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PEGGY A. LAlJTrr.NSCHLAGf~R ATTORNEY GENERAL Daniel P. Bach 'l)cputy Attorney Gen~ral 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857 www.doj.state.wi.ns M'onie:!Buo'kert-Brist Assistant Attorney General email@example.com 608/266-1795 . TIY 1-800-947-3529' FA"X 608/267-2778
Me Scott Walker Milwaukee County Executive 901 North 9th Street Courthouse, Room 306 Milwaukee, WI 53233~ 1458 Mr. David R Riemer
Dear County Executive Walker and Mr. Riemer: As you are both aware, our office has devoted substantial time and resources investigating a complaint from Mr. Riemer regarding alleged violations of the Wisconsin public records law by Mr. Walker, his staff and appointees, and/or other county employees during the April 2004 spring election campaign for county executive. The complaint was referred to our office by Corporation Counsel William. J. Domina, who received the complaint. from District Attomey E. Michael McCann. In addition to reviewing records provided by each of you and/or your offices, special agents of the Division of Crimina] Investigation (DCI) of the Department of Justice conducted numerous interviews of people with information about the handling of the records request at issue. This letter provides you with a summary of our investigative findings and legal conclusions. Our investigation disclosed a troubling course of conduct by county employees, although it is arguable whether the facts WOUld support a finding that the public records law was violated. Moreover, due to various intervening events described below, a public records prosecution under Wis. Stat § 19.37 would not provide a meaningful remedy. To the extent the applicability of the statute to this unusual fact scenario requires clarification, a legislative amendment rather than judicia! interpretation would seem appropriate.
Mr. Scott Walker Mr. David R. Riemer Noverriber 10;2005 Page 2
Summary of Investigative Findings Our investigation consisted of a review of documents provided by both of you and your staff, interviews with individuals from Iv11-. Riemer's campaign staff who made the request, as well as individuals employed by the county who were responsible for responding to the request In addition, our agents interviewed.Mr. Domina, Mr. Stfve Mokrohisky, executive assistant to County Executive Walker and County Executive Walker. IAs. a result, we have reached the following conclusions about the chain of events involving this request. Mr. Riemer's campaign, through Mr. William Christofferson, made a public records request on February 17, 2004, to the attention of Mr. Matthew M. Janes, who works in the Employee Benefits Division of the County's Department of Human Resources. Mr. Janes is designated records custodian for benefits records. TIle request specifically asked for "copies of all pension waivers signed by county employees and elected officials since January 1, 2002." The request did not specify an end date for the records, thereby implying the request was from January 1, 2002 through the present time.
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Mr. Riemer's campaign was never given copies of the waivers requested. Instead" on February27, 2004, Mi. Riemer's campaign received a written response, signed by Mr. Janes' supervisor, Mr. Charles Mcfrowell, Director of HIIDlan Resources. This letter purported to be a response to the February 17, 2004 request. It enclosed two blank waiver forms, and a list of employees who had signed the forms, identifying which type of waiver had been executed. When interviewed, Me Janes stated that in the time period between February 17 and February 27, 2004, he spoke personally to Mr. Christofferson and asked him if the list was sufficient in lieu of the actual forms themselves. According to Janes, Christofferson agreed to accept the list In his most recent statement to DCr, Christofferson said that he can't recall whether he agreed to accept the list. The list was provided within ten days, a time period previously found by this office to be acceptable under the public records law. It is also not uncommon for a records requestor to modify an earlier written or verbal request through subsequent contact with the records custodian. The statute is silent on that practice, although file primary statutory- remedy for . noncompliance with a records request, an action for mandamus seeking to compel release of the records, clearly leaves it to the requestor initially to decide whether he received the information sought. Christofferson, an experienced political consultant not unfamiliar with the nuances of the public records law, accepted the documents supplied at the time without complaint. TI1.eproblem lies in the actions of county officials during the ten day period between their receipt of the written request and the date of their response. After receiving the public records request, the County Human Resources office notified County Executive Walker or a member of his personal staff. At some poin; shortly thereafter. it was discovered that numerous county employees had not executed their pension waiver forms and Mr. Mokrohisky was personally assigned by
Mr. Scott Walker Mr. David R. Riemer November 10, 2005 Page 3
County Executive Walker to "dean up" this matter. Mr. Mokrohisky and Mr. Walker readily admitted that this was a matter of some embarrassment to the administration. In an effort toget all waivers signed in a hurry, employees who had not signed waiver forms were personally visited to obtain signatures and the forms were then filed. Once all the missing waivers were obtained, NIr.· Janes issued an updated version of an existing list maintained by the Human Resources staff and provided it to Mr. McDowell to give to MY- Christofferson. The list did not indicate when. people had signed the wai vers, just the fact that such waivers had been filed. By not providing the copies of the waivers themselves, those responding to the request avoided disclosing the fact that numerous employees had not signed. them until after the records request came in from the Riemer campaign.
In summary, the facts presented indicate that a records custodian created records in order to respond to a public records request. Then, after allegedly obtaining the consent of the requester, the custodian provided a different record than that originally requested which had the effect of avoiding disclosure that records were created after the request. came in.
Legal Analysis and Conclusions Wis. Stat. § 1937(1) provides that a requester may seek to compel the release of a public record "(i)f all authority withholds a record or a part of a record or delays granting access to a record or a part of a record ... " As of the date of Christofferson's written request, only a subset of the waivers ultimately generated had been executed. An of the remaining waivers set forth on the list had been executed by the time the list was turned over. Rather than insisting on receipt of the waivers themselves, Janes asserts that Christofferson agreed to' accept tbe list. Christofferson's failure to complain seemingly confirms this version of events. Were it clear that Christofferson demanded the waivers and not just the list, certainly the county officials would be guilty of withholding requested public records. To their momentary good fortune, they were spared the obligation to produce the actual waivers, or so one could reasonably conclude. The more difficult question is whether county officials delayed granting access to public records within the meaning of the statute. There is little doubt that those who orchestrated the response engaged in a measure of chicanery. Whatever the original intent had been with respect to the waiver of benefits by certain employees, not aU of those who had agreed or were expected to execute waivers had done so when Christofferson made his written request. Officials remedied that neglect within the ten day period and then created a record, the aforementioned list which identified the individuals who by then had executed waivers, but not the dates those waivers ",'ere executed. Not surprisingly, the public.records taw is silent as to the propriety of creating a selfserving document in ord.er to satisfy a records request. The law speaks to deiay in production of existing records, leaving the issue at hand whether county officials violated the law by no; turning over, in a timely fashion, the waivers already executed when the written request was made.
t-.1J. Scott Walker
Mr. David R. Riemer November 10,2005 Page 4
Given Christofferson's apparent acquiescence and the interplay of the unofficial ten day rule, that proposition may be argued either way. Clearly the better, more forthright decision by county officials-s-and the one better serving the policy behind the public records Iaw=-would have been to turn over the waivers themselves. Examination of the forms would have disclosed that many were signed, or at least notarized, after the records request was made. Then again, the requester, in one reasonable view of the evidence, settled for the list bearing no reference to the date each waiver was executed. Had he given it any thought, the requestor must have assumed that the waivers predated his request, but nobody told him as much. The truth ofthe matter did not come to light until months later when a media source requested the 'waivers and got them in hand. In sum, this episode evinces a case of how government officials ought not do business. In making these findings, there is no intent to cast aspersions on the employees who signed the waivers as they were asked or instructed; any fault lies with those who devised the deceptive response. Whether they violated the public records law is a question largely mooted by the later production of the waivers and the nearly inconceivable notion that a repeat of this inglorious set of circumstances might be forestalled by a judicial pronouncement on the matter. Nobody honored to serve in public office ought to manipulate public records in this fashion-s-that is the opinion of this office.
Monica Burkert-Brist Assistant Attorney General DPBJvIMB:tmw cc: Corporation Counsel William Domina District Attorney E. Michael McCann
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