STATE OF WISCONSINDEPARTMENT OF JUSTIL"E

PEGGY A. LAlJTrr.NSCHLAGf~RATTORNEY GENERAL

17 W. Main StreetP.O. Box 7857Madison, WI 53707-7857www.doj.state.wi.nsDaniel P. Bach

'l)cputy Attorney Gen~ralM'onie:!Buo'kert-BristAssistant Attorney Generalbu.-!rertbristm@doj.state.wi.us608/266-1795 .TIY 1-800-947-3529'FA"X 608/267-2778

November 10,2005

Me Scott WalkerMilwaukee County Executive901 North 9th StreetCourthouse, Room 306Milwaukee, 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 acomplaint from Mr. Riemer regarding alleged violations of the Wisconsin public records law byMr. Walker, his staff and appointees, and/or other county employees during the April 2004 springelection campaign for county executive. The complaint was referred to our office by CorporationCounsel William. J. Domina, who received the complaint. from District AttomeyE. 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 Justiceconducted numerous interviews of people with information about the handling of the recordsrequest at issue. This letter provides you with a summary of our investigative findings and legalconclusions.

Our investigation disclosed a troubling course of conduct by county employees, although itis 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 underWis. Stat § 19.37 would not provide a meaningful remedy. To the extent the applicability of thestatute to this unusual fact scenario requires clarification, a legislative amendment rather thanjudicia! interpretation would seem appropriate.

Mr. Scott WalkerMr. David R. RiemerNoverriber 10;2005Page 2

Summary of Investigative Findings

Our investigation consisted of a review of documents provided by both of you and yourstaff, interviews with individuals from Iv11-. Riemer's campaign staff who made the request, as wellas individuals employed by the county who were responsible for responding to the request Inaddition, our agents interviewed.Mr. Domina, Mr. Stfve Mokrohisky, executive assistant to CountyExecutive Walker and County Executive Walker. As a result, we have reached the following

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conclusions about the chain of events involving this request.

Mr. Riemer's campaign, through Mr. William Christofferson, made a public records requeston February 17, 2004, to the attention of Mr. Matthew M. Janes, who works in the EmployeeBenefits Division of the County's Department of Human Resources. Mr. Janes is designatedrecords custodian for benefits records. TIle request specifically asked for "copies of all pensionwaivers signed by county employees and elected officials since January 1, 2002." The request didnot specify an end date for the records, thereby implying the request was from January 1, 2002through the present time.

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Mr. Riemer's campaign was never given copies of the waivers requested. Instead" onFebruary27, 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 aresponse to the February 17, 2004 request. It enclosed two blank waiver forms, and a list ofemployees 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 andFebruary 27, 2004, he spoke personally to Mr. Christofferson and asked him if the list wassufficient in lieu of the actual forms themselves. According to Janes, Christofferson agreed toaccept the list In his most recent statement to DCr, Christofferson said that he can't recall whetherhe agreed to accept the list. The list was provided within ten days, a time period previously foundby this office to be acceptable under the public records law. It is also not uncommon for a recordsrequestor to modify an earlier written or verbal request through subsequent contact with the recordscustodian. 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 therecords, clearly leaves it to the requestor initially to decide whether he received the informationsought. Christofferson, an experienced political consultant not unfamiliar with the nuances of thepublic 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 theirreceipt of the written request and the date of their response. After receiving the public recordsrequest, the County Human Resources office notified County Executive Walker or a member of hispersonal staff. At some poin; shortly thereafter. it was discovered that numerous county employeeshad not executed their pension waiver forms and Mr. Mokrohisky was personally assigned by

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Mr. Scott WalkerMr. David R. RiemerNovember 10, 2005Page 3

County Executive Walker to "dean up" this matter. Mr. Mokrohisky and Mr. Walker readilyadmitted that this was a matter of some embarrassment to the administration. In an effort toget allwaivers signed in a hurry, employees who had not signed waiver forms were personally visited toobtain 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 andprovided it to Mr. McDowell to give to MY- Christofferson. The list did not indicate when. peoplehad signed the wai vers, just the fact that such waivers had been filed. By not providing the copiesof the waivers themselves, those responding to the request avoided disclosing the fact thatnumerous employees had not signed. them until after the records request came in from the Riemercampaign.

In summary, the facts presented indicate that a records custodian created records in order torespond to a public records request. Then, after allegedly obtaining the consent of the requester, thecustodian provided a different record than that originally requested which had the effect of avoidingdisclosure 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 publicrecord "(i)f all authority withholds a record or a part of a record or delays granting access to a recordor a part of a record ... " As of the date of Christofferson's written request, only a subset of thewaivers ultimately generated had been executed. An of the remaining waivers set forth on the listhad been executed by the time the list was turned over. Rather than insisting on receipt of thewaivers themselves, Janes asserts that Christofferson agreed to' accept tbe list. Christofferson'sfailure to complain seemingly confirms this version of events. Were it clear that Christoffersondemanded the waivers and not just the list, certainly the county officials would be guilty ofwithholding requested public records. To their momentary good fortune, they were spared theobligation to produce the actual waivers, or so one could reasonably conclude.

The more difficult question is whether county officials delayed granting access to publicrecords within the meaning of the statute. There is little doubt that those who orchestrated theresponse engaged in a measure of chicanery. Whatever the original intent had been with respect tothe waiver of benefits by certain employees, not aU of those who had agreed or were expected toexecute waivers had done so when Christofferson made his written request. Officials remedied thatneglect within the ten day period and then created a record, the aforementioned list whichidentified the individuals who by then had executed waivers, but not the dates those waivers ",'ereexecuted. Not surprisingly, the public.records taw is silent as to the propriety of creating a self-serving document in ord.er to satisfy a records request. The law speaks to deiay in production ofexisting records, leaving the issue at hand whether county officials violated the law by no; turningover, in a timely fashion, the waivers already executed when the written request was made.

t-.1J. Scott WalkerMr. David R. RiemerNovember 10,2005Page 4

Given Christofferson's apparent acquiescence and the interplay of the unofficial ten dayrule, that proposition may be argued either way. Clearly the better, more forthright decision bycounty officials-s-and the one better serving the policy behind the public records Iaw=-would havebeen to turn over the waivers themselves. Examination of the forms would have disclosed thatmany were signed, or at least notarized, after the records request was made. Then again, therequester, in one reasonable view of the evidence, settled for the list bearing no reference to the dateeach waiver was executed. Had he given it any thought, the requestor must have assumed that thewaivers predated his request, but nobody told him as much. The truth ofthe matter did not come tolight 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. Inmaking these findings, there is no intent to cast aspersions on the employees who signed thewaivers as they were asked or instructed; any fault lies with those who devised the deceptiveresponse. Whether they violated the public records law is a question largely mooted by the laterproduction of the waivers and the nearly inconceivable notion that a repeat of this inglorious set ofcircumstances might be forestalled by a judicial pronouncement on the matter. Nobody honored toserve in public office ought to manipulate public records in this fashion-s-that is the opinion of thisoffice.

Sincerely,

Monica Burkert-BristAssistant Attorney General

DPBJvIMB:tmw

cc: Corporation Counsel William DominaDistrict Attorney E. Michael McCann

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