St. Louis County attorney hired son over experienced prosecutors
At least 10 current or former prosecutors applied for a recent opening in the criminal division of the St. Louis County Attorney's Office in Duluth, according to records obtained by the News Tribune.
One had 26 years of experience, including a term as an elected county attorney in southern Minnesota. Another offered a background with 18 years of criminal law practice in two states.
Two attorneys who submitted applications spent five or more years prosecuting crimes in neighboring Carlton and Lake counties. At least two others brought current or past experience as a public defender.
The pool of 26 candidates included "many qualified applicants," St. Louis County Attorney Mark Rubin acknowledged. But he chose to consider only one finalist for the position.
His son, Tony Rubin, accepted the job. The younger Rubin spent four years in private practice but had no prior experience in criminal law.
While the move did not apparently violate any county policy or state law, some experts said the hiring of a family member poses serious ethical concerns.
"It's a common problem," said Richard Painter, who served as the chief White House ethics lawyer during the George W. Bush administration. "This is a nepotism issue."
Rubin declined to be interview for this story, referring the News Tribune to his past comments on the decision. He defended the hire in previous interviews and in internal communications with his staff.
Rubin has described the hire as falling within his purview as the elected county attorney. He told the News Tribune last month that his son was one of the most qualified applicants and was available to start right away. Tony Rubin left his previous job in the fall.
"I want to be so respectful of our current applicants on file, but anyone who bears the responsibility of hiring employees knows full well that a person with the most experience in the area doesn't mean that they are the most 'qualified,'" Rubin wrote in a memo to the five division supervisors in his office last month.
"Many times in my eight years I have passed over more experienced candidates for those with maybe less experience but having a more varied and relevant background for the role as an assistant, along with often a demonstrated work ethic."
In federal government, Painter said, the hiring of a family member would be a clear violation of anti-nepotism law enacted in 1967. But Minnesota lacks a similar law governing the hiring decisions of its public officials.
Ultimately, Painter said, that means the only accountability is at the ballot box. And Rubin, who just began his third term in office, has already indicated he does not plan to run again.
"When people use politically powerful positions to hire family members, there's going to be public backlash," said Painter, who now teaches government ethics at the University of Minnesota Law School. "There is perhaps less of it in Minnesota than in other places. But this is something that leaves a bad taste in voters' mouths."
Decision made waves
A job posting for the position stated that "prosecution/litigation experience" would be "strongly preferred." The application period closed Dec. 14.
Tony Rubin emailed his resume to his father on the night of the deadline, along with a two-sentence cover letter. The remaining 25 candidates submitted resumes and full-page cover letters to office administrator Wade Backstrom, per instructions in the posting.
"My resume is attached," Tony Rubin wrote to his father. "It would be an honor to serve under your leadership."
The applications, email communications and other documents were obtained by the News Tribune under a Minnesota Government Data Practices Act request.
The records show that Mark Rubin emailed the office's supervisory staff on New Year's Eve to notify them that he had offered his son the position and that he had accepted. He followed up with a formal announcement to the full staff on Jan. 1, a day before he was sworn in for his third term as the county's chief prosecutor and legal counsel.
Rubin again wrote to the entire staff on the night of Jan. 3, after the News Tribune and other media outlets reported on his decision.
"It was quite a day fielding questions from the media about our most recent hire," he wrote. "I just want all of you to know that none of the publicity about hiring my son was initiated by me. That has never been my practice with new hires.
"Apparently someone amongst us who received my email announcing the hire took it upon themselves to anonymously forward the decision to a number of media outlets with intent that it might be hurtful to both me and my son. I guess in a small way they succeeded. Fortunately the coverage was generally appropriately positive.
"This work, this office, means the world to me. I believe most of you know this. I have and never will do anything to compromise our integrity."
'Very competent' attorney
Tony Rubin, 41, started Jan. 14 at an annual salary of $61,698. The pay scale for his position, which is governed by a collective bargaining agreement, is $58,734 to $82,680.
He spent four years as a consultant at the St. Louis County Law Library, helping facilitate the opening of branches at the Virginia and Hibbing courthouses. He was the first male board chairman at the Program for Aid to Victims of Sexual Assault and was vice chair for the Duluth Commission on Disabilities.
Tony Rubin graduated from Hamline University School of Law in St. Paul in 2014, spending the first four years of his professional career with Sieben Carey, a firm with offices in Duluth, Minneapolis and Lakeville, Minn. He handled personal injury, medical malpractice, product liability, arbitration and other civil matters before leaving the firm in September.
Jim Carey, the firm's president and managing partner, said Rubin's departure was by mutual agreement. He said he was surprised to hear recent rumors to the contrary.
"I have no ill will and I know Tony is a very competent lawyer," Carey said. "He just wanted to go down a different path than our firm is set up to handle, so it really was, in a true sense, an amicable parting of ways."
Tony Rubin told the News Tribune last month that his father's career in the St. Louis County Attorney's Office provided him with a "clarion call" to follow suit in public service.
"The work that I did as a civil plaintiff's attorney was still that advocacy role," he said. "My individual clients needed someone to be their voice when they otherwise had no voice. And here it's being that voice of the people and that advocate in the courtroom for our fellow citizens who have been wronged, who have been hurt. So it's a shift, but it's a shift that I'm just thrilled about — to be able to do the people's work."
Hiring practices questioned
Kevin Skwira-Brown, a local equity and inclusion trainer who also teaches social work at the University of Wisconsin-Superior, said the issue isn't simply a question of whether Tony Rubin was the most qualified candidate for the position.
"My concern is that the process didn't seem to thoughtfully engage all of the candidates," he said. "The process excluded the consideration of many other qualified candidates."
Rubin told the News Tribune last month that it would have been "disingenuous" to offer interviews to other qualified applicants when he knew he had his mind made up on his son. The remaining applicants will be considered for potential future openings, he added.
Under Minnesota law, the identities of applicants do not become public unless they are considered finalists for a position. Because no other candidates were interviewed, only their work histories and qualifications are subject to public disclosure.
That makes it difficult to draw demographic information for the pool of applicants, but Painter said the county could theoretically be exposed to a discrimination case from someone who was wrongfully denied an opportunity.
"There is a basic duty to the public when you're hiring public officials in your office on the public payroll that you get the best people you can and that you also have an open and non-discriminatory process where women and minorities get a fair shake," he said. "You're not obligated to have an affirmative-action program or anything, but you need to treat women and minorities fairly, and if they are equally qualified for the job at least bring them in for an interview."
Could policy change?
St. Louis County Board Chair Patrick Boyle said he has heard a number of constituent concerns since the hire was announced.
The county does have a Civil Service Commission that can review employment actions — but not those in the county attorney's office. The autonomously elected nature of the county attorney position also prevents the board from implementing policy that would provide future oversight, he said.
"Whatever the board does or has in place now, all 87 counties and their attorneys have their own rights to hiring," Boyle said.
In his tenure, Rubin said he has hired 26 assistant county attorneys and investigators, nearly 25 percent of whom never went through a "full, formal competitive interview process."
Rubin said there was never a formal posting or interview when he was hired by then-County Attorney Keith Brownell straight out of law school in 1978, nor when he returned to the office after a hiatus in 1990. His two predecessors, Alan Mitchell and Melanie Ford, also utilized that practice, he said.
"One of my jobs is not just to assure that the law and policies are followed, but also obviously to follow the law and policies myself," Rubin wrote in his Jan. 8 memo to his office supervisors.
Painter said the state Legislature could take action to prevent future cases of nepotism. The federal statute, enacted a few years after President John F. Kennedy appointed his brother at U.S. attorney general, is a "good law," he said.
"The bottom line is I think it should be prohibited," Painter said. "We have a different standard in the county prosecutor's office than in the federal prosecutor's office. I don't think it's a good idea."