North Dakota and Minnesota lobbyists who count tobacco and health care as clients, clockwise from top left: Kayla Effertz Kleven, Rae Ann Kelsch, Todd Hill, James Clark, John Olson and Sarah Erickson.

Forum News Service

FARGO – With smoking being the No. 1 cause of preventable death in the U.S., tobacco companies and health groups seemingly would be clear opponents in statehouse politics.

But that stark division can get blurred in North Dakota and Minnesota where, according to state records, at least a half dozen lobbyists are registered to represent both tobacco firms and health organizations – groups like the North Dakota Hospital Association and the American Congress of Obstetricians and Gynecologists.

Some say these lobbyists can take certain precautions to compartmentalize their tobacco and health work, while critics believe lobbying for both sides creates inherent ethical quagmires.

David Schultz, a political science professor at Hamline University in St. Paul, is in the camp of critics. He said lobbyists who work for tobacco and health groups risk their credibility among lawmakers and their effectiveness in advocating for their clients.

“How effective can they truly be when they’re arguing contrary positions?” said Schultz, an expert in government ethics. “I think there’s a potential conflict of interest there.”

Schultz said lobbyists with multiple clients often represent similar types of groups and for one to work for a health group and a tobacco company is unusual. Paul Miller, president of the National Institute for Lobbying and Ethics, concurred.

Miller said his Virginia-based lobbying firm would not represent both sides. “I’d look at the optics of it and say, ‘Is this really the brand that we want to be able to say we’ll just represent anybody and everybody?’ ”

Of the six lobbyists registered to represent tobacco and health groups in Minnesota and North Dakota, five of them lobby for Altria, the parent company of Philip Morris USA and other tobacco firms. Altria spokesman David Sutton said the company’s lobbyists have a process for dealing with conflicts when they come up.

“We expect our lobbyists to subscribe to high standards of ethical and professional compliance, and we have not experienced any issues arise regarding the representations provided by these lobbyists,” he said in a statement.

Sutton also said Altria’s lobbyists let prospective clients know about the other entities they represent. But in at least one case, this disclosure doesn’t appear to have happened.

Among the Minnesota lobbyists who represent Altria is Sarah Erickson. She also lobbies for the Coalition of Addiction Recovery in St. Paul and, until recently, the Rainbow Health Initiative in Minneapolis.

When told about Erickson’s work for the tobacco industry, Joann Usher, the Rainbow Health Initiative’s executive director, was taken aback. “I hadn’t even thought about looking at the other clients that she represents,” Usher said. “The fact that she represents a tobacco company, now that I'm aware of it, it will be problematic for us.”

It’s a problem because the Rainbow Health Initiative, a group that seeks to improve the health of the lesbian, gay, bisexual, transgender and queer community, is a member of the Association for Nonsmokers-Minnesota and receives funding from the 1998 settlement that states reached with major tobacco companies, including Philip Morris, Usher said.

Days after The Forum first contacted Usher, she said Erickson was no longer lobbying for the Rainbow Health Initiative because of her ties to Altria. “Since we do work in tobacco control, it would be a conflict of interest for us to contract with her,” Usher said.

Reached by phone, Erickson referred questions to Altria. Messages left for the Coalition of Addiction Recovery, a group aimed at helping people with mainly drug and alcohol addictions, were not returned.

‘Not logical bedfellows’

Minnesota Sen. Kent Eken, a Moorhead Democrat and minority whip, said he believes lobbyists need to be transparent when dealing with clients. “I think it should be required that lobbyists’ firms be revealing all of their clients and who they’re working for,” he said.

Eken and North Dakota Rep. Al Carlson, a Fargo Republican and majority leader, both said they would have concerns about someone lobbying for and against the same issue. “If you work on both sides of an issue, in my opinion, they lose most of their credibility,” Carlson said.

The two legislators said they have never seen this happen. However, the president of the Association for Nonsmokers-Minnesota said she believes there are ethical quandaries whenever lobbyists represent health and tobacco groups, regardless of the issue at hand.

“They just are not logical bedfellows,” Jeanne Weigum said. “I’m troubled by the hole in the thinking and the judgment of groups that don’t see that there’s a conflict there.”

Aside from the Rainbow Health Initiative, the Minnesota and North Dakota health groups with tobacco lobbyists said their lobbyists have been upfront with them about working for the tobacco industry. And the health groups say there’s no problem with this tobacco work because the lobbyists are not advocating for opposing sides of a certain issue.

In North Dakota, former state lawmaker RaeAnn Kelsch lobbies for the Reynolds American tobacco firm. One of her other clients is the North Dakota Dental Association, which, as part of its mission, works to educate patients about the harms of tobacco.

Messages left for Reynolds were not returned. In an email, Kelsch said she informs all her clients about the other groups for which she lobbies. “The majority of my clients are issue-specific and conflicts are avoided,” she wrote.

John Olson, a former state Senate minority leader, and Kayla Effertz Kleven, a former adviser to Govs. John Hoeven and Jack Dalrymple, are lobbyists in Bismarck who work together representing Altria. They’re also employed by the North Dakota Hospital Association and the North Dakota Dental Association. And Olson alone is registered to lobby for the North Dakota Pharmacy Service Corp.

Olson, a former Burleigh County State’s Attorney, and Effertz Kleven offered comments similar to Kelsch. They said they disclose to all clients the various interests they represent. “If a conflict does arise, we have a process in place to address that,” they said in a joint statement.

Sanford, lobbyist part ways

In 2015, The Forum published a story focused on Olson’s work for tobacco and health groups. At the time, one of Olson’s clients was Sanford Health, which back then said his tobacco work was “a non-issue.” By the end of that year, he was no longer working for Sanford, said Nadine Aljets, a Sanford spokeswoman.

Aljets said it was Olson’s decision to stop lobbying for Sanford. Asked why he no longer lobbies for Sanford, Olson did not say. Though, he did say he continues to serve as a special assistant attorney general for the North Dakota Board of Medicine, which licenses and disciplines doctors.

This relationship between Olson and the board raised red flags for Schultz. The professor said it creates an ethical conflict because Olson is a tobacco lobbyist and as a Board of Medicine attorney is expected to support public health interests.

“That just strikes me as a very difficult tightrope to be able to walk,” said Schultz, who’s also a University of Minnesota law professor.

Duane Houdek, the board’s executive secretary, said he doesn’t see a conflict with Olson working for the board and Altria. “I know people think of us in that big umbrella of health, but we’re a regulatory board,” Houdek said, noting that the board does not weigh in on general health issues.

As a special assistant attorney general, Olson does not lobby for the board but rather advises it on legislative matters, Houdek said. Olson was lobbying for the board, but he stopped after a 2015 attorney general’s opinion said state boards can’t employ lobbyists, Houdek said.

North Dakota’s smoking age

The North Dakota health groups that employ Olson, Effertz Kleven or Kelsch as lobbyists all said the three were hired to address issues unrelated to tobacco.

“If there was ever an issue that came up involving tobacco, even in the most obscure way, these lobbyists would not represent us on that issue,” said Brent Holman, executive director of the North Dakota Dental Association, which employs all three lobbyists.

Jerry Jurena, president of the North Dakota Hospital Association, said his group hired Olson and Effertz Kleven as lobbyists to focus on the issue of Medicaid expansion. He said the hospital association has taken no positions on tobacco-related legislation this session.

Though, Jurena noted that the association doesn’t condone smoking and that all its hospitals are smoke-free. “Smoking is an issue that we as hospitals end up dealing with some time in the future,” he said.

Mike Schwab, executive vice president of the North Dakota Pharmacy Service Corp., took a similar stance. He said the pharmacy group stays out of legislative issues that don’t involve pharmacies but that its members consciously avoid selling tobacco products.

In September, the dental association passed a resolution in support of raising North Dakota’s tobacco tax from 44 cents to $2.20 per pack of cigarettes, Holman said. Voters in November rejected the increase after the tobacco industry helped fight to defeat it, said Kristie Wolff, a lobbyist for the American Lung Association.

So far, in this session of the North Dakota Legislature, there have been no bills attempting to raise the tobacco tax. There was legislation proposed to increase the tobacco-buying age to 19, but that failed last month in the House.

Wolff said that as far as she knows, tobacco lobbyists did not publicly oppose the bill to raise the age to buy tobacco. Though, a lobbyist for the North Dakota Petroleum Marketers Association, whose members include Altria and Reynolds, spoke against the bill during a committee hearing.

Another tobacco-related matter at hand for North Dakota lawmakers is the fate of BreatheND, the state’s tobacco prevention and control agency. The Senate voted last month to eliminate the agency and move the tobacco settlement money it receives to the state Health Department. The legislation now goes to the House.

Wolff said tobacco lobbyists have been publicly silent on this legislation because the tobacco settlement restricts their involvement.

With spotlight off, conflicts return

At stake in this session of the Minnesota Legislature is a bill to slash the maximum tax on a cigar from $3.50 to 50 cents, as well as the future of the annual inflation adjustment on the state’s tobacco tax. Tobacco firms favor cutting the cigar tax and getting rid of the inflation adjustment.

Among the Altria lobbyists in Minnesota is Todd Hill who also represents the American Congress of Obstetricians and Gynecologists (ACOG) and the Service Employees International Union (SEIU) of Minnesota health care workers. Hill, recognized as the state’s Lobbyist of the Year in 2013, did not return phone or email messages, nor did the SEIU.

In a statement, the chairman of ACOG’s Minnesota branch said his group advocates “for policy and legislation that benefits patients and ob-gyns.” “Mr. Hill is not working for us on any tobacco issues this session,” Dr. Douglas Creedon said, adding that the congress is confident in Hill’s “ability to help us achieve our legislative goals.”

Another Altria lobbyist in Minnesota is James Clark, who’s registered to represent about 10 different clients in the health field, including Minnesota Oncology Hematology, a network of cancer clinics.

Randall Thompson, executive director of the clinic network, said Clark’s law firm, Messerli & Kramer, has represented the network well at the statehouse. Although, Thompson emphasized that he was not saying the network has no problem with Clark’s tobacco lobbying. “To be honest with you, it’s not really been thought about,” Thompson said.

Nancy Haas, a Messerli & Kramer representative, said that before clients hire the firm to lobby for them, they have the chance to discuss any potential conflicts of interest with existing clients. The firm “openly addresses any concerns to ensure that our clients are informed as we serve their needs,” she said.

In the 1990s, the lawsuit that prompted the tobacco settlement put a spotlight on the tobacco lobby like never before, said Weigum, president of the Association for Nonsmokers-Minnesota. Health groups in the state consequently told their lobbyists: “You have to pick. You either need to get rid of tobacco work, or you’re losing us because we are not going to be compromised in this way,” she recalled.

For a while, this ultimatum ended simultaneous lobbying for tobacco and health groups, but gradually it resumed, Weigum said. “Once the spotlight was off of it, the practice was back just as strong as it ever was,” she said.

Readers can reach Forum reporter Archie Ingersoll at (701) 451-5734