Appeals court upholds Norman’s felony convictionsPublished 4:02pm Monday, September 17, 2012
Court reverses a gross misdemeanor conviction
The Minnesota Court of Appeals has sustained convictions of six felony charges against former Albert Lea City Manager Jim Norman and reversed a gross misdemeanor charge.
The court issued its ruling Monday.
A 12-member jury in May 2011 found Norman guilty of five counts of permitting false claims against government by a public officer, one count of theft by swindle and one count of misconduct by a public officer. Norman had misused the city-issued credit card for personal purchases, specifically charging more than $2,000 during his first few months as city manager in 2010.
A district judge sentenced Norman to 90 days of electronic home monitoring and five years of probation, in addition to performing 100 hours of community service. He appealed, asking for the convictions to be overturned and a new trial.
The three appellate judges sustained permitting false claims against government by a public officer and the theft by swindle but reversed Norman’s gross misdemeanor conviction of misconduct by a public officer.
Judge Michelle Larkin, authoring the ruling on behalf of the Court of Appeals, said the indictment failed to allege a violation of a statutory limit of the city manager’s authority. It did allege theft, she wrote, which is outside the authority of a city manager. But, she noted, that is not specifically defining a city manager’s scope of authority.
Norman raised the question on appeal, but it was not raised during the jury trial. Usually, the Minnesota Court of Appeals does not review material that was outside the original case, but, as Larkin noted, it can.
“Because Norman’s challenge has merit and goes to the propriety of his gross-misdemeanor criminal conviction, we conclude that the interests of justice weigh in favor of considering the issue,” Larkin wrote.
The court ordered the district court to vacate the gross misdemeanor conviction.
The other two appellate judges were Heidi Schellhas and Wilhelmina Wright.
What is false?
The appeal of the false claims against government centered primarily around what is the legal definition of “allow” and of “false.” Norman argued that because he repaid the credit card charges to the city. However, the court said because the charges were paid in the first place, they were allowed.
“By making the charges on the credit card with knowledge that the charges would be billed to and paid by the city, Norman ‘affirmatively authorized’ the claim,” the ruling states.
Norman claimed because the goods purchased on the credit card were real, not fake, the charge of “false” claims is unwarranted. The court, in response, cited a Supreme Court case where a bill for an actual purchase was submitted for payment under a false pretext, showing the use of the word “false” in the charge against Norman is consistent with past cases. The court observed that the meaning of false also fits a dictionary’s definition of “intentionally deceptive.”
To swindle or not to swindle?
Norman argued that he never intended to deprive Albert Lea city government of money through deceptive or fraudulent practices. He said he did not misrepresent anything.
The court struck down his argument: “There is sufficient evidence in the record for the jury to have concluded that Norman engaged in deceitful behavior by using the city-issued credit card — limited by the user’s agreement to “company-approved purchases” — to make purchases for personal use.”
Norman also noted he reimbursed the city, but the court was not persuaded. It said the prosecutor was not required to prove “an intent to permanently deprive.”
The court said Norman was indifferent to the rights of the city when he purchased personal property, even if he intended to repay it. The court said the jury had enough evidence to conclude Norman’s intent to swindle the city.
“The jury heard conflicting evidence on the issue of intent,” the ruling states. “Specifically, Norman told the police that he confused his city-issued credit card with his personal debit card. He also told the police that he believed his purchases were justified under his employment agreement. But Norman also sent an e-mail stating that he used the city’s card because he was in ‘terrible financial shape’ and did not have personal credit of his own. Which version of events to believe was within the exclusive province of the jury.”
Brenda Miller, the assistant Waseca County attorney, prosecuted the case. Norman claimed she tainted the jury by placing too much emphasis in her closing argument on the defendant’s credibility, rather than on guilt beyond a reasonable doubt.
The ruling states the remarks about Norman’s credibility were a small portion of Miller’s long closing argument.
“It is not likely that the remarks had a significant effect on the jury’s verdicts.”
The hottest topic of debate in the court of public opinion in the weeks and months after the city manager’s conviction was whether he should be treated differently than the city had treated other employees, even the financial director who blew the whistle on his credit card charges.
Norman, in his appeal, made a point that it had been customary for the city to allow supervisors to reimburse the city for charges that otherwise weren’t allowable.
The court ruled Norman did not back up the assertion with an authority or an argument.
Other claims that the appeals court said lacked support were that his action did not amount to a crime and that the district erred by limiting information the jury could hear.