Who’s paying the bill? Report casts questions on GAB and John Doe payments

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — The state’s Government Accountability Board has been less-than accountable about its expenditures concerning a certain special-investigator-turned special prosecutor in the secret John Doe investigation into dozens of conservative groups.

But does a new report produced for state Sen. Tom Tiffany, R-Hazelhurst, suggest the GAB may have sidestepped a judge’s order and the law in the pursuit of its “legal theory”?

The documents certainly indicate the agency that was supposed to pay John Doe special prosecutor Francis Schmitz did not.

“We are peeling back the layers of the onion and finding more and more questions,” Tiffany told Wisconsin Reporter Monday.

The GAB, the agency that oversees the state’s campaign finance and election laws, backed by state Attorney General J.B. Van Hollen, has frustrated legislative efforts to open the GAB’s books.

In July, Van Hollen opined that the GAB “may not” turn over its confidential investigative records to the Legislative Audit Burea. He wrote there is “no specific authorization” in the law that created the agency to compel it to turn over such records.

Tiffany followed up with a written request asking Van Hollen to help the Legislature obtain financial records from the GAB under the state’s open records law.

The senator said he was not seeking specific information regarding any investigation but rather basic information regarding contractual relationships between the GAB and two of its individual contractors, investigators Dean Nickel and Schmitz.

Van Hollen’s office advised Tiffany to take up his questions with the GAB. The agency declined to release any information based on the opinion of the attorney general.

And the John Doe circle will be unbroken.

Schmitz, according to court documents, was under contract with the GAB.

Nickel and Schmitz have been intricately involved in the politically charged John Doe investigation that has included what sources have described as “predawn, paramilitary-style raids” on the homes of conservative targets. The GAB, too, has been a key player, according to court documents.

Stymied in his request for information, Tiffany appealed to the nonpartisan Legislative Fiscal Bureau for answers.

In its report, obtained by Wisconsin Reporter, the fiscal bureau notes state law requires that when a district attorney or court seeks a special prosecutor to preside over a case — in this event, the Milwaukee County District Attorney-launched John Doe investigation — the court or DA must submit an “Appointment of Special Prosecutor form” with the state Department of Administration. Information includes the case, the reason for the appointment and the rate of compensation paid to the special prosecutor.

Special prosecutors are paid by the state Department of Administration.

In fiscal year 2013-14, when Schmitz’s services on the John Doe were required, the five counties involved in the probe who requested the court appointment of Schmitz, either listed no charges for special prosecutors or posted charges not related to the John Doe investigation involving Schmitz.

The Milwaukee County District Attorney’s office, which launched the probe in 2012, did not list any special prosecutor charges. Neither did Dodge or Iowa counties. Columbia County posted a special prosecutor charge of $3,900, due to an assistant DA being on medical leave. And Dane County noted $61,900 in charges because District Attorney Ismael Ozanne was physically unable to attend to his duties.

According to a court document, the DAs asked then-John Doe presiding Judge Barbara Kluka to appoint a special prosecutor to oversee the growing, five-county investigation. Kluka did just 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.

That does not appear to have happened, at least through June 30, based on the Legislative Fiscal Bureau report.

So if the DOA hasn’t paid Schmitz, who has?

Tiffany says 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,” said agency spokesman Reid Magney. “We have no additional comments.”

The GAB has had few comments in the past regarding the John Doe investigation. Officials have repeatedly declined to comment, citing the steep penalties associated with violating the probe’s strict gag order.

Because agency officials have been known to parse their words when asked about their involvement in the investigation, Wisconsin Reporter expanded the question in a followup: Has GAB made payments to Francis Schmitz for any other services?

“We have no additional comment,” Magney responded.

Nobody seems to want to answer the direct question: Who is paying Francis Schmitz? According to the fiscal bureau, it doesn’t appear the responsible department, the DOA, is picking up Schmitz’s bills. If the GAB is paying the special prosecutor in another capacity, Tiffany believes the government agency could be in violation of state law.

“I’m asking Fran Schmitz, let’s end all of this conjecture,” the senator said. “Why doesn’t he just tell us who is writing the checks to him and who’s paying his fees?”

Schmitz has yet to answer. He could not be reached for comment Monday. The phone number once listed for his Waukesha law firm is no longer in service.

Tiffany said it appears Kluka’s order that the Department of Administration compensate Schmitz has been contravened. Kluka, who recused herself from the John Doe probe in October 2013, without explanation, has told Wisconsin Reporter she would not comment due to the secrecy order.

The answer to the question, who is paying the bills, is important for many reasons, Tiffany and others say. First, Wisconsin taxpayers have a right to know how much of their tax dollars are going to support an investigation based on a “legal theory” by the GAB and John Doe prosecutors that at least 29 conservative groups may have illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections. Two judges, including the presiding John Doe judge, have concluded that the theory does not sustain probable cause that any crime has been committed.

One target of the investigation says the John Doe prosecutors and their allies at the GAB have the ability to rip through the possessions of Wisconsin citizens, but they don’t have to disclose anything about their activities.

“It’s circumvention of legislative intent and statutory authority,” said the source, who spoke on condition of anonymity fearing reprisal from the prosecution. “They disrupt people’s lives, operating in secret with unlimited budgets. That’s not something we can tolerate in this society.”

Tiffany said the chairman of the state Senate Judiciary Committee does have the power to subpoena agencies. The committee chairman is state Rep. Glenn Grothman, R-Campbellsport, is running for the 6th Congressional District seat being vacated by U.S. Rep. Tom Petri, R-Fond du Lac.

“I hope we don’t have to get to the point where a legislative committee has to issue a subpoena,” he said. “I would hope they would be forthright.” But if that action becomes necessary, Tiffany said he believes the avenue will be pursued.

Whatever the case, Tiffany said it’s past time to reform the Government Accountability Board, and the senator said that will be a top priority in the next legislative session.