Dane County Ethics Board heard my complaint today

The Dane County Ethics Committee met today to hear my complaint about Sheriff David Mahoney using the his uniform and patrol car in political ads for Justice Bradley. I was very pleased at the judicious and thorough way the Board dug into the details of the complaint and the law. The Board was clearly divided on opinion on several matters, and has postponed the case until April 30, to gather more evidence from the parties involved. Hopefully the Sheriff will be present and also be put under oath. The board did seem to agree that the appearance by the Sheriff violated the spirit of the law, and they should recommend changes to the County Board to ensure it doesn't happen in the future.

Unfortunately, the Sheriff was not there, so I testified under oath, but he did not. I understand from the Board that he agreed to the date, but according to the assistant who came with his lawyer, (she didn't say if she was a lawyer also), he was at a birthday for his "aged aunt" in Arizona. I missed a physical therapy appointment to be there.

His attorney raise a lot of technical details. First, that the Board did not have jurisdiction over the county Sheriff, because the sheriff's office was established before the Wisconsin constitution was adopted, therefore there is case laws that he is not a county official or employee, though he wears the county uniform, drives a county vehicle, draws a country pay check, and is charged with enforcing the country ordinances. If true, no county in Wisconsin has any control over their Sheriff. Unfortunately, the attorney who drafted the complaint for me was unable to attend; I'm not an attorney, cannot afford one and have no funds to pay for legal research. Ihave the impression that the Board is likely to go forward and let the attorney raise the question of jurisdiction in another forum, but I cannot be sure.

The lawyer also alleged that I had a political motive. Interestingly, on his website, he brags about having led the legal efforts against Act 10 and Voter ID. Political motives are in the eye of the beholder. I'd guess he is likely in the future to appear before the Justices who benefited from having Sheriff Mahoney in their ads.

He also said that the Sheriff buys his own uniforms, the gun and badge are his, thus not county property. And that the burden of proof was on me to demonstrate that the Sheriff provided the patrol car to the Bradley campaign, or, since they were careful not to show the word "Dane: in the ad or pictures, that it was a Dane County vehicle. Of course, that is an impossible burden. Maybe it appeared by magic; I cannot prove that magic doesn't exist, thought all reasonable people will question it.

He also had pictures of Judge Daley with other Sheriffs in uniform, and with the Wisconsin AG in a photo with two local cops in uniform, saying such traditions are a "time honored custom" in Wisconsin. I had not known about these, but all the Board members agreed that "everybody does it" was not a defense, and those are ethics matters for the jurisdictions of those officers. I agree, though I have to admit had I seen the picture of judge Daley with sheriffs in uniforms (no cars), I would have thought twice. I felt a little sandbagged.

Below is the presentation I gave the Ethics Board today, and below that is the response i sent them after the hearing. ~Bob

April 13, 2015

To the Honorable Members of the Dane County Ethics Board:

It was not without great thought that I filed the complaint against Dane County Sheriff David Mahoney for using his uniform and patrol car in a political advertisement for Justice Ann Walsh Bradley, in violation of the Dane County ethics ordinances. There is a long and unfortunate history of the powerful, regardless of party, retaliating against ordinary folk who dare to call them to account. See Hans and Sophie Scholl. Nevertheless, if average people like you and I dare not speak up, we will no longer be a government of laws, but of individual interests.

America was founded on the premise that all citizens are equal under the law--though at the founding, only white males of property were equal--women, blacks, native Americans and the landless were disenfranchised. Our long struggle since then towards equality before the law for all is not finished, and human nature being what it is, it may never be finished. I view today's hearing as one more small battle in that struggle.

The Dane Ordinance violated reads:

"Dane County Ordinances: ARTICLE 6. Section 9.27 is amended to read as follows: 9.27 IMPERMISSIBLE USE OF PUBLIC OFFICE.

No county official or county employee shall use or attempt to use his or her public office or employment to influence or gain unlawful: benefits, advantages or privileges, personally or for others. The use of county equipment and property including, but not limited to, county owned vehicles, cameras, projectors, audio systems, copy machines, fax machines, telephones and uniforms is prohibited for use for both partisan and non-partisan political activity."

Sheriff Mahoney appears in uniform with his car in Justice's Bradley's TV ad, which was posted on her campaign Facebook Page:

https://www.facebook.com/video.php?v=776959369055610&set=vb.717098451708369&type=2&theater

In addition, the media featured it:

http://fox6now.com/2015/03/12/politics-wisconsin-supreme-court-justice-launches-first-tv-campaign-ad/

Given the timing of this hearing after the election, I should not be surprised if the ad had been scrubbed where possible, and I hope the Board Members availed themselves of the opportunity to view it before the hearing.

There can be little doubt that the violation was blatant and deliberate. The Justice and the County's Chief Law Enforcement officer pleading ignorance of the law would perhaps be worse than pleading they flouted it deliberately, knowing the hearing would be after the election, and expecting to get the benefit of the violation with at most a mild rebuke from this Board.

Despite being put on notice of the violation through this complaint and reports in the media, the ad was still running as of the election.

In addition to the TV ad, the Media downloaded this picture for their reports from her campaign website:

Again this is a clear violation.

I have been told that Sheriff Mahoney has used his uniform and patrol car before in political ads. See: https://www.youtube.com/watch?v=v9ZDqfmobJQ. I didn't see this at the time, as I was working in Chicago, only getting home to Madison one or two weekends a month. It indicates the County's Chief Law Enforcement Officer not only has contempt for the law and for also the power, authority and courage of this Board.

Though it is outside the Board's area of responsibility, given that they continued to run the ad after being notified it was a violation, I believe that Justice Bradley is also in violation of the administrative rules of the Wisconsin Supreme Court, which state:

SCR 60.03 A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.

(1) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Comment: Public confidence in the judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and appearance of impropriety. ... Actual improprieties under this standard include violations of law, court rules or other specific provisions of this chapter.

Faced with a clear, blatant and willful violation of the ordinance by the person charged with enforcing it for all county officers, and their obvious expectation that this Board would not dare to challenge the Sheriff and Justice because of their positions, what is the Board to do? One could hardly blame Board members, with careers of their own and aware of the potential for retaliation, if they decided that as Shakespeare wrote, "discretion is the better part of valor," and let the Sheriff off with a mild warning.

But what the Board decides in this case will send a message to every citizen in Dane County. If the Board takes the easy path and issues a weak "don't do it again" warning, the message to the citizens of Dane is that there is one law for them, and quite another set of laws for those whose wealth or position gives them power. The message to every Dane Country Deputy serving in our communities will be that there is one set of rules for them, and a different set for their boss, the Sheriff. Imagine that a Dane County Deputy Sheriff appeared in uniform with his patrol car in an ad for Justice Bradley's opponent? I suspect that the matter would never get to the Board because that Deputy would no longer be employed by Dane County.

If, however, the Board decides to impose the most stringent sanctions available to it in order to deter future violations of this kind, it will send a different message to every citizen of Dane County, indeed to every citizen of Wisconsin, that the same laws that apply to folk like us apply equally to the power elites. It will send a message to every Dane County Deputy that their Sheriff is expected to obey the same rules they have to obey.

As James Russell Lowell wrote about 175 years ago:

Once to ev'ry man and nation
Comes the moment to decide,
In the strife of truth and falsehood,
For the good or evil side; 

Some great cause, some great decision,
Off'ring each the bloom or blight,
And the choice goes by forever
'Twixt that darkness and that light. 

I realize the difficult position this matter puts the Board in, but I ask you to have the courage to stand for principle over personal or political considerations. I have tried, doubtless imperfectly, to do that throughout my life and career, from joining the Marines in 1964 and volunteering for Vietnam until this complaint today.

I thank the Board for its time and am available to you if I can be of further assistance.

Sincerely,

Robert A. Hall

My response to the Ethics Board via email today:

I wish to again thank the Ethics Board for their time in this matter. I am familiar with the operations of such boards through my public service in Massachusetts, and I was very impressed with the professional and judicious way all members of the Board conducted themselves. Regardless of your decisions, both your professionalism and your willingness to serve your fellow citizens as a volunteer speaks well of you.

I apologize if my complaint did not deal with all the technical objections raised by the Sheriff's attorney, Mr. Pines. I am not an attorney and as a retiree on a limited income, I have no funds for counsel or research. BTW, Mr. Pines accused me of having political motives. On his website, he is quite proud of the recent highly political cases he has handled. That really doesn't matter, but it proves my point that almost everyone in Dane County has a political point of view.

I mentioned that when searching on line for ethical violations by Sheriff Mahoney, I noticed an article about him repaying the county for hotel accommodations. As I said, I didn't open it as the line below the headline didn't indicate that the violation involved a political ad. I searched again, found it, and it is linked below. Reading it, the violation that came to the Board was about using the patrol car in a parade. The complaint about the spending was resolved by the Sheriff before it could get to the Board.

Mahoney to reimburse county for stay at resort

http://host.madison.com/wsj/news/local/crime_and_courts/mahoney-to-reimburse-county-for-stay-at-resort/article_46491efa-bf93-11df-b645-001cc4c03286.html

Excerpt: Dane County Sheriff Dave Mahoney said Monday he will reimburse the county for two nights at a Green Lake resort in July 2007 after his Republican opponent raised questions about the county-funded stay. ... Mahoney's opponent in the November sheriff's election, Shawn Haney, raised the issue in a campaign statement last week, in which he also questioned Mahoney's use of a squad car in the Mount Horeb parade June 6. Haney filed an ethics complaint over that incident Aug. 30.

Interestingly while searching for this, I came across the next link. Apparently I'm not he only one with concerns that the Sheriff ignores the law when there is political profit for him.

Dane County Sheriff Gives Police Professionalism a Black Eye

http://www.badgerwordsmith.com/spingolafiles/tag/sheriff-dave-mahoney/

More repugnant than Americans picking and choosing which laws they choose to obey is a high ranking law enforcement official injecting himself into the debate and using the color of his authority to run interference against the Capitol Police by siding, for political purposes, with the Solidarity Singers. Conducting himself in a manner inconsistent with the concept of law enforcement professionalism, as well as own county’s ethics ordinance, is Dane County Sheriff Dave Mahoney.  Since 1979, when a bill approved by Democrats in the state legislature and signed by Republican Governor Lee Dreyfus became law, a FREE permit is required to hold rallies inside Wisconsin’s glorious state capitol.

I would think using one's office to gain political support could be construed as receiving an unlawful benefit, as the benefit was obtained by violating the law.

I was, like the Board, surprised at the Sheriff's attorney's contention that the county ethics ordnances do not apply to the Dane County Sheriff, charged with upholding those ordinances, appearing in a county uniform, with a county vehicle and accepting a county salary. It seems to me that the Sheriff accepted your jurisdiction when he complied with your guidance in a very similar case in the past. Nevertheless, it is certainly worth finding out about, and will be of importance to all Wisconsin Counties. If it is true, as the attorney said, that Sheriffs are constitutional officers because their office was established before the constitution was adopted, I would think the legislature would want to take steps to ensure that counties had a recourse if their Sheriff was violating the county's laws.

I do hope the Sheriff accepts your strong urging to appear and testify under oath, as I did. If he will not, I think you can draw the correct conclusions. I think that a few questions would resolve the issue--if the attorney lets him testify.

• Was that a Dane County vehicle in the photo and video?
• Did the Sheriff drive it to the shoot?
• Was the video and photo shoot scheduled in advance?
• At what time?
• Did he agree to be in the political ad, or did Justice Bradley use him without permission?
• Did he pay for his uniform himself, or was he given a clothing allowance and reimbursement?
• Did he buy his gun and badge, or were they issued by the county, with the custom being they are given to the Sheriff at the end of his tenure, thus are county property until then? (I have a friend who is a retired cop in Illinois. I believe the gun was the city's, but I understand they gave it to him when he retired after honorable service.)

A look at the Dane County or Sheriff's Department personnel handbook as it relates to the Sheriff might be illuminating. I'm sure they would be forthcoming to the Board (and if not, why not?), but as a private citizen, I would have to go through a Freedom of Information request that would be neither timely, nor affordable.

I understand Mr. Pines argument that the burden of proof is on me. He is correct that I was not present at the shoot, and that I cannot prove that it was a Dane County car, or that it didn't appear there by magic and the Sheriff didn't notice it. All reasonable and prudent people will reject that, but I cannot prove that magic doesn't exist. Perhaps Justice Bradley is so dishonorable she had a team Photoshop the car and the Sheriff into the pictures without his permission. I don't for a moment believe she is that dishonorable--but I cannot prove it. It is a standard no complainant can meet. 9If a person is arrested in possession of an illegal gun, can the Sheriff's Department prove that some unknown person didn't plant it on him?)

Lastly I would contend that endorsements don't have to be verbal; that by agreeing to appear in a political ad the Sheriff was endorsing her. For an extreme example, if I am running for office, and you stand next to me in an ad, point at me, wink, and give the thumbs up sign, I think reasonable people would conclude that was a non-verbal endorsement.

Again, I thank the Board for their time and appreciate their diligence in this matter.

Sincerely,

Robert A. Hall