The Investigation Part 2.5 - Open Records Antics

 

I have a few questions about the latest (June 22) Village Board meeting.

They have to do with my observations of:

• Another illegal closed session meeting among a list of others.

• Extraordinary commandeering by the Village Board of the Village Clerk's duties as records custodian for questionable purposes.

• The Board's redaction of records without providing a legal reason.

• Joling's history of opposition to Open Records and Open Meetings.

• The Village Board firing an employee in almost the most inept, lawsuit-inviting manner possible.

• More incompetence, more lawlessness, more weak, failed leadership.

It looks to me, like the Village Board led by President Dan Joling has conducted yet another illegal closed session to conduct business that has not been properly disclosed to the public.

I see that this habit of his has been going on consistently ever since he has been appointed president, which was also about the same time that James Davel came on board as village administrator.

It is part of the administrators job description to make sure that meetings are legally held, but ultimately the presiding officer (Joling) is responsible for violations of Wisconsin's Open Meetings Law. (See my two posts on "Why I Filed an Open Meetings Complaint with the DA")

In this article when I say "Joling" it is meant to impute responsibility to Davel as well, since it is his duty to provide competent advice.

The Meeting

All government meetings must be open to public awareness and observation, unless there is a legitimate legal reason to invoke an exemption to that requirement (a closed session). These exemptions can be found in statute 19.85 (1)(a - h).

The legal reason (exemption) that Joling claimed on June 22 to go into closed session was stated as

"pursuant to Wis. Stat. § 19.85(1)(b) for consideration of dismissal, demotion, discipline, or investigation of charges against a public employee and/or and Wis. Stat. § 19.85(1)(f)Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations."

That is a mouthful of words, but it is quoted from statute, which was intended to protect people unfairly accused of things, which whether true or not would unjustly damage their reputation just by discussing it in public.

The problem is, that it looks like none of what Joling claims there in the exemptions actually applies to what came out of this closed session.

The alleged subject matter of the closed session was stated in the agenda as -

"Discussion and possible action regarding any final further redactions to the investigation record before release pursuant to the Wisconsin Public Records Law."

Let's take a look at what is going on here.

State Statute and Village Ordinance has designated the Village Clerk as the custodian of records and legally responsible for fulfillment of Open Records requests, and the sole official who is trained to apply the "balancing test" to determine if a record is suitable for release, and if so, what to redact.

By discussing and voting on this matter the Board has taken the extraordinary measure of assuming and overriding the clerk's authority and responsibilities. Why? Who on the Board is knowledgeable in the rules and requirements of Open Records law?

This is the Board's motion by Mary Solheim after coming back in to open session:

"Motion that we release the investigative summary in unredacted form, and the full analysis report to be available in redacted form. Further final redactions to include personal identifiable information of witnesses."

Joling, as seems to be so often the case, arbitrarily changed the motion just before the vote. He changed the last sentence to "identifiable information of employee witnesses."

So, how did this village business fall under any of the claimed exemptions?

1. § 19.85(1)(b) for consideration of dismissal, demotion, discipline, or investigation of charges against a public employee. - Wegner was fired almost two months ago, so this doesn't seem to apply.

2. Wis. Stat. § 19.85(1)(f)Considering financial, medical, social or personal histories or

   disciplinary data of specific persons, - Same thing; this exemption covers preliminary consideration of problems Why would they rehash a 2 month old decision to fire someone? "Specific persons" need to be identified on the agenda as a matter of law. Since this turned out to be all about shielding the potential accusers and not the victims, I don't see how this applies to realistically protect anyone's reputation.

3. "preliminary consideration of specific personnel problems or..." Apparently nothing "preliminary" happening at this meeting at all.

4. "the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations."

All four of these reasons appear to be invalid or very sketchy exemptions for the business that was actually conducted, because according to State ex rel. Buswell v. Tomah Area School District, 2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804 (Wis. 2007), if a closed session subject deals with a specific person or persons, that person must be identified by name or position. So based on that deficiency alone, the closed meeting should be considered to be in violation and invalid.

There is no mention in the motion of protecting the names or reputations of those accused (perhaps falsely) in an investigation report that has not been verified. See my post "The Investigation, Part 2"

Those exemptions in 1-4 might have been more appropriate for the April 30 closed session when the Village Board apparently fired Wegner based on that same untested investigation report that they now want to redact. Instead, for that meeting where they fired him, they stated that closed session business as

"to-wit review specific personnel matter and address next steps arising out of same."

Which again was vague and insufficient; we see no mention of "who", or any inkling of impending termination as required by law.

A general phrase like that is widely considered to be problematic under Wisconsin open meetings law. Wis. Stat. § 19.85(1) requires that the notice be specific enough to reasonably apprise the public of the subject matter. Wisconsin courts and the Wisconsin AG have consistently held that vague catch-all language like "personnel matter" likely doesn't meet that bar, especially when the outcome is something as significant as a termination.

So it seems that Joling plays this shell game with shuffling around random exemptions to various closed sessions, none of which seem to meet the requirements of Open Meetings Law for those particular meetings. Joling's behavior is consistent with his demonstrated apparent disdain for public awareness of what he may be up to (which open government requires by definition).

Item 4 might apply, since the motion was specifically aimed at concealing which employees said what about Wegner.

Why would this "be likely to have a substantial adverse effect upon the reputation of any person... involved in such problems or investigations."?

Why would telling the truth be a reason to fear an adverse effect on the witness' reputation?

Could it be perhaps that my June 21 post "Money for Nothing" and my two posts regarding "Why I Filed an Open Meetings Complaint with the DA" kind of hit the nail on the head when I questioned the mystery of an unexplained and ongoing $1000 per pay period "bonus" to two employees who happened to be witnesses critical of Wegner?

If you wonder why you missed that event, it was done after closed session on May 11. You won't see it in the minutes and you will still probably miss it if you listen to the recording. Why? Because it isn't there for you to see or hear.

It turns out that these are the same two people who allegedly were observed two or more times going with Davel to the Village Hall basement for some kind of meetings the day after the Board approved the investigation into Davel's behavior.

Is it possible that this potential public awareness might cause at least one trustee to have been adamant about the redaction of witness names, which Joling underscored by specifying "employee witness" names?

This also begs the question of why was Kelly Coyle even involved in this discussion and vote on this matter?

Disclaimer

I want to emphasize that much of this is opinion, speculation, and unproven allegation. Nothing offered here for your consideration is certain until it is proved to be so in court, under oath, etc. before a legitimate judge. This also applies to the overall credibility question of the entire investigation report that the the Board has voted to release. A report which is based on mere summaries of untested, unsworn interviews and an investigator's opinion and conclusions based on "information and guidance" provided to them by Joling.

More Questions about the Meeting and the Motion.

If the Village Board is going to presume to disrespect the integrity, honesty, and intelligence of the Village Clerk by commandeering her duties as records custodian, then they must also bear the responsibility of legally justifying their decision for redaction.

Wisconsin Statute 19.35 (4)(a) states:

"Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority’s determination to deny the request in whole or in part and the reasons therefor."

A decision for redaction is a denial of an open record "in part", and the Board has provided no reason in discussion or in their motion for the redactions that they voted for. Given the circumstances of the bonus money situation mentioned above, I think a Balancing Test would objectively show that it is much more in the public interest to know what the "bonus recipient witnesses" said in their interviews, so that the public itself can judge credibility issues.

The Village apparently has Public Information Requests going back to March for that first investigation report that allegedly "cleared Davel of wrongdoing". Joling and the Village Board have obviously taken the records fulfillment responsibility away from the Village Clerk, so this failure to fulfill falls on them.

It has been 3 months since the requests were made, and the Board is still jacking the requester(s) around. Apparently this has been Joling's MO for a long time. There seems to be a prevailing attitude of "let them sue us if they don't like it." We saw that with the Milestone appeal, the multiple open meeting violations, and the way they went about firing Wegner. Now we see it with the stonewalling of open records requests.

Another example is when, as police chief Joling embarrassed the Village and the KPD by refusing to release the discipline records of a repeat offender KPD officer that he had apparently been shielding from public discovery. Numerous articles were published about it. Here is one:

https://www.wausaudailyherald.com/story/opinion/2015/02/18/kronenwetter-police-officer-andrew-zortman-discipline-records/23634441/

That Daily Herald article says in part:

"What followed the report, though, was a systematic effort by Kronenwetter Police Chief Dan Joling and the rest of the village leadership to keep this information from the public. When Daily Herald Media inquired about the disciplinary action, Joling was not forthcoming. The village did not release public records in response to the newspaper's open records request. Daily Herald Media had to bring an open records lawsuit in order to finally bring this information to light.

That's a problem. This was never a gray area. These were plainly public records, and the village's impulse to conceal them — at expense to its taxpayers, as it has turned out — does not speak well of the leadership there"

I believe, based on the nature of the action coming out of closed session on April 30 and June 22, that this motion for redaction is some kind of CYA move by the Board. Otherwise, why did they bypass the clerk?

The way Wegner was fired seems to me to have been a malicious, figurative "sucker punch" by the Village Board, by firing an employee "with cause", but without due notice, without an opportunity to resign, and without a due process hearing, or an opportunity defend himself.

This is all apparently based on the the big ($40,000) but very secretive "investigation" initiated by Joling supposedly into Davel's behavior, but which was instead turned on Wegner. See my posts "The Investigation Part 1 and Part 2. for in-depth detail.

Now, it looks to me like Joling and the crew seem to be finagling how to release public records in a manner most favorable to concealing their own culpability.

Before making up your mind on any of this, I would say that anyone who wishes to see any investigative reports should do an Open Records request for the initial report of March 27, and the full analysis report of April 23, along with all unredacted augmentation and the investigator's interview recordings and transcripts, including Joling/Stowell's interviews with Pete Wegner, Jennifer Poyer, and James Davel recorded on Feb 23, 2026. But don't hold your breath waiting for any of it.

Normally in a situation like this I would say that the Board members should be ashamed of themselves for their support of any bad faith going on in all this, but honestly, I don't think they have the capacity for shame.