Diny lawyer: City attorney, clerk hasn't responded to subpoenas
That could push the Diny Ethics Board hearing back even farther
The last time we wrote about the Doug Diny Ethics case, the city’s Ethics Board ordered the city attorney and city clerk to appear before the hearing and to sit for a deposition with Diny’s attorneys during the discovery phase of the process.
Diny’s attorney, Andrew Erlandson, told the Ethics Board on Monday that he has not gotten a response from them ahead of a discovery deadline this Friday. And moreover, their attorney has burned through the money the council appropriated to represent city employees.
That information came following a partial dismissal of the Diny complaint surrounding his removal of a ballot box from the steps of city hall last September. Following a closed session on the matter, the board dismissed one of the three federal statutes cited in the complaint, while upholding the rest.
But the lack of cooperation from the city clerk and city attorney could spell trouble for the Sept. 5 hearing and drag out the complaint process to beyond one year from the date of the incident, which was later in September.
Complaint dismissal (in part)
Diny’s attorney, Andrew Erlandson, in his complaint argued that none of the federal statutes cited in the complaint pertain to this case.
The board dismissed 18 USC 595, which prohibits administrators from engaging in actions violating the law. An explanation for the dismissal was not given, but Erlandson in his motion argued that the law doesn’t apply here since Diny is an elected official and not an administrator.
The board upheld USC 242, which prohibits preventing someone from voting based on race, and 52 USC 10307, which prohibits preventing someone from voting. Erlandson says neither of those things happened in this case, as people were still allowed to vote, just not via the ballot drop box.
No response
The board expressed concern, but fell short of suggesting penalties, after Erlandson told the board that he had been working with the attorney the city council funded to help city officials in the matter. That attorney advised Erlandson that both the city attorney and city clerk were out of town and would not be available for a deposition.
That’s despite an order from the Ethics Board that the clerk and city attorney were to cooperate with a deposition for Diny’s attorney and to appear at the Sept. 5 hearing. Subpoenas were issued in both of those cases.
Moreover, Erlandson said the attorney, Sam Hall, told him that the money allocated by the council for legal help for staff has now run out.
Ethics Board Chair Calvin Dexter said he wondered if they should be made to appear before the board to explain why they didn’t cooperate with the board’s order.
But ultimately the board decided to wait. Erlandson said he delivered a message via Hall that he set up a deposition for Friday, which is the deadline for discovery in the complaint process.
Failing to comply with a subpoena in a court case typically carries a penalty of contempt of court, which carries fines and even potential imprisonment. In a Congressional hearing, it would be called contempt of Congress and similarly carry penalties.
Does that apply to an Ethics Board? Failing to show up for a State Ethics Commission subpoena would carry similar penalties. But it’s unclear whether that would apply to an Ethics Board’s orders.
Hearing pushed back?
If there is no deposition by Friday, that will decidedly move the hearing back. The Ethics Board set a meeting date on Sept. 3, the Wednesday before the hearing. Erlandson said he would be seeking an adjournment of the hearing if the depositions don’t happen. He said it would be impossible to allow some witnesses to testify, then sequester them sufficiently so that the city attorney and city clerk could later testify without compromising their testimony.
That might push the final hearing beyond the one-year mark of the incident, and eight months after the initial complaint was filed. (The incident happened Sept. 24, 2024.)
The Wausonian reached out after the meeting to City Clerk Kaitlyn Bernarde and City Attorney Anne Jacobson to see if they indeed did not intend to cooperate. The Wausonian will include any comments they have if and when they are received.
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Wausau at it's finest (sarcasm). What a waste of resources. But that is what "a side" does: build non-issues into major nothing burgers that are built on a foundation of garbage. This sideshow is a distraction from the actual issue here: voter fraud, clerks who are incompetent, and the legal eagles willing to distract and deflect, in my opinion. Check out Peter Bernegger's work if you are still on the fence. The fence is indefensible and falling.