By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
Finally, the restructuring of metro government was not a good financial deal for the economically beleaguered bus company. Beginning in 1995, MCTO is paying an annual governance fee of $600,000 to the Met Council. According to Thompson, that's about $500,000 a year more than was paid in governance fees before the restructuring.
Attorney Robert Hill says that when he filed suit against the Met Council and Tom Sather on behalf of Dick Lindgren, he immediately received a call from a Met Council attorney. "I was told point-blank by representatives from the Met Council that they were shocked by these allegations and wanted to get to the bottom of them. All they really wanted to do was get sufficient time to try and discredit my client," Hill says. "I made a mistake. I trusted these guys."
The lightning rod in the case is former U.S. Attorney Tom Heffelfinger, who was brought into the matter by the Met Council to investigate Lindgren's charges. Given his background, he had obvious credentials as a criminal investigator; on the other hand, friend and foe alike deem Heffelfinger a consummate political operator. The question that soon arose was whether he was brought in to conduct a good-faith investigation or to contain any potential political damage from the ongoing theft scandal, now overlaid with the complication of Lindgren's whistleblowing suit.
Met Council Executive Director Curt Johnson claims three or four public agencies turned down his request to investigate Lindgren's charges before he turned to Heffelfinger. Johnson, who left an influential position on Carlson's staff to come to the Met Council, says, "I recognize there is a downside to employing Tom Heffelfinger, because he is a partisan Republican who has been the governor's personal attorney in the past. As a result of that, he is a hot button for some Democrats. But he is the best attorney in town for investigating fraud."
Upon being retained by the Met Council on April 27, Heffelfinger initially portrayed himself as an independent investigator. To that end the court granted him the power to subpoena documents and testimony from all parties connected with Lindgren's lawsuit. After completing his investigation, Heffelfinger represented himself as an attorney for the Met Council; in the latter capacity, he has claimed attorney/client privilege over the documents and materials he collected as an investigator, keeping them effectively sealed. This apparent shift in duties is what prompted Hill's claims of a legalistic bait and switch.
Early on in the Lindgren lawsuit, District Court Judge Kenneth Fitzpatrick acknowledged Heffelfinger as a "special investigator" and granted his motion that all records and documents related to the bus company investigation be turned over to him for review. Throughout the judge's order, Heffelfinger is referred to as a "special investigator," while Hill and Linda L. Holstein are duly noted as the attorneys representing Lindgren and the Met Council respectively.
Heffelfinger's version is that he was an investigator up until the time he had finished his investigation and delivered his report to the judge; then he continued in the case as Met Council attorney. "I was hired to provide them with legal advice to the facts I found from an investigation," he says. "I couldn't provide them with a legal analysis until I had a factual basis for providing them with that legal analysis."
Johnson and Heffelfinger seem to want it both ways in their accounts of the Heffelfinger investigation: insisting that the inquiry was genuinely impartial, yet insisting at the same time that Hill knew or should have known what Heffelfinger's role would ultimately be when he agreed to the judge's order. In the words of Curt Johnson, "Anybody with any insight at all knew that Tom Heffelfinger was our attorney."
The information collected by Heffelfinger, along with his 98-page report, remains sealed pending a ruling on a motion brought by Hill and the Star Tribune to make the material public. Thus the only extended public glimpse into the nature of Heffelfinger's investigation is a transcript of a May 31 progress report given by Heffelfinger to Judge Kenneth Fitzpatrick, a meeting in which other attorneys in the case were not present.
In that transcript, Heffelfinger devotes most of his energy to damning the MTC/MCTO internal investigation. He notes in passing that there don't appear to be grounds for any future prosecutions in police files, and goes on to characterize Lindgren's investigation as "extremely disorganized," with "questionable interpretation, if you will, of departmental policy." Later, Heffelfinger tells the judge, "The investigation to date has not revealed any evidence of obstruction of justice in the sense that any supervisory people, senior management people, were telling the police 'don't do this' or 'don't do that' or killing an investigation. However, we have found a lot of evidence of policy violations by supervisory level people in the transit police."
When the judge asks whether Heffelfinger has received the MTC security videotapes and if they have been of assistance to his investigation, Heffelfinger replies, "I don't think it's appropriate today for me to start editorializing about how that police department was being run." Yet he goes on to criticize the department's "abysmal procedural techniques" and says that "the videotapes appear to be useless.... There's a tape in there of four tires being stolen by somebody. It's my understanding that individual was prosecuted and that's history. I'm not too interested in that kind of history." (Heffelfinger is apparently referring to the tire theft by the U-Haul driver in St. Paul, a case in which no individual was ever caught or prosecuted.)