Here's a thought experiment.
A recent Ernie On Wisconsin column by Ernie Franzen quite rightly questions the decision of the Bureau of Commissioners of Public Lands to ban its handful of employees from working on global warming while on the clock. I wonder if there's more to the story, but the ban does seem like overkill.
The column suggests that it is silly for the state to crack down on "time theft" in this way. I agree. these things ought to be handled in less dramatic ways, but let me suggest an even worse example of overreaction to "time theft."
Sending Kelly Rindfleisch to jail for it.
Rindfleisch was charged with felony misconduct in office, i.e., using her public employment in a manner that is inconsistent with her duties to confer a dishonest advantage on another. The theory was, since she wasn't supposed to be doing political work on state time, she had improperly used her position to benefit the candidate she was working for. There is a statute prohibiting fundraising from state office buildings or during set work hours - itself a form of criminalizing "time theft" - but she wasn't charged with violating it. That would only have been a misdemeanor. (In fact, this is what Darlene Wink was ultimately charged with.)
There seems to be a dispute over whether anyone at the Bureau was currently working on climate change during office hours. Perhaps some might even argue that climate change is relevant to the Bureau's mission. But let's assume that someone was working on the issue and that this falls outside his or her job responsibilities -the Bureau itself says so.
Couldn't you shoehorn this climate change advocacy into the felony misconduct in office statute? Wouldn't that person be using her office - its space, perhaps its equipment and the wages she is paid (time theft!) in a way that is inconsistent with his or her duties -she is not supposed to be working on climate change - to confer a dishonest advantage on individuals and organizations engaged in advocacy on global warming.?
One might try to distinguish the Rindfleisch case by arguing that fundraising is specifically prohibited by statute while work on climate change is not, but that may actually weaken the case for using the felony misconduct in office statute in this way. In any event, it would not distinguish the caucus scandal prosecutions. There is simply no express statutory prohibition against public employees doing "political work."
There are still lawyerly distinctions that might be drawn between the caucus and Rindfleisch cases and our climate change hypothetical. But cases seem uncomfortably close.
Don't get me wrong. I don't think that Bureau employees working on climate change should be doing the perp walk. I am using them as a further illustration of why aggressive use of vague statutes to punish political activity is problematic.
I don't know that any of this happened. Even if it did, I would be strongly disposed against using broadly worded statutes to criminalize "time theft."
I think the Bureau's resolution was misguided, but at least it didn't start a John Doe.
Cross posted at Purple Wisconsin