/ Articles / Rhinelander city administrator formally charged with misconduct in office

Rhinelander city administrator formally charged with misconduct in office

April 17, 2020 by Jamie Taylor

Rhinelander city administrator Daniel Guild was formally charged Tuesday with one count of misconduct in office, failure to perform known duty and made his initial court appearance via video from the Oneida County Jail.

Guild was arrested Monday morning during a traffic stop by Oneida County Sheriff’s deputies and was held in the jail until the charge was filed Tuesday.

During his brief court appearance, Branch I judge Patrick O’Melia imposed a $5,000 signature bond with no other conditions and set a March 30 date for Guild’s preliminary hearing.

The charge is the result of an investigation that began as a result of a complaint filed by The Lakeland Times and Northwoods River News owner/publisher Gregg Walker regarding open records requests filed with the city that had not been fulfilled.

The first request was for “any and all written disciplinary records and documentation involving any investigation conducted into any adverse complaints therein, made against public works director Tim Kingman between Jan. 1, 2017 to present (July 23, 2018). The complaints may or may not have been determined to be actionable.”

On Aug. 1, 2019, the River News received a response to this records request from Guild. The response stated:

“Since Mr. Kingman has left the City, it has been discovered that his personnel file was inappropriately removed from the City’s files. That conduct was wholly contrary to City policy and procedure, and the City is continuing to investigate how this may have occurred. As a result, as of the present date, the City is not in possession of any records responsive to (the reporter)’s request. The City is deeply troubled that Mr. Kingman’s personnel file was tampered with and, to the extent additional records from Mr. Kingman’s personnel file are located in the future, the City will provide them to you.”

Walker told sheriff’s department detectives that the newspaper was concerned that record tampering of the requested documents may have taken place.

The complaint cited multiple current and former employees of city hall who told detectives personnel records are kept in a locked file cabinet in the administrator’s office and Guild was the only person with a key.

The investigation

The report from sheriff’s department captain Terri Hook attached to the complaint also alleges that, in a June 23, 2019 email to then city attorney Hector De la Mora, Guild said “that he has a file cabinet with employee files for most all current and many former employees of the city, ‘including a file for Public Works Director Tim Kingman.’”

Oneida County detectives also reviewed the information uncovered by Price County Sheriff’s Department investigator Robert Hawn during his investigation into an email from Guild to then city attorney Carrie Miljevich, Mayor Chris Frederickson, council president George Kirby and Claire Silverman, legal council with the League of Wisconsin Municipalities that appeared to be altered. The River News had filed an open records request Feb. 8, 2019 for “any and all emails” between those people between Jan. 31 and Feb. 7, 2019.

Frederickson and four members of the city council had signed and delivered a letter to Kirby admonishing his conduct at the Jan. 28, 2019 meeting where Kirby walked out of the meeting leaving the council without a quorum to conduct city business. Guild contacted Silverman seeking information on how the council could remove Kirby as council president.

“Guild had originally written an email that contained the words ‘we’ and ‘us.’ By February 6, 2019, the date of the second email (from Guild to Silverman), there had been concern expressed about the walking quorum and Guild altered the email string so that the words that showed a group interest in the information was removed,” Hook’s report states.

Hawn filed his own records request for the email string and had determined that when the records request was filed, city clerk Val Foley said she had requested the email string from Guild, who provided them to her to turn over to the River News.

Detectives then obtained two search warrants from O’Melia, which were executed on city hall on Nov. 21, 2019. One of the search warrants was for Kingman’s personnel file while the other was for the altered email. Oneida County Sheriff’s detectives were assisted in the search of city hall by detectives from Vilas and Marathon counties and the Wisconsin Department of Justice-Division of Criminal Investigation. The report said that detectives from Marathon County and the DCI extracted electronic data from the city’s computer server and electronic devices in Guild’s office, including his email account.

The report states a number of physical documents involving Kingman and other present and former city employees were found in various locations in city hall, including in a “locked cabinet in the locked area of the basement of city hall.” Some of the documents were found on a thumb drive found in Guild’s office. The report states a total of nine documents that would have been responsive to the River News open record request were found during the search.

“These documents were in the control of Guild and would not have been accessible to the Rhinelander City Clerk unless Guild provided them to her,” the complaint said.

The report goes on to say after the search of city hall, a member of a local media outlet contacted investigators with a 10th document. The document was an email from Kingman to former interim city administrator Keith Kost from March 19, 2018, which also included a three-page document. 

Hook’s report stated the media representative told investigators Guild had instructed the reporter to request the email and document directly from Guild, bypassing the city clerk. Once the representative did so, Guild allegedly sent him a link to where the documents could be found. The media representative turned those documents over to detectives.

The report alleges Guild did not provide the full email conversation from 2018 to Foley, nor to the River News. In addition, when Hawn filed his own request in March 2019, Guild did not turn over the entire string, either himself or through his attorney at the time.

“In reviewing the email strings, Guild did alter the email sent on January 31, 2019 by deleting and changing words when providing them to Rhinelander City Council President and City Attorney on February 6, 2019,” the report states. “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.”

The report went on to list the duties of the city administrator as set forth in city ordinances that requires Guild to “keep the mayor and Council regularly informed about the activities of the Administrator’s office by oral or written report at regular and special meetings of the Council.”

“It was not until September 9, 2019, almost a whole year since Guild became the City Administrator that Guild came to the City Council and told the full City Council that there was an issue with Tim Kingman’s (file) being missing,” the report states.

The report also says that by city ordinance, the 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 operation of the City and that all open meeting rules and regulations are followed,” Hook’s report said. 

Hook goes on to state that this duty would also require that the city administrator would have to comply with open records requests from the media “as part of his regular duties.”

The report ends with Hook stating she would be arresting Guild for misconduct in office “as he has intentionally failed or refused to perform a known, mandatory, nondiscretionary, ministerial duty of the employee’s office or employment within the time or manner in the manner required by law.”

Misconduct in office is a class I felony that carries a maximum prison sentence of three years and six months and/or fine up to $10,000.

Council action

At Monday’s city council meeting, Frederickson, at the behest of city attorney Steve Sorenson, moved the request for future agenda items to the beginning of the meeting so that the council could schedule a special meeting to address Guild’s future with the city. Three alderpersons, Lee Emmer, Dawn Rog and Kirby had requested Frederickson issue an emergency amendment to the agenda to enable the matter to be addressed immediately. Rog and Kirby were not in attendance at the meeting, but had sent their requests by email.

Frederickson stated his intention would be to hold a special council meeting on Tuesday instead of amending Monday’s agenda enable to “provide the media 24 hours notice.”

Sorenson mentioned the emails and calls asking to include the matter on the agenda, but cautioned the six alderpersons in attendance against rushing into any action that was either against state statute or Guild’s employment contract.

“It’s not on the agenda to talk tonight about what we are going to do about the city administrator, who has been arrested and may not be able to carry out his duties,” Sorenson said. “Under the open meetings statute ... it is required that we give 24-hour notice.”

He said that state statute requires the person who may be affected by a personnel decision the council may make at this meeting must also be given 24 hours notice.

Sorenson said he suggested to the mayor that instead of using an emergency provision of the open meeting statute, a special meeting be scheduled so that a minimum of 24 hours notice could be given.

Emmer then made a motion a special meeting be called to discuss “the suspension or dismissal of Daniel Guild,” which drew a second from Tom Kelly.

Council member David Holt challenged the words “suspension” and “termination” in the motion, and suggested a more appropriate term would be “leave of absence.”

Sorenson pointed out state statute prohibits an employer from discharging an employee based solely on the fact they had been arrested.

“Arrested is a protected class,” Sorenson said. “Just because you are arrested does not mean that you are guilty.”

He also said, under the terms of Guild’s contract, the council cannot suspend or terminate him “without giving him two-weeks notice.” Sorenson said Guild could be placed on administrative leave “if he is unable to perform the duties of his job” but that leave would be with pay. 

“If you want to do anything tomorrow night, the only thing you could do is you could grant him administrative leave, which would mean you would excuse him from the responsibilities of his job,” Sorenson said. 

He said if the council decides it wants to give Guild notice it would terminate his employment for cause, it could do that with the proper two-weeks notice and hold a hearing to determine if there is indeed cause to terminate his employment. If that were to take place, Guild would not receive any severance pay. If he were terminated without cause, the city would have to pay Guild six months salary as severance. 

“I think we should terminate Daniel without cause and pay him the six months pay,” Emmer said. “And that is why I said terminate (in the motion).”

After discussion on the merits of Emmer’s motion, the motion was put to a vote, with Holt, Steve Sauer, Andrew Larson and Ryan Rossing voting nay while Emmer and Kelly voted yes.

The issue of scheduling a special meeting with enough alderpersons to reach quorum was also discussed, with Sauer eventually making the motion to hold it Friday, with Emmer providing the second. That motion passed unanimously.

When asked, Sorenson said a simple majority would be sufficient to terminate Guild’s employment. 

Both Sorenson and Frederickson said that the department heads would be able to assist the two of them in keeping the city running smoothly. 

As the council tried to determine what agenda items to have at Friday’s meeting, Sorenson addressed the gallery about the process that was going taking place.

“We’re trying to do everything by the book,” he told the audience.

Emmer made a motion that the council vote Friday to allow Kirby and Rog to take part in the meeting telephonically, even though the council rules had been changed in December to no longer allow that practice. After about five minutes of discussion, a vote was called with Emmer, Kelly and Rossing voting to allow the absent alderpersons to call in while Holt, Larson and Sauer voted nay. Frederickson voted yes to break the tie, pushing the final decision off until Friday.

Emmer and Kelly made a motion for the second agenda item for Friday be to discussed and take action to either the suspend Guild, place him on administrative leave or terminate his employment.  

Sorenson said the various options available to the council could take against Guild at tonight’s meeting couldn’t be discussed at Monday’s meeting because it is not on the agenda for Monday’s meeting. Doing so would be a violation of the open meetings law.

The council eventually unanimously approved the motion to discuss Guild’s continued employment at Friday’s meeting.

That meeting will be held tonight at 7 p.m. in the council chambers of City Hall.

Jamie Taylor may be reached via email at [email protected]

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