Diny's lawyer disputes city ethics complaint
The Wausau mayor's attorney lays out the case against the letter sent to the ethics committee by a group of residents earlier in January


In September The Wausonian broke the story about Mayor Doug Diny removing a ballot box from the steps of city hall. A flurry of controversy followed, with a contentious city council meeting, protests, rebukes from city officials and a state investigation.
The whole thing resulted in the state Department of Justice raiding Diny’s home and city hall office, which he confirmed to The Wausonian and others in a press conference about the city’s budget.
But a memo released to the media by Diny Monday night from his attorney Joseph Bugni of Hurley Burish disputes many of the claims made at the time as well as a more recent letter filed against him with the city.
The memo is a response to a letter sent by a group of Wausau residents on Jan. 14 claiming that Diny in removing the ballot violated the city’s ethics code:
No official employee shall in his or her official capacity do any act or use his or her official title in performing any act, which he or she knows is in excess of his or her lawful authority or which he or she knows he or she is forbidden by law to do in his or her official capacity.
The letter argues that Diny violated the law in removing the ballot box:
As voters who live in Wausau, we are concerned that Mr. Diny’s conduct violates federal voting rights laws, intimidates voters from using secure drop boxes, undermines the security of those same drop boxes, and violates the city’s ethics code.
In the memo, Bugni contradicts City Attorney Anne Jacobson’s memo to the clerk regarding her authority over the ballot box; and it disputes the probable cause for the raid carried out on Diny’s office and home. He also disputes the arguments made in the ethics complaint filed earlier this month.
Argument 1: The clerk doesn’t have jurisdiction
Bugni makes two main arguments in his memo. One is that the city attorney and the letter writers were incorrect in her memo that the clerk had sole authority over the ballot box. One reason for that: she is not elected, but is hired and fired at the pleasure of the mayor. And she doesn’t have the authority, he argues, to make unilateral decisions about the ballot box - for instance, she couldn’t ignore standards around safety of the box if the city council, the mayor and voters wanted them. That suggests he has authority over the box.
Argument 2: Diny didn’t violate federal law
Bugni claims that Diny didn’t violate the federal laws cited in the complaint that deal with election interference. One law Diny is alleged to have violated is one providing legal protections for protected groups. Diny removing the box couldn’t have violated that law, Bugni argues, since it was removed for everyone, and also because voting hadn’t started yet. (It did start the Monday after Diny removed the box, however.)
He says the other federal law Diny was accused of violating was untrue because it only applies to federal workers campaigning for federally elected officials, part of the Hatch Act.
I reached out to Bugni because I was confused, since the ordinance cited seems to apply to more than just federal officials. The text of it is below:
Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.
I bolded the action in the statute to make it a little easier to read.
Bugni responded and pointed to a sentence I had glossed over that changes the meaning though:
in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof
Bugni sent me this by way of further explanation:
Too soon?
The release of the memo is unusual in that the complaint and its response isn’t typically made public until the ethics board can meet. The legal memo was sent to the city council, with this note from Diny:
Dear Council,
Here’s my initial response to the ethics complaint and why you might consider not jumping the gun on hiring outside special counsel.
This is a dismissible case on its face and the reason you should wait for the board to see/hear it at their initial meeting. If, after they meet in accordance with the Code of Ethics, they determine they need legal counsel, they may request it in accordance with section 2.03.040 (f): “…The board or the city attorney may request common council to authorize special counsel for the board…”)
The email was then forwarded to the media.
Since it was sent to the city council, The Wausonian reached out to City Council President Lisa Rasmussen.
It seems the mayor should not have released his materials to the council or the media before the Ethics Board was convened to review the matter, as their meeting is the time and place for responses. We’ve been advised by the legal staff to avoid discussion of the matter since its outcome is yet unknown.
She questioned why Diny sent the email at all since the city council doesn’t decide ethics board matters.
The ethics complaint is the first since the board investigated a complaint by county board member William Harris against then-city council member Deb Ryan, claiming she falsely accused him of providing illegal legal advice to Mayor Katie Rosenberg and attempting to get him fired from his employer. In March 2022 the ethics board dismissed the complaint but strongly condemned the actions.
Controversy over outside legal counsel
A resolution at Tuesday night’s City Council that would have authorized outside legal counsel for the ethics board drew controversy in the community.
Several residents at Tuesday’s meeting said they thought it was a frivolous complaint and duplicative of the state investigation already under way. They decried the city spending money on outside attorneys for the complaint.
That came after a fiery speech in which Mayor Doug Diny called the culture at city hall “Game of Thrones.”
But hiring outside counsel when the city attorney herself is potentially involved in the proceedings is standard procedure, City Attorney Anne Jacobson explained. Representing the board would be a conflict of interest and against attorney professional code, she says.
The council could vote against the authorization, but either way she would not be representing the board.
The council voted 8-2 in favor of the resolution. Council member Victoria Tierney and Becky McElhaney voted against it, both saying they felt it didn’t make sense to authorize spending taxpayer money on outside counsel until the ethics board specifically asked for it.
No meeting of the ethics board appeared on the calendar as of Tuesday evening.
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