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.