Hearing Oct. 11 in Ashwaubenon open records case
By Kevin Boneske
ASHWAUBENON – An Oct. 11 hearing is set in Brown County Circuit Court in an open records case involving an individual who wishes to remain anonymous.
The person is seeking copies of billing records related to the Village of Ashwaubenon hiring an outside law firm to conduct personnel investigations.
The individual, identified in court records as an adult citizen of Wisconsin with the alias John Doe, requested electronic copies of those records.
Those include the firm billing the village to investigate Ashwaubenon public safety officer Jamie Zynda’s off-duty participation in a Fraternal Order of Police golf outing in August 2018 when Zynda had been reported seen wearing a thong while golfing.
The anonymous individual has accused 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.
However, an attorney representing the village and Wachewicz has filed a motion to dismiss on the grounds the anonymous individual lacks standing to bring this action in this open records case.
The motion to dismiss filed by Ashley Lehocky of Town Counsel Law and Litigation states the name Richard Marven included in the email messages requesting the billing records is a fake person, and the unidentified person doesn’t have standing to bring an action for damages suffered by a fake person.
In addition, the motion to dismiss states neither the village nor Wachewicz had been properly served this summer when Wachewicz received what appears to be a packet of exhibits without a summons and complaint.
A day after Wachewicz filed a motion to dismiss July 11, Lehocky said the village was served with a summons and an incomplete copy of the complaint, in which the village was named in seeking a writ of mandamus to release the records, yet has never been served with any of the exhibits to the complaint.
“Simply put, the plaintiff lacks standing and has failed to effectuate proper service as required by law,” Lehocky said.
In an affidavit filed with the open records case, the plaintiff’s lawyer, Carley 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.
The anonymous individual, who has also used the pseudonym Mr. M, first 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 August 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 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 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, and if that was not possible, to contact him for other arrangements (mailing address, pickup, etc).
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, Windorff filed the complaint June 21 with the county clerk of circuit court.
Though a record request may not be denied or refused under state law because the person making the request is unwilling to be identified or state the purpose of the request, Lehocky said the State Legislature did not intend “to allow a requester to assume a fraudulent identity and to try to receive records which have already been legally withheld.”
“John Doe has not been aggrieved,” she said. “Richard Marven does not exist.”
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, 2018, 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 the investigation into last year’s Fraternal Order of Police golf outing, which 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, 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.”
An arbitration hearing regarding the grievance has been scheduled for Dec. 13 at the village hall before the WERC’s Raleigh Jones, who indicated he would be issuing a written ruling following the hearing.
Though it would be up to the parties involved as to whether the arbitration hearing will be open to the public, Jones said the written ruling would be publicly released and should be issued a few months following the hearing.