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Board’s OK to hire investigator might have violated state law

Mike Heine/The Week

(Published Nov. 21, 2007, 11:56 a.m.)

The Delavan Town Board’s closed-door decision to hire a private investigator might have violated open meetings laws, attorneys for the Wisconsin Newspaper Association said.

On Aug. 15, the board authorized town attorney Steve Wassel to hire a computer expert to help investigate whether the clerk was using her work computer for personal matters. The decision was made in closed session, Wassel said.

Wassel said he then hired retired Walworth County sheriff’s detective Craig Weber to gain access to and copy the hard drive in clerk Dixie Bernsteen’s computer.

Bernsteen said the investigation revealed no wrongdoing.

“I don’t do anything personal on the computer. I don’t have time,” she said.

Attorney Bob Dreps, an open meetings expert who works with the Wisconsin Newspaper Association, said the board probably could have authorized the expense of hiring an investigator in open session after the closed session was ended.

“Just because the door is closed doesn’t mean a government body can act with a wink and nod,” Dreps said. “You still have to do a motion to do anything.”

Because Weber likely will want compensation for his services, then there should have been a motion made to authorize paying him, Dreps said.

The minutes for the meeting do not indicate whether a vote was taken in the closed session.

“No matter what kind of procedural rules you follow, when you’re a collective body, you have to somehow determine that the body is authorizing this,” Dreps said. “If there’s some other way than a motion and a vote to do that, it’s news to me.”

Wassel said there was no motion in the meeting and hiring Weber was done by consensus. He asked if the board had any problem with him hiring Weber for about $300. When nobody spoke up, Wassel said he took that as authorization.

There was no motion because town officials did not want to tip off Bernsteen about the investigation and have her delete files before the town’s computer could be examined, Wassel said.

Another reason for having a consensus decision was to not unnecessarily embarrass the clerk by revealing what the closed-door meeting was about. A formal motion might have revealed too much, he said.

The statute the board used for going into closed session was legitimate, said attorney Rebecca Mason, who also works with the Wisconsin Newspaper Association. The statute, however, does not allow for authorizing spending public funds, Mason said.

“It’s not appropriate for them to just say ‘a general consensus to authorize the expenditure of money,’” Mason said.

In hindsight, Wassel said there possibly could have been a motion made, but that “gives rise to just as many questions as there not being a motion” if the minutes are vague about what the board is doing.

“I think the circumstances dictated that it be handled in the manner that it was,” Wassel said.

Mason said a motion probably should have been done.

“The description of what they voted on doesn’t need to be so specific as to reveal the information that they’re allowed to keep confidential,” she said. “They still need to have some recording of their action and some description of what they did.

“You can’t bypass the voting process with a wink and a nod.”

Time line

Aug. 15—The Delavan Town Board authorizes town attorney Steve Wassel to hire a private computer expert to gain access to the computer of town Clerk Dixie Bernsteen to determine if she’d been using her computer for personal matters on town time.

Aug. 16—The expert, retired county sheriff detective Craig Weber, goes to the town hall at night with Town Chairman Wayne Polzin and Supervisor Frank Jones, former town Police Chief Andrew Mayer said.

Aug. 21—After returning from a seminar, Bernsteen reports to Mayer that she believes someone had tampered with the computer. The cords were plugged in incorrectly and she is unable to use it properly, according to a police report. The computer goes to a repair shop.

Aug. 24—Wassel tells Mayer about having Weber, Polzin and Jones at the town hall to access the computer. Later, Wassel unsuccessfully attempts to seize the computer at the town hall with supervisors Jim Wolfgram and Kay Franzen, but the computer is at the repair shop. An assistant district attorney tells Mayer that the computer is not to be released and that the computer should be taken into police custody.

Aug. 27—Weber tries to get the computer from the repair shop but is denied because the store clerk is instructed to turn it over only to police. The repair shop gives the computer to the police department, and it is put into evidence. Mayer requests assistance from the Wisconsin Department of Justice and faxes them his report. Wassel tells Mayer that what happened is legal because it is the town’s computer.

Sept. 11—Wassel gets a subpoena to retrieve the computer from evidence. The move is supported by the district attorney’s office, according to the police report.

Sept. 12—Weber makes a copy of the hard drive.

Sept. 14—Weber tells Mayer the copy he made is corrupt and he needs to copy the contents again after a new subpoena is issued.

Oct. 2—Weber is given access to copy the hard drive again. Mayer warns him that the computer contains information that is not available under the Freedom of Information Act, including employee health records.

Oct. 3—The town police and fire commission fires Mayer without cause. Mayer later declines to speculate whether his termination is related to his investigation of the computer.

Oct. 4—District Attorney Phil Koss tells interim Chief Phil Smith he has no interest in the computer.

Oct. 5—A representative from the Wisconsin Department of Justice says the office has no interest in the computer and tells Smith it is a civil matter.

Oct. 9—Smith turns over the computer to Weber.

Nov. 6—Polzin tells The Janesville Gazette, “You guys are making a mountain out of a mole hill.”

Nov. 7—Bernsteen tells the Gazette that nothing has been found on the computer that indicates she was using it for personal reasons.

“I don’t do anything personal on the computer. I don’t have time,” she says.

Wassel says the incident has been overblown by the press and that the town had every right to examine the contents of the clerk’s work computer.

“I think that, unfortunately, it’s become a media manipulation in an effort to spin things in different directions depending on which side of the ledger people may be on,” Wassel said. “It’s unfortunate, because there are serious issues the town of Delavan has to deal with, and this is not one of them.”

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