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Two breaches of public trust getting judicial scrutiny

We must demand that our public officials comply with the law – without the need for courts to order them to do so.

Two Hennepin County district court judges in three separate opinions have ruled that the Minneapolis City Council has no authority to maintain and operate the Commons Park adjacent to US Bank Stadium.
MinnPost photo by Peter Callaghan

Ever since our nation evolved into a two-party system, we have relied upon the parties keeping a watchful eye on each other and a vigilant media focusing on both. America’s major scandals — Teapot Dome under President Warren G. Harding, Watergate under President Richard Nixon and today’s impeachment investigation — all fit this pattern.

This system of partisan oversight fails to protect the public when the public misdeeds involve both political parties. In our hyper-partisan world both the public and the media look away when both parties are complicit and silent. This is precisely the case with two serious breaches of the public trust that will be before the Minnesota Court of Appeals this week.

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On Oct. 23 in Minnesota Center for Environmental Advocacy v. PolyMet, the Minnesota Court of Appeals will hear arguments on the continuation of a stay in the issuance of a permit for a sulfide mine proposed for Hoyt Lakes. The request for a stay followed the discovery of alleged malfeasance by MPCA officials by withholding critical health data and the acquisition of PolyMet by Glencore, a Swiss company with annual revenues of $219 billion. A temporary stay was granted by the court on Sept. 18 based upon MCEA’s research showing a similarity of the projects’ proposed tailings dam to a tailings dam in Brazil that collapsed, killing 300 people. The court stated that the new evidence “raises serious, justifiable concerns.”

Former Gov. Arne Carlson
MinnPost file photo by James Nord
Former Gov. Arne Carlson
On Oct. 24, the Court of Appeals will hear oral arguments in Hayden and Ostrow v. City of Minneapolis, et.al. Two Hennepin County district court judges in three separate opinions have ruled that the Minneapolis City Council has no authority to maintain and operate the Commons Park adjacent to US Bank Stadium. Nonetheless, the City Council has continued to operate and maintain the rent-free space, purchased by the city for $20 million for the benefit of the Vikings, at public expense, pursuant to an unlawful agreement. The Court of Appeals will consider whether the citizens of Minneapolis have “standing” – the right to sue – to nullify this agreement.

These scandals involve extraordinarily wealthy individuals or corporations with a history of financial misdeeds receiving special consideration without any serious vetting process. Vikings owner Zygi Wilf was fined $32 million for violating racketeering laws in New Jersey. Glencore has been investigated throughout the world for money laundering, corrupt practices, financial exploitation and bribery.

One would assume that if public officials choose to enter into agreements under these circumstances, they would go to extraordinary lengths to protect the public. Sadly, that is not the case. Neither the City of Minneapolis nor the state Legislature has engaged in any meaningful oversight of stadium expenditures. Meanwhile the Legislature appears to be washing its hands of the PolyMet permit process, refusing to hold public hearings or to investigate.

Both projects were launched with false promises. According to then-Gov. Mark Dayton, the stadium was be the “people’s stadium” and would be built “without using a single dollar of general fund tax dollars.” In the end, the public picked up almost the entire cost, approximately $1.5 billion once the added costs for infrastructure are included. Once seat licenses and revenue streams were considered, Zygi Wilf did not need to open his checkbook.

PolyMet was to be environmentally safe, create over 350 mining jobs, and impose no financial burden on Minnesotans. That was the promise. Now, thanks to a whistleblower, we’ve learned that the permitting process was allegedly corrupted by our own Pollution Control Agency officials who may have withheld vital health data from the public during the public hearing process. Sadly, there has not been any investigation by the governor, the attorney general, or the Legislature. There are no job or wage guarantees, troubling given the increasing use of robots in mining operations. The proposed permit provides little or no financial recourse for the public to recover environmental cleanup costs or to indemnify the public if something like the tragic dam collapse in Brazil occurs in Minnesota.

Paul Ostrow
MinnPost file photo by Jana Freiband
Paul Ostrow
Policymakers and appointed officials have shown too much disdain for the rule of law. The Minneapolis City Council’s disregard for its own charter in 2012 made the Vikings stadium project possible. The council voted at that time to ask the Legislature to override a charter amendment launched by their constituents to require a public vote before more than $10 million  in city funds could be used for a stadium. The current price tag for the city is $600 million and continuing to rise. The City Council consented to the Commons Park Use Agreement requiring the City Council to operate and maintain the park in February 2014 despite a court ruling in December 2013 telling the City Council it had no authority to operate or maintain parkland. And, assuming the allegations over the PolyMet permitting process are proven, what could be more contemptuous of the rule of law than MPCA staff directing people to make comments orally but not in writing to hide health concerns from the public record?

The simple fact is that elected leaders from both parties at both the state and city levels have stonewalled the public by refusing to allow public hearings, not answering valid questions and not providing appropriate information.

The anger level is rising to the point where some citizens like Tom Berkelman, a highly respected former DFL legislator from Duluth, want the consideration of Initiative and Referendum. This was a major reform of the progressive movement led by Presidents Theodore Roosevelt Woodrow Wilson. The goal was to wrest control from the powerful interests that were dominant and give it to the people. Currently 27 states have some form of this check on government.

Initiative and a Referendum may well be the answer. But, in the meantime, we must insist that all major contracts be automatically processed through public hearings by the appropriate elected governing body. We also must demand that our public officials comply with the law – without the need for courts to order them to do so.

Arne Carlson is a former governor of Minnesota (1991-1999). Paul Ostrow is a former president of the Minneapolis City Council.

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