Wrestling With Immunity

Minnesota has a code of ethics for its executive branch. It just doesn't apply to the governor.

There's a word that seems tailor-made to describe Leslie Davis: indefatigable. Under the aegis of his corporate alter ego, Earth Protector Inc., the 62-year-old north Minneapolis resident has engaged in a ceaseless battle against those who dare to log old-growth timber, build garbage burners, or otherwise befoul the landscape. Last year Davis ran for governor but failed to collect the 2,000 signatures needed to file for office and had to mount a write-in campaign instead. And since July he has waged a one-man war against the victor in the gubernatorial race, issuing press releases, firing off letters to state and local officials, and demanding court hearings. His goal: to prosecute Jesse Ventura for violating the state conflict-of-interest statutes by appearing as a guest referee at the World Wrestling Federation's August 22 SummerSlam.

Davis began the campaign because he felt Ventura's side projects were distracting him from the business of governing. "Here he is going on book tours and refereeing wrestling matches," he says. "That's not what the governor is supposed to do." He doesn't want to be perceived as a "cranky guy running around filing papers wherever he can," Davis adds; it's just that he's having no luck finding anyone who'll pursue the matter, which he deems "the biggest story in Minnesota politics ever."

So far his crusade hasn't won Davis any new friends among public officials, who have expeditiously brushed him off. But in giving him the bum's rush, those officials have found it necessary to cite state law, and in so doing they have exposed what appears to be a significant flaw in the statutes. Namely: It's unclear whether the governor is simply a "public official," or whether he's also a state "employee." The distinction is crucial when it comes to conflict-of-interest issues, because the two types of public servants are governed by entirely different statutes.

Leslie Davis: Earth protector, former gubernatorial aspirant, ethical stalwart
Mark Wojahn
Leslie Davis: Earth protector, former gubernatorial aspirant, ethical stalwart

Davis has maintained that Ventura falls under Minnesota state statute 43A.38, which outlines the "code of ethics for employees in the executive branch" and which prohibits, among other things, the "use or attempted use of [a state] employee's official position to secure benefits, privileges, exemptions, or advantages for the employee...which are different from those available to the general public," as well as "acceptance of other employment or contractual relationship that will affect the employee's independence of judgment in the exercise of official duties."

Statute 10A.07, meanwhile, requires that a "public official" must disclose conflicts of interest if the official "would be required to take action or make a decision that would substantially affect the official's financial interests...."

According to 10A.34, subdivision 3, "Unless otherwise provided, a violation of sections 10A.02 to 10A.34 is not a crime." But violations of 43A.38 are to be dealt with under statute 609.43 ("misconduct of public officer or employee"), which calls for a prison sentence of up to a year, plus a fine of up to $3,000, and therefore implies criminal prosecution.


Shortly after Ventura announced his plan to serve as guest ref for the WWF, Davis warmed up his fax machine, aiming to keep the governor out of the ring. He appealed to the attorney general and the state auditor, the latter of whom pointed him to the state's legislative auditor Jim Nobles. In a two-paragraph letter dated August 17, Nobles informed Davis that he found nothing unlawful in the governor's conduct, and explained that state law didn't prohibit "having an 'outside' job or business."

Seems simple enough. But most of the legal minds that examined Davis's claim didn't go to the trouble of examining whether refereeing constituted a conflict of interest for the governor. Instead they chose to grapple with the issue of whether the law can rightly be applied to him.

On August 19, three days before SummerSlam, Davis was granted a hearing before Ramsey County District Court Judge Kathleen Gearin, from whom he was seeking a temporary restraining order barring Ventura from entering the ring. Gearin rebuffed him, stating in her order denying his request that under the statute, Davis had no right to pursue the action as a private citizen. She also took pains to note that "[t]he Court has a serious question regarding whether the Governor of the State of Minnesota is an employee within the meaning of Minnesota Statutes Chapter 43. In light of other rulings, that issue is not decided today."

Having failed to prevent Ventura's participation, Davis switched his tack and commenced a quest to have the governor prosecuted for the "crime" he committed at the Target Center. First he turned to the Hennepin County Attorney's Office. In his August 27 response to Davis, Pat Diamond, manager of the county's special litigation section, defined Ventura as a "public official" rather than a state employee. "The Governor is a public official clearly subject to the conflict of interest provisions of 10A.07," Diamond stated, and noted further that under state law, Chapter 10A supersedes Chapter 43A. Thus, Diamond concluded, "criminal prosecution would be barred."

Minneapolis City Attorney Jay Heffern declined to pursue the matter on similar grounds. "The ambiguity of the definition," he wrote in a September 17 letter to Davis, "would likely prohibit proof beyond a reasonable doubt that the Governor is an 'employee' for the purposes of Chapter 43A." He cited varying definitions of "employee" found on the state books and, like Diamond, noted that Chapter 10A superseded 43A and would "prohibit criminal prosecution."

Next Page »