Ethics and Conflicts of Interest at the Minnesota Sports Facilities Authority

Rochelle Olson’s recent Star Tribune article detailing how members of the Minnesota Sports

Facilities Authority (MSFA) have given themselves the perks of free tickets to sports events and the new US Bank Stadium is a case study in self-dealing and abuse of official positions.  It describes how public officials have convinced themselves how doing what is in their personal interest is furthering the public good.  What they did is ethically wrong, and as I was quoted in that piece, perhaps also legally wrong.  Let us examine the issues.
First, let me explain my perspective.  I taught government ethics for 15 years.  Prior to that I served as the president and executive director of Common Cause Minnesota (a group that advocated for ethics in government).  I have done ethics training for many state agencies and local governments in Minnesota.  I have written a book and several articles on government ethics, and serve on the editorial board for the leading international journal on government ethics.  For all of these reasons I think I can competently speak on the issue of government ethics.
The single most classic definition of conflict of interest is when government officials are using their personal positions for private enrichment, or using their official position to further their own private interests.  By nearly universal definition this is a form of political corruption.  While traditionally such a definition of conflict of interest required a public official to reap a financial or pecuniary gain, the concept of conflict of interest and abuse of position has expanded.  Minnesota Statutes §43.A38, which applies to members of the State Executive Branch, well captures this.  For example, it declares as a conflict of interest:

use or attempted use of the employee's official position to secure benefits, privileges, exemptions or advantages for the employee or the employee's immediate family or an organization with which the employee is associated which are different from those available to the general public.

This law also bans the “ use or allow the use of state time, supplies or state-owned or leased property and equipment for the employee's private interests or any other use not in the interest of the state.”
By any reasonable construction of this law, use of the special box seats by the MSFA for their personal use is ethically wrong.  Other states have similar rules on this, as well as local governments.  In fact, in my training of local governments employees and professional societies across Minnesota, the type of behavior exhibited by MSFA officials would clearly be wrong, subject to disciplinary action.  In addition, if this behavior were to occur among members of the executive branch it would be considered illegal.  In fact, for the last 18 or so years I have taught in  the Emerging Leaders program for the State of Minnesota.  This program trains future managers and agency heads in state government.  I have always taught the ethics component in conjunction with the state ethics officer and Minnesota Statutes 43A.38 occupies a central role, where descriptions of the type of behavior depicted by members of the MSFA are highlighted and described as ethically and legally prohibited.   The point is that what they did is wrong.  No matter how hard they worked they are not entitled to these special privileges.  The same point goes to recipients of the free tickets if they too are public officials or employees.
So has any state law been broken?  The answer is more complex but there are good reasons to say so.  First, any members of the executive branch who received free tickets arguably did break the law.  But what about members of the MSFA?  If they are considered members of the executive branch then they did too.  It is not clear if they are, but an argument can be made that they should be.
The MSFA is a strange entity in Minnesota law.  Minnesota Statutes § 473J.07 declares the MSFA to be “ established as a public body, corporate and politic, and political subdivision of the state.”  Under   473J.09   it is declared to be a public “authority may sue and be sued. The authority is a public body and the stadium and stadium infrastructure are public improvements within the meaning of chapter 562. The authority is a municipality within the meaning of chapter 466, and that means both the Data Practice Act and open meeting laws apply.  All this is significant for several reasons.
First, it is a public body but it is treated like a local government.  Minnesota Statutes 43A.38 does not apply to local governments and therefore one could argue that members of this body do not legally have to follow these rules. Yet Under Minnesota Statutes  § 10a Subd. 22, they meet the definition of local official (“ a person who holds elective office in a political subdivision or who is appointed to or employed in a public position in a political subdivision in which the person has authority to make, to recommend, or to vote on as a member of the governing body, major decisions regarding the expenditure or investment of public money.)  Members of the old sports commission explicitly covered by this definition (subdivision 24).  Arguably so are members of the MSFA, and they would be covered by the conflict of interest rules under Minnesota Statutes  § 10a .  These rules are weaker than 43A.38, but they still have some force here.
But more importantly, even though the enabling language for the MSFA makes them a local government, there are many reasons to think the agency is also a quasi-executive agency, or at the least an agency with a confused legals status under the Minnesota Constitution.  Its members are appointed by the governor but it reports to the legislature.  There is no other entity in Minnesota that looks like the MSFA, except perhaps for the Iron Range Resource and Rehabilitation Board (IRRRB), and state law explicitly declares the IRRRB to be an executive branch agency.
The similarities in structure between the MSFA and the IRRRB suggest the former should also be considered to be at least a quasi-executive agency.  Its confused legal structure, despite state language to the contrary, suggest it to be executive in many of its functions and therefore should be treated as if part of the executive branch with 43A.38 applying.
Finally, there is another reason to think that the MSFA distribution of box seats is illegal.  Look at who received the tickets–apparently all DFLers.  One can argue that the seats were awarded for partisan political purposes, and there are opinions from previous State Auditors that the use of state property for political purposes is illegal.
Overall, members of the MSFA and public officials who received free tickets should have known at the very least that their actions were unethical by any accepted standards of contemporary public sector ethics.  In addition, State Law and, in some cases applicable local law, would have declared this practice illegal.