By David Gordon, associate editor
Chippewa Valley Post
The controversy swirling around Wisconsin’s Government Accountability Board (GAB) is far from over, but board member Thomas Barland soon will be able to watch from a distance as the drama unfolds further.
Barland, a retired Eau Claire County Circuit Court Judge, said in a recent interview with the Chippewa Valley Post that his six-year term on the GAB has been a good experience overall, but he’s displeased with recent clashes between the board and the Republican majority in the state Legislature.
That friction “grew out of the (state Senate) recall elections” in 2011 and erupted in full force over the on-going John Doe investigation into whether Gov. Scott Walker’s 2012 recall election campaign coordinated illegally with outside conservative groups, Barland said.
A state audit of the GAB’s performance from 2010 to 2014 added fuel to the fire when it was completed last December. The study, by the Legislative Audit Bureau, criticized the board and its staff on several counts.
Republican legislators – already unhappy with the GAB – seized on those criticisms to demand a major overhaul of the board, including possible changes in its current nonpartisan structure. Some attacks went so far as to call the GAB a “rogue agency” whose staff often ignored state law.
In the CVPost interview, conducted in mid-May, Barland took strong exception to those comments, saying he was shocked by a number of extreme statements made by legislators at a mid-January hearing of the Legislature’s Audit Committee.
Those critical statements “really turned me around,” Barland said, because some of the comments were “bordering on hysteria and hyperbole.”
The John Doe investigation and subsequent court proceedings are “extremely puzzling and complex to those both on the outside and the inside,” Barland said, adding that they are “going to go on long after I go off the GAB.”
Barland, whose six-year term on the GAB expired on May 1, served as its chair in 2011 and 2014. He did not seek reappointment to the board this year, but remains a member until the governor nominates his successor.
Legislators’ comments soured experience
“I enjoyed the experience very much, even through the recall (elections), until we started coming under fire from some members of the Legislature,” Barland said. “Often these (critical) statements showed a lack of understanding of the law.”
He said the recall friction – which began while he was serving as the GAB’s chair – stemmed from the desire of state Republicans to hold all 2011 Senate recall elections on the same day. Barland said he raised that possibility with GAB staff but was told that, because the recall petitions were filed on different dates, “they had to follow the law” requiring different election dates.
This led to charges by some state Republicans that the GAB staff was prejudiced against them, and the charges have intensified since 2012. Other issues that have since been raised include:
- The GAB staff has exceeded its authority in regard to the John Doe investigation.
- The GAB has not provided adequate oversight of its staff.
- The GAB’s exclusive power to hire and fire its director/general counsel makes it too independent of the Legislature.
- The GAB’s nonpartisan structure should be modified or even scrapped entirely.
Barland said campaign finance regulations also are a major issue in this complex picture.
Chapter 11 of the state statutes, which governs the topic, “is difficult to understand and interpret” and needs revision, he said. In addition, some of its restrictions have been deemed unconstitutional by the U.S. 7th Circuit Court.
In a January column in the Milwaukee Journal Sentinel, Barland noted that the December report from the Legislative Audit Bureau “documented that our board and staff are fulfilling almost all of our 150 statutory duties.” He added that the GAB is working hard to fix the relatively few problems noted in the audit.
Barland: GAB has addressed criticisms
In his interview with the CVPost, Barland noted that the Audit Bureau has revised some aspects of its original report on the basis of the GAB’s responses.
The Audit Bureau report criticized GAB staff for failing to perform some duties in the time span specified by state law, particularly a failure to stay up-to-date with post-election checks on whether people with felony convictions were allowed to register and vote. The GAB staff also was faulted for being inconsistent in issuing penalties for election law violations, for not auditing electronic voting equipment properly, and for failing to communicate all of its rules adequately.
In his Journal Sentinel column, Barland noted that the computer program originally used to check on possible voting by felons was inaccurate, leading to many erroneous reports that nonetheless were referred to district attorneys for possible prosecution.
In his CVPost interview, Barland said the situation was so bad that some DAs requested that they no longer receive the reports. The program then was suspended while GAB staff worked with the state Department of Corrections to develop and test a new, more accurate program to carry out this responsibility.
Once that goal was reached, the staff caught up on the uncompleted election checks in nine months, Barland said.
He also noted in his column that once all the elections were checked, the GAB found 110 cases spread over 16 elections in which felons were suspected of voting, and those cases were referred to the appropriate district attorneys for prosecution.
“To put this number in perspective, more than 16 million votes were cast during the same period,” Barland wrote.
Legislators intensified controversy
Shortly after Barland’s column appeared in January, the GAB saga – or what some might call a soap opera – became even more intense when Assembly Speaker Robin Vos (R-Rochester) ramped up his long-standing criticisms of GAB staff and Kevin Kennedy, the board’s director and general counsel. Vos charged that GAB staff were inappropriately involved in the John Doe investigation of Walker’s recall election campaign without authorization by the board’s members.
Those statements led the GAB’s chair, Judge Gerald Nichol, to write publicly to Vos that “all of the Board Members have been closely involved in overseeing all of the staff’s investigative activities,” and that “the staff has taken no action in these matters without the Board’s full knowledge and prior approval.”
Nichol added that “it is simply not true that Board staff has done things ‘their own way’ without consulting the Board and carrying out its directions.”
Nichol also noted that, collectively, the six members of the GAB “have more than 120 years of experience as nonpartisan Circuit Court judges, so we do not undertake investigations lightly, and do not participate in fishing expeditions or partisan witch hunts.”
In his CVPost interview, Barland decried some of the national media coverage of the conflict between the GAB and the state Legislature, singling out, in particular, the Wall Street Journal, the National Review and a Milwaukee Journal Sentinel columnist he did not name.
“It’s clear to me that they’re basing some of their conclusions on false information,” Barland said. “People are too quick on both sides to draw conclusions from minimal facts.”
Barland said that changes in the GAB’s structure or operations still could come from the current session of the Legislature.
Although there is “no consensus as to what should be done, there are some ideas floating around,” he said, noting the Republican leadership has repeatedly indicated that “some changes will be made.”
GAB formed in response to legislative scandals
The Legislature established the GAB in 2007, with strong bipartisan support, in the wake of a series of legislative caucus scandals that came to a head in 2001. A John Doe investigation found that staff workers for all four of the party caucuses – one per party in both the state Senate and Assembly – were doing political campaign work on state time.
Five legislators – from both parties – and several legislative staffers were prosecuted and convicted. In addition, the party caucuses were dissolved and work rules were tightened for legislative staff.
In response to these scandals, the Legislature merged the State Elections Board, whose membership had been appointed on a partisan basis, with the State Ethics boards, thereby creating the GAB. The new board then was charged with overseeing Wisconsin’s campaign finance, elections, lobbying and governmental ethics laws.
All six GAB members are former Wisconsin judges who must be nonpartisan – meaning they must not have been a member of a political party or have made political donations for at least a year before their appointment and throughout their six-year terms on the board.
The GAB’s “nonpartisan structure, and the process for selecting its board members is unique in the United States,” according to the board’s website.
For Barland, who retired as an Eau Claire County Circuit Court Judge in 2000 after 33 years on the bench, the wait for an end to his service on the GAB continues as the detailed procedure for appointing his successor plays out.
Under Chapter 15.60 of the state statutes, a nominating committee consisting of one judge from each of Wisconsin’s four appeals court districts must be chosen by lot by the chief justice of the state Supreme Court in the presence of the other court justices. That committee is then required to send to the governor at least two nominees for each GAB vacancy.
Former state judges may apply to the nominating committee to be considered for a GAB post, but only names the receiving unanimous endorsement of the four-judge committee may be submitted to the governor. Appellate Court Judge Lisa Stark of Eau Claire is one the four members on this year’s committee.
The governor’s appointee to the GAB then must be confirmed by a two-thirds vote of the state Senate, but that body has yet to act on four of the board’s current members.
Some might see this as an indication of the increasing tension between the GAB and the Republican-controlled state Legislature, but it is largely symbolic because the four unconfirmed members have been serving on the board.
Barland: Most ethics complaints related to elections
In his interview with the CVPost, Barland noted that one of the GAB’s responsibilities is to oversee the application of the state’s ethics code to all elected officials.
While acknowledging that every complaint “is always serious to the person filing it,” Barland said that in his six years on the board there have been few major complaints filed alleging ethical misconduct – except those related to elections.
He observed that over the past six years the GAB took up an average of two or three ethics complaints at each of its meetings (which are held less often than monthly), except during the 2011-2012 recall election campaigns.
“We had a rash of complaints from both sides (Republicans and Democrats) during the two years of recall elections,” Barland said.
He added that penalties typically have been in the $250 to $300 range, though they have been as low as $50 and as high as six figures.
Many of the fines were “for unthinking, inadvertent errors” that wound up as relatively minor infractions,” Barland said. “Some of them (were) accidental, where the offender self-reported or where just one improper communication went out to a limited number of people.”