Campaign Finance Board Draft Advisory Opinion 439: Re

8/9/2019 Campaign Finance Board Draft Advisory Opinion 439: Re

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Date: January 26, 2015

To: Board Members

From: Jeff Sigurdson Telephone: 651-539-1189 Assistant Director

Re: Advisory Opinion 439

The request for Advisory Opinion 439 was received and accepted by the Executive Director onJanuary 22, 2015. The request was submitted on behalf of Senator Tomassoni by Michael

Ahern, the senators legal counsel.

Senator Tomassoni has accepted the position of Executive Director for an association that isrepresented at the legislature by a lobbyist. The request asks if this employment will create aconflict of interest for the Senator.

The draft opinion provides that a conflict of interest does not exist. Under the provisions ofChapter 10A a conflict of interest occurs from a specific decision or action that meets certaincriteria. A conflict of interest is not created by a legislators employment or occupation. Asdrafted this opinion is consistent with prior advisory opinions issued to members of thelegislature on this subject.

Please contact me if you have questions or changes that you would like incorporated into thedraft.

Attachments:Draft Advisory Opinion 439Request letter dated January 21, 2015

Attachments provided with the request


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State of Minnesota

Campaign Finance and Public Disclosure BoardSuite 190, Centennial Building. 658 Cedar Street. St. Paul, MN 55155-1603

THIS ADVISORY OPINION IS PUBLIC DATApursuant to a consent for release of information

provided by the requester

Issued to: Senator David Tomassoni75 Rev. Dr. Martin Luther King Jr. Blvd.Capitol, Room G-9St. Paul, MN 55155-1606

RE: Potential Conflict of Interest for a Member of the Legislature

ADVISORY OPINION 439

SUMMARY

Employment by a member of the legislature as the executive director of an association that isrepresented by a lobbyist does not in itself create a conflict of interest. An official action ordecision by the legislator may create a conflict of interest under specific circumstances.

FACTS

As a State Senator, and therefore a public official as defined in Minnesota Statutes Chapter10A, you authorized your legal counsel to request on your behalf an advisory opinion from theCampaign Finance and Public Disclosure Board (the Board) based on the following facts thatwere provided in the letter requesting the advisory opinion and in documentation provided withthe request.

1. You have been hired as the Executive Director of the Range Association of Municipalities and Schools (RAMS).

2. As a result, RAMS is now for you an associated business as defined in MinnesotaStatutes section 10A.01, subdivision 5, because the association will becompensating you more than $50 a month.

3. RAMS is a voluntary association of political subdivisions that has been representedby a lobbyist registered with the Board since 1991. Therefore RAMS is a principalas defined in Minnesota Statutes section 10A.01, subdivision 33.

4. You have provided with your request a copy of an agreement between you andRAMS that details your duties as Executive Director. The agreement specificallystates that you will not be a lobbyist for RAMS, that you will not be involved with thehiring of a lobbyist for the association, and that the lobbyist will not report to theposition of Executive Director.

5. You are aware of prior advisory opinions issued by the Board that consideredpotential conflicts of interest for a member of the Minnesota legislature and the

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requirements when a conflict of interest exists. 1 In particular you note that AdvisoryOpinion 325 considered a potential conflict of interest and concluded that theoccupation or profession of a legislator does not in itself create a conflict of interest.Based upon prior Board opinions and the provisions of Chapter 10A you and yourlegal counsel have concluded that a conflict of interest did not occur when youaccepted the position of Executive Director of RAMS. However, you are also awarethat an advisory opinion issued by the Board provides safe harbor only to the

individual or association that requested the opinion. Therefore, you have asked tothe Board for an advisory opinion specific to the facts of this situation.

ISSUE

Will employment as Executive Director of RAMS create a conflict of interest, as defined inMinnesota Statutes section 10A.07, with your service as a State Senator?

OPINION

The only conflict of interest provision within the jurisdiction of the Campaign finance andPublic Disclosure Board is Minnesota Statutes section 10A.07. No employment relationship,in itself, will give rise to a conflict of interest under this statute. Instead, the statute requiresthat public officials evaluate the decisions they are required to make and the actions they arerequired to take as a part of their official duties and to determine if a conflict of interest exists.

To determine if there is a conflict of interest a public official must consider two criteria, bothof which are established by Minnesota Statutes section 10A.07. First, will the official actionsubstantially benefit either the public officials personal financial interests or the financialinterests of an associated business? If the answer is yes then the second criteria is whetherthe benefit will be greater for the public official or the official's associated business than theaffect on other members of the same business classification, profession, or occupation. Onlywhen both conditions are true does the public official face a conflict of interest.

Under the statute a legislator who finds that an action will create a conflict of interest mustprepare a written statement describing the matter requiring the official's action or decisionand the conflict of interest and deliver the notice to the presiding officer of the legislativebody in which the official serves. If there is not time for a written statement, the legislatorshould orally inform the legislative body of the potential conflict. A legislator may beexcused from taking part in an action or decision that creates a conflict of interest.

Hypothetically, a specific issue or appropriation before the Senate could benefit RAMS in away that will create a conflict of interest for you. But accepting employment with RAMSdoes not create a conflict of interest with the position of State Senator under the provisions ofChapter 10A.

Issued: February 3, 2015 ___________________________________George A. Beck, ChairCampaign Finance and Public Disclosure Board

1 See Advisory Opinions 237, 264, 325, 355, and 368. Advisory opinions are available for viewingat www.cfboard.state.mn.us/ao/index.html .

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Cited Statutes and Administrative Rules

10A.01 Definitions .

Subd. 5. Associated business. "Associated business" means an association, corporation,partnership, limited liability company, limited liability partnership, or other organized legalentity from which the individual receives compensation in excess of $50, except for actualand reasonable expenses, in any month as a director, officer, owner, member, partner,employer or employee, or whose securities the individual holds worth more than $2,500 atfair market value.

10A.07 Conflicts of Interest .

Subdivision 1. Disclosure of potential conflicts. A public official or a local officialelected to or appointed by a metropolitan governmental unit who in the discharge of officialduties would be required to take an action or make a decision that would substantially affectthe official's financial interests or those of an associated business, unless the effect on theofficial is

no greater than on other members of the official's business classification, profession, oroccupation, must take the following actions:

(1) prepare a written statement describing the matter requiring action or decision andthe nature of the potential conflict of interest;

(2) deliver copies of the statement to the official's immediate superior, if any; and

(3) if a member of the legislature or of the governing body of a metropolitangovernmental unit, deliver a copy of the statement to the presiding officer of the body ofservice.

If a potential conflict of interest presents itself and there is insufficient time to complywith clauses (1) to (3), the public or local official must orally inform the superior or the officialbody of service or committee of the body of the potential conflict.

Subd. 2. Required actions. If the official is not a member of the legislature or of thegoverning body of a metropolitan governmental unit, the superior must assign the matter, ifpossible, to another employee who does not have a potential conflict of interest. If there is noimmediate superior, the official must abstain, if possible, in a manner prescribed by the boardfrom influence over the action or decision in question. If the official is a member of thelegislature, the house of service may, at the member's request, excuse the member fromtaking part in the action or decision in question. If the official is not permitted or is otherwiseunable to abstain from action in connection with the matter, the official must file a statementdescribing the potential conflict and the action taken. A public official must file the statementwith the board and a local official must file the statement with the governing body of theofficial's political subdivision. The statement must be filed within a week of the action taken.

Subd. 3. Interest in contract; local officials. This section does not apply to a localofficial with respect to a matter governed by sections 471.87 and 471.88.

Subd. 4. Exception; judges. Notwithstanding subdivisions 1 and 2, a public officialwho is a district court judge, an appeals court judge, or a Supreme Court justice is notrequired to comply with the provisions of this section.

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January 21 2015

The Honorable George BeckChairMinnesota Campaign Finance and PublicDisclosure Board190 Centennial Office Building658 Cedar StreetSt. Paul, Minnesota 55155-1603

_ D O R S E Y '

MICHAEL J. AHERNPartner

(612) 340-2881FAX (612) 340-2643

[email protected]

Re: Request for Advisory Opinion Regarding Sen. David Tomassoni's Position asExecutive Director of the Range Association of Municipalities and Schools

Dear Judge Beck:

Please accept this request from Senator David Tomassoni for an advisory opinionregarding his position as Executive Director of the Range Association of Municipalities andSchools ( RAMS ). Sen. Tomassoni would like to confirm with an advisory opinion from theCampaign Finance and Public Disclosure Board ( CFPDB ) that his recent acceptance of theRAMS position does not in itself create a conflict of interest within the meaning of Minn. Stat. 10A.07.

F CTS

1. Sen. Tomassoni is a Minnesota State Senator first elected to the Senate in 2000.Sen. Tomassoni represents Minnesota Senate District 06. District 06 includes, among others,the cities of Chisholm, Eveleth, Gilbert, Hibbing, Nashwauk, and Virginia. Much ofSen. Tomassoni's district includes the Iron Range.

2. On January 1 2015, Sen. Tomassoni began a position as the Executive Directorof RAMS. His employment agreement ( Agreement ) is attached to this letter as Exhibit A;attached as Exhibit Bis a copy of RAMS's Constitution and By-Laws. RAMS helps promoteeconomic development and the general welfare on the Iron Range by bringing an areawideapproach to problems which demand coordinated and cooperative actions and which arecommon to the [Iron Range). ee Minn. Stat. 471.58. Sen. Tomassoni's salary will be$6,500 per month. Exhibit A at 2. Pursuant to the Agreement, Sen. Tomassoni will take a leaveof absence from his position as Executive Director during the legislative session. Id During theleave of absence, Sen. Tomassoni will not receive compensation from RAMS or accrue paid-time off. Id

DORSEY & WHITNEY LLP WWW.DORSEY.COM T 612.340.2600 F 612.340.2868SUITE 1500 50 SOUTH SIXTH STREET MINNEAPOLIS MINNESOTA 55402-1498

USA CANADA E UROPE ASIA PAC IFIC


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Judge BeckJanuary 21, 2015Page 3

D O R S E Y '

from serving in the legislature. Advisory Op. No. 325 at 2. Rather, a legislator employed in aposition with the potential to create a conflict of interest will need to make the same specificevaluations of potential conflicts of interests when acting on legislation that a legislatoremployed in any other profession mu st make. Id

II. Senator Tomassoni Will Make Full Disclosure if a Specific Conflict Arises and RecuseHimself from Any Votes that Would Substantially Affect His Financial Interests or Thoseof RAMS.

If a conflict of interest might exist, Senators must disclose it. Minn. Stat. 1 OA.07subd. 1. Specifically, Senators must prepare a written statement describing the matterrequiring action or decision and the nature of the potential conflict of interest. Id. subd. 1 1 ).The written statement must then be delivered to the President of the Senate. Campaign Fin. &Pub. Disclosure Bd. Advisory Opinion No. 237 at 3 (May 31, 1996). lfthere is not sufficienttime to prepare a written statement, the same information must be communicated orally. IdSenators may request to be excused from the vote or action presenting a conflict. Minn. Stat. 10A.07, subd. 2. The Senate may, in its discretion, excuse a Senator from the vote. See idIf the Senate requires a Senator to participate in a vote that involves a conflict of interest, thenthat Senator is required to file a written statement with the CFPDB within one week thatdescribes the action taken and the potential conflict of interest. Id

Please be assured that Sen. Tomassoni intends to seek recusal from any votes thatwould substantially affect his financial interests or those of RAMS as set forth in Minn. Stat. 10A.07.

ON LUSION

Sen. Tomassoni does not believe that his acceptance of the position of ExecutiveDirector of RAMS creates a conflict of interest in violation of Minn. Stat. 10A.07. The Board

has stated that this statute does not preempt conflicts of interest by categorically excludinglegislators from accepting certain positions. Advisory Op. No. 325 at 2. Accordingly, ifSen. Tomassoni complies with the statutory disclosure and abstention provisions noted above,in accordance with well settled precedent and law, we ask that the Board confirm that as theExecutive Director of RAMS he does not have a conflict of interest within the meaning of Minn.Stat. 10A.07.

Senator Tomassoni consents to publication of his name and submitted attachments inconnection with the release of the opinion.

Sincerely yours,DORSEY & WHITNEY LLP

Michael J. AhernPartner

ORSEY & WHITNEY LLP


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Judge BeckJanuary 21 2 15Page

MJA:bbEnclosurescc: Senator David Tomassoni


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RAMS EXECUTIVE DIRECTOR

RANGE ASSOCIATION OF MUNICIPALITIES AND SCHOOLS

EXECUTIVE DIRECTOR'S AGREEMENT

EXHIBIT A

This agreement between the Range Association o Municipalities and Schools, hereinafter

referred to as RAMS'', (the employer), and David Tomassoni, employed as Executive Director o

RAMS, is effective on the first day o January, 2015, when signed by both the President and Vice

President o RAMS, and David Tomassoni.

As Executive Director o RAMS, David Tomassoni will perform all duties as set forth in the

Constitution and By-Laws o RAMS, and agrees to perform the scope o services and duties as per the

written Job Description, which duties include but are not limited to the following :

1 Shall provide professional services to RAMS as assigned by the President and the Board oDirectors.

2 Shall employ temporary part-time staff when necessary to accomplish specific office functions.

3 The Executive Director will not be a lobbyist for RAMS. The Executive Committee will select alobbyist and the RAMS Board o Directors will approve the hire o the lobbyist and the lobbyistwill be accountable to the RAMS Board o Directors.

4 Shall meet with or direct staff to meet with city, school and township officials regularly toascertain issues and concerns that can best be addressed through RAMS, and will work tomaintain RAMS membership.

5. Shall meet with political entities, area corporations and other organizations to build cooperationand credibility for RAMS.

6 Shall publish a newsletter on a regular basis, the frequency o which shall be determined by theExecutive Committee. The newsletter shall be published in addition to memos and updates sentto RAMS board members.

7 Shall fulfill the duties o the Executive Director according to the RAMS By-Laws, report to themembership indicating impacts that legislative and administrative acts have on members, andshall do so in a nonpartisan manner in accordance with the RAMS motto - One Range, OneVoice .


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TERMS AND CONDITIONS OF EMPLOYMENT

a COMPENSATIONFor the duration of this contract the salary shall be 6,500 per month. During the Minnesota State

Legislative Session, the Executive Director will take a leaveof

absence and will not receivemonthly compensation or accrue PTO benefits from RAMS.

b WORK SCHEDULEThe regular work week shall consist of 40 hours per week. To the extent practical, when not inlegislative session the Executive Director may work in or out of the office as needed to fulfill theduties of the Executive Director and/or the mission of RAMS.

c HOLIDAYSThe Executive Director will be paid for eight ( 8 ) holidays as established by the Board ofDirectors:

New Year s Day, Memorial Day, Independence Day, Labor Day, Veterans Day, ThanksgivingDay, Christmas Eve Day, Christmas Day

d Paid Time O ff (Vacation Sick Leave)PTO shall be accrued at the following rates per years o f service:

0 - 3 years

4 - 6 years

7 - 10 years

1 5 days (12 hours) per month or 18 working days per year

1.75 days (14 hours) per month or 21 working days per year

2 days (16 hours) per month or 24 working days per year

PTO may be used as earned, and accrued PTO should be used annually. A maximum of20 days

(160 hours) of PTO may be accrued (unless approved by the Executive Committee for

extraordinary reasons). Accrued PTO exceeding 160 hours in any calendar year will be forfeited.

PTO maybe be used in a minimum o f two hour increments.

The Executive Committee shall approve the time in which vacation leave maybe taken.

e MILITARY, PARENTAL AND FAMILY LEAVELeave shall be provided as required by the state and federal laws.

f JURY OR WITNESS DUTYRegular compensation shall be earned when performing jury duty or when subpoenaed to testifyin a matter on behalf o f RAMS.


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g MONTHLY CAR ALLOWANCE

No allowance given at the issuance o this contract.

A monthly car allowance may be added to future contracts.

h HEALTH INSURANCENo allowance given at the issuance o this contract.

A Health insurance rate may be added to future contracts.

L CELL TELEPHONE ALLOWANCE

R MS shall provide the Executive Director a cellular telephone or communication device and pay or

reimburse the monthly charges or R MS business use o the Executive Directors cell telephone or

communication device

J RESIGNATION

The Ex ecutive Director is required to notify the RAMS Board o Directors in writing 90 days

prior to the effective date o his resignation in order to leave employment in good standing.

k GRIEVANCE PROCEDURE

The grievance procedure shall cover disputes or disagreements regarding the terms and

conditions o employment, including discipline, termination and severance. A grievance

procedure shall consist o a four step process:

1 The grievance shall be presented in writing to the president o RAMS within 20 work days. fnot timely, the matter should be considered waived and not grieveable;

2 f he grievance is not resolved, it shall be heard by the Executive Committee o RAMS;

3 f not resolved by the Executive Committee, it shall be heard by the Board o Directors oRAMS;

4 f unresolved after being heard by the RAMS Board o Directors, the grievance will proceed

to binding arbitration with an arbitrator selected by the State Bureauo

Mediation Services.Each party should equally share in the cost o Arbitration.


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DISCIPLINE

The Executive Director shall be subject to disciplinary action including suspension without pay

or termination for failure to fulfill his duties and responsibilities or for any other conduct or behavior

which causes public embarrassment or casts RAMS in a negative light. The Executive Director may

demand a hearing before the Executive Committee or use the grievance procedure should such

disciplinary action occur.

TERM RENEW AL AND RENEGOTIATION

This agreement shall continue in full force and effect beginning January 1 2015 and shall

automatically terminate and conclude on December 31 2016 unless revised amended or re-negotiated

by the RAMS Executive Committee. Any modifications o or amendments or addendums to the

Agreement shall be binding only i the modifications amendments or addendum are in written form and

it is clearly stated that it is intended to be a modification o or an amendment or addendum to this

agreement. To be effective the modifications amendments or addendum must be passed by the Board

o Directors and signed by both the President o RAMS and the Executive Director.

SA VINO CLAUSE

This agreement is subject to and shall be interpreted in accordance with the laws o the State o

Minnesota. In the event that any one or more o the provisions in this agreement should be determined to

be invalid illegal or unenforceable the validity legality and enforceability o the remaining provisions

contained in this agreement will not be affected or impaired in anyway.

This document is fully executed beginning on the first day o January 1 2015.

RAMS President - Craig Pulford

RAMS Vice-President - Timothy S. Riordan

RAMS Executive Director - David Tomassoni


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Campaign Finance Board Draft Advisory Opinion 439: Re

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Transcript of Campaign Finance Board Draft Advisory Opinion 439: Re