Thursday, March 06, 2014

Blurring the lines between the unusual and the routine

Yesterday morning I woke up around 4 am - or, more accurately, my dogs woke up which basically means I'm out of bed. Two hundred pounds of golden retriever is both an immovable object and an irresistible force.

So while they were, let's say occupied, I padded down to the kitchen and surfed to the local paper.

There I saw a banner headline which reminded me, as if I needed reminding, that the most pervasive bias in journalism is in favor of the story. This is not an accusation; lawyers have their own professional biases.

"Walker blurred campaign, county government lines"

A few paragraphs down, we come to the money line - the one that is supposed to dramatically reveal some unsuspected truth. We are told that "Milwaukee County government became a virtual arm of Walker's 2010 campaign for governor."

My goodness, what did they finally find in those e-mails? I have been writing that the story is, at least from a legal perspective,  not new and not interesting. Could I have been wrong?

Of course, I could be wrong. But not this time. While, to be fair, there are some interesting tidbits in the e-mails - there always will be when one has the chance to eavesdrop on what the correspondents (wrongly) regarded as private conversations.

But there was nothing that you would not expect to see in the e-mails of political appointees working for a public official running for office.

They most decidedly do not show that County government became a virtual arm of Walker's campaign. Only a political naif could believe that and the army of reporters who contributed to the story are anything but naive. Indeed, they have written an article that's stance - its foundational assumption-  is so naive as to reveal a profound type of cynicism. If they really expect us to believe that any of this was unusual, they don't think much of us.

From a legal perspective, using the government as an "arm" of the campaign would be to use government workers and taxpayer funds to do campaign work, i.e., raising funds, buying media, organizing lit drops, etc. Other than her fundraising for a candidate other than Scott Walker, the Rindfleisch e-mails don't show that.

What it cannot mean is that political appointees of the government worried about the impact of what they were doing on the campaign and, at times, reached out to the campaign or received advice about how to  respond to political attacks or frame messages. It cannot mean that decisions were influenced by political considerations.

And yet that's all these e-mails show - with one important caveat that I'll get to later.

The group that contributed to the story is experienced and savvy. They don't believe - for one moment - that elected officials and their staff make decisions about messages and budgets and responses to daily events without regard to politics. I am sure that they are aware that politicians running for office talk to their campaign consultants about how what they are doing is affecting the campaign.

They also know - or they should - that it could be no other way. To make policy, you have to address the politics of that policy. To be an elected official - a representative of the people - you had better take into account what the people are thinking and how they'll react. That won't always look pretty, but most of us continue to believe that democracy is a lousy form of government that beats all the alternatives.

We normally don't see the details of this messiness because no one conducts a John Doe investigation into everything they do and gathers tens of thousands of e-mails that remind us - again - that politics ain't bean bag.

But what about the fact that these e-mails were "secret?" That could be significant and that's one of two reasons why I say that the story is only close to a nothing burger.

Once again, the reporters who worked on the story know that it is not unusual for public officials and their staffs to use private e-mails. They know it because I suspect they get e-mails from sources on a regular basis.

That is not, in and of itself, illegal.  Nothing in the law precludes government employees from using private e-mails to conduct official business. There are good reasons for doing so (not everything they may do during the day is official business) and not so good reasons.

Here's the not so good part. If government employees use private e-mails for official business, they may nevertheless be creating a record that, if it is retained (and there is no obligation to keep it)  is subject to production in response to an open records request. So ... if  records were not produced in response to an open records request, then we've got something to write about.

It might not be a crime, but it would be wrong.

As someone who runs an organization that makes numerous open records requests and litigates open records cases, I do not believe that Democrats or Republicans always (ever?) turn over "private' e-mails used for official business.

But they should.

I chuckled when I read e-mails suggesting that the county executive's office "slow down" responses to open records request to match the tardiness with which Mayor Barrett's office was complying with such requests. I can tell you that some of these agencies - yes, we're looking at you, MPS - are almost blackholes when it comes to record requests.

Of course - and here is where I take back some of my snarky "the Journal Sentinel is channeling Inspector Clemenceau" fun. The e-mails - well, actually only the small fraction that are good enough to write about it - are entertaining.

As any litigator can tell you, the advent of e-mail has revolutionized organizational communications and given us all big fat opportunities to embarrass ourselves.

First, they reduce to writing communications that used to be oral and were never memorialized in anyway. In 1989, if I wanted a quick word with the person in the next office, I picked up the phone or stuck my head in the door. Today, even though I can literally talk to my colleague, CJ Szafir through the wall (we office in a very old house; voices carry), I send e-mails.

Second, e-mail is not like the old interoffice memo. It is quick and it seems personal and private. This leads to candid communication which, our common assumption notwithstanding, does not always reflect what we really think or what we would say if we took thirty seconds to thinks about it. Thus, it create s treasure trove for lawyers taking discovery in litigation or political operatives making open records requests.

So it's a bit of fun, but, so far, not much else.

Cross posted at Purple Wisconsin.


Anonymous said...

Again you miss the point,

Point is, walker is a compulsive liar.

Bottom line

John Mitchell said...

Anony, it truly doesn't help when you make bombastic statements.

Professor, we get it already. Walker's political associates engaged in actions that are normal everyday operations similar to Democrats, and that the transgressions uncovered are no better or worse than their political rivals.

Except we know that if the shoe was on the other foot, your boyzzz would be calling for heads to roll.

Nothing to see here, folks, nothing to see here. Just move along. Move along.

Anonymous said...

Like Dud29, this used to be an interesting blog...

Anonymous said...

John Mitchell,

Since when does telling the truth become a bombastic statement.

Did I hurt walker's feelings ??

Or does the truth just really hurt ??

John Mitchell said...

"Since when does telling the truth become a bombastic statement."

Anony 1:07, Walker may be a liar, and has in some cases lied (just any politician for that matter), but adding the modifier "compulsive" is generally reserved for partisans.

Clearly, you and the Professor have that in common.

Anony 10:02 p.m., if you feel that way, then why even bother commenting?

Anonymous said...

John Mitchell,

Look compulsive up in the dictionary..

definitely fits walker to a tee whether I am partisan or not.

Actually this is not about me, it's too show why the emails were important.

John Mitchell said...

"definitely fits walker to a tee whether I am partisan or not."

I'm not a fan of Walker, buy you still have yet provide strong evidence. Keep trying, I'm sure you will find it somewhere!

Anonymous said...

Except that Wink was also fundraising on county time - for Walker.

John Mitchell said...

"Except that Wink was also fundraising on county time--for Walker."

Your point???

haika fleix said...
This comment has been removed by a blog administrator.
John Foust said...

Wheels within wheels… a WisGOP political operative / WisGOP lawyer / WisGOP newspaper columnist / WisGOP blogger is worried about who has a bias and who doesn’t.

Let me start with a compliment. You make an important point that needs repeating: It’s the message, not the medium, when it comes to open records. If you’re talking about government business, it’s a potential open record. You could send it via carrier pigeon, you could have a hundred email accounts, you could have a secret mobile hotspot, you could send it from your phone, it doesn’t matter. The content matters.

It may not be a crime to not surrender a record that should’ve been, but it is a violation of a statute, and you can be fined.

Similarly, apart from crimes and statutes, there are policies. Institutions have policies to document the proper behavior they expect from employees. We’re not talking about the town board in a rural county. We’re talking about the top of government in the most populous county.

Do you think Walker and the Board approved any version of the County's "Use of Technologies Policy" when it came to email? Do they assign official emails to each person and require them to use them for business? The 2010 version of the UTP says you shouldn't be "engaging in fund raising, political campaign activities, or public relations activities not specifically related to County government activities."

You seem to like the “but everyone is doing it” excuse and offer no corrective course. You “do not believe” that officials “always (ever?) turn over "private' e-mails used for official business.” Instead of conspiracy, have you entertained the possibility that some of them are actually following policy, and have avoided creating records with any personal email account?

We have evidence that Walker knew of the “secret router” at least as early as May 13, 2010, the day Darlene Wink resigned. We can quibble about whether he knew of it before that. We have evidence that he and his staff clearly did not surrender hundreds if not thousands of emails that should have been surrendered to Sup. John Weishan and Mark Neumann, if not to other open record requesters we don’t know of.

The County's "Use of Technologies Policy" does say "users may be permitted, at management's discretion and with prior approval, to use the County's technologies for personal activities…" yet you cheerfully tut-tutted and blogged (and newspapered?) about the way CRG and the WisGOP led the charge to smear Chris Lienbenthal’s reading of blogs during the work day. Apparently sometimes mere “policies” are important for you to worry about, even though they’re not “crimes” or even “misdemeanors.”

If campaigning on the public dime is the new normal, then please explain how this policy should be implemented. Can every elected and appointed official who wants to run for office require their staff to run their campaign during the work day? Who is special enough to be given this great subsidy?