Village attorney seeks dismissal of open records case
By Kevin Boneske
ASHWAUBENON – Village Attorney Tony Wachewicz is seeking the dismissal of a case filed in Brown County Circuit Court, in which he and the Village of Ashwaubenon are accused of violating the state’s open records law.
The case involves an individual who wants to remain anonymous seeking copies of billing records related 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, has accused the village and 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.
Wachewicz said he is pursuing a motion to dismiss because the packet of documents he was served with last month only contained a limited series of exhibits and no authenticated summons, complaint, petition or any other such document as required by state law was included in the packet to provide any information as to what the matter is regarding or what claims may have been alleged.
In addition, Wachewicz stated the individual also failed meet the requirements in state law by failing to state a claim upon which the relief he was seeking could be granted, failing to name or join the appropriate parties and lacking standing to commence the matter by failing to properly caption and name the plaintiff as Richard Marven, the name and prefix appearing in the address of email messages he used requesting the billing records.
The individual seeking the billing records anonymously informed The Press Times in an email he plans to address the motion to dismiss through his attorney and doesn’t believe the motion will be granted because “it is not based on legitimate legal foundation.”
“We plan to continue with our writ through the courts,” he said.
The complaint, which was filed with the county clerk of circuit court’s office last month 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 has 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.”
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.
One of the exhibits included with the complaint is a Wisconsin Court of Appeals decision filed last month ruling in favor of an open records request made in Dane County to receive “electronic copies” of records.
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.
Copies of the billing records were provided to The Press Times upon inspecting them last week at the village hall.
The six pages of invoices from 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 done 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.
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.