By Kevin Boneske
Staff Writer
ASHWAUBENON – Copies of investigative reports obtained in an open records request by The Press Times indicate an outside attorney hired by the village board did not find the Ashwaubenon Public Safety Officers’ Association (APSOA) violated anti-harassment or whistleblower policies when it announced a no-confidence vote of Village Manager Allison Swanson.
Jim Macy of the von Briesen & Roper law firm provided the board with two reports, one looking into the APSOA’s list of complaints it released about Swanson when it held a news conference Feb. 6, and the other when Swanson filed a complaint a week later in response to the union’s announcement and press release.
The reports state the investigation involved: face-to-face and telephone interviews with a variety of employees and others associated with the village; a review of numerous electronic and paper documents; and other applicable village operational documents, such as policies, ordinances, agreements and handbooks.
A statement released May 9 on behalf of the board by Village Attorney Tony Wachewicz stated the board cleared Swanson of any wrongdoing or unethical conduct, but did not include the findings of the investigation of Swanson’s complaint about the union.
The APSOA’s attorney, Aaron Halstead of the Hawks Quindel law firm, said it is unfortunate the statement did not also mention the investigation found no evidence of policy violations by the union or its members, who were also not found to have made statements “deliberately or maliciously false.”
He said Macy accepted any explanation the village or village manager had about disputed matters contained in the union’s press release.
Halstead said Macy is not an independent investigator, because the von Briesen & Roper firm has handled labor relations matters on behalf of the village, and someone with no prior relationship with the parties involved should have conducted the investigation.
Macy has declined comment on the investigation and the related reports.
Union-Swanson disputes
The APSOA’s press release included 22 bullet points about Swanson related to what it called a “partial list of just some of the egregious behaviors the association has witnessed.”
Some of the union’s complaints resulted in state and federal lawsuits along with labor grievances being filed on behalf of past and present union members.
Swanson responded in her complaint sent to Wachewicz and Village President Mary Kardoskee by saying the union stated “numerous lies” to “imply illegal and unethical conduct by me.”
She accused the union of violating the village’s anti-harassment and whistleblower policy.
Swanson stated the union’s president, Eric Paulowski, secretary, Melanie Lovato, and treasurer, Ben Walker, as well as other public safety officers, contributed to what she called “the false and misleading allegations contained in the (union’s Feb. 6) press release.”
After Macy provided the investigative reports to the board, which cleared Swanson, she filed a civil suit May 20 in Brown County Circuit Court accusing the APSOA, Paulowski and Lovato of defamation.
Investigation findings
Macy said he found allegations contained in the no-confidence statement “were at times inaccurate, at time(s) misleading, at times based on opinion and at times based upon misunderstanding of facts, procedures, management rights and the law.”
However, Macy said the statement was not directed at a protected job classification and did not violate the anti-harassment policy.
“Arguably, the association’s activity is an intent to intimidate and coerce the village manager and village board,” he said. “Yet they do not rise to a level of threats or violence, or potentially violent behavior… In total, evidence is not sufficient to find that the statement of ‘No Confidence’ and actions taken in association with it are a violation of Village Policy 4.14 – Anti-Harassment.”
Macy said the whistleblower policy doesn’t apply in this instance because Swanson didn’t become a “complainant” as set forth in the policy.
“The village board, who the village manager reports to, has not acted against her,” he said. “She is not being retaliated against by the village. Arguably, the association’s activity is an intent to retaliate against the village manager for the management decisions she has made, and with which they disagree. Yet, this is not retaliation in the sense used for whistleblower protection.”
Macy said the investigation into Swanson’s complaint also looked into whether union employees “may have been untruthful and may have violated policy by improperly using internal documents to support their allegations without authorization.”
“In this case, the evidence indicates that while poorly researched, incomplete and with situations of simply not understanding the law or process, the allegations to support the statement of ‘No Confidence’ do not rise to the level of being ‘deliberately or maliciously false,’” he said. “It is not comforting to suggest that certain law enforcement personnel may not be thorough and complete in their work, or that they make conclusions without fully understanding process or the law, but in the labor relations context that is protected under the law.”
Macy further stated allegations the union made related to matters of opinion on political and policy matters are also protected under the law.
Swanson lawyer response
Though Macy’s investigation did not find the union made “maliciously false” statements about Swanson, an attorney representing her in the civil suit, Kyle Thelen of the Herrling Clark law firm, argues Macy’s finding “appears to not be premised on the legal standard for actual malice that is applicable to our case.”
“Malice, as that term is used in ordinary vernacular, is not a required element for our case,” Thelen said.
Thelen said he is confident the Herrling Clark firm will be able to prove its case on behalf of Swanson, who is seeking an unspecified amount of damages for defamation and punitive damages as part of her complaint.
The APSOA, Paulowski and Lovato have 45 days from the date being served to respond to the suit, which Halstead has called “without merit, both factually and legally.”