Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — In a politically charged John Doe investigation notorious for its secrecy, Dean Nickel may be the most shadowy figure.

And the state of Wisconsin has signed you up to pay for his legal defense.

Nickel is the Government Accountability Board contractor whose signature on an affidavit accelerated a John Doe investigation into dozens of conservative political groups and activists launched by Democrat Milwaukee County District Attorney John Chisholm’s office.

In February, after Eric O’Keefe, a target of the investigation, sued Nickel, Chisholm, two Milwaukee County assistant DAs, and the special prosecutor in the probe, a state official determined that Wisconsin taxpayers would pay up to $25,000 for Nickel’s attorney fees.

Nobody with knowledge of his activities will say exactly what Nickel does — or did — for the GAB, the agency that oversees state campaigns and elections. Nor can anyone say who asked Nickel to investigate Wisconsin conservatives, and what Nickel claims to have found.

But Nickel’s apparent assertion that he found evidence of political wrongdoing became the basis for the search warrants that spurred dramatic pre-dawn raids on the homes and offices of Wisconsin conservatives.

A state contract obtained by Wisconsin Reporter offers no details of Nickel’s work for the Government Accountability Board. It states that Nickel was engaged “in his capacity as a special investigator hired by the Government Accountability Board and acting within the scope of his employment as GAB investigator.”

A Wisconsin Reporter review of state records could find no proof that Nickel has an inspector’s license or certification to work as a law enforcement officer in the state.

Critics say it’s ironic the public, now liable for Nickel’s defense, is in the dark about an employee working for a state agency with “accountability” in its name.

“So the real question that comes up is, who really has oversight over (Nickel’s activities)?” asked Mike Mikalsen, spokesman for state Rep. Steve Nass, R-Whitewater. “The greater issue is to what degree is he being directed or supervised? Part of the problem is the GAB can’t state one way or another.”

Nickel is not currently certified under Wisconsin’s Law Enforcement Standards Board, administered and staffed by the Training and Standards Bureau, a division of the state Department of Justice.

Nor is Nickel a licensed private detective or investigator with the Wisconsin Department of Safety and Professional Services.

It’s not necessarily illegal to work in an investigative capacity without the benefit of a license or proper certification — to a point, law enforcement experts tell Wisconsin Reporter.

If Nickel was simply involved in an administrative function, picking up and pushing around paperwork, he wouldn’t need to be licensed with the state, sources say.

But the shadow man and his sponsors have provided precious little information on his activities.

Laurel Patrick, spokeswoman for Gov. Scott Walker, in an email to Wisconsin Reporter, said the office “does not have information relating to precisely what services Mr. Nickel performed for GAB.”

Ironically, it was Brian Hagedorn, Walker’s chief legal counsel, who signed the contract putting the state’s taxpayers on the hook for Nickel’s legal bills, a contract that provides a legal defense for a man who secretly worked on an investigation going after Walker and his conservative allies.

The probe is operating on a legal theory that there was possible illegal coordination between conservative organizations and Walker’s campaign during Wisconsin’s partisan recall campaigns of 2011 and ’12.

Hagedorn’s decision may be ironic, but it’s not unusual. The state often pays for legal costs stemming from lawsuits against state employees or agencies.

In this case, the GAB originally asked Attorney General J.B. Van Hollen to represent Nickel. The Republican AG declined due to a legal conflict, and then referred the matter to Hagedorn to request an appointment under Wisconsin law. Kevin Kennedy, the GAB’s director and general counsel, requested the appointment for Nickel, according to Patrick.

Madison lawyer Patrick J. Fiedler was appointed Nickel’s attorney. Fiedler is to be paid $175 per hour, at a blended attorney rate, which is hourly fee generally based on the average rate of two or more lawyers working on a case. The attorney’s bill cannot exceed $25,000, according to the contract, effective Feb. 7.

Asked whether his client possessed an investigator license or law enforcement certification, Fiedler told Wisconsin Reporter, “I don’t know the answer to that question one way or the other.”

He reiterated Nickel is a contracted employee with GAB and that he has a long record of service in Wisconsin law enforcement.

There’s no question Nickel has a loaded resume. In his response to the federal civil rights lawsuit, Nickel notes that he is a retired law enforcement officer working under contract as an investigator with the GAB.

“I have over 30 years of law enforcement experience in the State of Wisconsin,” Nickel states, noting that he was employed for more than 26 years, from May 1980 to 2006 with the Wisconsin Department of Justice, Division of Criminal Investigation.

“During that time period, I investigated and supervised investigations in numerous financial crimes, including money laundering, embezzlement, price fixing and other forms of financial misconduct,” Nickel states.

“From 2001 until 2006, I supervised the Financial Crimes and Public Integrity Units of DCI.”

Whatever his experience, Wisconsin law requires licensing and certification for the state’s law enforcers.

For investigators, a license is required for any individual who “acts as, uses the title or otherwise represents” himself as a “private detective, private investigator or special investigator.” And a license is required for any person compensated for “securing evidence to be used before any court, board, officer, or investigating committee,” or for anyone who investigates the “identity, conduct, business, honesty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation or character of any person, if such information is obtained in secret, without the knowledge of the subject.”

Law enforcement officers must be certified through the state Law Enforcement Standards Board.

State statute defines a law enforcement officer as “any person employed by the state or any political subdivision of the state for the purpose of detecting and preventing crime and enforcing laws or ordinances, and who is authorized to make arrests for violations of the laws or ordinances the person is employed to enforce.”

Records obtained by Wisconsin Reporter show Nickel was a certified law enforcement officer for the DOJ’s Criminal Investigation Division through March 30, 2006.

Wisconsin Reporter could not reach Nickel for comment, and Fiedler said he is taking all questions for his client. He said any questions related to the John Doe investigation are in his legal responses filed in the civil rights litigation.

Asked about Nickel’s status as a licensed private detective or law enforcement officer, the Government Accountability Board again declined to comment for legal reasons.

“State law is very clear about what information the GAB is allowed to release,” agency spokesman Reid Magney said in an email to Wisconsin Reporter.

He pointed to the state statute, which prohibits GAB from disclosing any information related to investigations. “Were I to respond, I could be charged with a felony and face nine months in jail, a $10,000 fine or both,” Magney said.

That’s the big problem with the bipartisan law that reformed state campaign and election oversight and created the GAB in 2007, according to Mikalsen, the spokesman for state Nass.

Mikalsen said one of the law’s biggest flaws is language imposing absolute secrecy on the GAB as it relates to campaign investigations. He said Democrats and Republicans alike wanted to secure such protections. It was all well-intentioned, Mikalsen said, designed to maintain confidentiality and tamp down political speculation.

But in an environment of leaks pouring out of John Doe probes gagged by secrecy orders, the legal wall of silence has left targets — who may not be guilty — vulnerable and government agents unanswerable to the public for their actions.

Mikalsen said this time around, conservatives have learned to play the John Doe game effectively, leaking information to defend themselves in the secret probes.

Republicans also have criticized the GAB for leaning left in its decisions, in large part due to the Democrats who serve in key staff positions on the board — in particular, Jonathan Becker, a former chairman of the ultra-liberal Dane County Board of Supervisors, and GAB staff counsel Shane Falk, a Democrat state Senate appointee to the previous state Elections Board.

But GAB defenders point to the board’s six members, three of whom had previously been elected to office as Republicans.

In a recent interview with Wispolitics.com, Kennedy, the GAB’s director, defended the board and its staff.

“Everyone has some kind of past. The question is what do you bring to the job?” Kennedy told the publication, insisting that it is unreasonable to expect no previous political involvement or connections from individuals interested in working for an agency deeply involved in politics.

The bigger issue, Mikalsen said, is that state law gives district attorneys “tremendous power” and incredible discretion to investigate and charge — or not.

In this case, the appropriate overseers of Nickel’s actions, the state attorney general and Dane County District Attorney Ismael Ozanne, are “not going to touch” it, Mikalsen said. Van Hollen says he has a conflict, and Ozanne does: The DA is involved in the multi-county John Doe probe.

Contact M.D. Kittle at mkittle@watchdog.org