June 15, 2020 at 4:46 p.m.
Judge takes motion to dismiss Guild case under advisement, requests further briefing
Judge takes motion to dismiss Guild case under advisement, requests further briefing
After hearing from defense attorney Kevin St. John and Oneida County district attorney Michael Schiek, Judge Kevin Klein of Price County determined he needs more information on the relevant legal authority before issuing a ruling on the motion.
Guild was charged with a single felony count of misconduct in public office/failure to perform known duty 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. He spent approximately two months on paid administrative leave before the City Council voted unanimously last month to terminate his contract "without cause" and pay him approximately $47,500 in severance.
In early April, St. John and Guild's local counsel, Brian Bennett, filed a 13-page brief in support of a motion to dismiss the criminal case, which involves allegations Guild withheld certain records requested by this newspaper under the state's public records law and altered an official email.
In the brief, St. John argued that the duties Guild is alleged to have failed to perform are not "ministerial, nondiscretionary duties" under Wisconsin law.
"The duties referenced in the complaint - responding to public records requests as records custodian and briefing the city council about the activities of his office - require a public employee to exercise judgment and discretion," St. John wrote.
In his filing, St. John outlined the elements the state must prove to win a conviction for misconduct in public office/failure to perform specific act - that the defendant must be a public officer or employee and that said defendant must have intentionally failed or refused to perform a known, nondiscretionary, ministerial duty of his employment at the time or in the manner prescribed by law.
In court Thursday, with the lawyers, defendant and judge all appearing via Zoom and the proceedings streamed live in the Branch I courtroom, St. John expounded on this argument.
"We're here today because law enforcement went to City Hall and seized huge volumes of documents, electronic and paper, from locked file cabinets and they discovered a few documents in there which they think are responsive to public records requests which they think should have been produced," St. John said. "They identified Daniel Guild as responsible even though he wasn't the city administrator when the request was received, wasn't the administrator when records were first searched for. He is not identified in Rhinelander city ordinance as having any special responsibility with respect to public records. He bears no more responsibility under state law than other officers within Rhinelander and he's not alleged to have gained a thing .."
St. John went on to reference "political infighting and palace intrigue that has plagued Rhinelander for years" but stressed that the judge will not have to determine whether Rhinelander city government is functional or dysfunctional in order to rule on the motion.
"All the court has to do is look at the complaint and apply the law," he said, before delivering a reprise of his written argument that filling public records requests is not a nondiscretionary, ministerial duty because records custodians must employ their own judgement in analyzing such requests.
"When you get a request (under the open records law), you have to interpret it," he argued. "That's an exercise in judgment. Then you have to apply that interpretation to the documents, that's an exercise in judgment. Does (a particular) record match up with the request or does it not? You have to apply specific discretion and judgment to answer those questions and that exempts it from being a ministerial nondiscretionary duty."
In response, Schiek argued the defense was misinterpreting the state's purpose in filing the charge.
"This isn't a case about a records custodian not responding to an open records request because they forgot a document or two. I deal with open records requests all the time. I would concede it is a very difficult part of the law to navigate, and things get missed, they get overlooked, it's inadvertent, it's a mistake. That's not what we're going after here, judge. That is in no way the state's intention. What we're going after, judge, is the checks and balances and what we feel is a public official circumventing the open records law and trying to absolve itself of the transparency that is required by the open records laws."
Schiek went on to argue that Guild assumed the responsibility of being the city's record custodian and then intentionally withheld records he knew were responsive to the newspaper's requests.
"The state is alleging in the complaint that Mr. Guild knew what the request required, knew that there was responses pursuant to that request and intentionally did not release those records," he said, adding that he was prepared to produce "examples that would substantiate that" via testimony from Oneida County sheriff's captain Terri Hook.
After hearing from the lawyers, the judge announced he would like to take some time to review the "voluminous" material submitted and directed counsel to provide additional briefs.
"Each of you have made reference to legal authority and you're saying to me the decision to be made is a decision that the court makes and it's not necessarily factually-based it's law-based. And the two of you may not want to hear this, Mr. Guild may not want to hear this, but I want to take the motion to dismiss under advisement and I'm going to request additional briefing," he said. "If I were to go ahead and make a decision today here on the record it would be virtually impossible for me to analyze all the information that has been submitted, recently submitted, and now argued by the two of you and it would be impossible for me to enunciate a decision that I think would do the question justice and be an appropriate response."
Klein then asked if the parties would like to move ahead with the preliminary hearing, which was also scheduled for Thursday. Schiek said he was prepared to proceed and Hook was ready to testify, but the defense asked for a brief recess to confer with Guild. When they returned, St. John announced that the defense believes the ruling on the motion to dismiss should come first. Hearing that, the court directed Schiek to file his submission (or potentially amend the complaint) within 30 days, with the defense to respond within 14 days after that.
Klein indicated he was unsure whether he will rule orally or in writing but indicated a new court date will be set if he chooses to rule from the bench.
Guild remains free on a $500 signature bond.
Misconduct in office carries a maximum prison sentence of three years and six months and/or a fine of up to $10,000.
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