Wednesday, September 21, 2011

He ought to know

Every once in a while, you see something that just seems wrong. A local blogger has apparently taken upon himself to pull together a few facts mixed with speculation and innuendo over something he calls "Walkergate." Although it is unclear just what is being investigated, he notes certain allegations that then County Executive Walker's staff engaged in political activity on county time or using county resources. There could be more - one would think that there is - but no one really knows for sure or what that might be.

Nevertheless, this blogger can scarcely contain himself. The scandal is big. It's sordid. The Governor is tainted.

Here's the strange part.

The blogger is Chris Liebenthal. The same Chris Liebenthal who himself was accused of political activity while on county time and using county resources. He acknowledges as much although he portrays himself as a victim, claiming that the documentation supporting the allegations was "very irresponsible." If you knew nothing of the matter, you'd assume he was pure as the driven snow.

But he was not. Whether or not the documentation was "irresponsible," the District Attorney's office said - after seizing his computer - that he had engaged in "extensive" political blogging at work. Later reports were that he had not "blogged" in the sense of posting to his blog but was visiting web sites with political content. Nevertheless, he was suspended without pay for ten days for what his supervisor called "blatantly disregarding" county policy.

To be sure, he wasn't criminally charged and, as I wrote at the time, I don't think he should have been - whether he was posting to his blog or not. To be sure, the County and the taxpayers had the right to know what he was doing. But any harm stemming from such activity is harm to the employer. While the applicability of state statutes might turn on whether or not he was posting - as opposed to merely gathering information. the matter was properly handled as a personnel issue.

But given that the only thing we know for sure about this investigation is that it was initiated by allegations that county employees have been accused of posting comments to the Journal Sentinel website and doing non-county work on county time, it takes a robust form of chutzpah to revel in the supposedly "sordid" and "tainting" conduct of people engaged in conduct very much like the very conduct that the reveler himself has engaged in.

At the very least and at least until we know more, one would think that a sense of self awareness, grace and just plain decency would have prompted him to acknowledge that he too succumbed to the temptation to pursue other activities on work time.

It is quite possible that the investigation will result in allegations of misconduct far worse than anything Chris Liebenthal was accused. (Given the resources being devoted to it, I would certainly expect that they should be looking for more than that.) Still, the idea that Mr. Liebenthal should be the left wing blogosphere's face for probity on the government clock seems a bit odd.


Anonymous said...

There must be a lawyer somewhere around campus who can 'splain the different standards to which a campaign organization is held for you. Go talk to one of them and report back.

Display Name said...

A social worker violating his employer's acceptable use policy on Internet browsing equals someone in Walker's office, doing campaign work on the state dime?

You mischaracterize Liebenthal's situation in several other ways. 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." It goes on to say, and repeats in several other places, that the County does not want anyone pretending to claim to represent the County's viewpoint or otherwise mispresenting its policies.

When CRG sent out press releases attacking Liebenthal, they did not explain what "extensive political blogging" meant. They wanted it to mean he was writing his blog on County time. Meanwhile, the wretched hive of scum and villainy at BadgerBlogger grew tumescent at the thought. As you point out, this implication was later shown to be incorrect. He was reading, not writing. 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." Lyday didn't say anything about violations of that provision, which would be far closer to what has already emerged from Walkergate.

As a computer consultant who often helps small businesses with these very issues, I will easily characterize the average employee's Internet use in much the same way as the UTP says above: It all depends on what the boss will let you do. It is very difficult for employers to allow Internet use for business-related activities while at the same time disallowing casual personal use. Any non-business time-wasting might catch the boss's eye, and that's the quick summary of Liebenthal's abuse: wasting time on personal matters. The Internet is no different. Liebenthal was properly disciplined as a local HR issue, not a violation of State or Federal campaigning rules. No one ever suggested what he'd done was criminal. Oh, wait, that was your Standard Contradictory Disclaimer™: To be sure, he wasn't criminally charged and, as I wrote at the time, I don't think he should have been.

If you want to be honest about this, then you should be ready to agree that the vast majority of day-time blog commenters are probably doing it during their work day and violating their company's acceptable use policy. It is a tremendous waste of time and money everywhere. For that matter, we would all benefit by knowing just how much Liebenthal's abuse exceeded the baseline measures of casual surfing allowed to other employees.

I would be surprised if the County IT department did not have a logging appliance at the point of their Internet feed. This watchs and logs all URLs that each computer visited. It probably has dynamic charts and graphs and can generate eight-by-ten color glossy printouts with circles and arrows and a paragraph on the back of each one. I've installed them in far smaller organizations.

Would you care to tell us the details of Marquette's AUP even for travelling adjunct professors? Do you use Marquette telecom resources for any of your political pro-bono mudslinging? Take a call? Check your Gmail from the office? Me? I'm self-employed.

(* I received a copy of the UTP dated December 1999 from a County source in June 2010. I don't know if it has been updated since then. The County's Internet usage policy seems antiquated. Conceptually it seems to be about fifteen years behind, more in the pager, "chat room", and Geocities phase of Internet adoption.)

Keith Schmitz said...

You guys don't do perspective very well.

Anonymous said...

It appears to me from this that the Fed and State (law enforcement)can work together very well to resolve a problem when they have a good reason to get together...

Anonymous said... bad there not also doing that for the economy.

Rick Esenberg said...

Anon 11:02

Actually I teach Election Law so that would be me. But the point here is that the only thing we know at this point is some county employees are alleged to have used county computers and county time to post comments to a Journal Sentinel website. If Liebenthal wants to crow about that and speculate about what else may be going on, he can be my guest. But he might want to admit that he's been less than fastidious about his own use of county resources and time.

Foust writes an incredibly long comment but doesn't disagree with me about anything. I don't think - and I didn't think - that Liebenthal should be charged with a crime and I completely agree that the matter was between him and his employer. I also agree that lots of people read blogs and surf the net while they are at work and that employers tolerate a certain amount of that. It appears that Liebenthal went well beyond what his employer would put up. That doesn't make him a criminal or even a bad guy, but it does suggest that he be a bit more forthcoming about his own history.

It also ought to make him a little more reluctant to - as you put it -become "tumescent" about things that he can't possibly know anything about.

gnarlytrombone said...

Yeah, Foust, you schmo. If a man bangs on his drums at 2 a.m. and is cited for disturbing the peace, he has no place pointing a finger at his mafioso neighbor. They're both guilty of creating rackets, no?

Rick Esenberg said...

When and if we know that someone has done something other than banging on drums, then we can talk.

gnarlytrombone said...

I hear Steve Biskupic is a top-knotch drum noise litigator.

John said...

As a law professor you know that the FBI does not execute a search warrant for campaigning on government time. It is obvious that something much more serious is being investigated. What that is, we will all have to wait for the indictments.

Display Name said...

I disagreed with you from the very first sentence. Your post invents a false equivalence between Walker's County staff running a pro-Walker blog on County time and Liebenthal's time-wasting. You spread innuendo because you intended to tar Liebenthal. You repeat the incorrect suggestion that he was writing blog posts. You raise - and now repeat - a question of criminality that no one in authority ever charged. You certainly do not show that Liebenthal did the same as Walker's minions. You want even his reading the web to sound suspicious, so you say he was "gathering information" and that there is something even more nefarious in the notion that the sites he visited were "political." You link to BadgerBlogger, the least intellectual and most ad-hominem site one can find.

As for idle speculation, you seem content suggesting that Liebenthal's time-wasting was egregious. Lyday's letter says "numerous" and "repeated" "over a year's time." No comparison to the browsing habits of his peers has been given. One might also speculate that he was made an example, like speeders. Or we could speculate that this investigation was due to political pressure from above. It certainly started with CRG's amateurish timeline of Liebenthal's blog posts, which included vacation days, furlough days, and snow days. They didn't even bother to correlate his blog posts with the open record of his work schedule.

Who declared Liebenthal "left wing blogosphere's face for probity"? Only you. He's one guy. He's not the only blogger to cheerfully recount all the various crony hirings, shuffles, pay raises, lawyering-ups, AG pass-overs, revelations, and investigations that surround what might as well be called Walkergate. If we want to be reportorial, of course we'll only state the facts. If we want to state opinion, it's fair game to say there is an interesting pattern emerging, and there's one Governor at the center.

You dodge my question about what you do that might violate Marquette's AUP. Can you be a bit more forthcoming about your own history, seeing your deep-seated belief that it is important for bloggers to reveal their own faults? In 2009 you listed your MU office address on a legal proceeding for Julaine Appling. Do you ever take political calls on your office phone? Ever use a personal web mail account from the office? Post or comment on your blog from your MU office or on their WiFi? How do you define "plain decency" in your position?

Rick Esenberg said...

As a law professor you know that the FBI does not execute a search warrant for campaigning on government time. It is obvious that something much more serious is being investigated. What that is, we will all have to wait for the indictments.

People have gone to jail for campaigning on government time so, no, I don't know that. As for waiting to see what happens, that is precisely my point. I would not be surprised if it is more than that but, then again, neither you nor I or Chris Liebenthal knows.

As for MULS AUP policy, I have reviewed it and am fairly confident that I abided by it. None of the things you suggest would violate it and, in any event, commenting on public affairs was expressly part of my job there, so I would not have regarded blogging with an MULS computer as forbidden.

Having said that, I suspect that it happened pretty rarely if for no other reason than that most of my work during the past four years has been done from my own home office with my own computer and internet provider. That's one of the nice things about the law professor business. You can do that.

Nor did I have "work hours." During the week, I generally work on any number of things from about 7 in the morning until about 8 at night. I generally do not divide the day into discrete segments devoted to some particular undertaking.

In 2009 you listed your MU office address on a legal proceeding for Julaine Appling.

That statement is false. At the Dean's request, I never listed my MU address on any filing for any client and tried to prevent anyone from mentioning Marquette in connection with such matters, even to the point of asking reporters not to do so. Obviously, I had no control of whether or not they did. Your link does not support your statement for reasons I'll explain in a forthcoming post.

I have not hesitated to mention Marquette when commenting on public affairs and that was consistent with - and not contrary to - the preference of the school. Universities generally encourage their faculty to be engaged in the public debate. In fact, a not insignificant number of my media contacts - particularly with local TV stations - were arranged by the University's media people.

George Mitchell said...

"...the FBI does not execute a search warrant for campaigning on government time. It is obvious that something much more serious is being investigated. What that is, we will all have to wait for the indictments."

It remains to be seen why the FBI has become involved and how Dist. Atty. Chisholm will justify the very considerable amount of time and resources devoted to this matter.

The suggestion by John that FBI involvement means something momentous caused me to painfully recall the day in the late 1990s when two criminal investigators for the Wis Dept of Justice arrived at my home to inform me I likely would be indicted — and most certainly my wife would be — for election law violations. Their primary source of "evidence" consisted of bogus aspersions by "civil rights" lawyer Walt Kelly. Neither of us were indicted. The Kelly-inspired investigation of us was egregious. We incurred large legal bills to establish that we had done absolutely nothing wrong.

So, it remains to be seen what the FBI's involvement means.

Display Name said...

I look forward to your explanation of why the Supreme Court clerk thought he could reach you at your MU address. I'll assume it was someone else's fault. I had only vague memories of your response to this question at the time, and couldn't find anything.

I can understand why you'd argue for academic freedom for professors, but the MU AUP is what it is and it claims it applies to faculty. The County's policy might've been out-dated and unevenly enforced, too, but Liebenthal was subject to it when pressed.

The MU AUP section "Non-organizational Use" looks rather broad and would seem to prohibit "political" and "personal gain" uses of MU phone or Internet: "Users may not use E-resources for: Compensated outside work, except as authorized by the executive director of the Office of Research and Sponsored Programs (ORSP) pursuant to an approved grant or sponsorship agreement. The benefit of organizations not related to the university, except those authorized by a university dean, or the director of an administrative unit, for appropriate university-related service. Personal gain or benefit. Political or lobbying activities not approved by the university's Office of Public Affairs. Private business or commercial enterprise."

You don't think what you do here is political or for personal gain? So you say you're moving to a full-time position at WILL?

(P.S. Mr. Mitchell: Just to clarify, the 8:28 John isn't me.)

Keith Schmitz said...

So in other words Rick, because Chris was the subject of a trumped up investigation by the CRG tools, in the future he should shut the hell up when it comes to Walker? Is this what intimidation looks like?

George Mitchell said...

If the CRG investigation of Capper was "trumped up" there would have been no basis for his receiving a sanction. Has he disputed the validity of the sanction? I don't recall. If he did dispute it, he should have appealed.

But Rick's larger point remains. Beyond the petty transgressions of Darlene Wink there is nothing known about what Cindy Archer or Tom Nardelli or anyone else might have done that warrants this extensive investigation. When and if charges are issued there will be an opportunity to evaluate them. One hopes there is (much) more than some political e-mails to justify this long-running saga.

Foust appears to claim that Rick has violated an MU code of some sort. From the comments here I can't sort out what this involves.

Display Name said...

Mr. Mitchell, even Prof. Esenberg said CRG's puffery was "sloppy". CRG's complaint was that Liebenthal was making blog posts on County time. The County investigated and stated that was not true. To me, that means CRG's accusations were not valid. The County did find he'd been engaged in an actionable amount of reading the web and therefore wasting time.

What you say wouldn't invalidate my speculation the investigation was politically driven. What were Liebenthal's options? Take the suspension or fight it in a higher venue? I would guess that would be the Personnel Review Board, chockful of Walker appointees, probably on his own dime. It would be cheaper and easier to take the suspension.

My head spins. You think Wink's transgressions are "petty." CRG called for Liebenthal to resign in shame. Esenberg admits he may have used MU resources for personal purposes. Every honest person acknowledges there's endless casual surfing in most business environments. Esenberg says Liebenthal is lacking in self-awareness, grace, and decency for having done so.

As for the MU AUP, I can't wait to hear the burble about how this blog isn't political.

John said...

George- You proved my point, the FBI did not show up at your house nor did they execute a search warrant. The Feds do not just willy nilly go knocking down people's doors, the Mayberry cops do that.

Rick- There has not been one case of the FBI executing a search warrant on behalf of locals/state for campaigning on government time. Not for the Caucus scandal, not for the Walker staffers computers, not for Capper, not even for the money laundring by the railroad executive, not once. The feds could not give a flying fig about campaigning on state time. Now they could care about bribery, pay for play with government contracts, etc. It will be interesting to see what comes next.

Seriously people, use some common sense and get out of the partisan box you reside in. I mean that for both sides.

George Mitchell said...

To John and John,

The quality of CRG's complaint does not detract from the fact that Capper was suspended and did not appeal. Has he denied that his conduct warranted discipline? I don't know. If so, he should have appealed.

The statement that it might be "cheaper and easier" not to appeal certainly would have applied to me in the Walt Kelly fiasco. It would have been cheaper and easier not to defend myself against the bogus innuendo he used to get the Justice Dept. to my doorstep. I obviously chose not to do so.

As for the FBI search warrant, it remains to be seen what transgressions it suspected and whether their suspicions are valid.

As for Darlene Wink, I hold to the view that her violations were petty. The same might be said for Capper's. I'm not sure what, in the end, he did. Basically, it sounds like he wasn't doing his job.

Anonymous said...

You are criticizing people for being interested in an investigation.

This is unrealistic. People watch crime shows all the time.

First of all, you follow clues to find out the "truth". That is fun to do.

Second of all, half the state disagrees with Walker's overreaching style. So about half think it is great that he is being investigated. This might be sad, but it is to be expected when you start off controversial pay cutting policies with statements like "There is nothing to negotiate."

You are bringing up an accusation of this blogger as if it were evidence. I understood the accusations were proven false, so what is up with that?

You have a right to your opinion, but people like stuff like Walkergate, it is interesting and to be honest, the blog is obscure, so perhaps you shouldn't be too concerned.

Anonymous said...

Since we are talking scandals, how about the couple of hundred people killed by the Bureau of Alcohol Tobacco and Firearms promoting sales to Mexican drug cartels.

Nixon may have been a crappy, crooked President, but nobody got killed in Watergate.