Friday, February 28, 2014

Sanctimony, Part I

I suppose that there is no percentage in this for me but I can't help myself. Here are two bits of silliness in the news.

John Schultze, a lawyer with the Department of Transportation has, essentially, been fired because a few years ago he sent around a joke press release touting legalized prostitution as an economic development idea for Wisconsin. Among the benefits of the plan would be job opportunities for W-2 recipients. The release included the undoubtedly offensive suggestion that men who frequent prostitutes probably prefer transsexuals to transvestites.

Now, I certainly understand that prostitution is frequently exploitation of poor women and that's not funny. I suppose one might say that the the bit about transsexuals was "hetero-normative" and we certainly can't have that.

On the other hand, humor often works by being transgressive in the sense that it flips our normal assumptions about things and treats its subject differently than we normally would. Doing so doesn't mean that the humorist endorses what he jokes about.  In this case, the joke was on the idea that someone would think prostitution in the Dells was a good idea.

I have never met John Schultze and wouldn't know him if he came into my office and started telling me the one about the farmer's daughter and the traveling salesman. The joke was executed in a tacky way and not very funny. It was, as we say these days, "NSFW" and, I assume, a violation of the terms of use of the state e-mail policy.

It was all of that and an offense and against good comedic discernment to boot. But was it a firing offense? Have we really become so incapable of exercising judgment about the multiplying third rails of public conversation that we have to destroy everyone who blunders on to something that makes someone - or at least officially protected someones - uncomfortable ? Have our politicians become so focus grouped that they can't stand up for the decent thing to do? No need to answer the last one.

I don't think the joke he forwarded was very funny and I understand that sending it around at work was not the best thing to do. He deserved a reprimand.

But fire the guy? Give me a break.

Cross posted at Purple Wisconsin

Tuesday, February 25, 2014

"I see guilty people."

I have written columns on the legal issues presented - or more accurately not presented - by the closed Doe investigation of former County Executive Scott Walker's office and the recent release of certain documents gathered as part of that investigation.

Of course, I don't expect Democratic partisans to stop. The latest trope is to hammer Walker for not wanting to answer an endless string of questions. He should, they think, be willing to linger over material that was insufficient for even a District Attorney who embarked on a three year proctological examination of Walker's office to issue charges.

Walker's desire to move on is supposed to be a Jedi mind trick - perhaps learned from President Obama ("this is not the resurgent al-Qaeda you were looking for").

I won't comment on the Governor's media strategy. But I think what's happening here is more akin to people who see the Virgin Mary in an oil stain. Walker's opponents see what they want to see.

What none of these folks ever do is point to anything that might conceivably be a crime or even, for that matter, wrong. Although the authors acknowledged it was not a crime, Sunday's Journal Sentinel tried this one: A publication criticized a Walker plan to privatize the airport. Walker asked his staffers to get out a response to the criticism. Within thirty minutes, they did.

Oh the horror! Oh the humanity!

To repeat. It is not a crime for public officials and their employees to put out messages that promote the official and her policies. It is not a crime even if how they do it is informed by a campaign consultant. It is not even a crime for such people to sometimes attend to campaign matters during the day although they may never raise funds during established working hours or from a public building and it may be a violation of workplace policy to use government resources (like a computer or e-mail system to do so). 

It is also not illegal to have a "secret e-mail" system or private e-mail account. Elected official and their staff often have them. They are usually called smart phones and g-mail. The real question is how they are used.  If someone sits in a government office taking in a government salary while raising money, setting up campaign rallies (as opposed to scheduling the boss), doing media buys and conducting opposition research unrelated to some policy objective, then we have a problem (although even then, the applicability of felony misconduct statutes may be questionable as it was in the caucus scandal.)

So if there were evidence of Walker instructing his people to do that, then maybe there's something to talk about it. But, near as I can tell, all we have - after one of the most thorough investigations of any politician in the history of Wisconsin - is two people engaged in fundraising from a county building without any connection of their activities to Walker.

Here's a thought experiment. Human beings as they are, if we took three years and scoured the laundry of Tom Barrett, Jim Doyle or Tammy Baldwin, do you really think we wouldn't find as much?

If you don't think so, I want you to meet my uncle. He just stole sixteen million dollars from the Kenyan government and would like to park it in your bank account.

Cross posted at Purple Wisconsin

Thursday, February 20, 2014

The real partisan abuse of the e-mail dump

I am writing a series of columns on the recent release of certain e-mails acquired as part of the John Doe investigation. But I feel compelled to respond to a post by Alex Runner here at Purple Wisconsin. I like Alex. He's a smart guy and a good writer. But, in this instance,  he's got it exactly backward. It's folks who are exploiting the Doe to kick dirt at the Governor that are putting partisanship over the rule of law.

Alex argues that, while he hasn't reviewed the e-mails, he's sure that they showed Scott Walker reckless disregarded - or was ignorant of - the law against "campaign work" on the taxpayer's dime. In this, he has plenty of Democratic company. The release of this e-mails - the most significant of which have been public for years - has raised renewed - and irresponsible - accusations.

But all of those "outraged" might well pause and considered the following.

All of the information in these e-mails was available to prosecutors who, for three years, appear to have been moving the earth itself to find wrongdoing in Walker's office.

Yet, although these prosecutors had access to all the information that Alex hasn't read but which he is certain shows Walker is a crook, they didn't charge him.

Why might that be?

The reason, of course, is that no crime was committed. Let me explain why.

First, we must be precise. There is no law that explicitly says something called "campaign work" cannot be done by government workers in the course of their duties. There is a statute explicitly prohibiting raising campaign funds in government buildings and prohibiting a person from soliciting or receiving a contribution or service for political purposes from any officer or employee of a political subdivision during established working hours or while that person is engaged in his or her official duties. Violating this law is a misdemeanor.

But before you get carried away, this statute cannot be applied to any activity that might influence an election because political appointees are always - and should be - doing things to sell their bosses and their policies. More on that later.

There is also a statute that says that it is unlawful for a public officer or employee to exercise a discretionary power in a manner inconsistent with the duties of his or her office in order to obtain a dishonest advantage for the officer or employee or another person. A violation of this one is a felony and this statute is what was used in the caucus scandals and to bump Kelly Rindfleisch's misdemeanor fundraising to a felony.

The theory for applying this statute to at least certain kinds of campaign activity is that it is "inconsistent" with the duties of a public employee to be working on a campaign while on the job and that doing so confers a "dishonest" advantage on the candidate.

Now whether this statute can ever be interpreted this way is not, as Alex would have it, a closed question. In the caucus scandals, legislative leaders argue that to stretch the law to apply to political work long done by staffers on both sides of the aisle would raise constitutional concerns such as due process and fair notice, i.e., it was not possible to know what activity is criminal.

The Court of Appeals rejected that argument but the state Supreme Court never resolved the issue. Three justices recused themselves so the Court sat four. Two Justices agreed with the Court of Appeals but two disagreed and would have reversed. Since the Court split, the Court of Appeals decision was left standing. It is, to be sure, precedent but, to this day, the matter has not been addressed by the Supreme Court.

But even if it is not the application of these statutes to some forms of political activity is not a "gray area," applying them to the activity revealed by these e-mails would be. Indeed, it would seem to be clearly wrong.

This, I suspect, is why charges were not brought.  The activity at issue here appears to not to have been the running of a campaign by government workers, but the coordination of messaging in a way that would promote then County Executive Walker and his policies.

But political appointees of elected officials are supposed to promote their bosses and his or her policies. That's not just a concession to an unfortunate reality (elected officials are political animals) but the only way that anything can ever get done. If it were unlawful for policy makers to take into account the political ramifications of official actions and messaging - even to seek advice from political consultants working on a campaign - or to provide information to those folks to tell the story of their boss and her work, we'd soon have to expand the prisons.

Indeed, we'd have to jail elected officials who campaign for themselves or another during the work day or who trade on their status as an elected official for "political purposes." We'd have to prosecute those who maintain elected officials' websites and churn out their press releases. If a candidate facing election ever asks her campaign consultant how to manage a crisis or craft a message about some official action, book her!

I have written before about the problems presented by an aggressive application of the criminal law to political actors behaving politically. What happened here was not clearly inconsistent with the official duty of those undertaking it.

But there is yet another problem. When it comes to political offenses, appearances matter. It is ultimately unsustainable for law enforcement to spend three years scouring the activities of one side while not even asking a question of another. To do so would be selective prosecution. While it may not be a defense to say that "every one does it" and a person accused of a crime can't generally avoid prosecution by pointing to another who did the same thing and wasn't charged, this is a different matter.

The problem here is that it is reasonable to ask whether the decision to investigate was based upon the political speech and association of those chosen for scrutiny. Treating people differently based on their political viewpoint raises concerns under the First and Fourteenth Amendments.

Alex asserts that "Democrats" are more careful about this because some of them have gone to jail for it. So, of course, have Republicans. To say otherwise would be news to Steve Foti.

But we don't know that Democrats are more careful and I would be shocked if political appointees of Democratic politicians don't provide information to campaign staff and don't receive information from campaign staff in the course of their duties. Indeed, some of the examples of Democratic activity left unexamined by prosecutors set forth in Club for Growth's recent suit against certain prosecutors suggests that Democrats are no more "careful" than their Republican counterparts. You can't say that there has not been similar activities on the part of Democrats until you spend three years sorting through their lives.

Let me be clear. I am not suggesting that there be criminal investigations of Democrats. I am suggesting that the criminal law not be used as a political weapon. Whatever one thinks of these Doe investigations, the District Attorney's office was right not to bring charges and partisans are wrong to cry "criminal" when there has been no crime.

Alex Runner doesn't think that partisanship should trump the rule of law.


Cross posted at Purple Wisconsin.

Wednesday, February 19, 2014

Living wage ordinance may be illegal

My column at Right Wisconsin questioning the legality of Milwaukee County's "living wage" ordinance - or as someone recently called it the the "Living While Unemployed wage" can be found here, albeit behind a pay wall.

The shorter version is this. The new ordinance, which is a bad idea in many ways, requires that no one working for a county supplier or contractor should be paid less than the specified wage. It's indecent, they say, and, of course, by ipse dixit, the majordomos on the Milwaukee County Board of Supervisors have decreed that each and everyone of those contractors and suppliers can afford it.

But, if one of those vendors and suppliers wants to enter into a collective bargaining agreement with a union - you know, they kind that provides political support to the supervisors who comprise the board majority - then this absolutely essential and minimally decent living wage can be "waived."

This may be illegal for a number of reasons - one of them being that it is preempted by the National Labor Relations Act. Courts have held that it does not permit local ordinances that interfere with decisions - like whether to unionize - that the Act leaves to market forces. While the county can impose certain requirements as a market participant to ensure the quality of goods and services or to obtain the best price, that's not what's happening here. This is a gift to the organizing efforts of SEIU and other friendly unions.

There, as far as I know, no cases which definitively resolve the issue, but if the County Executive's announced veto is overrriden, we may find out.

Cross posted at Purple Wisconsin

Monday, February 10, 2014

No, MTEA, they aren't "your schools."

In yesterday's Milwaukee Journal Sentinel, Alan Borsuk reflects on the new slogan of MTEA, the MPS' teacher's union.

Here's the slogan:

Our Schools! Our Solutions!

This is precisely what the union should not be saying. Part of the problem with MPS has always been that the MTEA really did regard the schools as "theirs" and only the solutions that "they" countenance could be permitted - all of which seemed to have the fortuitous side benefits of serving the organization and its controlling members. No choice and only a few non-union charters. No merit pay. Seniority. No effective way of getting rid of poor of teachers. No fiscal sanity.

"Our" schools, said the union. "Our" solutions.

Our way or no way.

Unfortunately, given the politics of the city of Milwaukee, the school board generally went along.

The result is not only an ineffective system but schools on the verge of financial collapse. It has resulted in unparalleled flight of poor minority kids to choice schools and an exodus of the middle class from what is otherwise a very pleasant city.

The union ought to recognize that the schools aren't "theirs" and the whatever solutions may exist have passed them by. It ought to understand that it needs to "rethink" not only schools, but itself.

Instead, it doubles down.

Cross posted at Purple Wisconsin.