(dissenting).
Because I am of the view that neither Minn.Stat. § 351.03 (1984) nor Executive Order 85-10 authorizes the compelled testimony of the County Attorney under investigation, I respectfully dissent.
Minn.Stat. § 351.03 provides that the Governor “shall give to the officer a copy of the charges against him (the official) and an opportunity to be heard in his defense.” (Emphasis supplied.) To me an opportunity to be heard clearly implies that the charged officer has the option to give testimony or not as he or she chooses. Nothing in the statute remotely indicates that the Governor or the Commissioner has any authority under the subpoena power to compel the charged officer to testify in the proceedings before the Commission or in any pre-proceeding depositions.
Moreover, Executive Order 85-10 establishes the Special Commission “to conduct a hearing and take testimony for and against the County Attorney, and provide the County Attorney an opportunity to be heard in his or her defense.”
As used in both the statute and the Executive Order “opportunity” obviously means “chance” — a chance to present evidence. The “opportunity,” “chance,” or “option” to testify in her own behalf rests with the charged officer. In neither the statute nor the order is any authority extended to the Commission or the Governor to compel such testimony under penalty of contempt for failure to do so.
I would grant the writ.