Monday, February 20, 2012

The Final Word (for now)

With this post, I said that there was one more point to be made (for now) about the John Doe proceeding. Suggestions have been made that the mere presence of things like cell phones and laptops were glaring evidence of wrongdoing.

Not so easy.

My consistent view has been that an absolute prohibition on politics in a government office by political appointees is unworkable and that criminalization of such a activities raises profound due process concerns as the Supreme Court's split decisions in the Caucus cases (Crooks and Roggensack, JJ. shared my concern) demonstrate.

There are some things - but not as much as you'd suppose - that the law clearly prohibits, i.e., fundraising from government offices. I have some questions about charging this as a felony but zi agree that the activity is just not permitted.

After that, there are two categories of potentially "political" activity. One category, explored here, would be activities where politics and policy are inextricably intertwined. I would think that such activity is part of the activity of a government agency and should be conducted with government facilities. No should be accused of wrongdoing but any documents created ought to be subject to the open records law.

I can imagine that some public officials might think that this activity is "too political" to be conducted on government computers but I think that is wrong. I would object to the use of personal phones and computers for this category of activities not because it is intrinsically wrong, but because it risks - and might be improperly intended - to place any documents created outside the scope of the open records law.

This does not mean that personal phones or laptops are wrong. It just raises questions about how they are used.

The second category would be activities that are clearly and completely political. It may be that such activity should never take place during traditional work hours using government computers. But, at least in my view, that is a personnel and not a criminal issue.

And, for certain appointees, it may not even be much of a personnel issue. Any public official who is running for re-election is likely to have key appointees working on that campaign. These people generally work long hours and it may well be that they must attend to political matters during normal business hours. Conducting that business on nongovernmental computers might be seen as a reasonable accommodation of their dual roles. So someone in Mayor Barrett's office who must take a call or send an e-mail on political business and who does it on a nongovernmental cell phone or lap top is not doing anything wrong.

With this category of activity, the question becomes how much time is being spent on political as opposed to governmental business. If someone is never doing the taxpayer's work but just working on politics, we have a problem.

But, even here, we have a certain schizophrenia. We allow - indeed we have a tradition of  permitting - public officals to spend much of their time - while they are presumably working full time for the taxpayers - to run for office. Does anyone really think that, during campaign season, Sens. Clinton, Edwards, Kerry, McCain or Govs. Perry or Palin spent much time on official business?

There are reasons to treat elected officials different than staffers. It would be troublesome, on a number of grounds, to treat elected officials in a way that made it difficult for them to run for re-election or another office. There is, in any event, a remedy at the polls.

There is not the same concern with respect to staffers and not the same remedy. But maybe we don't to slice the loaf too thinly. In the end, we may find that a strict separation of policy and politics doesn't work at all levels.

How does this apply to Scott Walker and the John Doe?

Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing. If there ever is, we'll see. I'm just setting forth some general ideas now.

30 comments:

George Mitchell said...

President Obama's visit to Milw last week was a taxpayer subsidized campaign trip. He has dispatched his cabinet to raise money at Super Pacs.
Nice article today about David Pflouf (sp?) on his white house staff whose main job is politics and campaigning.

If...and I say if....all the Darlene Wink and Kelly R. stuff is abhorrent, I assume those who believe that and post here will deplore Obama's tactics and the failure of Dan Bice, John Doe, John Chisholm, etc, to be outraged.

capper said...

"If there ever is, we'll see. I'm just setting forth some general ideas now."

So now you're pre-apologizing for something that you're saying didn't happen? If he's innocent as you claim, there would be no need to set up such an elaborate excuse for him.

"Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing."

And what of the email from Scott Walker that is included in the Rindfleisch complaint? You know, the one he sent from his campaign email address to Tim Russell, telling him "...no laptops, no websites, no time away from the office on a work day..."

He knew exactly what was happening and who was doing it. And even though Russell was out of the executive's office for two months, Walker went to him. Why?

Your disingenuous is a disservice to yourself and your readers.

capper said...

er, disingenuousness, rather.

Unknown said...

How about the Milwaukee County asking election clerks to forward names of those "disenfranchised"?

This is a blatantly political act. The election office is using their office to lay the ground for a partisan lawsuit against a law enacted by Republicans so that they can continue Democratic cheating.

I heard a radio program paid for by the County on which a county Supervisor and the Recorder of Deeds accused Republicans of voter suppression. This program with its blatently partisan asides was obviously paid for by tax payers. Of course, I was probably the only person listening to that boring c**& program but that doesn't make what they were doing legal.

This is not a one party state. Lets have one set of rules.

ed hammer said...

The Final Word(for now)? We should be so lucky. There are times when I have read your blog and appreciated some of your thoughts. However, over the last few months, you have really hit some lows. I can understand partisanship. Just as I understand the actions of M,B and F. This whole thing smells rotten. The law is pretty clear on fundraising on government time.Clearly the hijinks in Walker's office were illegal. We have adjuducated cases where guilty pleas have been entered. There will be more. As Capper said, your disingenuousness is showing.

Anonymous said...

Well, then, why doesn't Walker just rescind the rules for all state employees -- the rules against using state-paid time and state equipment and email for political purposes?

The rule is to take a vacation day (or half-day) for politicking. The rule is to use personal equipment and email for political work.

You are advising that this rule for all state employees also be tossed? Really? Why?

Anonymous said...

"how much time is being spent on political as opposed to governmental business. If someone is never doing the taxpayer's work but just working on politics, we have a problem."

I'm trying to put all of this into perspective.

What the Democrats are saying is the witch hunt is more important to focus on than fixing high unemployment and the obscene education achievement gap in Milwaukee? Priorities.

In an age of smart phones, we are going to be able to monitor and control politicking? Really? How many Government workers are you going to need to monitor the Government workers?

Nick said...

I would suggest that a reasonable prohibition would be for any person who is a government staff worker to be prohibited from working as a campaign worker... period.

Incumbents get many significant advantages for having that (I) next to their name on the ballot. One of them, as you mention, is that they are essentially paid by the taxpayers to campaign for themselves.

Challengers (especially ones that are not already in politics) have no such advantage, and have to decide to put their normal jobs aside (with pay) to run for office.

To suggest that its somehow ok for the taxpayers to not only pay for an incumbent to campaign, but also pay for his campaign staff is frankly going too far.

Campaign staff, their time, their resources, everything, should be paid for by the campaign. That means that they shouldn't get free office space, free computer usage, or anything.

Mad G said...

What about tool bloggers who names appear in documents released under court order by MB&F. Hard to take any of your spin seriously when you have a hand up your tail. If The Fitzgerald brothers drink a glass of water and you are still able to talk I will change my opinion of you and Marquette as an institution.

Anonymous said...

"and Marquette as an institution."

He's not representative but he's not helping either.

Rick Esenberg said...

Mr. Liebenthal

"What about" the Walker e-mail is what the post is about. I make no claim about whether Walker is "innocent" because he has yet to be accused of anything.

Mr. Hammer

Yes the law is pretty clear on that. I said so. Even cited it. Even raised the question of whether the fact that the law also pretty clearly treats it as a misdemeanor suggests that it cannot be charged as a felony. Sorry if you don't like that.

Nick

That could be the rule but it isn't. I don't think it would be an awful rule but the problem is that it forces incumbents to take trusted advisors out of government the moment they start to run for re-election or for another office. You need to balance that form of brain drain with any fairness advantage.

John Foust said...

Nick's suggestion isn't bad, even if it may not be a rule. It is what many legislators do when the energy to be expended on campaigning becomes too obvious. The trusted aide takes leave of their state job and resigns to become campaign manager. It makes for a revolving door but at least it draws a cleaner line.

forces incumbents to take trusted advisors out of government...

Either that or you can make them Director of Housing and invite them to dress in motorcycle leathers on an early summer bike ride to promote the state. That's what we want small government to do! Promote the state, to the state!

Am I the only one who thinks the supposed photo of Walker, Russell and Piereck is a clear PhotoShop hack job? It's clearly the same guy in a different color jacket, pasted to the left and right.

Mike Plaisted said...

You know what I can't figure out? Republicans are so loaded with the kind of money that is currently supporting George Mitchell and Rick Esenberg -- you know, Bradley Foundation, Koch, etc. -- and their other moneybagged rich and corporate interests, why do they need to have their political people right on top of them in their office and on the public payroll? If Walker wants Russell and Rindfleisch to campaign for him and Davis 24 hours a day, use all that incredible campaign and "independant expenditure" (heh) cash and set them up in a separate office and let them go at it. But, no. There is something about the cult of personality that he needs them there to direct, get updates, do anything but serve the people of Milwaukee County.

And, Rick, it is ridiculous to say that there is "not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing". You refuse to address the implications of the Russell e-mail -- he sent the e-mail to Russell, not anyone on his staff, and when he did, the activity stopped. That means he was at least knowledgeable and at most directing that illegal activity. He doesn't have to be indicted to be accused of wrongdoing -- I just did, and so have many others.

For Walker's legal sake (and only because even Walker should get a decent defense), I hope his real lawyers don't have their heads (to be polite) in the sand as much as you pretend to.

Anonymous said...

Professor--"I don't think it would be an awful rule but the problem is that it forces incumbents to take trusted advisors out of government the moment they start to run for re-election or for another office. You need to balance that form of brain drain with any fairness advantage."

"Brain drain"? Nonsense. An incumbent has any number of competent individuals to choose from to serve as separate advisors regarding governmental affairs AND for a re-election campaign.


George Mitchell--Your attempt at linking Obama's tactics with those allegedly committed by Wink and company is NOT comparing apples to apples. Try again!


Professor--"My consistent view has been that an absolute prohibition on politics in a government office by political appointees is unworkable..."

I don't think any of the commentators have been calling for an "absolute prohibition"; rather, they want to maintain the current distinctions as to what is and is not allowable regarding how one conducts campaign business on the taxpayer dime. Indeed, the lines may be blurred, but there are CLEAR instances in which politicking and campaigning do not MIX.

The public has no problem, I don't think, with politicians using government computers off site to conduct government business...not campaign business! It is about efficiency. What the public does object to is when an incumbent cloaks campaign activities under the guise of government business.


Professor--"So someone in Mayor Barrett's office who must take a call or send an e-mail on political business and who does it on a nongovernmental cell phone or lap top is not doing anything wrong."

No one is saying otherwise, I don't think. The objection is to WHAT is the content and context of that political business--is it about policy or about campaigning? And, if it is about campaigning, is the conversation mundane or profane? That is why records are kept and, if there are shenanigans, they can be examined and scrutinized.


Professor--It would be troublesome, on a number of grounds, to treat elected officials in a way that made it difficult for them to run for re-election or another office.

Actually, the current laws in place, I do believe, have made elected officials keenly aware of what they can and cannot do. Some, unfortunately, try to skirt the law.

Rick Esenberg said...

Mike

Whether Walker knew or did not know of that stuff before the Wink issue arose, I don't know. But the post is meant to consider why the use of private cell phones and laptops might be considered by some to be compliance and not violation. My view on that is rather nuanced - if you actually read it. It would be nice if you, as a defense lawyer would reply to the substance.

But, beyond that, accusing people of crimes on this evidence is something I would think that no member of the bar - much less a defense lawyer - would do.

To be sure, a defense lawyer would not engage in philosophical disquisitions on the law. I'm not a defense lawyer. But a prosecutor - I hope - is not going to engage in the kind of rampant speculation and innuendo that you and a number of bloggers on the left seem to think is appropriate.

Beyond that, be careful what you wish for. It's one thing to charge people with violating clear criminal statutes. It's quite another to use vaguely worded criminal statutes to make prosections a tool of politics. That hasn't happened yet (although I have real questions regarding charging Rindfleisch with a felony which you'd think a defense lawyer might share)but you should think about whether that's something you want because, in my experience, both parties pretty much do the same thing.

By the way, George and his lovely wife Susan are retired. They did this community more good than most people ever will.

I am not retired and, yes, Bradley made it possible for me to do something I love at about a 50 -70%pay reduction from my old gig with one of the very best companies that you'll ever find. I could have retired there so, love me or hate me, you gotta accept that I believe in what I do.



Foust

Why would you be referring to motorcyle leathers?

John Foust said...

I was "not involved" in the planning of Walker's motorcycle ride, so you are correct that we do not know whether it was Walker's idea to wear the plain white t-shirt and the black leather vest, or whether his director of housing made that sartorial suggestion.

Mike Plaisted said...

Rick:

"They did this community more good than most people ever will." Jeez, is that the way you guys talk to each other out at the country club or wherever it is you people have your secret, self-congratulatory conclaves? All George Mitchell has done is try to destroy public education in Milwaukee. And he was paid well for his effort. I can still remember a community meeting where he showed up with one of the "choice" shills he was running for the school board to try to destroy MPS from within. And, from the looks of the ever-willing (for both you and him) Journal Sentinel opinion pages, he's still at it. The Milwaukee community needs this kind of "good" like it needs a hole in the head.

So I'm a defense attorney -- I'm not Walker's defense attorney. We point fingers at other people all the time. Besides, "wrongdoing" is not the same as "criminal". Your claims that there is "not a hint...of anything that could conceivably be the basis for an allegation of wrongdoing" is simply not true. And, speaking of substance, you refuse to address how an email to Russell after which the activity stopped does not implicate Walker in at least knowledge of "wrongdoing". Oh, but you don't think campaigning and fundraising out of the County Executive's office is or should be illegal. At least not when Republicans do it.

The jig is about to be up, Rick. The recalls are moving along quite nicely (at least the Senate is going to flip); Chisholm is still circling that dumpster behind the Courthouse; your too-cute-by-half legal soulmates at Michael Best and Troupis and the Republicans are about to be handed their lunch on redistricting; even the rape of northern Wisconsin through mining isn't going so well.

Your pleas of poverty notwithstanding (oh please), it's not too late to become the scholarly impartial legal observer the newspaper too-often pretends you are. We're waiting.

John Foust said...

Well, Plaisted, you may only be a simple so-called "defense" attorney, but it should be clear that if Walker didn't fire anyone after he sent that email, then there was no hint of wrongdoing! He sent that email to reassure them they were doing things right, and he would've told the public about it if he thought it was important to us, but he thought it wasn't. Ipso facto, corpus delicti, habemus papum!

Anonymous said...

What about the fact that a couple of these people were repeat offenders? Do you have any issues with people that continually do things they KNOW to be illegal? (I guess not since you like Mr. Walker). We have the folks associated with the caucus scandal that do it again. People that should have known better facilitating it. And let's not forget the embezzler that, surprise, steals money again.

Rick Esenberg said...

Mike

I hate golf.

Foust

Why are you associating the former Director of Housing with motorcycle leathers?

George Mitchell said...

"George Mitchell--Your attempt at linking Obama's tactics with those allegedly committed by Wink and company is NOT comparing apples to apples. Try again!"

Good point. Obama is much more blatant.

George Mitchell said...

Mike,

Glad you noticed the op-eds.

From your comrade in the 99%,

George

George Mitchell said...

Mike,

Glad you noticed the op-eds.

From your comrade in the 99%,

George

Anonymous said...

Gotta love it when two bloviating lawyers (oxymoron?) go back and forth about how their side is less dirty or egregious than the other side.


George Mitchell--You are so cagey in your retort. That 30+ years in government certainly sharpened your rapier wit. (rolling of eyes)

Mike Plaisted said...

Hah! Partner in the 99%. Good one. Maybe you need to raise your rates, George.

capper said...

Professor Esenberg,

You say that your entire post is about the Walker tweet, but you don't mention it. Unless one is to infer that you intended this to be a pre-apology post for Walker's misdeeds.

As for your comment that you make no statement towards Walker's "innocence," may I remind you that at the end of the post you wrote:

Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing.

That is a rather clear statement showing that you feel Walker is innocent.

Like I said, disingenuous.

Anonymous said...

capper, Mr. Esenberg forgot he was involved with the Republicans' public relations effort in his capacity as the academic warning a legislative committee as to the futility of legal challenges to the redistricting bill so it's no surprise he's forgotten what he wrote in his original blog post.

George Mitchell said...

anon 8:45

30+ years in government?

By that I guess you mean the 7 years I was employed by the state and federal government and about 2 for the county (early 90s).

So you are off by a slight factor of 3X.

Mike

We're shoulder to shoulder in the struggle.

Rick Esenberg said...

It is a statement that there is no evidence that he did anything wrong. For me to claim he was "innocent," there would have to be an accusation. We normally don't go around saying that people who have been accused of nothing are "innocent."

Jeff Simpson said...

"the problem is that it forces incumbents to take trusted advisors out of government the moment they start to run for re-election or for another office."

The state suffers greatly when they take out party hacks, the likes of darlene wink, tim russell, cynthia archer, brian deschane, etc... from important government jobs making nice taxpayer funded salaries and healthcare to run campaigns instead.