September 13, 2021 at 11:34 a.m.
More abuse of power; wake up voters
More abuse of power; wake up voters
The issue then involved a possible walking quorum concerning the sale of the Campanile parking lot to the town, but, as we wrote, there was a whole lot more going on than just a potential walking quorum. Among other things, supervisors elbowed a developer who had a contract to buy the property out of the picture, without the slightest effort to get public input.
Along the way, the board held discussions in closed session that should have been open, they likely committed two separate open meetings violations, and one supervisor flat out contradicted his own statement.
As we wrote, the town shed all pretense of due process: "The issue is due process and public participation, and this is simply no way for public officials to act, regardless of whether any laws were technically broken."
We know, too, that discussions about the Campanile property, and about the town owning it, occurred at least between town supervisors John Thompson, Bill Stengl, and Mark Hartzheim. Supposedly, though, Thompson never discussed the matter with supervisor Brian Fricke, according to them, even though the two went on a fishing trip during that time. As we noted, it was a ludicrous claim, though we acknowledged we couldn't prove it.
Now the town is back up to its old tricks, and - wouldn't you know it? - Fricke is again at the heart of the matter.
This situation involves the plan commission, of which Fricke is a member, and a tourist rooming house (TRH) permit application by Minocqua property owner Amy Davis, and once again there was not even a pretense of due process.
At the plan commission meeting at which the permit was considered, members tried to tie Davis's pier, which the commission believed to be noncompliant with state regulations, to the TRH permit. We have already written that that is illegal, not least because the town has no jurisdiction over piers.
Beyond that, any condition placed on a TRH permit must be related to the tourist rooming house's impact upon neighboring land or public facilities, and, specifically, related to its location, development, and operation. The pier condition was extraneous to all that.
But just as important as the legality of the plan commission's actions is the ethical conduct of some of its members and the town's ongoing dismissal of due process, especially its devolution into a totalitarian system whereby citizens are presumed to be guilty of crimes against the state - in this case, of crimes against some commission members' political agenda - and the burden falls on them to prove their innocence.
In this case, the town moved from requiring compliance with all state regulations - again, an illegal condition itself - to forcing Davis to prove her compliance. That's a big shift of burden onto property owners, and it's a telling mindset for government officials because its fundamental starting point is that everybody is guilty unless they can prove otherwise. That effectively stands the foundation of democratic due process on its head.
When the burden of proof is not on the government, it's a lot easier to target individuals the government doesn't like for whatever reason. That's the biggest rationale for demanding adherence to due process principles.
In the Davis case, the town even admitted it was blatantly discriminating against Davis. We know of people who were not required to prove pier compliance to receive a TRH permit, and, lest some argue that specific complaints had been raised about Davis's pier, the only agency with jurisdiction over the pier had made no such complaint and committee members repeatedly said they didn't know if the pier was compliant or not.
As such, commission members were merely speculating, and taking official action on nothing more than non-evidence-based conjecture.
At one point, town chairman Mark Hartzheim even admitted discrimination, saying the commission had approved another TRH permit even though "they had a pier there that you can argue had no business being there."
All that is bad enough, but it gets worse. From the outset of the meeting, Fricke pursued the compliance of the pier. That in itself was not surprising because, in pre-meeting texts between Hartzheim and Fricke obtained by The Times, Fricke was asking Hartzheim to print out pictures of Davis's pier for the meeting, so he was clearly going to attack the tourist rooming house permit using pier compliance as a weapon.
But was the pier Fricke's real concern, or was it the TRH permit that he was trying to derail? It's a question to be asked because, in those texts, Fricke sends Hartzheim news of a temporary moratorium on short-term rentals in the Lake Tahoe area, to which Hartzheim responds that the town likely had no power to enact a similar one.
If the TRH permit was Fricke's real concern, that is highly problematic, for it would mean he was trying to kill a perfectly legal rental using a completely unrelated issue, and it's the very reason that extraneous conditions cannot be allowed on conditional use permits and administrative use permits - they offer too many avenues for officials to concoct frivolous reasons to deny certain otherwise legal projects.
To wit, if Fricke could not use the pier as an excuse to withhold the TRH permit, and that permit was his real objection, he would have to be forthcoming and honest about his dislike of tourist rooming houses in order to object to the project.
Even worse, Fricke said at the meeting that "friends' of his had asked him to take up the matter at the town level. There is absolutely no worse conflict of interest for a public official than acting officially on behalf of friends.
The state's ethics code for local officials prohibits officials from acting "in a matter in which s/he is privately interested," and yet that is exactly what Fricke did, as evidenced by his own words at the plan commission meeting.
And his was a conflict of interest on steroids. Not only did Fricke vote to tie pier compliance to the TRH permit for his friends, but immediately following the meeting he officially complained - using his official title and office - about the pier to the DNR on behalf of those friends.
Think about that action. The plan commission had just voted - again, illegally we think - to require Davis to provide proof of DNR compliance within 60 days. So why did Fricke feel compelled to make a complaint 19 minutes later, and to follow up with another email some three weeks later?
To be sure, he had no official reason to, unless he was on a personal vendetta driven by his desire to appease these "friends" of his.
To use his official capacity to do so is an ethical breach of the highest order. To make matters worse, Fricke had been informed at the plan commission meeting that the town could not itself vote to complain to the DNR because it wasn't on the meeting agenda, yet signing his complaint to the DNR as a town supervisor effectively, if not technically, imprinted the complaint as a town action.
Fricke was also told that citizens having pier complaints should be told to take those complaints themselves to the DNR because the town has no pier jurisdiction, but rather than convey that to his friends, Fricke decided to run interference himself, again in his official capacity.
All totaled, the magnitude of this ethical breach, this abuse of power, is breathtaking. Brian Fricke has disgraced himself and should resign or be removed from office.
We have other concerns. For the outset of the plan commission meeting, just after Fricke brought up the pier issue, commission member Mark Pertile seemed intent on making and sticking to a motion that Davis prove her compliance to get the permit, almost as if it was a scripted play.
Throughout the meeting, Pertile controlled the discussion, leading it back to his motion. This leads us to wonder, at the least, if Fricke and Pertile had discussions about the issue and/or coordinated a plan of action prior to the meeting.
That in itself would not necessarily be illegal, but it concerns us that, outside of the exchange between Fricke and Hartzheim that we have cited, no other written communications about this matter appear to exist, at least as far as records turned over to us in response to our open records requests.
We find it hard to believe that there were no prior communications simply because of the obvious energy Fricke had about the matter in his text exchange with Hartzheim and because Pertile quickly made his motion prior to comprehensive discussion about the legality of tethering the pier to the permit and about other options.
He seemed dialed in and determined from the get-go, again as if scripted.
Plus, we wonder why Fricke would only communicate with Hartzheim and no one else. Perhaps that is the case, or perhaps any other discussion was verbal and never set down to create an official record, but it makes us wonder if town officials have really turned over all the records that exist on this matter.
We can't say for sure, but given the town's conduct in the Campanile parking lot situation earlier this year and the strong suspicion that the plan commission meeting itself was pre-arranged, we will be asking the Oneida County sheriff's office to investigate that possibility.
The town cannot say it wasn't warned. In the aftermath of the Campanile debacle, we warned that such a step could be forthcoming if the town did not change its ways. It has not.
In that earlier editorial, we wrote that the town board's role is to facilitate due process, not to pursue pre-arranged private outcomes, and that "this incident should be used as a template for how not to conduct town business in the future."
And yet, given the lack of due process here, the ethical lapses, and the seemingly pre-written meeting - at least for some of the commission members - all that makes us think the same template is being used, and that the town and its plan commission are still dedicated to pre-arranging private outcomes.
We wrote: "This incident has raised serious questions about the conduct of the town board and its commitment to public input and due process. They cannot ignore these issues and let such a thing happen again. Indeed, if they do not take corrective action to demonstrate to the public that they understand how inappropriate, out of line, and illegal these actions were, ... rest assured that a complaint will be forthcoming to the district attorney."
We're not headed to the district attorney but to the sheriff, but, the bottom line is, enough is enough at the town level, whether it's the town board or the plan commission, and this sad incident deserves a law enforcement look.
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