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County attorney subject of investigation

After going through a very public DWI arrest in St. Louis County six years ago and winning re-election two years later, Carlton County Attorney Thom Pertler was the subject of a new investigation last year — this one initiated by the Carlton County Board of Commissioners.

The investigation covered six issues or concerns — among them allegations that Pertler failed to file an important legal brief, sometimes smells of alcohol at work, and claimed unearned mileage last year, which were "partially substantiated," according to the report summary. The findings cost Pertler the annual raise given to other elected officials of 3 percent.

When asked about the allegations in an interview with the Pine Journal this week, Pertler called the investigation "a witch hunt."

"I think there are some ulterior motives," Pertler said Tuesday. "I don't know who the people are or what their motivations are."

His wife, Jill, suggested one or more people could be after his job, as Pertler is up for re-election in November.

New County Board Chair Susan Zmyslony confirmed that the county hired an outside law firm to look into concerns last fall. The investigator, Christian Shafer of Ratwik, Roszak and Maloney law firm, interviewed 12 people, including Pertler, in November and December.

Pertler said he had no idea anyone had complaints, and no idea he was being investigated.

"I got a phone call out of the blue from (the investigator). He said, 'Hey, can I come talk to you?'" Pertler said. "I didn't have a clue. That's why I'm saying I think it was a witch hunt. Nobody asked me about any of these things before. I wasn't aware of any issues until (the investigator) got here."

Other than not giving Pertler a 3 percent raise awarded other elected officials at the their meeting Jan. 2, county board members have not taken any formal action since they received the investigative report.

The board has very little authority to do anything. The county attorney is an elected official rather than an employee of the county, therefore, "the board has no disciplinary authority over that position," Zmyslony said.

The Pine Journal obtained a copy of the investigative summary after submitting a public data request to the county. According to the summary, the investigation initially focused on the failure of the county attorney's office to submit appellate briefs in at least one appeal of a criminal conviction, and that Pertler drinks alcohol at work.

It was later expanded to include allegations that Pertler falsified reimbursement requests by including mileage for conferences he didn't attend.

Further, the report claimed Pertler didn't respond appropriately to allegations that an assistant county attorney inaccurately reported flex time, and that Pertler refused to speak to Judge Robert Macaulay when the judge came to the office personally.

Pertler readily admits that the county attorney's office failed to file a brief in the case of State vs. Ferguson, but pointed out that it wasn't his case.

The third-degree murder conviction was overturned by the Court of Appeals partly because of the missing brief, according to the following footnote in the appeal: "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 construct the state's position from the record as constituted, and without the benefit of focused counterarguments to those presented by appellant."

Pertler pointed out to the investigator that he has the authority to assign cases to assistant county attorneys, and that they "learn by doing."

He told the Pine Journal he had no way of knowing why the brief wasn't sent to the Attorney General's Office, as is the usual procedure.

"What happens is the attorney will ask support staff to mail that down to the AG's office," he said. "I'm not going to throw someone under the bus. Bottom line is, it didn't get mailed down."

His wife pointed out that he's been in office 12 years, and the Ferguson case was the first time his office had failed to file a brief in a case like this.

That failure and the subsequent coverage in local media, however, did not sit well with the AG's office, which has not helped the county with a similar case since then. The investigator cited two letters related to this issue.

In the first letter, the AG's office cited its caseload and other factors as a reason for not helping the county.

In the second letter, they stated it is important that the credibility of the AG's office and its attorneys "is not undermined with the courts or the public by a county attorney to whom we deliver assistance on his cases."

Pertler told the Pine Journal the AG's office has historically offered assistance on a case-by-case basis and he's optimistic they will do so again in the future.

"When we get a case, we send it down," he said. "If they say they can't help, we take it back. We've had a few back in recent months, but we've still been 100 percent successful."

Pertler denied drinking alcohol at work and said people were "mistaken." He admitted, though, that because of his previous DWI conviction, the allegations are not entirely surprising. They are "the spaghetti (an accuser) would throw at the wall," he said.

For his part, the investigator noted that no witness reported seeing Pertler drinking alcohol at work, but "the evidence supports the conclusion that he has come to work smelling of alcohol on multiple occasions over the past several years," adding that he was unaware of any reasons the witnesses — including Judge Leslie Beiers — would have lied about their observations.

Pertler's wife wasn't so sure.

"If someone indeed, has ill intentions (toward Thom), that would be his Achilles heel because of his background," Jill said. "How do you defend from someone who says they smelled alcohol on some day a few months ago?"

The mileage reimbursements for two meetings in the Twin Cities he did not attend were a mistake, Pertler admitted, explaining that he has worked with the same person in the office for 20 years, and that she completes his mileage reports using a calendar. The conferences were on the master calendar when she put together a report that ran from December 2015 through April 2016, and he signed it without double-checking it.

When the investigator brought the discrepancy to his attention, Pertler said he paid it back immediately.

"I'm not going to scam the county for $140," he said. "As soon as I found out, I told Jill to give me the checkbook. I'd never do that."

According to the report, it was not uncommon for county expense reports to span several months. The county changed its practices last summer, however, to require that requests for reimbursements must be submitted within two months of incurring the expense.

The investigator concluded that Pertler's explanation that he inadvertently submitted the reimbursement request is credible, but went on to say that the lack of review contributed to the county paying Pertler $142 for each conference.

"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," the investigator wrote. County Auditor Paul Gassert confirmed earlier this week that he was sending a formal letter to the Office of the State Auditor.

Regarding the other allegations, Pertler disputed claims of poor morale in the office, telling the Pine Journal that he and his staff talk when needed and things are good.

He also told the investigator that he had talked to the assistant county attorney, whose name was redacted in the report, about the importance of accurate time records more than once.

He told Shafer that "it was news to him" that Judge Macaulay came looking for him, although Macaulay said he saw Pertler leave the office a few minutes later. According to the report, the county attorney emailed Shafer later to say he had apologized to Judge Macaulay.

Pertler is unhappy about the way the investigation was handled.

"It's troubling that this kind of came out of the blue. I would never ever want to hurt my constituents and, more importantly, my family," he said. "At the end of the day, I'm a husband, I'm a dad and I've got four kids. I'm trying to provide for them and I'm trying to work hard on behalf of the people of this county."

The investigative report may not be the end of the story.

When asked if he is taking any actions as a result of the investigation, Pertler said he is consulting with his own counsel.

Zmyslony noted that the board may not have disciplinary authority over the county attorney, but it "is not precluded from expressing its concerns and disappointment regarding his conduct and performance, how it impacts his office and the County's relationship with other agencies, including the Attorney General's Office, and could request that Mr. Pertler take appropriate voluntary action to remedy the outlined concerns, including voluntarily stepping down if necessary."

Such a request may not be heeded, if it comes. Pertler said Tuesday that he expects to run again.

Editor's note: Clarification: Pertler was convicted in St. Louis County in 2012 of third-degree driving while impaired -- refusal to submit to a chemical test, a gross misdemeanor. Charges of fourth-degree driving while impaired, speeding, driving over the center line, failure to signal, open bottle and no proof of insurance were dismissed. Pertler's wife, Jill Pertler, is a self-syndicated columnist whose column regularly appears in the Pine Journal. She is not an employee of the Pine Journal.

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