Recall may prove to be least of his worries...
By Ernest A. Canning on 2/13/2012, 4:14pm PT  

Guest blogged by Ernest A. Canning

A recall from his position as Wisconsin's governor could ultimately be the least of Gov. Scott Walker's worry, if a criminal complaint quietly moving forward in the Badger State court system continues on its current trajectory. At the moment, Walker seems to be at the bottom of a mountain where an avalanche is just beginning to roll.

A 51-page criminal complaint [PDF] (the "Rindfleisch complaint"), which formally charges Kelly M. Rindfleisch with four felony counts of misconduct in public office, contains factual allegations which implicate a number of individuals, listed as "interested parties," including WI's controversial Republican Governor, in a wide-reaching criminal conspiracy to misuse public employees and resources for partisan political gain.

The Rindfleish complaint was filed in the Milwaukee County Circuit Court on Jan. 26, 2012 by Milwaukee County District Attorney John T. Chisholm. It's the product of an ongoing criminal investigation (the "John Doe" investigation) of the Milwaukee County Executive Office during Walker's tenure as County Executive there. The complaint specifically involves the period during which Tim Russell and then Rindfleish served as Walker's Deputy Chiefs of Staff.

The recent news in the Milwaukee County case coincides with a separate set of court rulings in the battle over the attempt by opponents of Walker to see him recalled via the ballot box. In that matter, an appellate court recently reversed Republican Waukesha Circuit Judge J. Mac Davis' decision to deny the Recall proponent's motion to intervene in a case brought by "Friends of Scott Walker" designed to obstruct the scheduling of Walker's Recall. The appellate ruling directed Davis to vacate his controversial decision which had shifted the statutory burden for challenging the validity of the Walker Recall petition signatures from Walker himself --- as had been the process for years --- to the state's Government Accountability Board.

While that appellate ruling may serve to help expedite Walker's potential removal from office via the ballot box, a recall could ultimate prove to be less of a concern to the embattled, right-wing governor than the criminal case steadily moving forward in Milwaukee.

The factual body of the Rindfleisch complaint suggests that prosecutors are painstakingly examining evidence that may well place Walker at the center of a criminal conspiracy to illegally utilize employees within the Milwaukee County Executive Office to engage in fundraising and campaign activities on behalf of the Friends of Scott Walker and others during office hours at the expense of Milwaukee taxpayers.

Each violation of the relevant WI criminal statutes at issue in the matter carries with it a potential imprisonment of up to 3.5 years. As that case moves forward apace, Walker could lose a great deal more than simply his hold on the governor's office. His very freedom may prove to be at stake as well...

Link to 'Caucus Scandal'

In April of 2011, in "The 'Judicial Independence' of Justice David T. Prosser - A BRAD BLOG Special Investigation" we traced the links between Prosser, the WI Supreme Court Justice who had served as the WI Assembly Minority Leader (1989 - 1994) and then Speaker (1995 - 1996), to Prosser's former number two man in the Assembly, Scott R. Jensen (R-Waukesha) and to a hornet's nest of corruption, which included Kathy Nickolaus. Nickolaus is the controversial Republican Waukesha County Clerk who "discovered" some 14,000 votes she had failed to report on Election Night which ended up swinging the results in the 2011 WI Supreme Court election from Deputy Attorney General JoAnne Kloppenberg to Nicholaus' former boss-turned-incumbent-Justice, Prosser.

In that report we detailed the 2002 Dane County criminal complaint in which Jensen was charged with three felony counts involving misconduct in office in his "hiring, retaining and supervising" of several state employees to assist in organizing and funding political campaigns while the employees were compensated as state employees; that Jensen had also used state resources in that illegal effort. Republican Assembly Majority Leader Steven Foti was charged in one of those felony counts, and one of the state employees, Sherry L. Schultz, was charged in another.

Jensen's Dane County Circuit Court conviction on all three felony counts was eventually overturned on appeal due to an erroneous jury instruction. He evaded jail courtesy of a politician-friendly venue law that placed his case within the comfy confines of the GOP Republic of Waukesha, where Jensen became the beneficiary of a generous plea deal, courtesy of Waukesha's Republican DA Brad Schimel.

Prosser, for his part, not only took the unprecedented step, as a sitting WI Supreme Court Justice, of appearing as a witness/advocate for an accused felon (Jensen), but went so far as to confess to his own participation in the same crime --- albeit, after the statute of limitations had run, so Prosser didn't have to fear his own prosecution. Nickolaus evaded prosecution through a grant of criminal immunity as she agreed to cooperate with the prosecutors.

We cautioned in our investigative report on Prosser that the criminal misuse of state employees and resources for partisan political gain was not limited to Republicans. Two Democrats, former state Senators Charles Chvala and Brian Burke, also faced multiple felony charges for similar misconduct in office.

The new Rindfleisch criminal complaint refers to all of those previous prosecutions as "the Caucus Scandal" which ensnared members of both the Republican and Democratic state caucuses. Rindfleisch was directly connected to that scandal.

Like Nickolaus, Rindfleisch was shown a letter of immunity from Dane County DA Brian Blanchard before she was interviewed by state agents investigating the Caucus Scandal. According to the new complaint, Rindfleisch told the state agents that she "worked at the Assembly Republican Caucus (ARC) in legislative services and media from May 1999 - May 2000" and "at the Senate Republican Caucus (SRC) from March 2000 - December 2001 as a policy analyst."

The Rindfleisch complaint alleges that when she "began working at the ARC, Sherry Schultz helped Rindfleisch with planning and organizing fundraisers" for ARC members.

That would be the same Sherry Schultz who was charged with a felony misuse of office in the 2002 Dane County criminal complaint.

The 2002 criminal complaint alleged that Jason Kratochwill, who served as the ARC's Director from 1999-2001, "estimated that the campaigns of 50 of the 56 Republican members of the State Assembly used the ARC for campaign purposes that included graphic design work."

Scott Walker served in the Assembly from 6/30/93 - 5/14/02. The 2002 criminal complaint did not say whether Walker was one of the 50 Republicans who "used the ARC for campaign purposes."

The Rindfleisch criminal complaint alleges that she told the Caucus Scandal investigators that she worked on political campaigns while employed at the SRC; that she also told the Caucus Scandal investigators "about campaign materials removed from the SRC and placed in storage...after the 2000 campaign season and before January 1, 2001."

The new complaint cites Rindfleisch's involvement in the Caucus Scandal to demonstrate her "knowledge of the proper limits placed on the conduct of public employees."

Secret email system

The Rindfleisch criminal complaint alleges that Tim Russell served as Walker's Deputy Chief of Staff when he served as Milwaukee's County Executive, until March 2010 when Russell became the Housing Director for the county's Department of Health and Human Services. On 10/16/09, the complaint continues, Russell set up an unofficial (secret) email system, using a wireless connection, that "was routinely used by selected insiders within the Walker administration. The existence of this email system, which was based on personal Internet email accounts and was used both for official and unofficial purposes, was never disclosed to county employees outside a closely held group within the Walker administration," according to the Rindfleisch complaint.

Despite the fact that many of the emails on Russell's secret email system fell "within the scope of Official Records," according to the complaint, "the existence of the system was never disclosed to Laurie Panella, the Acting Director of the Information Management Services Division [who] was responsible for gathering all relevant e-mails in response to Open Records requests."

The Rindfleisch criminal complaint goes on to allege that Russell hired Rindfleisch in early 2010 as a "Policy Advisor within the Offices of the County Executive." She immediately began using the secret email system as part of her assigned duties...

Using a non-County issued, personal laptop computer and a non-County, private wireless Internet connection supplied by Tim Russell, Ms. Rindfleisch worked on projects assigned to her by Russell.

The new complaint cites a Jan. 25, 2010 Internet chat during which Rindfleisch advised a personal friend that about half of what she is doing "is policy for the campaign."

Within 25 feet of Walker's office

In March 2010, according to the complaint, Rindfleisch was promoted to Deputy Chief of Staff, working in an office that was less than 25 feet from Walker's office. During that time, she not only carried out extensive campaign and fundraising activities on behalf of the Friends of Scott Walker and the Brett Davis campaign for Lt. Governor,* but entered a separate contract wherein Davis paid her $1,000/month for her fundraising activities.

Investigators, who seized her laptop, discovered more than 1,000 emails exchanged between Rindfleisch and major players in the Friends of Scott Walker campaign, including Walker's campaign manager, Keith Gilkes, his deputy campaign manager, Stephan Thompson, and campaign communications director, Jill Bader, between February and July of 2010. Detailed documentation establishes that these occurred during hours Rindfleisch was working at the Office of the County Executive.

*As Section 11.36(2) of the WI Statutes provides that “[n]o person may solicit or receive from any officer or employee of a political subdivision of this state any contribution or service for any political purpose during established hours of employment or while the officer or employee is engaged in his or her official duties,” those named individuals from the Friends of Scott Walker and the Brett Davis campaigns may be at risk of criminal prosecution as well.

Walker: 'We cannot afford another story like this one'

The Rindfleisch criminal complaint reveals that another employee in Walker's Milwaukee County Executive Office with access to the Tim Russell secret email system was Darlene Wink, who was responsible for Constituent Services.

In a separate criminal complaint [PDF] (the "Wink complaint"), Wink was charged with two misdemeanor counts of political solicitation by a public employee. Count one alleged that Wink, who was also the Vice Chairperson of the Milwaukee Republican Party, used "both her county computer and a personal laptop she brought to work which was equipped with a USB device allowing her to connect to the Internet" in order to arrange an 11/06/09 fundraiser that would commemorate Walker's 42nd birthday and "the 'one year out' point in time from the 11/02/10 gubernatorial election."

The Wink complaint referred to numerous emails concerning the Walker birthday event between Wink and Joe Fadness, the Operations Manager for the Friends of Scott Walker Committee. It also alleged that Wink exchanged emails with Reince Preibus, then the Chairman of the WI Republican Party and now the Chairman of the Republican National Committee (RNC), in which she inquired as to the possibility of Sarah Palin attending the event.

The Rindfleisch criminal complaint alleges that Wink submitted a partisan pro-Walker, on-line comment to the Milwaukee Journal Sentinel. The Journal Sentinel then published an article on May 14, 2010 which revealed that Wink had illegally submitted the comment during county work hours, according to the Rindfleisch complaint.

There were actually two stories published by the Milwaukee Journal Sentinel on May 14, 2010 concerning Wink. The first was a column written by Daniel Bice. The other was an Op-Ed that appeared on the same day.

The Op-Ed states that Wink "quit her job shortly after Bice interviewed her."

Bice, in his column, noted that "Wink told the Journal Sentinel that she used a personal laptop to post about 70 comments on news stories since October " and that "she worked extra to make up for any time spent doing this."

Bice quoted Walker's Chief of Staff Tom Nardelli [emphasis added]:

Darlene Wink violated the policy of this office. Neither the County Executive nor his campaign or I authorized her actions. When I confronted her about these actions, she offered her resignation.

Nardelli's account about Wink offering to resign conflicts with a recent Journal Sentinel report that [emphasis added] "Walker said...he had publicly and privately told county employees that it was improper to do political work while using county resources on county time," and that "after the Journal Sentinel wrote that Darlene Wink...was posting messages in support of Walker...she was asked to resign."

The numerous emails submitted between Wink and Fadness refute Nardelli's assertion that the Walker "campaign" did not authorize Wink to utilize the email system to engage in campaign activities during office hours.

The breaking Wink story prompted an early morning, 5/14/10, email from Scott Walker to Tim Russell:

I talked to her [Wink] at home last night. Feel bad. She feels worse.

We cannot afford another story like this one. No one can give them any reason to do another story. That means no laptops, no websites, no time away during the day, etc.

There are several potentially incriminating factors that arise from this email --- especially when it is compared against Walker's recent claim that he had told county employees it was improper to do political work using county resources and that, if he'd known that other employees had engaged in such conduct, he would have asked them to resign as he did with Wink.

Recall that Russell's tenure as the Deputy Chief of Staff at the Milwaukee County Executive Office supposedly ended in March of 2010. Two months later, on 5/14/10, Russell, who had been replaced as the Deputy Chief of Staff by Rindfleisch, was supposedly working as the Housing Director for the county's Department of Health and Human Services. So, unless Walker knew that Russell was the one who controlled the secret email system, why would he email Russell about "no laptops, no websites, no time away during the day" with respect to his County Executive Office?

There is no indication in the 5/14/10 email to Russell that Walker was surprised by the allegation against Wink. He doesn't demand that his, by then former deputy chief of staff, explain how this could have occurred. He doesn't express concern as to why people are using personal laptops at work or that employees need to know they cannot engage in partisan political activity while on county time. Instead, the email expresses a desire for damage control --- "no laptops, no websites, no time away during the day..."

Damage control is precisely what occurred next. Ten minutes after Walker emailed Russell, Rindfleisch submitted an email to Russell: "I took the wireless down. It’s in my bag for now."

That email reflects that even though Russell supposedly moved over to the Milwaukee County Department of Health and Human Services, Rindfleisch was still reporting to Russell with respect to the secret email system --- an email system that, per Rindfleisch's 1/25/10 Internet chat with her friend, was being utilized to conduct "policy for the campaign."

Thus, the body of the Rindfleisch criminal complaint suggests that the formal job titles held by both Russell and Rindfleisch in their county employment simply provided cover for their primary role to engage in campaign fundraising on the county's dime.

No matter how it came about, the Rindfleisch criminal complaint alleges there was an immediate drop-off of Rindfleisch's illegal campaign activities immediately after the Wink story broke.

Wink has since pled guilty and has "cut a deal under which she agreed to provide information in a related investigation about the destruction of digital evidence and to aid in further prosecutions."

Walker lawyers up

While one suspects Russell will eventually face charges pertaining to his role in the misuse of public office case, now pending against Rindfleisch, that is not the only legal issue he faces. He was recently arrested and "charged with one misdemeanor and two felony" counts of theft (embezzlement). The first count entails an alleged embezzlement of more than $10,000, a class G felony that could produce a prison sentence of up to ten years.

Kevin Kavanaugh, another former Milwaukee County official appointed by Walker has been "accused of stealing $42,000 from veterans and their families."

The Milwaukee Journal Sentinel also reports that "John Doe" investigators are also looking into "bid-rigging or other misconduct as representatives of the privately owned Reuss Federal Plaza vied unsuccessfully in 2010 to keep the department offices..."

Jason Stein at the Milwaukee Journal Sentinel reports that while Walker claims he “will be voluntarily meeting with Mr. Chisolm,” the Milwaukee County DA, with respect to the matters alleged in the Rindfleish criminal complaint, Walker has retained Michael Steinle, an established criminal defense lawyer, and John Gallo, a former federal prosecutor, to represent him in the matter.

Earlier this month, bulldog attorney Mike Papantonio of radio's Ring of Fire told Ed Schultz (see video below) that it is not at all unusual for a target of an investigation to "voluntarily" meet with a prosecutor to see if they can extract information from the prosecutor, but Papantonio notes that it is a path that is fraught with risk.

Papantonio described the investigation as "methodical" and "textbook" and predicts that Russell will be looking to cut a deal with prosecutors. That, he says, could spell trouble for the already-embattled Wisconsin Governor.

Given the content of what has already been revealed by the Rindfleisch criminal complaint, Russell may very well turn out to hold the key to Scott Walker's future jail cell.

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Video of Mike Papantonio's 2/3/12 appearance with Ed Schultz on MSNBC's Ed Show follows...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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