GAB dismisses GOP complaint against Holperin
Sen. Jim Holperin, 12th Senate District
GOP accused senator of trying to influence federal judge
8/9/2011 11:01:00 AM
By Heather Holmes
The Wisconsin Government Accountability Board (GAB) dismissed a complaint Tuesday against Sen. Jim Holperin (D-Conover) alleging a state ethics law violation.
sThe board released its findings to Holperin and to the media on Thursday.
As The Lakeland Times reported in last Tuesday's edition, the Committee to Elect a Republican Senate had accused Holperin of illegally trying to influence a federal judge on behalf of a campaign donor, and a GAB decision was pending.
On May 8, Holperin had penned a character letter to federal judge William Conley on behalf of Gene Wendt, the former owner of Crown Point Classics in Hazelhurst. In the letter, Holperin said that, while Wendt's "plea" meant he must "accept whatever additional punishment the court decides is appropriate," he hoped Wendt's "caring and decent" integrity would count for something.
The senator does not mention any particular case.
However, Wendt entered a guilty plea July 19 on one count of federal tax evasion and is to be sentenced Oct. 4. Conley is the judge in the case.
Despite the guilty plea in July, a plea deal was long in the works for Wendt. On May 11, three days after the date of Holperin's letter, a proposed plea agreement - accepted by Wendt on May 26 - was sent by U.S. attorney John W. Vaudreuil to Wendt's attorney, Stephen Kravit, court records show.
In the view of the Committee to Elect a Republican Senate and of its executive director, John Hogan (not Rhinelander attorney John Hogan), Holperin's letter possibly violated a state ethics' law prohibiting state officials from using their position to influence or gain something for others.
In the tax case, Wendt reached a plea agreement in which he waived indictment and agreed to plead guilty to one count of tax evasion for failure to pay employee payroll taxes.
The felony carries a maximum sentence of five years in prison and a $250,000 fine. Wendt has yet to be sentenced, but, in the signed plea, the United States attorney agreed to recommend a sentence "at the bottom of the applicable advisory guideline range."
The GAB decision
In an Aug. 4 letter to Holperin and Hogan, Kevin Kennedy, GAB director and general counsel, said the board had found "no reasonable suspicion" that Holperin had violated any of the laws it administers.
"The first complaint alleged that Sen. Holperin had violated (the statutes) by sending a letter to a U.S. District Court judge as part of a sentencing hearing of a supporter," Kennedy wrote. "The supporter furnished the following campaign contributions to Sen. Holperin - $10 in 2010, $50 in 2009, and $112.99 in 2008. The statute prohibits an official's use of public position 'to influence or gain unlawful benefits, advantages or privileges' for anyone (emphasis added). The board is unaware of any law that makes such a letter unlawful."
(The campaign donations listed by GAB conflict with the Wisconsin Democracy Campaign's database, which indicate three donations in 2008 totaling $237.99 and none in 2009 or 2010).
Prior to the decision's release last Thursday - even that morning before the letter was released, a GAB official told The Lakeland Times he could make no comment - GAB staff could not discuss the status of the complaint, except to other law enforcement.
State statutes generally bar release of records related to ethics complaints or investigations conducted by the board, except in certain limited circumstances. For example, the statutes provide that a record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred is open to public inspection.
That is to say, the dismissal letter is public - as Thursday's was - but not the complaint itself.
Not only are complaint files generally closed, but the GAB could not make any comment about the pending complaint before formal dismissal, as it notes on its official website.
"By statute, with limited exceptions, all aspects of, and records related to, an investigation are confidential," the website states. "The Board's staff may acknowledge the existence of a complaint only if the complainant makes it public. All actions by the Board take place in closed session."
At the conclusion of an investigation, the website continues, the board may dismiss a complaint, seek a voluntary forfeiture, bring a court action for a civil forfeiture, or refer a matter to the appropriate district attorney for criminal prosecution.
"Only a voluntary settlement agreement, court action, or referral to a district attorney are public," the website states.
The letter in question
In his May 8 letter to the judge, Holperin typed his name as "Jim Holperin, State Senator 12th District."
He did not, however, use official stationery, and he called his communication a "character" reference. He did say he hoped Wendt's sentence would not cause him to lose his job.
For his part, Wendt's attorney, Stephen Kravit, said the reference letter was solicited by his law office in the normal course of gathering character reference letters for his client, and the letter remains on file in his office and has never been seen by the judge.
According to GAB guidelines, lawmakers who craft reference letters for people should write generic letters that avoid addressing the letter to any one person, and should use such salutation language as 'To whom it may concern.'
"By writing a reference letter that the subject may convey to any number of schools, scholarship committees, potential employers, et cetera: The official demonstrates support for the person who has sought the reference; the person who has sought the reference may use the letter for multiple applications; the official is not in direct correspondence with (or solicitation of) anyone."
The guidelines do not address how to prepare character reference letters for use at sentencing, although that is not uncommon.
Vilas County sheriff's report
The Committee to Elect a Republican Senate had also filed a complaint with the Vilas County Sheriff's Department, which had earlier dismissed it.
However, the case remained pending before the GAB, which has primary jurisdiction in state ethics code violations, as the report by detective Carl Gauger indicates. Generally, only complaints against local officials are lodged locally, and then most often to county district attorneys, which may involve local law enforcement in investigations.
Nonetheless, the sheriff's department can follow up on statutory violations, and, in his report, started July 14, Gauger said he reviewed Holperin's letter and did not see any violation of the ethics statute.
"Character references are solicited by both defense and prosecution," Gauger wrote. "It is common for character reference letters to be filed on behalf of defendants by government officials, corporate officials and others that are willing to attach their reputation and character to a defendant. There is no 'unlawful benefit' for Wendt that would be derived from this letter."
Section 19.45 (5) of the statute reads, "No state public official may use or attempt to use the public position held by the public official to influence or gain unlawful benefits, advantages or privileges personally or for others."
As the GAB emphasized in its Aug. 4 letter, it focused on whether the letter itself was unlawful, whether or not it represented an attempt to secure a private benefit for Wendt.
Whether such a letter was 'unlawful' would hinge on several debatable factors, among them the fact that Wendt, along with his wife, have been contributors to Holperin's campaign efforts, which the GAB also noted in its findings letter.
The GAB obviously concluded it was not unlawful, but the debate has raged in other quarters. For example, Congress passed a rule stating that senators can and ought to help citizens in dealing with government but nonetheless prohibits them from doing so "on the basis of contributions or services, or promises of contributions or services, to the Member's political campaigns."
So a campaign contributor cannot accrue benefits or obtain services different from any other constituent.
Plea was in motion
Gauger also reported a discrepancy between the date of Holperin's letter, May 8, 2011, and the date of the charges filed against Wendt, on June 2, 2011.
"On 07-15-11 according to PACER (Public access to federal court records) charges were filed on June 2, 2011 for willful failure to collect/pay over tax against Wendt, case# 3:11-cr-00061," Gauger wrote. "There has been no plea accepted by the court, and a sentencing date has not been set."
To be sure, charges were filed June 2, and Wendt pleaded guilty on July 19. But while a plea had not been accepted, the police report does not mention the existence of a signed proposed plea deal between the U.S. attorney and Wendt on May 26.
Nor does Gauger mention the May 11 letter proposing that plea agreement to Wendt's attorney, indicating that negotiations were far along when Holperin wrote the letter.
The signed plea deal, though still not accepted by the court, was available on the PACER site.
Gauger also observed that the court clerk told him the court had not received a letter from Holperin referencing Wendt, and that Wendt's attorney said the letter had not been forwarded. There was no mention made of any attempt to reach Conley himself, and Gauger said that Kravit told him he didn't know whether he would use Holperin's letter or not.
Finally, Gauger disclosed the confidential results of a GAB staff recommendation in his report, which is a public record, saying staff attorneys considered the complaint to be without merit and that it "would be dismissed at the next official GAB meeting."
However, that assertion also meant the complaint officially remained pending until the GAB meeting, which occurred last Tuesday.
Gauger filed his report July 19, the day Wendt entered his guilty plea.