River News: Our View

Oneida County is once again doing what it does best — hiding the inner workings of government from the people — proving the old adage that government simply can’t be trusted, ever.

It might be a necessary evil, but people sure had better hold on to their wallets and keep one eye open at all times when government officials are lurking about. They are likely up to no good.

That goes doubly for Oneida County officials.

Take open records, for example. Several years ago, after it was discovered that the county had quietly, unofficially, and illegally made the corporation counsel the co-custodian of all county public records, a push was made to reform the process.

After all, we and other citizens had endured years of records delays and obfuscation. People with important issues in their lives found their quest for records denied or ludicrously redacted, and the corporation counsel at the time absurdly declared that all communications to and from his office were protected by attorney-client privilege.

Conveniently (for bureaucrats), all records had to be routed through that office for review, and people quickly discovered what that meant: The corporation counsel’s office is where transparency goes to die.

So a few years back, this newspaper, some concerned citizens, and a few good county officials (there are some!) pushed for reform of the county code.

Among other things, they took issue with that ongoing automatic routing of records to the corporation counsel’s office for review. Sheriff Grady Hartman, as we report in today’s issue, correctly called the code requirement illegal.

Unfortunately, not all officials are transparent like sheriff Hartman. In fact, most of them aren’t. Sadly, though, all the nefarious goons of government know a good public-relations gimmick when they see one. They are also able to see handwriting on a wall. So when the push for reform came, they were all on board — publicly, at least.

Take then county board chairman Dave Hintz. He was one of the least transparent Oneida County officials of all time, often redacting every word in a letter he would release, including the ‘and’s and the the’s.’ If there is a Hall of Darkness in Hell, it would be named after him.

But suddenly he was all in for reform. Here’s what he said: “The county has a lot of strengths to list, but the thing I think we have to work on, the number one item at this point, is our open records process and procedures. It’s creating a lot of anxiety, a lot of bad public relations. We’re trying to do the right thing, but the process just needs improvement. ….. I think we have to make a sincere effort, a quick effort to update our process, all the way from the ordinance itself to how we follow the ordinance — the procedures and the training related to the ordinance.”

The board then promptly passed revisions that, among other things, removed the requirement of having to route all records through the corporation counsel’s office, which so many had complained had backlogged and broken the process.

We were skeptical. It wasn’t our first rodeo with the county. And so Gregg Walker issued this cautionary advisory: “We’ve seen it over and over again,” Walker said then. “The county’s rhetoric is for open government. Its reality is for closed government. We’ll believe they have changed when we see that they have changed.”

Well, we hate to say we told you so, but we told you so. This past week, after another major open records breakdown, it has become apparent that the county is doing just what the reforms of two years ago were designed to stop — sending all records asked for in a records request to the corporation counsel’s office, where they languish until the corporation counsel and his good-old-boy allies can figure out a way to redact and deny what they don’t want the public — the actual owners of those records — to see.

The story in today’s edition goes into detail about why having the corporation counsel review all records is a bad idea, so we’ll just summarize here: The corporation counsel has no jurisdiction over any records outside his own office; it takes power away from the actual legal custodians of the records, whom the state vests with “full legal power” to make decisions regarding the records; it gums up the works and delays requests when quick access to records is often needed; it puts the institutional interests of the county above the public interest, especially when records have been requested of an elected official.

The last point is the most important. When the corporation counsel is “perusing” the records, to use the county’s term, the corporation counsel gains practical control over the records. The problem is, the corporation counsel is not making the decision to release or not release the record in the public interest. 

That is to say, the corporation counsel is hired and fired by the institution that is the county. The corporation counsel works for that corporation. The corporation counsel’s job is to protect the interests of that corporation, not the interests of the people. 

That’s not true of elected officials. Elected officials are hired and fired by the people. Elected officials work for those people. The job of elected officials is to protect the interests of the people, even and especially when those interests conflict with the corporate institution that is government.

To be sure, the interests of the people and those of the institution don’t always align, and they collide more than people think. That’s why whistleblowers exist. They exist because bureaucrats are more interested in expanding their income and power and job security than they are in tending to the needs of people, and they often overreach in trying to do so.

The same goes for transparency. If democracy dies in darkness, as The Washington Post is fond of saying — and they would know — then it’s certainly true that bureaucracy thrives in darkness.

More to the point, government institutions, including county institutions here in Wisconsin, often lobby and work against the public interest. To cite just one example, Oneida County belongs to the Wisconsin Counties Association (WCA), a membership association of the county corporations, which uses taxpayer dollars to lobby lawmakers for a variety of legislative initiatives, often enough including higher taxes.

Here’s how absurd it can be. While the elected board of county supervisors might pass a resolution opposing a certain tax increase or, say, any liberalization of county levy limits, the corporate institution that is Oneida County might well be using your tax dollars to lobby for just the opposite through the WCA.

That’s not only a hypothetical; such scenarios happen, and most supervisors likely don’t even realize it.

And so that frames the problem of routing all records through the corporation counsel. Just as with opposing a tax increase, an elected official might well think it is in the public interest to release a record while the corporation counsel might think it is in the institution’s best interest not to release it, just as the institution might benefit from higher taxes and more revenue collections.

With an elected official, the public interest will usually win; with the corporation counsel, the institutional interest always wins.

Some might say an elected official might not follow the corporation counsel’s lead and reject his advice that a record not be released, but in real life that rarely happens. Automatic review by the corporation counsel automatically places the thumb on the scale and tips it toward secrecy. 

The way the law is supposed to work is this: When an elected official receives a records request, most records should obviously be released immediately — that why there’s only a 10-day period that is considered reasonable for most requests — and actually be available in a file readily accessible by the public.

And when a county board supervisor does have a record that is sensitive and questionable — those should be few and far between — the corporation counsel is the last person to go to; instead, that supervisor should seek the advice of an outside, independent attorney. 

The only caveat is that we are talking about records belonging to individual elected officials, not institutional records that belong to any committee or to the county board, in which case the elected official isn’t the custodian anyway.

The bottom line is, the institution of government always poses an inherent threat to individual liberty. As an organism of bureaucrats, it is conceived and birthed as a counterforce to democracy. Its powers should always be constricted and bureaucrats eternally made to wear the ankle monitors of public scrutiny.

The bureaucracy’s power in open records requests to elected officials should be nil.

And so we were right to issue those cautionary words several years ago. Note that in his remarks county board chairman Hintz let the truth slip: He said the county must update the process “all the way from the ordinance itself to how we follow the ordinance.”

Well, they updated the ordinance but not how they followed the ordinance. The same old bad, illegal habits reign supreme. We said we would believe change when we saw it, but we have not seen it.

Now we have asked the district attorney to investigate this illegal scheme. We hope district attorney Jillian Pfeifer will take her duty to transparency seriously and act aggressively.

Likewise, we hope county board chairman Scott Holewinski will re-open this topic and that this time supervisors will write an ordinance that specifically forbids this practice and exacts consequences for thwarting the state’s transparency laws.

Nothing else is acceptable.

In the meantime, beware county officials such as corporation counsel Mike Fugle. He has already disgraced himself in the sophomoric and egregious advice he gave the zoning committee and in his eagerness to act as the county’s zoning administrator by conducting secret negotiations with a bad actor in the county.

Now he has fumbled or deliberately let a records request sit inexcusably long, a request he was aware of, as is the county’s pattern.

It’s time to turn up the heat on the county to end this practice, on the corporation counsel who facilitates it, and on supervisors themselves who do not take their own roles as guardians of transparency seriously, as in this case with Anthony Rio.

After all, we told you so: You simply cannot trust most Oneida County officials.