SCHOOL ELECTIONS: PETITIONS: Petition Rules promulgated by the Secretary of State generally apply to petition for school district referendum. School district clerks should perform the functions of “filing officer under those rules.:” Minn Stat. §§ 204B.071, 205A.05, subd. 1, 205A.13 (2006); Minn. R. ch. 8205

185-b (Cr.Ref. to 159-a-3)

June 15, 2007

Paul C. Ratwik
Julia H. Halbach Ratwik, Roszak & Maloney, P.A. Suite 300, 730 Second Avenue South Minneapolis, MN 55402

Dear Mr. Ratwik and Ms. Halbach:

Thank you for your correspondence of Apr il 24, 2007. In your le tter you present the following facts:

FACTS AND BACKGROUND

You state that in November, 2006, the voters of Independent School District No. 15 (the “District”) passed a referendum authorizi ng the issuance of $6,500,000.00 in bonds to renovate the District’s high school. The District sold the bonds on April 3, 2007, and began to solicit bids for the reconstruction project.

You state further that at its meeting on March 26, 2007, the School Board was presented with a petition for a special election. The petition presented two questions characterized as “bond questions.” The first question asks wh ether the proceeds from the April 3 bond sale
should be “reallocated to a ne w fund for the construction of a new 2,100 student high school.” The second question calls for the approval by the voters of the Distri ct of $65,000,000 in general obligation bonds for the purpose of constructing a new high sc hool. The petition was “filed” with the School Board, and requests that the questi ons be presented to the District’s voters at the November, 2007 general election.

You state that, because the District includes areas in both Isanti and Anoka Counties, the
District was uncertain who should serve as the “filing officer” for the petition pursuant to Minn.
R. Ch. 8205 (2005) relating to the form, circulation, filing, and inspection of election-related petitions. The District contacted the Secretary of State’s Office to determine if the Secretary of State was the proper filing officer. The Secretary of State responde d that because the election is not “for an office,” it is not th e correct filing officer. As the District’s counsel you have determined that the applicable statutes, rules, and case law are unclear as to who serves as the filing officer.

Based on this determination, the District submits the questions set forth below:Paul C. Ratwik and Julia H. Halbach May 24, 2007 Page 2

QUESTION 1:

Does Minn. R. ch. 8205 apply to “any petition re quired for any election in this state,” as the Rules state? Specifically, do es this Chapter apply to special school district el ections relating
to referendums?

OPINION

As qualified below we answer this question in the affirmative.

Minn. Stat. § 205A.05, subd. 1 (2006) provides in part:

Special elections must be held for a school district on a question on which the voters are authorized by la w to pass judgment. The school board may on its own motion call a special election to vote on any matter requiring approval of the voters of a district. Upon petition of 50 or more voters of the school district or five percent of the number of voters voti ng at the preceding regul ar school district election, the school board shall by resolution call a sp ecial election to vote on any matter requiring approval of the voters of a district. The election officials for a special election are the same as for the mo st recent school dist rict general election unless changed according to law. Otherwis e, special elections must be conducted and the returns made in the manner pr ovided for the school district general
election.

Minn. Stat. § 205A.13 (2006) provides:

Any petition to a school board authorized in this chapter or sections 126C.17, 126C.40, 126C.41 to 126C.48, and 124D.22, or a ny other law which requires the
board to submit an is sue to referendum or electi on, shall meet the requirements provided in section 204B.071.

Minn. Stat. § 204B.071 (2006) provides:

The secretary of state shall adopt rule s governing the manner in which petitions required for any election in this state ar e circulated, signed, filed, and inspected. The secretary of state shall provide samples of petition forms for use by election
officials.

Minn. R. 8205.1040 provides:

Subpart 1. Applicability. This part applies to any petition required for any
election in this state , including nominating petitions, recall petitions, and proposed recall petitions.Paul C. Ratwik and Julia H. Halbach May 24, 2007 Page 3

Subp. 2. Definition of filing officer. As used in this part and part 8205.1050, “filing officer” refers to:

A. the county auditor if a petition is for an office to be voted upon only in one county; or

B. the secretary of state if a petition is for an office to be voted on in more than one county.

Subp. 3. Filing procedures. The person filing the petition must submit the entire petition at one time to the filing officer. The petitioners may submit the petition by mail, messenger, or similar delivery service. Filing of a petition is effective upon receipt by the filing officer. Petition pages must not be altered by anyone except the filing officer for verification pur poses after the petition has been filed.

Subp. 4. Receipt. The filing officer must provi de the person filing the petition with a receipt for the petiti on. The receipt must include the type of petition filed; the name, address, and telephone number of the person submitting the petition; the date on which the petition was filed; and the total number of pages in the petition submitted.

(Emphasis added.)

As originally proposed Part 8205.1040 did not include a separate definition of the term “filing officer.” 1 The present subpart 2 was added to the rule in response to the following statement in Finding 95 of the Report of the Administrative Law Judge on the Proposed Rules (copy enclosed):

1 See Proposed Permanent Rules Relating to Elec tions, 24 State Regist er 1716, 1722 (2000).
Election statutes themselves contain several refe rences to the “filing o fficer” without providing a specific definition, apparently in the belief that the term’s meani ng can be determined from the context in which it appears. See, e.g., Minn. Stat. §§ 10A.321, subd. 2; 10A.322, subd. 1(b); 204B.09, subd. 1a, subd. 3; 204B.10, subd. 5, 6; 204B.11, subd. 1; 204B.13, subd. 5, 6; 204C.35, subd. 2; 205.13, subd. 1b; 205A.06, subd. 1c (2006). Th e only statutory defi nition of the term that we have located also relies upon referenc e to other authorities to determine identity. See Minn. Stat. § 211A.01, subd. 7 (2006), relating to cam paign finance reports, which provides:

“Filing officer” means the officer authorized by law to accept affidavits of candidacy or nominating petitions for an o ffice or the officer authorized by law to place a ballot question on the ballot.Paul C. Ratwik and Julia H. Halbach May 24, 2007 Page 4

It appears that the identi fication of the “filing officer” will vary depending upon the precise nature of the petition being f iled. Although the lack of a definition of t the “filing officer” does not render the proposed rules de fective, the Secretary of State’s Office may wish to consider incor porating a definition of this term into the proposed rules, or including a cross-reference to an existing definition. Such a modification, if made, would serve to clar ify the application of the proposed rules, would be within the scope of the matte r announced in the notice of hearing, and would be a logical outgrowth of the comments submitted during the rulemaking proceeding. Accordingly, it would not make the rule substantially different from the rule as originally proposed.

Id. Finding of Fact 95 at p. 20.

A footnote to that finding refers to Mi nn. Stat. § 204B.09, subd. 1 (2000) which related only to filing of affidavits of candidacy and nominating petitions for county, state and federal offices to be filled at the state general elect ion and contained no refere nce to school district
elections or to elections on ballot questions. Nevertheless, the Secr etary of State, in adopting the final rules included 8205.1040, subp. 2 which basically duplicates the limited filing directions of section 204B.09, subd. 1. In the Order Adopting the Permanent Rules, the Secretary of State
stated:

In accordance with Finding 95 of the Re port, the Secretary has adopted the
recommendation of the Administrative Law Judge by adding a new Subpart 2 to 8205.1040 reading “Subp. 2. Definition of filing of ficer. As used in this part and part 8205.1050 ‘filing officer’ refers to: A. the county auditor if a petition is for an officer to be voted upon only in one count y; or B. the secret ary of state if a petition is for an office to be voted on in more than one county.” To implement this recommendation, the Secretary adde d the cross-reference to part 8205.1050 since the term “filing officer” is used in that part as well. The Administrative Law Judge stated in Finding 95 that such a modification would not make the final rule substantially different from the rules as originally proposed.

25 State Register 616, 618 (2000) There is noth ing in the rule-making record, however, to indicate any intent that those de finitions were to apply to school district referendum petitions.

It is our opinion that the provisions of Minn. R. ch. 8205 apply to petitions for special school district referenda, to the ex tent that individual ru les, as written, have relevance to such
elections. 2 Indeed, section 205A.13 expressl y states that petitions that require a school board to

2 Accordingly, a petition for a school district refe rendum will be subject to those provisions of chapter 8205 that apply to petiti ons generally, but will not be subject to rules that, by their express terms, apply only to petitions for other types of elections.Paul C. Ratwik and Julia H. Halbach May 24, 2007 Page 5

call elections must meet the requirements of Minn. Stat. § 204B.071, and chapter 8205 contains rules adopted pursuan t to that section.

Therefore, as so qualified, we answer your first question in the affirmative.

QUESTION 2:

Who is the proper filing officer for a school district special election petition when the school district sits in more than one county? If neither the Secretary of State nor county auditor is the proper filing officer, does the School District clerk serve as the filing officer, and what is the authority for this conclusion?

It is clear from the plain language of Minn. R. 8205.1040, subp. 2 that the definitions of “filing officer” contained therein are not relevant to a petition for any election that does not involve any public office. Thus, it is our vi ew that Minn. R. 8205.1040 simply does not provide an independent definition of the term for purposes of such elections. Consequently, the identity of the “filing officer” for school district refere nda must be determined from other sources. Cf. In re Referendum to Amend City of Grand Rapids, Minn. Munic. Elec tion Ord. No. 04-08-11 2006
WL 1985595 (Minn. Ct. App.), wherein the court dete rmined that, while the verification requirements of Minn. R. 8205.1050 applied to a pe tition for a municipal ordinance referendum, the definition of “filing officer” containe d in Minn. R. 8205.1040, subp. 2 did not apply.

Unlike the language of Minn. Stat. § 205.07 addressed in the Grand Rapids case, section 205A.05 does not specify any particular official with whom a petition is to be filed. It merely requires a school board to call an electi on “[u]pon petition of fifty or more voters...” The section does, however, state that “the election offi cials for a special election are the same as for the most recent school districts general election.” In that regard, the only school board official expressly designated to receive election-relate d filings is the clerk of the district. See, e.g., Minn. Stat. §§ 123A.48, subd. 11 (petition for referendu m on school district consolidation); 123B.94, subd. 2, (candidates for office - common sc hool dist.); 128D.05, subd. 2 (petitions for referendum on election year change in Sp. Sch. Dist. #1); 203B.05, subd. 2 (application for absentee ballots); 204C.36, subd. 1 (request for election recount ); 205A.06, subd. 1 (candidate affidavits); 205A.09, subd. 2 (petition for longer voting hours); and 20 9.02, subd. 3 (notice of election contest on ballot question).

As noted above, the only statutory definition of the term “filing officer” we have located defines it as the officer authorized by law to accept affidavits of candidacy or nominating petitions for an office or the officer authorized by law to place a ballot question on the ballot. See note 1, supra . In a school district, it is the clerk that accepts affidavits of candidacy, and also oversees placement of referendum questions on the ballot. See, Minn. Stat. § § 205A.06, 205A.08, subd. 4.Paul C. Ratwik and Julia H. Halbach May 24, 2007 Page 6

For the foregoing reasons it is in our opinion that the District Cler k is the appropriate official to perform the functions of the “f iling officer” under Minn. R. Ch. 8205 for petitions submitted pursuant to Minn. Stat. § 205A.05.

Very truly yours,

LORI SWANSON Attorney General

KENNETH E. RASCHKE, JR. Assistant Attorney General

AG: #1815807