A solitary protestor has been at the Cook County courthouse each Friday since the public learned that a local family had requested a harassment restraining order against County Attorney Tim Scannell because of an alleged inappropriate relationship with their 17-year-old daughter. The sign carried by the picketer read, “Step Down Tim.” On Friday, January 11, the man was joined by five others carrying signs. One protestor left before this photo was taken.
On the agenda for the January 15 county board meeting was a closed session to discuss a request from constituents of Commissioner Jan Hall to be put on the agenda. The request was made by the family that obtained a harassment restraining order against County Attorney Tim Scannell on December 4 because of a romantic relationship they alleged he had pursued with their 17-year-old daughter.
At the January 15 meeting, by request of the board, was Dyan Ebert, an attorney with Quinlivan & Hughes of St. Cloud. She stated that there was no need or justification for closing the meeting.
The Open Meeting Law
The county board agenda cited portions of the Minnesota Open Meeting Law that require governmental bodies to close meetings under certain circumstances. These include attorney-client privilege related to pending litigation or discussion of active investigative data, non-public medical or mental health records, or information that would identify alleged victims or reporters of criminal sexual conduct or maltreatment of minors.
Ebert went through the reasons these circumstances do not apply at this time. She said that they had not been notified regarding whether an investigation into allegations against Scannell by the Minnesota Bureau of Criminal Apprehension (BCA) was still active or not.
In regard to medical or mental health records related to treatment Scannell received last fall for treatment of post-traumatic stress disorder (PTSD) related to the December 2011 courthouse shooting, Ebert said, “We don’t have those medical records at this time.”
Ebert said the attorney-client privilege did not apply because no lawsuit had been started or threatened at this time.
Response from the board
Commissioner Garry Gamble indicated that the entire community was impacted by the situation. He feared that a lack of response from the board would frustrate the public. He stated that the county should be aggressive in communicating to the public that they are addressing the issue but also said, “We want to be sure that we get it right.”
Ebert advised the board not to take action until they received notice that the BCA investigation was closed and until a 45-day response period Scannell was entitled to following the December 4 harassment restraining order was over.
Commissioner Gamble asked several questions of Ebert. Regarding who the BCA would report its findings to, she said she thought it would be the Cook County Sheriff ’s Office, because they were the ones who requested that the BCA take on the investigation. She said if charges were pursued, she would expect another county attorney’s office to take the case.
At press time, Cook County Sheriff Mark Falk told the Cook County News-Herald that he had not yet received a report from BCA. Also reached at press time, BCA spokesperson Jill Olivia said the investigation conducted at Sheriff Falk’s request is still “an active, ongoing investigation.”
Commissioner Gamble asked Ebert about the possibility of Scannell claiming that his behavior with the young woman was a result of mental instability related to PTSD caused by the shooting. Ebert said the county might want to explore this in regard to his ability to do his job properly.
Is there any problem with commissioners communicating with the parents who requested to be put on the agenda? Gamble wondered. Ebert indicated that while there is nothing wrong with communication, the board should be careful not to say or do something, such as making a commitment to the family, that might be problematic later.
Gamble said he hoped people would be respectful of the process and indicated that showing empathy for what people are going through would be good.
To what extent this affects the county is an open question at this point, Ebert said. She advised that they let “these other processes” take their course first.
Ebert informed the board that the county had received a letter from the family’s attorney requesting that the county conduct an “independent, impartial investigation of the county attorney’s conduct.”
Recall of an elected official
As an elected official, County Attorney Tim Scannell is not under the authority of the board. Recalling an elected county official in Minnesota requires a removal election, which involves several steps and determinations:
A voter would need to obtain a petition form from the county auditor. According to Minnesota Statute 351.16, the petition form would need to request a removal election, “setting forth facts which allege with specificity that an elected county official committed malfeasance or nonfeasance.” Signatures signed by a number of registered voters equal to 25 percent of the people who cast votes for that position in the last election would then need to be obtained and presented to the county auditor.
If the petition had enough signatures, the auditor would forward the petition to the clerk of appellate courts, who would submit it to the chief justice, who would then determine whether the petition properly alleged facts that would constitute malfeasance or nonfeasance if proven. If so, the chief justice would assign the case to a special master (an active or retired judge) for a public hearing. If the subject of the petition waived the right to a public hearing, it would go straight to a removal election.
If a public hearing were held, the special master would take evidence and determine whether it showed that malfeasance or nonfeasance had occurred. If that were the case, a removal election could be held.
According to Mn. Statute 351.14, “‘Malfeasance’ means 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. …‘Nonfeasance’ means the willful failure to perform a specific act which is a required part of the duties of the public official.’”
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