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Investigation Executive Summary into Carlton County Attorney

CARLTON COUNTY
INVESTIGATION EXECUTIVE SUMMARY


Christian R. Shafer


Ratwik, Roszak & Maloney, P.A
300 U.S. Trust Building 730 Second Avenue South Minneapolis, MN 55402

  

EXECUTIVE SUMMARY OF INVESTIGATION

Thomas Pertler is the elected Carlton County Attorney. The undersigned Investigator conducted an investigation into Mr. Pertler at the request of the Carlton County Board of Directors. The investigation focused on the allegations that Mr. Pertler: (l) failed to submit appellate briefs in at least one appeal of a criminal conviction; and (2) drinks alcohol at work. At the request of Carlton County Auditor/Treasurer Paul Gasser, the investigation was expanded to include the allegations that Mr. Pertler: (3) falsified reimbursement requests by including mileage for County Attorney Association conferences that he did not attend; and (4) did not respond appropriately to allegations that an Assistant County Attorney inaccurately reported his time. Based on witness statements, the investigation was expanded to include the allegation that Mr. Pertler: (5) refused to speak with a Judge despite the Judge contacting the County Attorney's office and personally coming to the County Attorney's office to speak to Mr. Pertler.

The investigator interviewed a total of twelve individuals, including Mr. Pertler. The investigator interviewed witnesses on November 8, 10, 14, and 15, 2017. The investigator interviewed Mr. Pertler on November 28 and again on December 12, 2017. Most of the interviews took place at the City of Carlton City Hall across the street from the Carlton County courthouse. One witness was interviewed at the Carlton County courthouse. Four of the witnesses were interviewed by telephone.  
[       ]  was interviewed at a private law firm's offices. Mr. Pertler was interviewed in his office. As discussed in greater detail below, the allegations against Mr. Pertler are partially substantiated.

I. The County Attorney's Office Failed to Submit Appellate Briefs in at Least Two Criminal Appeals During 2017.


The Attorney General's office is available to assist counties with appeals in criminal cases. The County Attorney's office has requested such assistance in the past. Multiple witnesses, including Mr. Pertler, reported that the process for obtaining appellate assistance from the Attorney General's office requires the County to send the Attorney General's office a copy of the defendant's brief.

Mr. Pertler admitted that the County initially requested assistance from the Attorney General in the case of State v. Ferguson. Mr. Pertler further admitted that the County did not send the defendant's brief to the Attorney General and, consequently, the Attorney General's office did not file a brief on the County's behalf. The County did not file a brief either, apparently under the belief that the Attorney General would do so.

The Court of Appeals ultimately reversed the conviction in the Ferguson case. The County's failure to file a brief resulted in the Court of Appeals' decision including a footnote stating:

This is a very serious case. A young man lost his life after consuming illegally sold fentanyl, a powerful narcotic. Because the state failed to file a brief, we are left to c construct the state's position from the record as constituted, and without the benefit of focused counterarguments to those presented by appellant.

When asked about the Ferguson case, Mr. Pertler stated that the case was assigned to an Assistant County Attorney [    ] with a second Assistant County Attorney [   ] serving as second chair. While admitting being generally  familiar with the case and the underlying charge, Mr. Pertler denied that he had anything to do with the appealor obtaining assistance from the Attorney General's office. 
Instead, he stated that [ ] was ultimately responsible for the case on appeal. Other witnesses, including [ ] confirmed that the Ferguson case had been assigned to 
[ ] prior to trial and that was the second chair on the file. 

There is no dispute that Mr. Pertler has the authority to assign cases to Assistant County Attorneys. That being said, the Ferguson case involved the appeal of a murder conviction. In high profile cases such as that, it is reasonable that the elected County Attorney, who is also the most experienced prosecutor in the office, would have overseen the appeal. Mr. Pertler, however, stated that cases are assigned to specific attorneys and that attorneys on those cases learn by doing. He does not necessarily represent the County in all high-profile cases.

Regardless of to whom the case was assigned, the defendant (appellant) served his brief on Mr. Pertler. In addition, the investigator notes that Mr. Pertler was identified as the counsel of record [ ] on the Petition for Review of the Court of Appeals' decision in the Minnesota Supreme Court. The Minnesota Supreme  Court denied review. While the court did not state the grounds for doing so, the defendant cited the failure to file a brief with the Court of Appeals as one basis upon which the court could deny review.

The reversal and the County's failure to file a brief also received attention in the  local media, Mr. Pertler admittedly responded to at least one media inquiry by stating that he believed the County had sent the defendant's brief to the Attorney General's office, that comment, again admittedly, led to a dispute between the County and the Attorney General's office. Multiple witnesses stated that, prior to the Ferguson case, the
Attorney General's office routinely assisted the County with criminal appeals. After the Ferguson case, however, the witnesses stated that the Attorney General has refused to assist the County with criminal appeals.

Mr. Pertler admitted that the Attorney General's office has refused to assist the County with appeals since the Ferguson case. He admitted that the Attorney General's office was upset, and he did not know when the Attorney General's office might again assist the County with appeals.

Mr. Pertler also provided the investigator a copy of a letter from the Attorney General's office. In that letter, the Attorney General declined to assist the County with an appeal, citing the office's case load "as well as other factors." Another witness provided the investigator a copy of another letter from the Attorney General's office.  That letter, which also declined to assist the County with an appeal in a criminal matter, stated that;

As we discussed, this Office appears regularly in the Minnesota Court of Appeals and Minnesota Supreme Court. It is extremely important that the credibility of this Office and our attorneys is not undermined with the courts or the public by a county attorney to whom we deliver assistance on his cases.

That letter also specifically identified the Ferguson case, as well as a case called State v. Brinkman, as the basis for the Attorney General's refusal to assist the County with the appeal in question.

In reviewing the Ferguson case, the investigator also became aware of a case called State v. Kway. As with the Ferguson case, Kway was an appeal of a criminal conviction obtained by the Carlton County Attorney's office. In its Kway decision, the Court of Appeals noted that the County "failed to file a brier in the appeal. l Because of the County's failure to file a brief, the Court of Appeals only permitted the defendant (appellant) to argue at the oral argument.2 When questioned about the Kway case, Mr. Pertler acknowledged that he was the attorney responsible for the case, He did not have any explanation for the failure to file a brief. In fact, [ ] Pertler stated that he could not locate the physical file and, therefore, could not determine what happened with the case. 

Despite the lack of an appellate brief, the Court of Appeals upheld the conviction in the Kway case. The investigator is not aware of any media attention paid to the Kway case. Nor is there any evidence that the Kway case impacted the County's relationship with the Attorney General's office. Nevertheless, Kway is another example of the County Attorney's office failing to file a brief in an appellate case.
 
I The investigator confirmed, using the court's record system, that no appellate brief was filed.
2 In the Ferguson case, the Court of Appeals considered the matter without oral argument by either party. 

Mr. Pertler failed to file a brief in an appellate case. His office also failed to follow the established protocol to obtain the Attorney General's assistance in another case. The failure to file a brief in the Ferguson case contributed to the Court of Appeals reversing a third-degree murder conviction. Mr. Pertler's comments to the media regarding the failure to file a brief also directly contributed to the Attorney General suspending appellate assistance to the County, at least on a temporary basis.


 II. Mr. Pertler Noticeably Smelled of Alcohol at Work on Multiple Occasions, Including Recent Occasions. 


[ ] reported that Mr. Pertler smelled of alcohol at work "dozens" of times since he left the rehabilitation facility. This includes at least "a couple" of times during the summer of 2017. statement was confirmed, who stated that Mr. Pertler smells of alcohol on a "daily" basis, and that the smell lingers in his office for at least five minutes. [ ] and [ ] also stated that they have smelled alcohol on Mr. Pertler on multiple occasions, with [ ] stating that [ ] smelled alcohol on Mr. Pertler "a week or two" before the investigation interview. Finally, Judge Beiers stated that Mr. Pertler  smelled of alcohol during one drug court meeting. The meeting took place at approximately 12:30 p.m. on one Wednesday within the past three months. 

Mr. Pertler admitted that he consumes alcohol at social events, including the going away party for a former Assistant County Attorney. He vehemently denied, however, drinking while at work or coming to work under the influence of alcohol. He also offered to blow into a breathalyzer whenever anyone had a concern that he was under the influence of alcohol.

When asked why multiple witnesses would report that he smelled of alcohol during the work day, Mr. Pertler stated that they must have been mistaken. He specifically stated that they might have smelled his cologne. He also reported that a probation officer once mistook the smell of hand sanitizer used in court for the smell of  alcohol. Based on that recollection, Mr. Pertler speculated that others may have smelled the hand sanitizer that he routinely uses.

Mr. Pertler's explanation is not credible. The investigator did not smell Mr. Pertler's cologne. The investigator also requested to smell the hand sanitizer that Mr. Pertler keeps in his office. Mr. Pertler squirted some of the sanitizer onto the investigator's hand. While the hand sanitizer had a very strong alcohol odor, it faded within several seconds. It is unlikely that the five witnesses who reported smelling alcohol on Mr. Pertler happened to encounter him in the relatively brief period between him using hand sanitizer and the odor fading. Nor is it likely that they mistook the smell of cologne on certain occasions, but not others.

Moreover, [ ]   It is unlikely thau would mistake the odor of hand sanitizer for that of alcohol that Mr. Pertler had consumed.

[ ] also reported that Mr. Pertler's mood and affect are different on the occasions when he smells of alcohol. For instance, he may become "chattier" or have a shorter temper on those occasions. Mr. Pertler did not have an explanation for those observations, other than to say that his conversations with his co-workers differ from day-to-day. 

Finally, Mr. Pertler was unable to provide any reason why anyone would lie about smelling alcohol on him. While it is evident that morale is low in the County Attorney's office, the investigator has no reason to conclude that any witness would lie about Mr. Pertler. That is especially true of Judge Beiers, who is not a County employee and has an even higher ethical obligation to be truthful.

While no witness reported seeing Mr. Pertler drinking alcohol at work, the evidence in this case supports the conclusion that he has come to work smelling of alcohol on multiple occasions over the past several years. The investigator is not aware of any reasons why these witnesses would have lied about their observations. Under the circumstances, it is not plausible that the witnesses were mistaken.


 III. Mr. Pertler Submitted at Least Two Expense Report Claiming Mileage Reimbursement for n Conference he Did Not Attend.


In 2016, Mr. Pertler submitted expense reports requesting reimbursement for mileage to and from various events, including the February 19, March 1 8, and September 8-9, 2016, meetings of the Minnesota County Attorneys Association. Mr. Pertler was not identified as an attendee in the minutes of those meetings, however.
When questioned about the expense reports, Mr. Pertler claimed that he attended the September 8-9 conference. He described a motivational speaker and a conversation that he had with another county attorney about that motivational at the conference. He stated that the conference was more than just the County Attorneys Association board meeting, and that he attended the conference, but not the board meeting. The investigator reviewed the calendar for the September 9, 2016, Minnesota County Attorneys Association event. It was a two-day conference that included the board meeting and other events, including speakers. It is credible that Mr. Pertler attended the conference, but not the board meeting, which is the last event at the end of the conference. Accordingly, the evidence does not support a conclusion that Mr. Pertler falsified his expense report with regard to the September 9, 2016, conference.


Conversely, Mr. Pertler admitted that he did not attend either the February 19 or March 18, 2016, County Attorneys Association board meetings. He claimed that he initially put those conferences on the calendar and that [ ] completed the expense report based on that calendar. Mr. Pertler further stated that he signed the expense report in question, which spans from December 2015 through April 2016, without reviewing or, possibly even, reading it. Mr. Pertler stated that he had repaid the County the mileage reimbursement he received for the February 19 meeting and that he was going to replay the County for the mileage reimbursement he received for March 18 meeting,

When asked why some of his expense reports span several months and others only contain entries for a single month, Mr. Pertler explained that he sporadically completed them. He also explained that the office practice is now to complete expense reports for periods not to exceed six weeks. Mr. Pertler's explanation is consistent with County practice. Specifically, County Auditor/Treasurer Paul Gassert informed the investigator that, until the summer of 2017, the County had an informal practice regarding expense reimbursement requests. As of the summer of 2017, requests for reimbursement must be submitted within two months of incurring the expense.
Given that the expense report in question spanned more than. four months and the lack of any evidence to the contrary, Mr. Pertler's explanation that he inadvertently submitted mileage reimbursement for the February 19 and March 1 8, 2016, conferences is credible. The evidence, however, supports the conclusion that Mr. Pertler's lack of review of his own expense report, contributed to the County paying Mr. Pertler at least $284.04 ($142.02 per conference for two conferences) in reimbursement for mileage to conferences he did not attend and that he did not correct the error until prompted by this investigation, Moreover, regardless of his intent, Mr. Pertler's receipt of funds to which he was not entitled is a matter that needs to be reported to the State Auditor.

IV. Mr. Pertler Did Not Appropriately Respond to Allegations That an Assistant County Attorney Inaccurately Reported His Time.

It is undisputed that Mr. Pertler was aware of the allegations that inaccurately claimed "flex time" on several occasions.3 While acknowledging that Assistant County Attorneys have a flexible schedule, he also stated that it is important for Assistant County Attorneys to accurately report their time. Mr. Pertler stated that he spoke to         [ ] on multiple occasions about accuracy in reporting [ ] time.
Nevertheless, multiple witnesses reported that [ ] continued to improperly  flex [ ] time on multiple occasions through the fall of 2017. Mr. Pertler stated that he
 



[ ]  did not participate in the investigation. The investigator does not make any finding as to whether [ ] inaccurately reported [ ] time.

spoke to [ ] about the importance of accurate time records again after his first interview with the investigator. Considering that the allegations continued after Mr.  Pertler was aware of them and that Mr. Pertler felt the need to talk to [ ] again about    [ ] time entries, the investigator concludes that Mr. Pertler's initial action was not effective to address the situation.


 V. Mr. Pertler Refused to Speak to Judge Macaulay Despite The Judge Coming to The County Attorney's Office to Look For Him.


Judge Macaulay reported that, on October 1 8, 2017, he wanted to speak with Mr. Pertler about a matter pending before the court. The Judge further stated that he had someone at the hearing call the County Attorney's office to request Mr. Pertler's presence and was assured that Mr. Pertler was coming, or would be coming, to the court. When Mr. Pertler did not come to the courthouse, Judge Macaulay walked over to the County Attorney's office. Judge Macaulay further stated that he saw Mr. Pertler leave the County Attorney's office a few minutes later.

Sheriff Lake saw Mr. Pertler in the office on the morning of October 18, 2017.
She also reported that her staff told her that the Judge was standing in front of the County Attorney's office's window looking for Mr. Pertler. She stated that her staff have never seen Judge Macaulay that angry before.

When questioned about the situation, Mr. Pertler initially stated that it was "news to [him]," that Judge Macaulay came looking for him. Mr. Pertler later sent the investigator an e-mail, stating that he apologized to the Judge, and that the Judge did not believe that he had done anything wrong professionally. He did not provide any fUrther explanation as to why he did not respond to the Judge on October 18.

Without explanation from Pertler, the investigator is left to conclude that Mr. Pertler was in his office, was notified that Judge Macaulay had someone call the office to look for him, was aware that Judge Macaulay was standing in front of the County Attorney's office looking for him, and, simply ignored the Judge for an unknown reason. The evidence also supports the conclusion that Mr. Pertler did not contact the Judge to apologize or otherwise address the situation until prompted by this investigation.


VI. There is General Discontent Within and About the County Attorney's Office.

Multiple witnesses reported that morale in the County Attorney's office is low. They attributed the office environment to Mr. Pertler's lack of leadership and lack of consistent attendance. Witnesses also stated that they tend to work around Mr. Pertler and are more independent [ ] because of Mr. Pertler's lack of leadership and sporadic attendance. Sheriff Lake reported that Mr. Pertler's absences from the office and disorganization frustrated the Sheriff’s office and that she never knew which attorney was going to get a certain type of case. Similarly, [ ] and provided statements that they were dissatisfied that the County Attorney's office did not provide a dedicated attorney to work on child protection cases.4

Mr. Pertler, for his part, claimed that he was not unavailable, and that he regularly attends meetings and other obligations during the work day. He also stated that he does not always report where he is going on the office calendar. He admitted that the County Attorney's office does not have an attorney solely dedicated attorney to child protection cases. He stated, however, that three Assistant County Attorneys (including  
 ) have experience in those types of cases.

While a full review of the internal operation of the County Attorney's office is beyond the scope of the investigation, the evidence supports the conclusion that at least some staff in the County Attorney's office are frustrated with how the office is run. The evidence also supports the conclusion that other County departments, namely the Sheriff’s office and the Health and Human Services Department, are frustrated with the operation of the County Attorney's office.
This report is based upon information received during the course of the investigation. Information not contained and the issues not discussed in this report were either deemed redundant, irrelevant or outside the scope of the investigation. The investigator reserves the right to augment or modify this report in the event other information becomes available.

Dated: December 14, 2017
RRM: 277458


4 orally to the investigator, provided a written statement that was forwarded to the investigator.
Index to Investigation Exhibits

Exhibit A:   Materials submitted in the case of State v. Ferguson, an order issued in that case, a printout from the Minnesota courts website showing the documents  that had been submitted in that case, and the Court of Appeals' decision in that case;
Exhibit B: Correspondence from the Attorney General's office to Mr. Pertler; 
Exhibit C: Media articles related to the Ferguson case;
Exhibit D: Materials submitted in the case of State v. Kway, an order issued in that case, a printout from the Minnesota courts website showing the documents that had been submitted in that case, and the Court of Appeals' decision in that case;
Exhibit E: Copies of Mr. Pertler's reimbursement request forms for the periods of December 2015 through April 2016, and September 2016;
Exhibit F: Excerpts from the meeting minutes of the Minnesota County Attorneys Association Board of Directors for February 19, March 18, and September
9, 2016, along with the agenda for the September 8-9, 2016, Minnesota County Attorneys Association conference;

Exhibit G: [ ] letter regarding the County Attorneys' office;
Exhibit H: Correspondence between Mr. Pertler and the investigator.