Attorneys clear Johnston in literature incident

Lake Elmo Mayor Dean Johnston will not face charges in connection with an incident earlier this month in which City Councilwoman Anne Smith claimed the mayor took her literature from a doorway.

“The allegations have been dismissed. There will be no legal action,” Johnston said Monday. “I got it from the city administrator (Dean Zuleger) who got it from the city attorney.”

Both Zuleger and City Attorney David Snyder said a conflict counsel of two attorneys reviewed the case and sent a three-paragraph letter to Snyder concluding “that no prosecution is warranted.”

In addition to the letter Snyder received, a letter to Washington County Sheriff’s Office Cmdr. Brian Mueller from County Attorney’s Office Criminal Division Chief Fred A. Fink Jr. also said there appeared to be no violations of campaign law in the incident.

“We have checked ch. 211B, Mn. Stats, as well as thoroughly searched Westlaw and have found nothing to indicate that this is a campaign law violation,” Fink writes. “If any criminal law is implicated, it would be the theft statute, which, of course, in this case would fall within the purview of the city attorney.”

Johnston admitted he removed Smith’s literature to read it and said Smith confronted him before he could put the document back in the door.

“There was a brochure in the door. I removed it so I could read it. She was sitting there before I could put it back,” he said.

According to the letter to Snyder from conflict counsel Trevor S. Oliver, Smith told WCSO deputies that she had distributed her campaign literature in a Lake Elmo residential neighborhood earlier this month and was driving away when she said she saw Johnston remove her literature she had put in a door and take it with him to his scooter.

Oliver’s letter adds that Smith confronted Johnston and the mayor returned Smith’s literature to the door.

A WCSO report said Smith told deputies she was campaigning in the 59th Street North area when she saw Johnston take her literature from a door, walk to his scooter and put the literature under his scooter’s seat.

The deputy’s report said Zuleger spoke to Johnston about the incident and the mayor admitted taking Smith’s literature to read it but said he returned it to her.

“However, Zuleger does not know how many pamphlets this may be if it was limited to this one incident or if there were pamphlets taken from any other residences,” writes WCSO Deputy Nick Loperfido in the report.

“Neither Smith nor Zuleger made any mention that there was any evidence that any pamphlets had been taken from any other doors,” Loperfido adds.

The deputy’s report said he spoke with Johnston later at the mayor’s home about Johnston’s version of the event.

“Johnston told me he did take this material from the door and walked to his scooter which was parked on the driveway,” the report said. “The mayor told me that he only wanted to review this material and he was not taking it. The mayor made it clear that the materials did not leave the property.”

Oliver said the conflict counsel’s decision not to prosecute was based on the facts in the deputy’s report and the resources needed to bring the matter to trial.

“Several factors led us to resolve that balance in favor of not prosecuting this matter,” Oliver writes. “The potential defendant in this case has no criminal record; there is no evidence of any systemic or coordinated removal of campaign materials by this person; the conduct does not appear likely to be repeated, and the item was returned quickly, which, while not a defense to the charge of theft, is likely to be viewed in the potential defendant’s favor by a jury or sentencing judge.”

Johnston had no further comment about the decision.

“I don’t want to rehash the issue. It’s embarrassing to the city,” he said, adding that no one he has met since the Oct. 12 incident has mentioned while he has campaigned.