Open records complaint filed seeking access to records
By Kevin Boneske
ASHWAUBENON – An attorney representing an individual who wants to remain anonymous has filed an open records complaint in Brown County Circuit Court seeking copies of billing records.
This is in relation to the Village of Ashwaubenon hiring an outside attorney to conduct personnel investigations that included an Ashwaubenon public safety officer’s off-duty participation in a golf outing last August.
The individual, identified in court records as an adult citizen of Wisconsin with the alias John Doe, accuses the village and Village Attorney Tony Wachewicz of unlawfully denying his request for copies of the billing records and unlawfully requesting him to appear in person to inspect the records he requested.
The complaint filed by attorney Carley Windorff cites the state’s open records law stating no records request “may be refused because the person making the request is unwilling to be identified.”
The individual, who used the pseudonym Mr. M, sent an email message to Village Clerk/Treasurer Patrick Moynihan Jr. on March 29 requesting “access to and a copy of any and all invoices/legal bills paid by the Village of Ashwaubenon to Strang, Patteson, Renning, Lewis & Lacy from Aug. 6, 2018 to March 22, 2019.”
The request further stated, “If possible, I would request these documents to be delivered electronically to this email address. If this is not possible, please contact me to arrange for other arrangements for receipt of the records. I agree to pay any reasonable fees of not more than $50. If the cost would be greater than this amount, please notify me.”
When Wachewicz responded to him in an email message dated April 12, he requested that individual contact Wachewicz to arrange a day and time to come to village hall to access a copy of the records.
Wachewicz further stated the records requested “may contain redactions due to the attorney-client privilege.”
The complaint further states the individual and Wachewicz exchanged email messages in April and May regarding his request for copies of the billing records.
The individual reiterated his request to have the billing records delivered to him electronically via email.
He also stated to Wachewicz that attorney/client privilege does not apply to invoices/legal bills.
Wachewicz stated the open records law requires the village to provide access to public records, but “does not legally require the village to provide copies or in a format requested by the requester.”
“I have offered you the opportunity for access to these records subject to applicable redactions/exceptions to disclosure if applicable consistent with the public record law’s obligations,” Wachewicz said. “You may arrange access in conjunction with the parameters set forth in my previous email.”
After not being provided copies of the billing records from the village either by mail or email, which the individual regarded as an “arbitrary delay and constructive denial” of his open records request, his lawyer filed the complaint June 21.
The complaint is seeking to have Judge John Zakowski find the village and Wachewicz violated the open records law, along with an order directing them to produce copies of the billing records requested and an award to the individual for his attorney’s fees, damages of not less than $100 and other actual costs.
Wachewicz, who claimed he did not receive a copy of the complaint, said he will be making a general response in the case, rather than respond to the individual allegations.
When asked about the individual’s request for copies of the billing records, Wachewicz confirmed offering the opportunity for the individual to see them at the village hall.
Copies of the billing records were provided to The Press Times upon inspecting them Tuesday, July 9, at the village hall.
The six pages of invoices from the Strang, Patteson, Renning, Lewis & Lacy law firm state they are for “personnel investigations” and total over $11,000, with the billing rate before Oct. 1 being $255 an hour and after being $260 an hour.
The bills indicate most of the work was handled by Geoffrey Lacy, who the village had handle an investigation into last August’s Fraternal Order of Police golf outing, which officer Jamie Zynda and other Ashwaubenon officers participated in at the Brown County Golf Course while off-duty.
Wachewicz said the bills included another matter involving the Public Safety Department besides investigating the golf outing, though about half of the work included in those bills was related to the outing.
During the outing, according a report of the investigation prepared by Lacy, Zynda “wore very short jean shorts and rolled his shirt into a halter top design” and “chose to remove his jean shorts to reveal that he was wearing a thong.”
Lacy concluded Zynda’s behavior “was unusual, but not per se unlawful or prohibited by policy.”
Following the investigation, Zynda was directed last December in a letter from then Ashwaubenon Public Safety Chief Eric Dunning to review the village’s anti-harassment policy and dress code.
The village’s Public Safety Officers Association has filed a grievance regarding the letter and has requested an arbitration hearing before the Wisconsin Employment Relations Commission.
The union’s attorney, Aaron Halstead, has said there was no reported instance of harassment or discrimination by Zynda, who had engaged in “purely personal conduct outside the workplace, not sponsored by the village.”
Halstead and Wachewicz both indicated they expect an arbitration hearing regarding the grievance will be held by the WERC sometime this fall.