Tevlin: New frac-sand job for Red Wing mayor is legal but dumb

  • Article by: JON TEVLIN , Star Tribune
  • Updated: February 16, 2013 - 10:46 PM

Sometime between the day Dennis Egan got elected mayor of Red Wing in November and last week, a group of frac sand companies thought it might be a good idea to hire Egan as their face and lobbyist at the Legislature.

The controversial industry is rapidly expanding in southeastern Minnesota as energy companies seek to mine sand that's used elsewhere to force oil and natural gas from the earth. Sometimes they need "crisis communications."

It seems Egan's first duty on the job was to create a crisis.

Last week, Red Wing residents jammed into a City Council meeting to tell Egan his dual role was as welcome as an Asian carp invasion in the Mississippi. The city is going to hire outsiders to investigate Egan's role in the debate. Meanwhile, some residents are petitioning for a recall election.

Maybe I can save the city some money. I consulted ethicists in business and politics to see what they thought. Three out of four think he shouldn't have both jobs. All four agree it's legal, but they also say it's dumb public relations.

David Schultz, adjunct professor of Hamline University's School of Law and a nationally recognized expert on political and business ethics, does not equivocate.

"He's got a clear conflict of interest," Schultz said. "It's not even a potential conflict. It's a bona fide conflict of interest."

Even though Egan may not be directly voting on issues that come before the City Council regarding sand mining -- though he does have veto power -- Schultz said his official role shows tacit support of the industry and everything it does. Egan, who makes about $9,000 as a part-time mayor, has said he would recuse himself from any possible conflicts.

"There could be real kinds of issues that we can't even imagine that he can influence," Schultz said.

'Wasting city's money'

However, Ian Maitland, a professor at the University of Minnesota's Carlson School of Management, strongly disagrees and thinks the city is more worried about its image than actual conflicts of interest. Any job the part-time mayor takes could have conflicts, he said.

"I think the council is wasting the city's money by asking for an investigation of Egan's ties with the trade group," Maitland said. "It is at best a fishing expedition and at worst harassment of the mayor. The council's action insinuates that there is something improper in Egan's relationship with the trade group without producing a shred of evidence that the mayor has not been candid."

The notion that the city's image may take a shellacking "may be a factor that voters should consider in a possible recall, and it raises questions about Egan's judgment," Maitland said. "But there is nothing unethical about a mayor taking a public position that may be unpopular or divisive."

Schultz doesn't see it that way.

"Everything from trucks on roads to deployment of city services to police and sanitation," said Schultz. "The fact that he has dual loyalties could affect his judgment. Simple disclosure is not enough in this case."

Mayors often go to the Legislature for assistance and money for projects, such as road and bridge repair, which may be needed due to increased sand truck traffic, Schultz said.

"Which hat does he wear?" Schultz asked. "Is he going to the Legislature for the well-being of Red Wing or is he going for the well-being of the industry?"

An 'obvious conflict'

Richard Painter, professor of law at the University of Minnesota and former ethics adviser to President George W. Bush, also called the situation "an obvious conflict of interest."

"I assume the mayor's job is part time and pays relatively little, but still the mayor's day job should not create unacceptable conflicts of interest," he said. "Being a lobbyist for an industry group that has a major impact on the city does create an unacceptable conflict of interest. He should do that, or be mayor, but not both."

Nancy Zingale, professor emerita of political science at the University of St. Thomas, agrees.

"It would seem to me to be a conflict of interest if the city regulates or gives leases for frac sand or might in the future consider such questions," Zingale wrote in an e-mail. "Even if not, it may give the appearance of a conflict, which would also be a problem if it undermines the confidence that citizens have in the integrity of the decision-making process."

Unfortunately, I think Egan has already undermined that confidence. He has made a horrible decision as mayor.

Yet Egan's position is as legal as it is dumb.

"Unless the city of Red Wing has policies against this kind of behavior, legally, there is nothing wrong with it," said Schultz.

A call for Legislature to act

He said the Legislature needs to enact statutes that deal with conflicts of interest that are statewide and apply to the kinds of situations that are occurring across the state as the frac sand industry expands.

"There are conflicts, there is self-dealing and we need a statute to address it," Schultz said.

Schultz is right. The state needs to be proactive in this area. Meanwhile, the residents of Red Wing are right to petition for a recall to see what the voters think.

But my bet is the frac sand industry will see this conflict as the liability it is first and run away from this disaster.

jtevlin@startribune.com • 612-673-1702

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