “Please be advised that you may be in violation of a Mille Lacs County personnel policy, specifically (section) JJ1.”
Jude stated that the policy requires Herzing to give notice to his department head of his filing intention.
“You did not provide any notice to me until after the filing occurred,” Jude stated in the letter.
Jude went on, alleging that Herzing hadn’t intended to notify her prior to filing and that she felt the personnel policy implies that he was supposed to have give her the notice before filing to run for county attorney. That is so there could be a determination made if a conflict interest would exist and whether Herzing should take an unpaid leave of absence, Jude wrote.
Hearing in late June
The PBA conducted a hearing on June 24, attended by Herzing and Sarah Lewerenz, an attorney with the American Federation of State, County and Municipal Employees, or AFSCME, Council 65 union. Herzing presented affidavits from witnesses and testified on his own behalf. Jude did not appear because she was on medical leave, but submitted a written brief. Jude and Herzing each submitted additional briefs later.
The PBA, in its written opinion after the hearing, stated that if the information submitted by a party is not addressed in the PBA’s opinion, “the information was not accorded significant weight.”
The PBA established that Jude and Herzing’s offices in the county attorney’s department are in close proximity to each other and that Jude and seven assistant county attorneys make up the attorney group. (There is also a victim assistance coordinator.)
Both Jude and Herzing were at the July 15 County Board meeting to hear the commissioners’ deliberation and decision on the conflict-of-interest question. The commissioners scheduled the deliberation to take place during a closed session but kept the discussion open after Lewerenz objected to closing the meeting and county staff checked the open meeting law statute.
PBA on ‘public good’
The PBA document states that the PBA found two grounds for finding that Herzing’s candidacy created a conflict of interest as defined in the personnel manual: One, “That a subordinate that campaigns against a superior is not in the public good because of the potential harm to public confidence in the office of the Mille Lacs County Attorney, and two, there has been a conflict in the office that has caused actual disruption in the office.”
The PBA cited a Web page controlled by Herzing containing a political cartoon posted before June 24 that the PBA agreed with Jude was negative campaigning.
“Mark Herzing’s criticism against the county attorney, in the opinion of the PBA, tends to undermine the public trust in the functioning of the prosecutor’s office.”
The PBA based its decision on the definition of conflict of interest, Herzing’s political cartoon and common knowledge of the nature of modern political campaigns.
The PBA document also stated that its decision is based “solely upon the inability of the county attorney to operate her office efficiently or effectively so long as Mr. Herzing is a candidate for the position of county attorney. It is immaterial who is responsible for the conflict and disruption in the office. … It is only relevant that conflict exists.”
The PBA cited Jude’s submitted brief and memorandums alleging “conflicts and tension created in the office because of the election contest.”
It also cited Jude’s June 6 memorandum to Herzing “severely restricting” his ability to do his job. Also, Herzing submitted an email in which Jude refused to allow him to attend future Planning Commission meetings as a representative of the county attorney’s office.
The PBA concluded that Herzing’s political campaign “creates an incongruity between his duty to the public good and his self-interest in winning his election. Pursuant to … the personnel manual, Herzing is required to take an unpaid leave until he is no longer a candidate for county attorney. Both PBA members participating in this decision concur in the result.”
Pam Galanter, the county’s labor attorney, read the findings and conclusion in the PBA document to the commissioners. She noted that the PBA found no financial interest by Herzing constituting a conflict of interest, but that the PBA based its opinion on the basis of the “public good.” The County Board’s role is to determine whether it agrees with the PBA, Galanter said.
Commissioner Tim Wilhelm asked if Herzing could still work as assistant county attorney while a candidate for county attorney as long as he was working out of a different facility.
Galanter stated that she believes the PBA’s opinion suggests there would still be a conflict of interest.
Board Chair Phil Peterson asked who placed Herzing on the paid administrative leave. Board clerk and county personnel director Herges said Jude took the action as the department head.
AFSCME attorney Lewerenz said afterward that for there to be a conflict of interest, Herzing would have to have an interest in not doing his job well. Howerver, he would have no motivation to not perform the job well because people would then be less likely to vote for him, Galanter said.
Galanter said she also felt that the county board, in making its decision, was carrying out a “quasi-judicial function” and in that capacity should have allowed both sides to speak after hearing the PBA’s conclusion and before the commissioners took action.
“Their refusal to hear from Mr. Herzing is evidence of bias and is arbitrary and capricious, which makes their decision wrong,” Galanter said.
Footnotes in PBA document
A set of footnotes in the PBA document refers to Herzing having contacted Traxler to ask her opinion on whether filing for office would create a conflict of interest. The PBA stated there was such testimony to the fact that county personnel gave their opinion to Herzing that there would be no conflict of interest.
“However, an informal opinion by phone is not an agency decision,” the PBA footnotes state. “In any event, subject matter jurisdiction was not raised at the PBA hearing and the PBA will not formally address it. Generally, subject matter jurisdiction may be raised for the first time on appeal if either party appeals the PBA decision.”
Herzing, in an interview after the commissioners’ decision, said he was disappointed in the decision and that he feels the position of county attorney is an “important” one and that he wouldn’t be running for if he didn’t believe there should be a change.
“It’s unfortunate these steps have been taken to make it so costly for me,” he said. Herzing also said he can’t see how the act of running for office could be cited as a conflict of interest.
“My focus now is to continue running and also work to determine what options, how to proceed with other remedies,” he said. “I just have to evaluate.”