Minnesota Vikings & U.S. Bank Stadium: Why hasn't Michele Kelm-Helgen been charged with Misconduct of a Public Official?

I am the only attorney that I know of that has successfully defended a Misconduct of a Public Official criminal case brought pursuant to Minnesota Statutes Section 609.43.  There are probably others, but I do not know them or of them.  The case I handled went all the way through jury trial and ended with an acquittal on all counts.

The case I defended was that of Edward Hansen in Dakota County, a West St. Paul City Councilman who was charged under this statute.  Edward Hansen is of no relation to me, we just have the same last name.  In that case, the complaint contained allegations that he had flown a Confederate Flag in a window in his home and that he had disliked a city project near his home.  Here is the complaint and the amended complaint in that case.  Motions to dismiss, memorandums opposing the motions and the order denying the motions and other correspondence are located here if you are interested in taking a look at them.  After this trial, several of the jurors wished to speak with me.  We had a jury of six with one alternate.  They spoke with me as a group in the parking lot of the court house in Hastings.  They said they had spoken to the Judge.  I asked them what she had said to them and they said they had asked her why this case even went to trial, and she had indicated that whether or not it went to trial was "up to the prosecutor."  I indicated to them that what the judge had told them was incorrect, as we had filed and argued motions to dismiss and they were denied.  The jurors did not understand what conduct alleged had constituted a crime - the same argument I had been making throughout the case.  They felt like a lot of their time had been wasted listening to this case, and several of them asked for my business card.

When I read about the matter of Michele Kelm-Helgen, Chairwoman of the Minnesota Sports Facilities Commission, a government job, getting season tickets for herself ahead of even former Vikings team owner Wheelock Whitney, I wondered if she would ever be charged under this statute.

 According to the Star Tribune of March 4, 2017:

"Michele Kelm-Helgen, as chair of the government agency overseeing U.S. Bank Stadium, jumped to the head of the line to buy front-row season tickets for Minnesota Vikings games.

She also helped friends and family members buy the rights to nearby seats, before longtime Vikings season-ticket holders could claim them, records show."

After the extensive and arduous pre-trial and trial of Edward Hansen and reading the Star Tribune article, I thought the case against Kelm-Helgen was pretty clear cut.  Here is the text of the Minnesota Statute:

"609.43 MISCONDUCT OF PUBLIC OFFICER OR EMPLOYEE.

A public officer or employee who does any of the following, for which no other sentence is specifically provided by law, may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both:

(1) intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the office or employment within the time or in the manner required by law; or

(2) in the capacity of such officer or employee, does an act knowing it is in excess of lawful authority or knowing it is forbidden by law to be done in that capacity; or

(3) under pretense or color of official authority intentionally and unlawfully injures another in the other's person, property, or rights; or

(4) in the capacity of such officer or employee, makes a return, certificate, official report, or other like document having knowledge it is false in any material respect."

I added emphasis to (3) of this statute because it appears that this is the part of the law that is most on point with these facts.  When she got season tickets for herself (and it looks like she may have assisted some of her friends and family) that were better than the tickets that members of the public (in this case Vikings' season ticket holders) received, then Kelm-Helgen injured the property of another, specifically, their place in line for tickets.  This is not a complicated case to present to a jury and I cannot think of any legal reason why it should not be charged.  The undisputed fact is that but for her public government position, Michele Kelm-Helgen would have never gotten these prime season tickets.

It appears to me that the reason that this has not been charged may well be a matter of politics.  The next step for the public would be to call the Minneapolis Police and make a report about this conduct.  The Minneapolis City Attorneys' Office would be responsible for the decision whether or not to bring charges.  If there was some sort of conflict, they could refer the matter to a prosecutor in another jurisdiction for review of the charges.  At a minimum, these steps should be taken in the interest of integrity of Minnesota government.