My Ethics Complaint to President Voll March 4, 2021 - No Reply

  This is the text of a March, 2021 email to Chris Voll, complete with typos. A few notes for clarification are added and highlighted in yellow.

President Voll,

   Below is the complaint against Mr Downey that he requested at the retreat that I write up. I know it is a bit long, but the full narrative needed to be presented, along with evidence for all aspects of the complaint.  

    I have at least 3 other major complaints to make from 2020, in addition to one for this current handling of the Strand contract. They will come as time allows. While you can consider this information with his evaluation, I'm sure you'll realize that the nature and scope of this complaint goes far beyond the evaluation level.

    I'm sending this complaint to you to read through, and I’ll leave it for you to decide who you want to send it to, and how you're going to deal with it. As you’ll see, there is quite a bit more here than just ordinance violations.

     

Complaint and Information on Mr. Downey, regarding ethics misconduct.

The following is background, narrative, and evidence of the charges.
    
   Kronenwetter administrator Richard Downey provided a draft of an ethics code that he crafted, to the Kronenwetter Village Board for their meeting of April 28 [should be April 14], 2015. (Exhibits 1 &2) This code was passed by the Village Board on a 3-2 vote. (Exhibit 3)

This became Chapter 54 Code of Ethics, Village of Kronenwetter, effective May 1, 2015. Section 54-9 of that code states the following.

A.
The Village Clerk shall cause a copy of this Code of Ethics to be distributed to every public official and employee of the Village within 30 days after enactment of this chapter. Each public official and employee elected, appointed or engaged thereafter shall be furnished a copy before entering upon his or her duties.
B.
Each public official, president, the chairman of each board, commission or committee and through the Village Administrator, the head of each department, shall, between May 1 and May 31 each year, review the provisions of this code with their fellow board members or board, commission, committee members or subordinates, as the case may be, and certify to the Village Clerk by June 15 that such annual review had been undertaken. A notice of this Ethics Code shall be continuously posted on the Village bulletin boards wherever situated.
C.
Each public official and employee shall, in connection with Subsections A and B above, also complete and file with the Village Clerk, as appropriate, the following statement of understanding:
"I have read and understand the contents of the Village of Kronenwetter Ethics Code, including the attached State statutes.* I also understand that I am expected to adhere to and conduct myself according to rules, guidance and direction as set forth in the Ethics Code." (*§§ 946.10 through 946.18; and § 19.41 et seq., Wis. Stats.)

   This code was brought back to the Village Board on May 12, 2015 for possible amending, or to rescind. After lengthy discussion, no action was taken and the Code remained in effect. (Exhibits 4,5,6)

   Since the May 1, 2015 effective date, Mr Downey has never observed the requirements of 54-9, nor has he provided legally appropriate meeting agendas during May for any board, commission, or committee to make it possible for anyone else to observe these same requirements.  This caused dozens of people to be out of compliance with Chapter 54, and at risk of complaints or fines.

   This Chapter 54 was next brought up for review at the Kronenwetter Administrative Policy Committee on December 18, 2019.
At this meeting, apparently in anticipation of imminent discovery of his wrongdoing, Mr. Downey explained that he had known the provisions of 54-9, and admitted that he had made the decision not to comply with the requirements specifically detailed in that section. (Exhibit 7, Audio at minutes 24:30 to 38:11)
   
   Mr Downey also sent an email letter to the Village Board on Jan 13, 2020 (Exhibit 8) confessing these facts, but now adding the claim that his behavior was an error and unintentional.
   His public statements up to that point indicate that his failure to observe the ordinance. was in fact willfully done.  This is obvious, since an error or mistake has more the nature of a momentary lapse of reason or attention, not an ongoing decision-making process every year for five years.  According to his own repeated narrative, this “error” was the result of an ongoing willful choice to not include 54-9 requirements on the May agendas.
 
   Mr. Downey repeats his admission and story at committee, commission, and board meetings on Jan 27, Feb 4, Feb 11, Feb 19,2020, and perhaps others. In all cases along with admitting fault, he put forth the idea that since the Ethics Board did not exist or function during the previous 5 years, this somehow prevented his observance of the ordinance.

His excuses do not reflect the facts. Such as:
   1) Whether or not the Ethics Board is in place, has nothing to do with the administrative performance of 54-9 requirements by others. How would their non-existence [of the ethics committee] prevent Mr Downey from carrying out his legal duties specified in 54-9? This subsection deals only with distribution of the Code, not any kind of enforcement of claims.
   2) It was Mr. Downey’s duty to post public notices for volunteers to fill these vacant Ethics Board seats. He told the board that he had done so but got no results, when in fact after evidence was presented to the contrary, he had to admit that he had not, in 5 years, posted any public notices looking for people to fill these seats. He began to fill these vacancies only after he was given permission to personally select the people for these positions in 2020. Something which itself creates the appearance of questionable ethics.

   3)  Mr Downey had no concern at all as to whether or not the Ethics Board existed when he strongly advocated enforcement of other portions of the Ethics Code immediately after the code was passed in 2015. But when the shoe is on the other foot and he himself had been caught in gross and blatant violation of this code, suddenly the absence of an Ethics Board seemed to matter a great deal; at least in the form of an excuse,.

   During the audio recording of the above mentioned Village Board meeting of May 12, 2015, (exhibit 9)in discussion regarding the administration of this code, we hear Mr. Downey taking a hard line on immediate enforcement at about 03:14:30.

   Geraldine: “Richard, why are you saying that we would be in violation of the code... is it because we don’t have a committee set up or what?”

Richard: What I’m saying is, you have an ordinance on the books that we know is being violated, and yet we haven’t taken any action. I mean, not to put anyone on the spot, but we did take an oath to, or, you guys did take an oath to basically enforce the rules of the village.
   I need to know what I’m supposed to do for direction of staff. If I’m to ignore this ordinance, that’s kind of hard for me to tell the staff to do. I don’t tell Randy to ignore the Zoning Code, I don’t tell Duane to ignore the sign code, so, I mean, this needs to come somewhere.”

   This was all obviously discussed at a time when the Ethics Board was not in place, being only 12 days after Chapter 54 went into effect. Mr Downey took the position that there was no real choice but to enforce the code. With unbelievable hypocrisy, he made this statement at one of the only two meetings that he had, to comply with requirements of the ordinanceby fulfilling his duty to 54-9 (B) & (C). He also ignored his duty at the May 26th meeting as well,at which point he put himself in violation of the specific, time-sensitive terms of the ordinance.

   Four and a half years later, in 2019, when faced with the discovery of five years of violations, and dozens of potential individual violation complaints, Mr Downey would have us brush aside his misconduct as “an error” that was somehow justified by the idea that “there was no Ethics Board in place”.  No matter how many times he repeated it, and who he may have convinced, the fact is that his story was nothing but lame, unsupportable excuse for his actions.

   These circumstances bring up the question of what exactly was the purpose of instituting this Ethics Code to begin with? If it was intended to prevent unintentional corruption within village government, then the distribution provisions 54-9 would be a priority and essential to that cause, since awareness is key to prevention, and the provisions of 54-9 would have been carried out as directed. If Mr. Downey had a reason to include 54-9 in the village Code of Ethics just a few weeks earlier, he certainly had an obligation to perform in accordance with the ministerial duties commanded in that subsection.

   On the other hand, was the purpose of this code to target the removal of one individual from the Village Board, who’s only "violation" was being lawfully elected? The conversation at Village Board meetings on April 14, and May 12, 2015 would certainly give cause for that conclusion. They treated the victim of the legislation as if they were some kind of troublemaker in that case, with certain trustees being particularly adamant about citations and fines, and Mr Downey leading the band on that at the May meeting.

    After this initial goal was accomplished, Mr, Downey’s disregard for the code requirements from that point on only serves to verify the thought that political motives were behind instituting Chapter 54, rather than a desire to clarify the ethical standards of the village.

   Nevertheless, as Trustee Lesniak stated - “The ordinance is, what the ordinance is” Indicating no ifs, ands, or buts -  either comply with the code, or be fined,  was the clear message.
   It would be the utmost injustice and height of hypocrisy for the Village Board (3 members still the same as in 2015) [Voll, Lesniak, Eiden] to now find excuses to not prosecute, or otherwise impose accountability on an administrator who fully advocated a hard line of enforcement of the code when it applied to some other person.
   
 Further action -

   Mr Downey’s decision to disregard the specified provisions of Section 54-9, part of a code that he himself assembled and brought to the Village Board for approval, does not just involve a series of ordinance violations and fines that I have just described.

    The specific nature of ordinance 54-9 (B) and (C), stating specifically the time and manner in which the orders in this ordinance were to be fulfilled, and leaving no discretion for the public official to do otherwise; causes these required duties to be known mandatory, non-discretionary, ministerial duties. Disregarding them by a public official appears to be defined by the plain language of the statute, as criminal misconduct.

   This takes us to the Wisconsin Statute:

   946.12 Any public officer or public employee who does any of the following is guilty of a Class I felony:

(1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law; or
(2) In the officer's or employee's capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity; or
(3) Whether by act of commission or omission, in the officer's or employee's capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another; or
(4) In the officer's or employee's capacity as such officer or employee, makes an entry in an account or record book or return, certificate, report or statement which in a material respect the officer or employee intentionally falsifies; or
(5) Under color of the officer's or employee's office or employment, intentionally solicits or accepts for the performance of any service or duty anything of value which the officer or employee knows is greater or less than is fixed by law.

   So it is not hard to see that every violation of ordinance 54-9 (B) & (C), directly becomes a violation of this State statute. To paraphrase Trustee Lesniak - “The Statute is, what the Statute is.”

  

   Violations of village ordinances is a matter of local enforcement. The State statutes involved are another matter, and must be dealt with at the County Court level. I don’t think I have misrepresented any facts in this complaint. If so, be sure to let me know. If I have not, then where do you as president have a choice but to follow through on his matter?

 
 Also, I'm no lawyer, but someone recently pointed out to me the following law:

USC 18 §4. Misprision of felony
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

 

Summary

• He knew what the code required. Because he put it all in there and reviewed it with the village attorney.
  

• He advocated strongly for immediate enforcement of the code against Theresa O’Brien in May of 2015, while he himself disregarded, even then, the provisions of the code that applied to him.

• When he knew the code was going to be reviewed in Dec 2019, he apparently realized that his misconduct would be discovered. So in order to control the narrative he went ahead to be the first to make his failure known. This provided the ability to take the edge off of his offense by incorporating into his announcement his cover story about the Ethics Board not being in place and using this as the excuse for his non-compliance with the ordinance.
  

• The cover story is so implausible, that I think we all know it isn’t true. His own words especially in the May 12,2015 recording show that his excuse is contrived.

•  He admitted to his wrongdoing numerous times at the various meetings in early 2020, even in writing, though he tried to distract the issue with his false cover story. For him to now try to act like it never happened, as he did at the retreat, demonstrates his arrogance and dishonesty.

•  His actions seem to fall squarely within the terms of Wisconsin 946.12, defining misconduct in office.

     As you know, I had intended to let this ethics problem slide by, as well as Mr Downey’s misconduct surrounding the emergency declaration. Now we see other issues coming to light - the bonds and the PW hours for example. All four of these show a pattern in which he seems to just plain do what he wants to do, no matter the consequences or cost to the village, apparently relying either on some kind of automatic absolution being granted from the elected officials, or on their indifference/timorousness toward accountability. I believe the President, and/or Village Board as a whole has a responsibility to the taxpayers to end this.

So, that wraps up my complaint. Richard wanted it written up, so here it is.  Since you are responsible for enforcing laws and ordinances in the village, I’ll leave this for you to figure out at this point.