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The controversy involves Pete Surdo, a former intellectual property and antitrust law principal at the
Robins Kaplan law firm. He started working with Ellison’s office on June 26 as a New York University
School of Law fellow. (File photo)

Group sues AG over enviro-lawyer

 By: Kevin Featherly  August 19, 2019

A group with ties to the fossil fuel industry is suing Attorney General Keith Ellison for
information about a lawyer in Ellison’s office who gets paid—at least indirectly—by New York
billionaire and green-energy champion Michael Bloomberg.

The AG’s office says it has turned over all the information it can for now, but has yet to reply
to a new request plaintiffs filed just weeks ago.

“The lawsuit is without merit and we will respond appropriately,” Ellison said in a written
statement Wednesday.

The suit, Energy Policy Advocates v. Keith Ellison, was filed in Ramsey County District Court
on Wednesday. No judge had been assigned to the case as of Thursday morning.

The controversy involves Pete Surdo, a former intellectual property and antitrust law
principal at the Robins Kaplan law firm. He started working with Ellison’s office on June 26 as
a New York University School of Law fellow.

Surdo advises the office on environmental issues and assists in litigation, including a
challenge to President Trump’s planned roll-back of national automobile emission standards.

His salary is paid by NYU’s State Energy & Environmental Impact Center, a fellowship
launched in 2017 with a $6 million grant from the ex-New York mayor’s Bloomberg
Philanthropies.

According to NYU, the program pays participating fellows’ salaries in state AG offices around
the country. But it gives them a long leash, the school says.

“The fellows’ sole duty of loyalty is to the attorney general in whose office he or she serves,”
the program’s website says. “All work performed by the fellows is entirely identified and
managed by their respective AG offices.”
Fellows work for limited periods as special assistant AGs focused on “clean energy, climate
and environmental matters with regional or national significance,” according to the school.

In a written statement, Ellison said he is happy to accept NYU’s help.

“We can legally accept their help and we are honored do so,” he said. “Minnesotans need all
of the help we can get fighting the effects of climate change and keeping Minnesota’s air and
water clean.”

Who’s suing
Plaintiffs charge that the arrangement is both unethical and illegal. The group filing the suit,
Energy Policy Advocates, is a 501(c)(3) nonprofit incorporated in Washington state. It has
ties both to the GOP and the traditional energy industry.

One of the 501(c)(3) nonprofit’s board members, Mike Gardner, identifies himself as
“associate general counsel of the largest independently owned coal mining company in the
United States.” Its executive director, Matthew D. Hardin, is the Republican lead prosecutor
of Green County, Virginia.

Hardin also is connected to Government Accountability & Oversight, P.C., a conservative

group that filed similar suit against the Maryland AG in March.

Plaintiffs allege the same arrangement is in place in at least nine states and the District of
Columbia. Currently, they indicate, similar lawsuits are also under way in Massachusetts and
Virginia.

Doug Seaton is a local attorney on Energy Policy Advocates’ legal team. Seaton, president of
the Upper Midwest Law Center, spoke at a Capitol press conference Wednesday.

In an interview later, Seaton characterized the Surdo arrangement as an improper scheme

by Bloomberg, a major Democratic Party donor, to embed hand-picked lawyers in state AG’s
offices and push his personal green agenda.

Seaton likened the arrangement to a fictional scenario under which a major health care
company steps in to pay top Department of Human Services administrator salaries.

“Would anybody think that’s a great solution?” Seaton said. “That’s not what the people of
Minnesota would want for their government. It’s supposed to be a representative
government.”

According to the complaint, plaintiffs filed their first Government Data Practices Act request
on Dec. 20, 2018, just as Lori Swanson’s tenure was winding down.

Specifically, the group sought emails to or from former Minnesota Deputy Attorney General
Karen Olson. They think some messages address recruitment efforts for government
plaintiffs in climate-change litigation. They think other communications discuss recruiting
privately hired special assistant attorneys general.

Another December request sought emails from Olson containing keywords like
“googlegroups.com,” “Google Docs,” “Sharepoint,” “Dropbox” and “box.com.”

Both requests were denied on Jan. 4—Swanson’s last day on the job—on grounds that the
AG’s office either didn’t have the material or “had no responsive data that it deems public
information,” according to the complaint.

“This information is of heightened public interest for many reasons, particularly the use of
state power to further private aims,” the complaint states.
Plaintiff’s filed similar requests with Ellison’s office in late July, this time specifically
referencing Surdo’s role. Those requests have yet to be answered.

Dueling statutes
Whether or not it is OK to bring lawyers paid by outsiders into the AG’s office boils down to
which of two Minnesota statutes controls, and what those statutes actually say.

Energy Policy Advocates thinks that the guiding law is Minnesota Statutes Section 8.06, the
final sentence of which reads:

“Except as herein stated, no additional counsel shall be employed and the legal business of
the state shall be performed exclusively by the attorney general and the attorney general’s
assistants.”

Though he admits the language does not specifically say so, Seaton said the implications are
crystal clear. Except in limited circumstances, “attorney general’s assistants” must be hired
through the state’s usual practices and paid through direct legislative appropriations.

An example of one such exception, he said, was the state’s lawsuit against Big Tobacco in
the 1990s. But in that case, Seaton said, the governor, attorney general and state Supreme
Court chief justice all publicly signed off on hiring an outside firm. The law doesn’t cover
what Ellison is doing, Seaton said.

“They can’t just be marched in from the street and paid for by a third party,” he said. “That’s
the basic question here. “

Ellison’s office—while declining to discuss legal strategy—points to a competing statute,

Minnesota Statutes Section 15.59, which suggests it’s just fine to bring in outsiders.

“In addition to the interchange of government employees,” the statute says, “any
department, political subdivision or agency of state government and private industry may
serve as sending and receiving agencies, as provided in section 15.52, and interchange
employees pursuant to the requirements of sections 15.53 to 15.57.”

Seaton insists 15.59 doesn’t apply.

“We think that that’s simply intended for cases where there are sole-source providers of
things, like nuclear reactors,” he said. “So, of course, you’re not going to have state
employees trying to make up a repair on a nuclear reactor.”

Minnesota Lawyer reached out to the two chairs of the House and Senate finance
committees with jurisdiction over the office for their views on the arrangement.

Sen. Mary Kiffmeyer, R-Big Lake, the chair of the State Government Finance and Policy and
Elections Committee, did not respond to a query. A Senate spokeswoman was looking into
the matter, but did not get back to the newspaper before deadline.

Rep. Mike Nelson, DFL-St. Paul, chair of the House State Government Finance Division, did
respond late Wednesday evening. But at this point, he said, he has little to say.

“This is the first I have heard about this,” he said. “So I will need to look into it.”

ABOUT KEVIN FEATHERLY

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former
freelance writer who has covered politics, law, business, technology and popular
culture for publications and websites in the Twin Cities and nationally since the mid-
1990s.
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