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.

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."

So much for the naysayers. But earlier this month, after filing a request under the Minnesota Data Practices Act, Davis pried loose a copy of an August 2 letter sent by Sandra Hyllengren, an ethics officer for the Minnesota Department of Employee Relations, to three of the governor's top staffers. And therein he found some support for his position. "I can think of no way he can avoid being characterized as an employee," Hyllengren wrote in reference to Ventura, and went so far as to add that the governor "offends the statute in a number of ways."

Unfortunately for Davis, Hyllengren's boss, Department of Employee Relations Commissioner Karen Carpenter, believes Ventura is a "public official" and not an "employee." Opines Carpenter: "I really believe that the governor, being a public official, is not subject to the code of ethics as it is written in 43A of the statutes. Sandy Hyllengren read the statute differently and her thoughts on the matter are her opinion, that's it." (Hyllengren did note in her letter that hers was merely an "unofficial opinion.")

 

While Davis has failed to locate anybody willing to drag Ventura into court, he might spur lawmakers to clean up their statutory language. "I do think that the laws governing conflict of interest are complex and confusing to even the brightest people around," Karen Carpenter concedes. "I wouldn't be surprised if the Legislature did something to clarify it."

Even though legislative auditor Jim Nobles doesn't believe Ventura's WWF moonlighting constitutes a conflict, he too admits to being puzzled that the law could be interpreted to read that the governor isn't a state employee. "I'm baffled by the suggestion. I don't know that anybody's ever suggested before now that governors and constitutional officers are not subject to that law," a mystified Nobles allows. "When you have judges and other people in other legal positions saying the law is unclear," he adds, "maybe the Legislature should nail it down so that no one who speaks the English language could have any doubt."

Ventura spokesman John Wodele agrees that the law could stand clarification, but he maintains that Davis is wasting the courts' time: "To put something like this in the criminal courts," he asserts, "is absurd."

Speaker of the House Steve Sviggum (R-Kenyon) believes Ventura is indeed violating the conflict-of-interest statute, but he's not apt to raise a stink. "If he's not an employee, I wonder where he gets his checks from," Sviggum jokes. "But I'm not wanting to make a war out of this issue. I want to develop a working relationship and a trust with the governor." Sviggum says he has heard talk that others might introduce legislation next year to clarify the "employee" issue.

Even a perennial ethics watchdog like Sen. John Marty (D-Roseville) isn't getting too wound up about the issue, however. "If there's little public outrage," Marty offers, "I don't think the Legislature is going to be inclined to do much."

Davis, meanwhile, press-releases on undaunted. He says he intends to exhaust all administrative and legal remedies before he petitions to hold a recall election (an endeavor that he estimates would require about half a million signatures). "If I do everything right, that'll eventually wind up at the state supreme court for a decision!" he enthuses.

"This is only the fifth round in a fifteen-rounder," he adds. "It's hard work, it's costing me money. But I think in the end the people of the state are going to appreciate what I'm doing."

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