August 17, 2020 at 1:38 p.m.
Judge denies defense motion in Guild case
Preliminary hearing to be scheduled
Judge denies defense motion in Guild case
"The facts and circumstances alleged (in the complaint) do justify further proceedings," Price County Circuit Judge Kevin Klein ruled Thursday afternoon during a Zoom hearing broadcast in Oneida County Circuit Court Branch 1. "The complaint is minimally adequate based on common sense," the judge added, noting that he was not conducting a "hypertechnical evaluation of the central facts," nor was he determining the defendant's guilt or innocence or "assessing whether the state can prove its case beyond a reasonable doubt."
Guild, 40, is charged with one count of misconduct in office/failure to perform known duty. The case involves allegations he withheld certain records requested by this newspaper under the state's open records law and altered an official email.
The defense based its motion to dismiss on the grounds that responding to open records requests is not a mandatory, nondiscretionary, and ministerial duty of the office of city administrator. If the duty in question is not nondiscretionary and ministerial in nature, there can be no violation of the charged crime, no matter what conduct is alleged to have occurred, the defense has argued.
Klein, however, found that duties may be split into parts and that while initial parts may be discretionary, "once past those discretionary steps there is a mandatory duty."
If this were not the logic to be employed, Klein asserted, "then everything could always have a discretionary component" and the statute in question "would be rendered meaningless" because a person "could always say there is one more discretionary decision to make and one more discretionary decision to make after that."
After announcing his ruling, Klein directed the parties to contact his judicial assistant to schedule a preliminary hearing. At that stage, the state will have to show probable cause that a felony was committed and the defendant committed it.
Guild was arrested March 9 following a months-long investigation led by the Oneida County sheriff's department, with assistance from the Vilas, Price and Marathon county sheriff's offices and the Wisconsin Department of Justice Division of Criminal Investigation, that included the execution of search warrants at Rhinelander City Hall.
The defense filed its motion to dismiss on April 7.
A motion hearing was held on June 11 but Klein was not immediately ready to rule. Instead, he announced he was taking the motion under advisement and directed the parties to file supplemental briefs.
In its supplemental brief, the defense argued that the primary dispositive issue before the court is "whether the duty alleged to have been violated - here, responding to an open records request - is itself a mandatory, non-discretionary, and ministerial duty."
"This is the issue because the violation of a mandatory, non-discretionary, ministerial duty is an affirmative element of the misconduct in public office crime for which Mr. Guild has been charged," wrote attorney Kevin St. John. "If the legal duty is not of a mandatory, nondiscretionary, and ministerial nature, there can be no violation of the charged crime, no matter what conduct is alleged to have occurred."
St. John went on to argue that responding to a public records request is not a nondiscretionary or ministerial duty "because it is not a duty whose performance leaves 'nothing ... for judgment and discretion.' Instead, it is a duty that requires multiple 'judgment' calls to be made."
These "judgment calls" include "determining where to search for records; determining how many resources to devote to the search given the needs of other governmental operations and other records requests; interpreting the request; analyzing whether items are 'records' under the public records law; analyzing whether records are responsive to a request; analyzing whether there is statutory or common law exceptions to disclosure; analyzing whether records subjects are entitled to notice; and evaluating whether the public interest in nondisclosure outweighs the public interest in disclosure," he wrote.
In his supplemental brief, filed July 7, district attorney Mike Schiek argued Guild never used discretion, "rather he intentionally and blatantly refused to comply to the request."
"This flies in the face of the Legislative declaration (that the public policy of the State of Wisconsin is that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them)," Schiek wrote. "Without the requirement, there are no checks and balances, there is no transparency. The defendant should not be allowed to circumvent the open records law. An open records request was made, the defendant responded that they did not have any records responsive to the request. The process of mandamus is not available because the decision could not be challenged. However, the State now has evidence that the defendant intentionally withheld the documents that were subject to the request."
"Public policy would dictate that a records custodian cannot simply respond to an open records request with a statement that 'no responsive documents exist,' when there are known responsive documents," Schiek concluded. "This cannot be the law; there is no transparency, no checks and balances, no redress for concerned citizens and no accountability to records custodians. Wisconsin's open records law requires a certain procedure, without which, the Legislative intent cannot be met."
The charge carries a maximum sentence of three years and six months in prison and/or a fine of up to $10,000.
Guild's contract with the city was terminated by unanimous vote of the City Council May 11.
The city is in the preliminary stages of its search for a new administrator.
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