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home : opinions : opinions
December 12, 2019

11/27/2019 7:30:00 AM
Our View
A new day dawns

Only days ago we opined in these pages about the terrible state of open government in the Northwoods, in Wisconsin, and indeed across the entire country. We wrote then that open government was in trouble, with a capital T, and we still believe it is.

But, in the space of a few days, something remarkable happened, and we hope it portends the dawning of a new day, here and elsewhere, a day where the clouds part and the sun will shine into government at every level.

What happened was, a law enforcement agency took the public records law seriously. Specifically, the Oneida County Sheriff's Office took the public records law seriously, and courageously acted to defend the integrity of our democratic institutions.

It's always dramatic, of course, when a law enforcement agency executes search warrants at a government building, as the sheriff's department did last week at Rhinelander City Hall. But it was even more dramatic and noteworthy because of the reason it happened - a potential violation of the state's open government laws.

They did not execute those warrants to find evidence of mid-management embezzlement. They did not enter the building to find a politician engaged in contract fraud or in dealing or buying drugs or who was committing election crimes. Rather, they entered the building to protect the people's right to access the information the people own, and to be confident that information has not been altered.

At long last someone in the justice system took a stand for open government. Sheriff Grady Hartman, chief deputy Dan Hess, captains Tyler Young and Terri Hook, and the entire sheriff's department deserve the thanks of every citizen this week for standing up for their right to know, for their right to run their own government.

We emphasize that the execution of those warrants does not mean that the target of the warrants, Rhinelander city administrator Daniel Guild, is guilty of anything. He has so far not been charged with anything, and he must be presumed innocent until if and when it is proved otherwise.

What's important is that, when probable cause that a crime had been committed presented itself, the sheriff's department acted to find out if that is the case, to enforce the open government laws which might have been broken.

That it has done so when the laws in question were tampering with public records is exceptional in an age when just about everyone in the justice system treats open government laws as second-class citizens. These days, as we have bemoaned time and again in these pages, it is rare for a district attorney to prosecute an open meetings or public records violation, or to exact any consequences even when guilt is found.

As we have also argued, that lack of commitment to open government - nay, resistance - only encourages ever more disregard of those laws among local and state officials alike. If no one is ever going to be punished for breaking those laws, if the justice system is always going to look the other way, why bother following those laws?

This week, that narrative changed significantly. The Oneida County Sheriff's Office not only served some warrants, but in so doing it served notice to all government officials that it will not look the other way when there is probable cause to think those laws have been broken. It served notice that there will finally be consequences for breaking open government laws.

Some time ago, sheriff Hartman assured us in an interview he intended to follow though in investigating potential open government violations, and he has made good on his word. He did so in decisive fashion last week, and that sends a clear message to those who might be tempted in the future.

That he did so days after the Forest County district attorney and special prosecutor in the case, Charles Simono, tried to let Mr. Guild completely off the hook is remarkable and refreshing. It's worth taking a look at Mr. Simono's decision - he informed Mr. Guild he would not be charged just days before Mr. Hartman and company executed search warrants anyway - for it is a quintessential case of looking the other way on a potential open government violation.

In his letter to Mr. Guild, Mr. Simono found Mr. Guild had in fact altered emails, but he hung his hat on the fact that altering public records must be done with an intent to injure or defraud to be criminal. Mr. Guild had no such intent, Mr. Simono argued, and so there would be no charges.

The wording of the statute is indeed peculiar, for we would argue that altering a public record is by definition fraudulent because the only reason to alter a record would be to conceal the real record from the view of others, including the public. The very act of alteration injures the public, we would argue.

A more serious deficiency in Mr. Simono's decision was his dismissal of the alteration as inconsequential, or, to use his words, the changes did not "remotely give rise to any appearance to injure or defraud ...."

Really? We think questions of deception are not so stranded on some remote island of legality, but float in a boat much closer to the shore of logical truth.

In his altered email, for instance, Mr. Guild deletes words like "for us" and "we are" and "we." The sentence "We are not looking to remove from elected office, just the council presidency," becomes in the altered version, "not looking to remove from elected office, just the council presidency."

In Mr. Simono's view, this is benign: "Thus, although the intent was to remove someone of their title as council president, the intent was clear and unchanged in both versions."

But Mr. Simono misses the consequences of the alteration. While the intent to remove the council president was unchanged, what was changed was who exactly was seeking to remove the council president.

In the original email, multiple people are working to remove the council president: "We are not looking to remove from elected office, just the council presidency," and "The matter is time sensitive for us."

In the altered email, after "we," "we are," and "for us" are excised, all references to multiple people are gone, and it looks as if Mr. Guild is seeking the information on his own. The intent to remove the council president was still there, but any suggestion that multiple people were acting in concert had disappeared.

We think that's important, given the allegations about whether a quorum of the council was acting in concert outside the bounds of the open meetings law. We think that question is even more important to ask given the timeline and circumstances of the email's alteration.

Mr. Guild's original email was sent to the League of Wisconsin Municipalities' legal counsel as an inquiry and a request for help. But then George Kirby, who as council president was the subject of the email, heard about it and requested a copy from the LWM counsel.

That counsel informed Mr. Guild she would be sending the original to Mr. Kirby the next morning unless he offered her a good reason not to do so. Later that same night, near midnight, Mr. Guild responded to the legal counsel, saying everybody should have access to the email string, that he had included the entire string in the email he was sending to her, and he had copied Mr. Kirby and others in on the email.

Of course, the email string he included was not the original Mr. Kirby asked for but the altered version.

All this gives rise to some tough questions that need to be answered.

First, was Mr. Guild attempting to short-circuit the LWM counsel, essentially saying she needn't bother sending the email to Mr. Kirby because, well, here it is? Was including the altered email rather than the original email an attempt by Mr. Guild to conceal from Mr. Kirby and others that a concerted secret effort - a possibly illegal effort - was underway to depose him?

And all this also gives rise to some tough questions for the Forest County district attorney, Charles Simono: How in the world could he not ask the above questions? Did he not even read the full email strings and investigative report sent to him? Why did he dismiss the special investigator's recommendation that Mr. Guild be charged, made back in June?

And why oh why did Mr. Simono ignore Oneida County district attorney Michael Schiek 10 days before Mr. Simono attempted to exonerate Mr. Guild, when Mr. Schiek informed him he had new information, wanted the referral back so Mr. Schiek could reevaluate it, and that Mr. Schiek did not need Mr. Simono to make a charging decision?

Why did Mr. Simono go ahead and make that decision?

Again, that the Oneida County district attorney and sheriff would persevere in the face of another district attorney trying to sweep yet another serious open government issue under the rug is admirable and important.

Don't get us wrong. The sheriff's department and its officers deserve our thanks every day of the year for the unsung work they do to keep us safe, putting their lives on the line to curb drug dealers, human traffickers, and sex offenders, and trying to curb domestic abuse, assault, robbery, and even murder.

That the sheriff and his staff must work in a county whose elected leaders value its work and staff less than they do low-priority special-interest and non-mandated programs with partisan agendas should earn them even more thanks from we average citizens.

But today we offer this special thanks to the department for standing up for open government, the foundation upon which the house of democracy is built. Without open government we the people have no government at all but are the subjects of institutions we do not control.

This past week, sheriff Grady Hartman and the Oneida County Sheriff's Office put everyone on notice that that will not be tolerated. They sent out a strong message that there will be consequences for those who break open government laws.

We hope others in the justice system will pick up the message and heed the call. Perhaps, at long last after a very dark night, a new and sunny day in open government is about to dawn.

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