Motion to dismiss Ashwaubenon open records case opposed
By Kevin Boneske
ASHWAUBENON – The attorney in an open records complaint filed in Brown County Circuit Court against the Village of Ashwaubenon is seeking to block an effort by Village Attorney Tony Wachewicz to have the case dismissed.
The case involves an individual identified in court records as an adult citizen of Wisconsin with the alias John Doe, who wants to remain anonymous.
He is seeking copies of billing records related to the Village of Ashwaubenon hiring an outside attorney to conduct personnel investigations.
The individual 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.
Wachewicz sought the motion to dismiss because he said the packet of documents he was served with in June 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 to 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.
After Wachewicz filed the motion to dismiss, Carley Windorff, the attorney representing the individual seeking the records, filed a response opposing that motion.
In an affidavit filed with the case, Windorff said the process server she utilized for serving the papers had accidentally omitted the summons and complaint for a writ of mandamus from the documents served upon the village.
After verifying with the Brown County Sheriff’s Office process server that the petition for a writ of mandamus was omitted, Windorff said she notified Wachewicz of the error by email and included a courtesy copy of the summons and complaint, which was also subsequently served to the village.
Instead of going to the village hall to see the billing records, which Wachewicz offered the individual the opportunity to do so, court records note the individual requested electronic copies of those records be sent to him via email and does wish to be identified.
Windorff has cited the state’s open records law stating no records request “may be refused because the person making the request is unwilling to be identified.”
In her response to the motion to dismiss, Windorff said identifying the individual “would undermine his rights conferred by Wisconsin’s Open Records Laws.”
Should the court want the individual to provide his address and actual, legal name, and require his appearance in court, Windorff has asked that information be sealed and an “in-camera review” be done of his identity and reasons for wishing to remain anonymous.
Along with requesting the motion to dismiss be denied, Windorff has asked that the matter be scheduled in court.
Windorff said the parties involved have had several unsuccessful settlement discussions, both prior to and after this action was commenced, and her client is not optimistic the matter can be resolved.
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.”
When Wachewicz responded to him in an email message dated April 12, he requested that individual to contact him to arrange a day and time to come to the village hall to access a copy of the requested records.
The complaint further states the individual and Wachewicz exchanged email messages in April and May regarding his request for copies of the billing records.
After not being provided copies of the billing records 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 in June that ruled in favor of an open records request made in Dane County to receive “electronic copies” of records.
Windorff said her client has suffered “significant financial damages spent not only in the time expended to request the records, but significant financial damages in having to hire an attorney to bring an action for mandamus to compel the records.”
She further stated her client has “a significant mistrust of the Village of Ashwaubenon’s ability to continue to operate on as open and transparent a basis as Wisconsin Statutes contemplates.”
“This is especially significant when considered in light of the fact that (the village’s) actions have a deterrent effect on (the individual) and others – should the court not hold (the village and Wachewicz) accountable by awarding (the individual) the financial relief requested, (the individual) and others, who are statutorily guaranteed a transparent government, will be deterred from exercising their rights in pursuing open records requests,” Windorff said.
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 July 9 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.