Attorney Patrick Krueger, in an opinion requested by the Brainerd Lakes Regional Airport Commission, concluded both the commission and former Commissioner Doug Kuepers were in “substantial compliance” with Minnesota statutes despite payments that had been made to Kuepers’ architecture and building firm for an airport remodeling project.
In his opinion, Krueger also said the subcontractor agreement with Kuepers’ firm was valid.
Kuepers resigned from the commission earlier this month after he was found to have a conflict of interest because his firm had been hired as an on-site manager of the airport remodeling project by Short Elliot Hendrickson Inc.
When Kuepers resigned he signed an affidavit that stated no part of the claim has been paid. Krueger said in his written opinion that at the time he prepared the affidavit he was unaware that Kuepers Inc. had been paid any sums under its contract with SEH.
“It has since been learned that through March 17, 2011, SEH has paid Kuepers Inc. the sum of $43,875.00 out of the $135,000.00 to be paid under the contract,” Krueger wrote.
Krueger said the contract was partially performed prior to filing the affidavit and the commission’s adoption of a resolution.
“In my opinion, this does not void the contract as the commission and the interested member of the commission have acted in ‘substantial compliance’ with the statute,” he wrote.
Krueger wrote that at the time of the disclosure of the conflict and the adoption of the resolution the contract was less than half-performed and less than one third of the contract price had been paid to Kuepers Inc.
“These facts do not evidence bad faith; they do not evidence that the purpose of the procedures set forth in the statute have been undermined, nor do they evidence that anybody has been prejudiced,” Krueger wrote. “Therefore, in my opinion, the commission has substantially complied with the mandates of the statute and the contract is valid.”
In a separate correspondence, Krueger responded to Brainerd City Council member Bob Olson’s memo to the council on this issue in which he said, “Statutes covered in conflict of interest are well written and clearly define necessary requirements that prescribe procedures which should prevent any official from violating laws regarding conflict of interest ...”
Krueger described conflict of interest law as one of the more complex areas of the law, “even for those of us who evaluate conflicts within our practice every day.”
He cited statements made by former Minnesota Attorney General Hubert H. Humphrey III, citing the need for clarification of the rules governing conflict of interest.
Kuepers and Brainerd Lakes Regional Airport Commission Chair Beth Pfingsten could not be reached for comment Friday.
Both Krueger’s opinion on the affidavit on conflict of interest and his response to Olson’s memo were dated June 21.