CR EW citizens for responsibility and ethics in washington March 22, 2011 Government Accountability Board State of Wisconsin 212 B, Washington Ave., 3d Floor P.O. Box 7984 Madison, WI 53707-4232 VIA FAX: 608-267-0500 Dear Members of the Board: Citizens for Responsibility and Ethies in Washington (“CREW”) has received some new information that may be useful to you in considering our complaints of February 23 and 24, 2011. At the time CREW filed its initial complaint with the Government Accountability Board, we also filed open records requests with the Office of Governor Scott Walker, the Office of State Senate Majority Leader Scott Fitzgerald, and the Office of the Wisconsin State Patrol (“WSP”).! CREW had requested any and all records of communications regarding the decision to send troopers in search of the missing state senators, Despite the narrow nature of CREW’s request for records, in a letter dated March 3, 2011, Assistant Legal Counsel Nate Ristow in the Office of the Governor informed CREW the office was in receipt of CREW’s request and was “working to fulfill your request as soon as practicable... Due to the breadth of your request and our limited resources, a response may take several weeks.” CREW has received no further communications or records from the Office of Governor Walker. Ina letter also dated March 3, 2011, Robert Jambois, the General Counsel to the Wisconsin Department of Transportation, surprisingly informed CREW the department did not have a single document responsive to CREW’s open records request.’ Specifically, Mr. Jambois stated, “There are no records of incidents of this nature between February 14, 2011 and February 23, 2011 and therefore, no records are available.” * Copies of CREW’s open records requests are attached, collectively, as Exhibit A. * Letter from Assistant Legal Counsel Nate Ristow to CREW Chief Counsel Anne Weismann, March 3, 2011 (attached as Exhibit B). > Letter from General Counsel Robert Jambois to CREW Chief Counsel Anne Weismann, March 3, 2011 (attached as Exhibit C). “Ia. 1400 Eye Steet, NIW, Suite 450, Washington, D.C. 20005 | 202.408.5565 phone | 202.588.5020fax | wivwcitizensorthics.ong ooGovernment Accountability Board March 22, 2011 Page Two Given that press reports indicated the idea to send the troopers after the missing legislators ‘was generated by Sen. Fitzgerald and it was Governor Walker who sent the troopers out, it seems unlikely the WSP would not have created even a single record in relation to this highly unusual incident. Finally, in a letter dated March 14, 2011, Sen. Fitzgerald responded to CREW’s request enclosing relevant documents, but indicating his office was still searching for records and would “fully comply” with the request and have “information to you as soon as possible.”* Notably, some of the documents provided suggest Sen. Fitzgerald was aware there was no legal authority to send the troopers after the missing legislators. For example, in an email from Tad Ottman to John Hogan, Mr. Ottman stated, “If there is still any question, you could always introduce and pass a bill in Senate Org that would give the State Patrol the power to compel a state legislator’s attendance at the capitol upon direction of the Senate or Assembly Sergeant, or the Org Committee, or something like that.”* Mr. Hogan forwarded Mr. Ottman’s email to Robert Marchant. Mr, Ottman reiterated this point two days later in another email to Mr. Hogan stating: also go back to what I said in an earlier email about the trooper’s authority. I think either by resolution or bill you could clarify that troopers have the ability to compel any legislator’s attendance under a call of the house. Since you have the call language and the language that prevents the arrest of a legislator during session, you could clatify that troopers have the ability to compel attendance by any means necessary and specify that such compulsory attendance does not constitute arrest and no criminal record is associated with it.” ‘Mr. Hogan forwarded this email to Richard Rob. The next day, Mr. Marchant sent an email to Mr. Richard and Mr. Hogan attaching a draft document. At the top, the document is proposed amendment to Senate rules stating, “When a member who is absent without leave fails to return to the chamber under a call of the Senate, the [President or Majority Leader??] may do any of the following to compel the absent member to 5 Letter from State Senator Scott Fitzgerald to CREW Chief Counsel Anne Weismann, March 14, 2011 (attached as Exhibit D). The complete collection of records produced by Sen. Fitzgerald can be viewed at: http/www.scribd.comv/collections/2926400/Documents-Regarding-WI- Senator a. * Email from Tad Ottman to John Hogan, Subject: State Patrol, February 18, 2011 (attached as Exhibit B). ” Email from Tad Ottman to John Hogan, Subject: Re: Senate Resolution for call of the house, February 20, 2011 (attached as Exhibit F).Government Accountability Board March 22, 2011 Page Three attend:”* Included in the list of potential actions: “Direct the Sergeant-at-Arms to take the absent ‘member into custody and deliver the member to the chamber.”” The last sentence of the document states, “In exercising his responsibilities under this rule, the Sergeant-at-Arms may request the assistance of any law enforcement officer in the state.”"” ‘These emails demonstrate conclusively that Sen. Fitzgerald’s office was well aware that under existing law, neither Governor Walker nor the state Senate has any right to send troopers after anybody for any reason and that, if they wished to do, they needed ~ at least ~ to amend Senate rules. Therefore, the Government Accountability Board should sanction both Governor Walker and Sen. Fitzgerald for violating Wisconsin state law by sending the troopers after the missing legislators. Further, the responses CREW has received to its open records requests suggest that the Government Accountability Board should consider whether the Department of Transportation has been truthful in asserting it has no records relevant to this matter; and whether the Office of the Governor has failed to produce its records because of the alleged “breadth of the request,” or, perhaps, because such records might demonstrate the governor was aware he did not have the authority to call out the troopers. If and when CREW receives other records relevant to its complaint, we will forward that information to you. Should you have any questions, please do not hesitate to contact me at 202- 408-5565. Thank you for your attention to this matter. Sincerely, Méianie Sloan Executive Director Encls. ce: Honorable J.B. Van Hollen Wisconsin Attomey General * Email from Robert Marchant to Rob Richard and John Hogan, Subject: Draft Document10, February 21, 2011 and attachment (attached as Exhibit G). Id. Td.