ST. PAUL, Minn. (Legal Newsline) - Minnesota Attorney General Keith Ellison is facing mounting criticism for his use of privately funded attorneys to pursue a climate change lawsuit against Big Oil.
Two attorneys were placed in Ellison’s office by Bloomberg Philanthropies, an activist group funded by Michael Bloomberg through the New York University School of Law's State Energy and Environmental Impact Center (SEEIC), a year before suit was filed. According to documents made available through Freedom of Information Act requests, Ellison asked for $96,000 and $130,000 annually from the SEEIC to pay the salaries of lawyers Leigh Currie and Pete Surdo hired by SEEIC in May and June 2019 to work in Ellison's office as special assistant attorneys general (SAAG).
Critics argue that Ellison’s use of the embedded attorneys violates state law.
“Ellison has exceeded his authority and violated the law and the attorneys’ code of ethics by allowing attorneys with a third party determined agenda, paid by that third party, a political donor, to operate as ‘Special Assistant Attorneys General,” Doug Seaton, founder and president of the Upper Midwest Law Center, told Legal Newsline. “The law requires all such persons to be regular, civil service employees of the AG’s Office.”
Seaton is referring to Minnesota Statute 8.06, which explicitly says that the Minnesota AG, as the chief legal officer of the state, is the only attorney eligible to represent the State in legal proceedings unless rare, specific criteria are met, such as if either the governor, AG and chief justice establish a written agreement to employ additional attorneys, or if the governor concludes that the AG is “interested adversely to the state.”
Seaton said those narrow exceptions are not applicable in this case.
Details regarding the exact roles of the SAAG remain largely unclear, but public records related to the hiring of Currie and Surdo reveal the attorneys entered into an agreement with the AG intending to "advance progressive clean energy, climate, and environmental matters of regional and national importance."
Shortly after leaving his previous firm, Robins Kaplan, Surdo openly posted on his personal LinkedIn profile that he would be "embedded with the Minnesota Attorney General's Office as an Environmental Litigator and Special Assistant Attorney General.”
The agreement between Surdo and the AG office went into effect in May 2019, public records show. Currie was subsequently brought on under a "Secondment Agreement" between the Office of the AG and SEEIC on June 5, 2019. She was given a formal offer of employment by SEEIC on July 15, 2019 and began working for the AG on September 18, 2019.
In June 2020, Currie and Surdo were listed as the counsel of record in the lawsuit alleging that several oil companies unlawfully engaged in a public relations effort to undermine the science of climate change. ExxonMobil, Koch Industries, American Petroleum Institute and Flint Hill Resources were named in the complaint.
“We can only conclude that AG Ellison has let his political sympathies, his ties to this donor or a ‘by any means necessary’ political ruthlessness or expediency to overcome his duty to adhere to the law, the professional ethical code and the normal hiring protocols for AG staff,” said Seaton. “This decision most assuredly reflects improper bias and political corruption.”
When reached for comment, AG Ellison's office denied any impropriety in hiring Currie and Surdo, stating that the attorneys "were not privately hired." The office pointed to a statement Ellison made in February, in which he argued that he has “always been transparent about the money that pays the salaries of employees in the Attorney General's Office.”
Ellison said in the statement that his use of SAAGs was in the best interest of Minnesotans because the number of attorneys in their office has dropped by more than half over the past two decades. He further insisted that the attorneys do not report to anyone but him and exist only to serve Minnesota.
The AG’s office did not, however, refute the fact that the attorneys are indeed privately funded—an issue that, according to Ellison’s detractors, is neither ethical nor lawful.
"Minnesota Attorney General Keith Ellison appealed to Bloomberg's priorities in his application to NYU, even hinting at investigating energy companies if he was given some privately paid for hired help," said Annette Meeks, founder of the Freedom Foundation of Minnesota, in a Star Tribune op-ed published in January. "Minnesotans know almost nothing about these 'special assistant' attorneys general—an unheard-of lack of transparency from our state's chief law enforcement officer."
In Ellison's application requesting funding for the SAAGs, he attested that he could "confirm that the Office has the authority to appoint one or more SAGG(s) if selected as a Program participant.”
But a review of state statutes raises questions about the arrangement between AG Ellison's office and Bloomberg Philanthropies.
Minnesota Statute 43A.38 states that employees in the Minnesota executive branch are forbidden from receiving compensations, gifts, services, or payments of any kind in relation to their official duties.
“If this donor bought the AG a house, everyone would see the scandal. It is no different when he ‘buys’ the AG several attorneys,” Seaton said.
In Ellison's application to NYU for private resources, he cited his office's past "support [for] state-led efforts to investigate Exxon Mobil," as well as a desire to expand the state's role in such work. He further emphasized that he would only be able to pursue those goals if he received additional, privately provided resources.
The SEEIC was founded by the NYU School of Law in 2017 with the intent to "advance clean energy, climate and environmental laws and policies." According to the organization’s website, the group also aims to help state attorneys general lead "important legal challenges to the Trump administration's deregulatory efforts” and “play a unique and important role in the global fight for climate action.”
Statute 43A.38 also states that employees in Minnesota’s executive branch cannot use confidential information to advance the employee's private interests. It goes on to outline specific actions that represent a conflict of interest.
Included among the listed conflicts of interest is acceptance of “other employment or contractual relationship that will affect the employee's independence of judgment in the exercise of official duties.”
The statute further holds that an employee cannot legally use his or her official position to “secure benefits, privileges, exemptions or advantages for . . . an organization with which the employee is associated which are different from those available to the general public.”
Seaton believes that Ellison’s actions violated those statutes because the attorneys were provided as gifts that Ellison used to further his donor’s political agenda.
“The people of Minnesota, of all political stripes, should be outraged by this ‘bought lawyers’ arrangement,” Seaton said. “Wouldn’t they be [outraged] if the NRA or the Problem Solvers Caucus paid for and set the agenda for lawyers in the AG’s Office to pursue their legal-political agendas in the name of the citizens of Minnesota? This is equally reprehensible.”
Ellison's lawsuit was originally filed in Ramsey County state court, and later removed to federal court. On March 31, Chief District Judge John R. Runheim remanded the case to state court where it remains pending.