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Law enforcement: Evidence shows Guild altered emails

And deliberately withheld records — a failure to perform known duty

July 03, 2020 by Richard Moore

News analysis

After reviewing evidence seized in a raid of Rhinelander city hall last November, as well as information in an outside investigation, an Oneida County Sheriff’s Department captain concluded in March that former Rhinelander city administrator Daniel Guild tampered with public records by altering emails before releasing them to the then city council president and city attorney, sheriff’s department records show.

Oneida County Sheriff’s Department captain Terri Hook also concluded in a probable cause report Guild withheld portions of email conversations after the conversations were requested by the Rhinelander city clerk and The Lakeland Times’ sister paper the Northwoods River News, the records indicate.

As The Times has previously reported, in a Nov. 21 search of city hall, law enforcement officers also recovered some supposedly missing personnel-related records not released to the Northwoods River News in another open records request, but law enforcement officers believe should have been.

Guild has been charged with one count of misconduct in office/failure to perform a known mandatory, nondiscretionary, ministerial duty.

The issue of the allegedly altered emails arose during a period of intense controversy involving then Rhinelander city council president George Kirby, Guild, mayor Chris Frederickson, and four city council members, Andrew Larson, David Holt, Steve Sauer, and Ryan Rossing.

Indeed, on Jan. 31, 2019, Guild had sent email inquiries related to that controversy to officials at the League of Wisconsin Municipalities (LWM), and in early February 2019, the Northwoods River News issued an open records request for those conversations. Publisher Gregg Walker subsequently filed a complaint that Guild had not provided records responsive to the request, Hook stated in a March 11, 2020, probable cause report.

In the request, the River News had asked for “a copy of any and all emails between Daniel Guild, Carrie Miljevich, Mayor Chris Frederickson, Council President George Kirby and Claire Silverman, legal counsel with the League of Wisconsin Municipalities between the dates of Jan. 31, and Feb. 7, 2019.”

“These emails were significant in that they occurred at a time when four city council members and the mayor were alleged to have been involved in a walking quorum over the subject of the performance of city council president George Kirby and the possibility of removing Kirby as the president of the council,” Hook wrote in her report. “The emails the Northwoods River News were requesting were from Guild seeking information about how to remove a city council president.”

As Hook observed, Guild’s original Jan. 31 email string to the LWM contained the words “we” and “us,” but by Feb. 6 the email string had been altered so that the words showing a group interest in the information were removed. 

Individual act or concerted activity

The events leading to the allegedly altered email and failure to perform a known duty began on Jan. 28, 2019, when Kirby refused to participate in a city council meeting, frustrating at least some of his colleagues.

By Jan. 30, Frederickson, Larson, Holt, Sauer, and Rossing had composed and signed a letter to Kirby suggesting he resign.

That letter is alleged to have been the result of an illegal walking quorum and is now being litigated in the court of appeals in a lawsuit brought by Heather Holmes, the general manager of The Lakeland Times and Northwoods River News.

At the same time that the four council members and the mayor were wondering what to do about Kirby — and signing a letter about it — Guild reached out to officials at the LWM, seeking information about how to remove a city council president from his position. 

The email, sent to LWM executive director Jerry Deschane, LWM attorney Claire Silverman, and others, and entitled “Can Rhinelander get some advice quickly?,” appeared to speak for multiple people.

On Jan. 31, 2019, at 4:58 p.m., Guild wrote: “On behalf of Mayor Frederickson and members of the Rhinelander Common Council, we need to get some information quickly. Simply put, how does the common council remove the council president from this position, after he has been appointed to it? Could the council simply choose to vote and select a new president, or must the current president be removed from his position, first. We are not looking to remove him from elected office, just the council presidency. This matter is time sensitive for us. Can you help?”

After Silverman replied with her opinion, Guild responded at 6:19 p.m. that day, writing, “I know there are people here in Rhinelander who will appreciate being so promptly informed.” 

Guild sent blind copies of that email to Rossing, Sauer, Frederickson, Larson, and Holt, a sheriff’s department timeline shows.

Hot days in February

By early February 2019, things were heating up about the possible walking quorum violation, and, on or about Feb. 8, the Northwoods River News had issued its open records request for the emails with LWM officials.

On Fe. 6, in a 5:13 p.m. email to Guild, Silverman reported that Kirby had asked for the Jan. 31 email exchange between her and Guild, and, that barring any valid reason Guild could give her, she was going to give it to him.

“I have had a request from George Kirby for the email you sent me last Friday,” Silverman wrote, quoting the league’s confidentiality policy that the LWM does not generally consider its conversations with municipal officials or employees to be confidential. 

“It has long been our practice to be open and transparent when dealing with officials from member municipalities,” Silverman wrote. “Since your email was a request on behalf of the mayor and the common council and George Kirby is a member of the council, I see no reason not to share your email with him. I intend to do so tomorrow morning unless you can explain why that would be inappropriate.”

That night, at 11:40 p.m., Guild replied to Silverman he already taken care of the matter and sent the entire email string between him and LWM officials to Kirby and other city officials.

“We have had some struggles here in Rhinelander this week,” Guild wrote. “However, we have also had some hard conversations, and have put the work in to reach forgiveness, reconciliation, and a renewed commitment to moving the city forward. We are all aware of recent contacts made between Rhinelander people and the League, which have been part of our conversations. As you can see, I have copied council president George Kirby, attorney Carrie Miljevich, and mayor Chris Frederickson in on this email. Everyone should have access to the string of emails, below, and additional correspondence going forward.”

However, Hook pointed out in her March 11, 2020, probable cause report, the email string had been substantively altered, with the emails from Guild now reflecting only his desire to seek information about removing Kirby from his position, and no reference to multiple people seeking such information.

“Instead of just forwarding them the email as Guild had sent it, Guild removed words that indicated a group of people was requesting the information,” Hook wrote.

For example, in contrast to the original email sent to the LWM on Jan. 31, this version now read: “On behalf of Mayor Frederickson and members of the Rhinelander Common Council, need to get some information quickly. Simply put, how does the common council remove the council president from this position, after president has been appointed? Could the council simply choose to vote and select a new president, or must the current president be removed from the position, first. not looking to remove from elected office, just the Council Presidency. This matter is time sensitive. Can you help?”

Guild’s response to Silverman’s answer no longer read, “I know there are people here in Rhinelander who will appreciate being so promptly informed.” This version now read, “I appreciate being so promptly informed.”

Warrant request

The intent seemed to be to make Guild the only author, Hook observed in a November request for a search warrant.

“The original email contained the words ‘we’ and ‘us’ as well as the pronoun ‘he,’” she wrote. “The response to Silverman from Guild at 6:19 PM also indicated ‘people’ would be happy. It appears the altered email and altered response were an attempt to make the questions and comments be generic and appear to only be coming from Guild.”

Hook saw a motive in the alteration.

“It also appears Guild altered the email because Guild had carbon copied Miljevich, Kirby, and Frederickson,” she wrote. “There would have been no reason to alter the email if only the employees from the League of Municipalities were receiving the email as they had already received the original email.”

Hook also pointed out questions about illegal concerted activity were already swirling about by the time Guild sent the altered email string.

“It should be noted at the time the altered email and the altered response were sent with Frederickson, Kirby, and Miljevich being carbon copied on the email, there were already concerns being expressed by the media and the city attorney that a walking quorum had occurred between Frederickson, Rossing, Sauer, Larson and Holt in connection with the letter asking Kirby to consider resigning as city council president,” she wrote.

In the request for a search warrant, Hook elaborated on Guild’s alleged motive, asserting that one violation involved Guild exercising a discretionary power in a manner inconsistent with the duties of his office with intent to obtain a dishonest advantage for himself or others, namely Rossing, Sauer, Holt, Larson, and Frederickson.

“Guild was aware that there were discussions about an open meetings violation or walking quorum because Miljevich had spoken with him about Miljevich’s concerns soon after Miljevich found out that the letter to Kirby had been signed by the mayor and four alderman (Rossing, Sauer, Holt, Larson),” Hook wrote. “ … By altering the email when it was sent to Miljevich and Kirby, Guild attempted to make it appear as if Guild was asking the question himself.”

Using words like “we” and “us” in the initial email and referring to “people” appreciating Silverman’s prompt response in Guild’s initial response to Silverman would indicate that when Guild originally wrote the email, he intended to communicate that there were other people interested in the answers to these questions, Hook wrote. 

“When Guild altered the email, Guild attempted to limit the exposure of Rossing, Sauer, Holt, Larson, and Frederickson in being involved in another open meetings or walking quorum violation,” she wrote.

That was confirmed in that he blind copied Rossing, Sauer, Holt, and Larson, Hook contended. 

“Blind copy is usually used so as not to share email addresses with others within the email,” she wrote. “All of the addresses that were blind copied are public and available on the city of Rhinelander’s website so there is no other reason to blind copy the aldermen except to keep the fact that Guild blind copied them from being known.”

After the warrant

After the execution of the search warrant, Hook said she was able to confirm the email strings containing the conversation between Guild and the LWM had been altered.

“In response to the second open records request from Feb. 6, 2019, I was able to obtain the emails requested from Guild’s email as well as from a Sharepoint link in an email that Guild sent,” Hook wrote in her probable cause report of March 11, 2020. “… In reviewing the email strings, Guild did alter the email original sent on Jan. 31, 2019, by deleting and changing words when providing them to Rhinelander City Council President and City Attorney on Feb. 6, 2019.” 

In addition, Guild did not provide the full email conversation to Rhinelander city clerk Val Foley upon her request. Foley had made the request after the River News’ February records request to the city.

“Guild provided Val Foley with a letter and ten attached emails,” Hook wrote in the November 12, 2019, request for a search warrant. “His letter said, ‘I am not aware of any other related and relevant records being in my possession pertaining to this request.’ Guild included only the original email that Guild sent to Silverman and her colleagues. Guild did not include Silverman’s response, Guild’s response to Silverman, nor the string of emails between Guild and Silverman that were carbon copied to Frederickson, Miljevich and Kirby that contained the altered email and altered response. These emails occurred within the scope of this request and were found among the responses from Miljevich and Kirby. Guild’s signed letter to Foley indicated Guild knowingly withheld the altered email and response. ”

Neither did Guild provide the full email conversation to the Northwoods River News in response to the open records request, Hook concluded in her probable cause report.

In her 2020 probable cause report after the search warrants, Hook also concluded Guild did not provide the full conversation string of the emails to investigator Robert Hawn in March 2019 when he requested them with an official open records request dated March 29, 2019. 

After the River News became aware of discrepancies in the emails, Walker had asked the office of Oneida County district attorney Michael Schiek to investigate, and Schiek handed the matter to the county’s sheriff’s department, which in turn reached outside for assistance from Price County.

Investigator Robert Hawn of the Price County sheriff’s department was assigned to the case, leading to his open records request.

“While Investigator Hawn was investigating the case of the altered email/open records request from Feb. 6, 2019, he made an open records request on March 29, 2019, to obtain these same email conversations from the Rhinelander City Clerk and the Rhinelander City Administrator these same emails,” Hook wrote. “Guild did not provide the full conversation string of these emails to investigator Hawn in March of 2019 when investigator Hawn requested them with an official open records request dated March 29, 2019.”

What’s more, Hook added, Guild did not provide the full conversation string of the emails through his attorney, Kevin St. John, when Hawn asked the open records request from March 29, 2019, be fulfilled in June of 2019. 

“On June 10, 2019, Investigator Hahn contacted Guild’s Attorney, Kevin St. John, by email to determine whether Guild was going to fulfill the open records request Investigator Hahn had left for Guild on March 29, 2019,” Hook wrote in her request for a search warrant. “On June 13, 2019, St. John responded by email stating Guild believed Foley had already responded to the open records request, but St. John was including an attachment with Guild’s response. In this attachment was only the original email and response to Silverman. The altered email and altered response were not included in the documents provided by Guild through his attorney, St. John.” 

Guild is the record custodian of his own emails, Hook asserted. 

“Guild must provide Guild’s emails to the City Clerk in order for the City Clerk to be able to fulfill an open records request,” she wrote. “Fulfilling open records requests is a mandatory duty of a public official. A city administrator is a public official required to fulfill open records requests. Guild intentionally failed or refused to perform a mandatory duty of his office at least twice by not fulfilling the Northwoods River News open records request from Feb. 8, 2019, and the open records request from investigator Hawn from March 29, 2019.”

In both of those instances, Hook added, Guild specifically provided information by either attaching a letter to the documents Guild was providing or providing documents through Guild’s attorney. 

Finally, Hook also observed in her probable cause report that the city of Rhinelander does not specifically designate anyone as a records custodian in their ordinances, and so the chief administrative officer — in this case the city administrator — would be the custodian of records and would be responsible to ensure that all public records are released in accordance with Wisconsin statutes. 

“The city of Rhinelander ordinances also require that the city administrator ‘in conjunction with the mayor, act as public information officer for the city with the responsibility of assuring that the news media are kept informed about the operations of the city and that all open meeting rules and regulations are followed,’” Hook wrote. “This ordinance would also require that the city administrator comply with open records request from the media as part of his regular duties.”

A discrepancy in who noticed the discrepancy

It’s unclear who first noticed the emails had been altered. Indeed, Hawn’s interviews during his investigation offered up its own discrepancies in that regard.

In an interview with George Kirby, Kirby told Hawn he became aware Guild had contacted Silverman, and so he reached out to Silverman for a copy of the email.

“Kirby said he asked Claire what Guild had contacted her for,” Hawn wrote in his report. “Kirby said Claire was unsure if she could tell Kirby about that and that she would have to confirm with her boss if that information could be disclosed.”

A day or two later, according to Hawn’s report, Silverman contacted Kirby to tell him they could discuss the matter and that it was about removing him as council president. Silverman ultimately provided Kirby with the email thread.

Kirby told Hawn in his interview Miljevich first came into possession of the altered emails and had told Kirby that Guild was “changing the wording of the emails.” For her part, Miljevich told Hawn that Kirby noticed the discrepancies.

In the end, no matter whether Kirby or Miljevich or both of them noticed the discrepancies, the discrepancies existed.

“Kirby told me that the bottom line was that Guild altered the emails,” Hawn wrote in his investigation report.

Kirby also gave his opinion about why Guild altered the emails: “Kirby said Guild did this because he did not want to make it appear as if he (Guild) was a part of the other four council members requesting the removal of Kirby from the Council Presidency.”

Kirby then told Hawn he believed Guild was the voice behind the council members attempting to remove him from the council presidency but was doing it in a way that made it appear that he was not involved. 

Finally, Kirby also told Hawn he believed there should be consequences for the walking quorum incident.

“Kirby said that he believed that those involved in the walking quorum, they should not have been able to ‘walk away’ from that; that there should have been some type of reprimand,” Hawn wrote. “… Kirby said that people need to know the difference between right and wrong.”

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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