Did the GAB doctor documents to cover their tracks in John Doe?

By M.D. Kittle | Wisconsin Reporter

WAUKESHA, Wis. – The subjects of a multi-county John Doe probe suggest that government officials may have broken state law while pressing their investigation into Wisconsin conservatives, and then attempted to hide the violation by altering invoices and other documents.

That bombshell suggestion – that the Government Accountability Board went beyond its legal role as an investigative agency – is backed by court documents reviewed Friday by Wisconsin Reporter, including some records in Waukesha County Circuit Court that apparently should not have been disclosed to the public.

On the surface, this may seem much ado about mere accounting. But the GAB under state law is prohibited from playing the role of prosecutor in criminal cases. If the agency paid for the services of a special prosecutor, it has exceeded its reach.

Conservatives who have sued the Government Accountability Board and Milwaukee County District Attorney John Chisholm already assert the GAB has overstepped its authority and misused taxpayer money.

“In general, what we are looking for is information about how much the GAB spent, who they paid … (and) whether the GAB possibly even changed who was being paid and what they were being paid for,” said Eddie Greim, attorney for Kansas City, Mo.–based Graves Garrett LLC, the firm representing political activist Eric O’Keefe and the Wisconsin Club for Growth in the lawsuit against the state regulator of campaign finance and election law.

The plaintiffs want information obtained in discovery released to the public.

Asked Monday whether his formal legal questions of government officials revealed that the GAB altered or illicitly changed invoices regarding contracts with special investigators, Greim declined to comment.

But documents filed in Waukesha County Circuit Court and reviewed by Wisconsin Reporter show the GAB admits that it has employed Francis Schmitz and Dean Nickel as special investigators in the probe.

It was Nickel, a former longtime agent for the Wisconsin Department of Justice, who requested the search warrants for predawn, paramilitary-style raids on the homes of some conservative targets, according to the court documents. Schmitz was provided an office at the GAB’s headquarters in Madison, the documents state.

Did the GAB pay Schmitz for his role as special prosecutor in the investigation? Did it pay Nickel?

Doing so would appear to be outside the agency’s legally defined role.

Under state law, the state Department of Administration – not the GAB – is supposed to “pay bills of the special counsels or special investigator related to that case” within a certified “maximum amount.”

According to a court document, the district attorneys involved in the investigation in 2013 asked then-John Doe presiding Judge Barbara Kluka to appoint a special prosecutor to oversee the growing, five-county investigation. Kluka did that, appointing Schmitz at a rate of $130 an hour, significantly higher than the standard $40 an hour rate for special prosecutor time spent outside the court, as outlined under state policy.

The appointment order, signed by Kluka and Schmitz on Aug. 23, 2013, requires Schmitz to be paid by the DOA.

But a June 30 Legislative Fiscal Bureau report indicates DOA wasn’t paying Schmitz.

So who paid Schmitz?

State Sen. Tom Tiffany, R-Hazelhurst, earlier this year told Wisconsin Reporter it appears that GAB has cut the checks from its taxpayer-funded budget, based on Schmitz’s courtroom admissions that he was a contracted employee of the agency.

The GAB has “made no payments to Francis Schmitz for prosecutorial services,” agency spokesman Reid Magney said in a Sep. 30 Wisconsin Reporter story. “We have no additional comments.”

State law that established the Government Accountability Board in 2007 grants the agency the authority to investigate violations of campaign finance and election law and administer civil punishments, but criminal prosecutions are the domain of district attorneys and the state attorney general.

John Doe prosecutors, led by Chisholm, a Democrat, have conducted the sprawling investigation under the idea that at least 29 conservative organizations may have illegally coordinated with the campaign of Republican Gov. Scott Walker during Wisconsin’s partisan recall season. Court documents show prosecutors describing the coordination as a “criminal scheme.” Two judges, including the presiding John Doe judge, have rejected that claim.

The GAB has argued since the lawsuit was filed in late May that releasing any information related to the investigation would violate state statute requiring confidentiality in such John Doe investigations and could expose the agency to criminal liability.

Greim said he could not disclose any information from discovery for the same reasons. But he is hopeful that Waukesha County Circuit Judge Lee S. Dreyfus Jr. will make public those court documents by year’s end.

Last week, the judge gave the GAB’s legal counsel until Dec. 12 to go through hundreds of pages of documents to determine what information should be redacted and remain classified.

Dreyfus also set a tentative trial date for two weeks in the middle of September 2015.

Some 600 pages of documents have been produced through discovery of the GAB’s records, Paul Schwarzenbart, counsel for the GAB, said in court Friday. Much of the information included in the documents comes from minutes of closed-session meetings where the accountability board met to discuss the investigation. The GAB needs time, the defense attorney said, to go through the material and determine what must by law be redacted.

Greim last week argued in court that the agency may be bound by strict confidentiality laws, but the plaintiffs in the lawsuit against the GAB are not. He said Wisconsin taxpayers have a right to know how much of their money was spent and for what purposes in a probe that conservatives say is nothing more than a partisan witch hunt launched by Chisholm.

“It’s about how the Government Accountability Board is operating and about whether the Government Accountability Board is being accountable to the laws that created it,” Greim said following the court proceedings.

The judge will now determine whether the documents will be unsealed, and if so, to what extent.

State Rep. David Craig, R-Big Bend, voiced concerns about the statement that GAB “possibility even changed who” it was paying and what the individual was being paid to do.

“If that is at all true that exemplifies why the Legislature needs to flex its muscle and why we need to get to bottom of every nook and cranny of how the John Doe law has been abused in Wisconsin, both the constitutional aspects and the abuses of Wisconsin taxpayer dollars,” Craig said Monday.

State lawmakers and the Wisconsin Legislative Audit Bureau have sought unsuccessfully to obtain much of the same information that O’Keefe’s attorneys have apparently gathered in discovery. The GAB, with backup from state Attorney General J.B. Van Hollen, has argued that it could face criminal penalties if it releases any information related to the investigation.

Craig said he believes the GAB is “overinterpreting” the state statute on confidentiality “when it comes to dollars and cents.”

“For them to continually hide behind that idea – that the statutes say they can’t say anything about this – that needs to be examined by the Legislature and legal counsel,” the lawmaker said.

Greim told Wisconsin Reporter last week that the plaintiffs in the lawsuit have obtained GAB financial records.

“I won’t go as far as to say we have an accounting, but we have financial records.”

The state lawsuit charges that the GAB’s use of a John Doe – a court-administered procedure that is like a grand jury investigation without the benefit of a jury of peers – created a “Frankenstein’s monster.”

“The GAB has grafted its existing powers for civil enforcement of campaign finance laws onto law enforcement powers borrowed from John Doe statute, and from this hybrid bundle of investigative powers, has lopped off vital procedural protections,” the complaint states.

With horror-film flair, the lawsuit asserts the result of that administrative “monster” is “terrible to behold: a creature that covertly collects sensitive information on political activities that do not — and cannot — constitute a crime, all while maintaining a nearly impenetrable shield of secrecy.”

Most troubling of all, the complaint alleges, is that the “monster is fed by taxpayer dollars that were never intended for this purpose.”

The probe is stalled for now, via the order of the John Doe presiding judge who nearly a year ago quashed several subpoenas because the prosecutors had failed to show probable cause that a crime had been committed. Now, it’s up to the state Supreme Court to decide the legal questions surrounding this John Doe.