Senator: Looks like accountability board is hiding something

Posted: Aug 14, 2014 9:59 AM
Senator: Looks like accountability board is hiding something
Part 103 of 103 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The state’s elections and campaign finance watchdog is digging in its heels, rejecting multiple requests by lawmakers and journalists to take a peek at the agency’s secret financial records.

Arguably taking a less-than-accountable posture, the Government Accountability Board this week denied Wisconsin Reporter’s open records request for information on the agency’s contracts with its two special investigators, Dean Nickel and Francis Schmitz. The accountability board, again, leans on claims of confidentiality, a convenient shield that makes the GAB look like it has something to hide, according to one state senator.

Nickel and Schmitz have been intricately involved in the politically charged John Doe investigation into dozens of conservative organizations. So has the GAB, it seems, according to court documents.


KEEPING SECRETS: The state Government Accountability Board refuses to release information on how much it has paid two contracted employees involved in the politically charged John Doe investigation. Now lawmakers say they may have to change the law to get answers.

Each man is a defendant in a federal civil rights lawsuit filed by conservative activist Eric O’Keefe and the Wisconsin Club for Growth that alleges John Doe prosecutors and investigators, including Milwaukee County District Attorney John Chisholm and two of his assistant DAs, trampled on conservatives’ First Amendment rights in the secret probe. The court-sanctioned dragnet, which operates much like a grand jury investigation without the benefit of a jury of peers, was launched by Chisholm, a Democrat, nearly two years ago.

Wisconsin Reporter sought information regarding contractual language, dates on which the contracts were signed by the parties, the duration and origin of services, and, most important to state taxpayers, the hourly rates of Nickel and Schmitz and the total amounts each billed in 2013 and 2014.

The request made clear that Wisconsin Reporter is not seeking any information specific to any investigation, “past or present, in which the GAB may be involved.”

Sorry. Just following the law, the accountability board replied in its denial letter.

“When the Legislature established the G.A.B. in 2007, it also created strict confidentiality requirements regarding its investigations and determined that investigative records, subject to some very narrowly tailored exceptions, are not available for inspection and copying under the public records law,” the agency wrote.

In setting up the accountability board, the Legislature “created strict confidentiality requirements regarding the Board’s investigations that do not apply to other state officials or law enforcement,” the GAB wrote.

Reiterating what GAB officials have repeatedly said, release of those records could subject members or employees of the agency, and that includes “investigators and prosecutors,” to “criminal penalties, including 9 months in jail, a $10,000 fine or both.”

Serious stuff.

But Wisconsin Reporter isn’t asking for documents related to the investigation, just the taxpayer cost of employing now not-so-secret contractors.

The agency called in backup from its pals at the state Attorney General’s office, the agency that is to intervene when government agencies are slow or reluctant to turn over public records. AG attorneys support the board’s interpretation of statutes regarding the “treatment of G.A.B. investigator contracts under the public records law” and more specifically, what the attorneys describe as “unambiguous provisions” in the law.

“After reviewing our draft denial of a public records request for contracts between the G.A.B. and individuals hired to assist with an investigation of possible violations of laws administered by the agency, the DoJ attorneys advised us that the statutory provisions restricting access to investigatory information and records was broad and captures these types of contracts,” the GAB writes.

Interesting that the 7th Circuit U.S. Court of Appeals in May declared unconstitutional portions of state campaign finance laws, and the court criticized the GAB’s overly broad interpretations of the overly broad section of the law. That section of statute, governing so-called issue advertisements, is at the core of the legal theory prosecutors and the GAB labored under in investigating the conservative organizations, according to court documents.

O’Keefe and the club also are suing the accountability board in state court, alleging the GAB created a “Frankenstein monster,” cobbling together campaign finance laws and administrative rules to go after the conservative groups.

The AG’s office agreed that rejecting such open records requests was “consistent” with the formal opinion issued by the Attorney General last month asserting the state Legislative Audit Bureau has no right to access GAB investigatory records.

That opinion set off a firestorm of criticism, on both sides of the legislative aisle, with lawmakers charging that the accountability board is attempting to abridge the Legislature’s right to examine the books of state agencies.

Attorney General J.B. Van Hollen said state law pertaining to the matter doesn’t specifically address the GAB or even explicitly grant the audit board the “general right to obtain documents made confidential by other statutory sections.”

“These general powers and duties do not satisfy a common, ordinary understanding of ‘specific authorization,’” Van Hollen wrote.

In response, lawmakers said they may have to change state law to shed some sunshine on the dark corners of the accountability board.

State Sen. Tom Tiffany, R-Hazelhurst, then filed an open records request with the attorney general asking him to obtain documents related to GAB expenditures on John Doe-related employees. The AG’s office advised the senator to take his concerns to the GAB.

This week Tiffany received a similar letter from the GAB denying his open records request.

“What gets me about this whole process is it appears we’re getting the runaround,” the senator said. “It really leaves the impression that someone here has got something to hide. I don’t know if they do, but it sure looks that way.”

Tiffany questions why attorneys for Schmitz, who also has served as special prosecutor for the multi-county John Doe probe since early fall 2013, and Nickels have released so much information seemingly bound by the secrecy order in state and federal legal proceedings, even as their employer claims confidentiality. Prosecutors in May suddenly backed away from their secrecy oath and called for the release of John Doe-related documents.

“But when it comes to releasing information to the Legislature, it’s like the old ‘Tonight Show’ with Johnny Carson: We’ve got a hermetically sealed envelope here,” Tiffany said.

State Rep. David Craig, R-Big Bend, too, has been seeking answers from the accountability board. He said the next step is to confer with legislative counsel and outside legal experts to receive a clearer reading on the GAB’s assertion of exemption.

“It’s unfortunate, but we can’t take the GAB’s word as Gospel anymore,” Craig said.

“What is plain to any reasonable person is the system is broken. Whether GAB is over interpreting the statutes of this (exemption) or it is in the law, this process cannot continue to go on. Future legislators and the public should be able to know the amount of money being spent. That’s just good government policy.”