Legal opinions call for Sviggum to choose between dual roles

The two lawyers called Regent Steve Sviggum’s dual roles conflicting and unmanageable.

Greta Kaul

The University of Minnesota released two legal opinions Wednesday that found Steve Sviggum’s roles as a member of the Board of Regents and a Senate staffer to be an unmanageable conflict of interest.

The opinions, one by University General Counsel Mark Rotenberg and one by Minneapolis lawyer John Stout, came on the heels of an opinion from Sviggum on Tuesday saying there was no unmanageable conflict of interest.

Both attorneys said the conflict between the two positions couldn’t be eliminated and suggested that Sviggum pick one post and leave the other.

The release of the opinions follows Board of Regents Chairwoman Linda Cohen’s announcement that three board members will meet with Sviggum on Friday to discuss his potential conflict of interest and make a recommendation to the full board.

Sviggum, who was named to the board by the state Legislature last year, announced Jan. 16 that he was taking another job as executive assistant and communications chief for the Minnesota Senate Republican Caucus.

Sviggum served nearly 30 years as a state representative, including eight years as Speaker of the House, until 2007.

Shortly after his appointment to the board, Sviggum stepped down from a fellowship at the Humphrey School of Public Affairs following an ultimatum from a regent committee that he pick one job or the other. He said he would accept the ruling though he disagreed with it.

Sviggum said he hadn’t read either attorney’s opinion as of Wednesday afternoon, though he said his wife read them Tuesday.

“She said they were bad and arrogant. She said, ‘Don’t read them because you won’t be able to sleep,’” Sviggum told the Minnesota Daily Wednesday.

‘Incompatible public positions’

Rotenberg outlined three major grounds for which, he argued, Regent Sviggum and Executive Assistant Sviggum have conflicting roles.

First, he wrote that given the University’s nature as a public institution, it would be impossible for Sviggum to extract himself from decisions and discussions considering the University — both formally and informally — within the Senate.

Sviggum said, “It’s very difficult to have a conflict of interest because I’m not a decision-maker here at the Capitol.”

Rotenberg argued that Sviggum would have significant competing loyalties in his two roles. As executive assistant, Sviggum’s chief duty is to carry out the will of the majority leader and the caucus, Rotenberg wrote, while University regents have a duty to preserve the board’s autonomy.

“Indeed, one might reasonably suppose that such an employee likely will be even more partisan and single-minded regarding public policy issues than an elected Senator, whose duty, after all, is to represent all the people of his district, not just those who associate with his party’s caucus,” Rotenberg wrote.

Rotenberg also brought up a conflict between the state’s separation of powers. The University and its governing board are constitutionally autonomous. With few exceptions, legislators cannot simultaneously hold another public office.

 While Sviggum’s role at the Senate is not as a legislator, Rotenberg cited a past Minnesota Supreme Court case that decided public officers with conflicting duties could not fully carry out either duty.

“I think most things in life are manageable,” Sviggum said, expressing frustration that the University didn’t seem willing to work with him on the issue. “People don’t like that my-way-or-the-highway-type situation. They don’t like it in Washington, D.C., they don’t like it in St. Paul at the Capitol and they don’t like it at the University of Minnesota.”

Stout cited the board’s Code of Ethics, which says a conflict of interest exists when a regent’s employment “may impair independence of judgment.” He pointed out that there is “no requirement for an actual impairment for an employee-related conflict to exist.”

“My opinion in this case is that the public’s confidence, the integrity of the Board and the protection of the University’s public mission require that Regent Sviggum relinquish one of the two positions he currently holds,” Stout wrote.

Next steps

Cohen requested the legal opinions during the Feb. 10 board meeting.

“Because I believe it is vital for the public to fully understand the issues involved, I have decided to make the opinions public,” she said in a statement.

Cohen said she hopes the full board will make a decision on whether a conflict exists on March 8.

Cohen said she can’t comment much on the situation before Friday, but said she’s been talking back and forth with Sviggum.

“I felt along the way that Steve and I have been communicating pretty well.”

Despite the release of the opinions, Sviggum maintains that any potential conflict is manageable.

“I hope the board will see that and if they don’t, we’ll have to make another decision,” he said.