Former Freeborn County administrator’s wiretap case hinges on definition of county as person or corporation

(ABC 6 News) – The former Freeborn County Attorney’s wiretapping case against her employer rests, in part, on a county judge’s willingness to define a county as a person or corporation.

Candace Pesch was hired as the County Administrator for Freeborn County in October 2022, and terminated in April 2023.

RELATED: Freeborn County board votes to terminate county administrator 3-2 – ABC 6 News – kaaltv.com

In September of 2023, Pesch filed a civil suit against Freeborn County, stating that during her tenure, the county’s phone system was used to “surreptitiously” record a March 2022 conversation between Pesch and two county employees.

County employees were told they could record their own phone calls, Pesch’s suit notes, but were not notified that IT could access and record calls without their knowledge or consent.

Minnesota is a one-party consent state — meaning as long as one person, or party in a conversation is aware of and consents to a recording, the conversation can be recorded without a wiretapping suit.

Pesch’s suit claims that neither she nor the other two county employees were aware of the recording, making it a wiretap.

The recording was later accessed and downloaded by other employees, who were also not parties to the call, the suit claims.

The suit claims that in early March, Pesch had been accused of “gossiping” with the two other employees on the recorded call, and that the phone call recording a day or two later was given directly to the department head that accused Pesch.

“This unauthorized recording was saved by a Freeborn County IT employee and circulated to Plaintiff,” the civil suit reads. “Plaintiff has suffered actual and real damages as result of the surreptitious recording.”

The suit accuses Freeborn County as a whole of seven counts:

1. Unlawful interception, recording, disclosure or use or wire, oral or electronic communications, Minn. Stat. Section 626A
2. Violation of the Minnesota Government Data Practices Act, Minn. Stat. Section 13
3. Negligence Per Se related to Minnesota Statute 626A
4. Negligence Per Se related to the MGPDA
5. Negligence Per Se related to the MGPDA
6. Negligent Supervision in the purchase of the equipment used to record employee calls. This count was dismissed Dec, 15, 2023.
7. Invasion of privacy (Intrusion upon Seclusion)

Freeborn County claimed, in return, that its defense would rely on the “unclean hands” doctrine, among other defenses, and attempt to prove that Pesch had acted unethically.

Counts 1 and 3

On Friday, Jan. 12, 2024, Pesch and Freeborn County’s attorneys argued over whether a county is subject to MN Statute 626A.

Ann R. Goering, representing Freeborn County, argued that Pesch’s suit claims she can sue the county as an “entity,” instead of deferring to the definition of “person” given in the statute.
Goering said that as Minnesota’s statute against wiretapping defines possible perpetrators as “any individual, partnership, corporation, joint stock company, trust, or association, including but not limited to, the subscriber to the telephone or telegraph service involved and any law enforcement officer,” an entire county office could not be held liable.

Goering concluded that Judge Debra Groehler should dismiss counts 1 and 3 immediately.

Daniel A. McIntosh, representing Pesch, argued that Freeborn County does indeed fall under the definition of a public corporation, and is thus subject to penalties for wiretapping.
Furthermore, he said, Minnesota Statutes later use the terms “person” and “entity” to describe violators — meaning both terms could apply to Pesch’s suit.

Groehler took the matter under advisement, and told both attorneys she would return with a judgement after reviewing their filings.