Brazeau Board Heeds Legal Advice; Sets Aug. 14 Recall

Incumbent Town of Brazeau supervisors James Hanna and Darrell Enix will face a recall election on Tuesday, Aug. 14. Acting on advice of Michael P. Screnock, an attorney they had approved hiring on Tuesday, June 26, the board at a three-minute meeting on Thursday, June 28 set the recall election date as strongly advised by Wisconsin’s Government Accountability Board (GAB), the state’s elections watchdog agency. The action also brought them into compliance with an order issued by the state Attorney General’s office.

The recall voting will be held in conjunction with state and county primary elections already scheduled for that date, which the GAB recommended as being less expensive for the town than a separate additional election. If a primary election is necessary, that will be on Aug. 14, and the recall election itself will be on Tuesday, Sept. 11. The terms up for recall end at midnight of April 15, 2013.

Scheduling the recall election apparently forestalls action threatened by the Wisconsin Attorney General’s office in a formal notification dated Friday, June 22. According to that notice, signed by Assistant Attorney General Christopher A, Blythe, failure to comply could have resulted in personal financial penalties including liens against real estate, garnishment or seizure of property of the offending town officials, which would be the two town supervisors who are facing recall, and Town Chair Ryan Wendt. Wendt has consistently attempted to support the recall, but on a three-member board has been out voted by the two supervisors who are the subjects of the recall.

It was after receiving Blythe’s notice that Hanna and Enox voted to hire Screnock, an attorney with the prominent Madison law firm, Michael A. Best & Friedrich, LLP.

Immediately after the June 28 meeting, potential challengers of Hanna and Enox were authorized to begin circulating nomination papers. They have until 5 p.m. Tuesday, July 17 to file candidacy papers with Town Clerk Jean Grosse. Enox and Hanna will automatically be candidates unless they resign their positions no less than 10 days prior to the recall balloting.

Scheduling the recall election culminated months of discord in the town, starting in early February when Michael A. Luebke and Carl A. Porior signed a statement of intent to circulate recall petitions.

There have been numerous split votes by the town board, with Hanna and Enox on one side and Wendt on the other, plus legal challenges of recall petitions and threat of legal action by the GAB against town officials who failed to comply with their orders to set a recall date.

Oconto County District Attorney John A. Evans, Blythe, GAB Director Kevin J. Kennedy, GAB Staff Counsel Michael Haas, Screnock and a high percentage of the Brazeau population have all been involved in the ongoing dispute.

The town board’s June 26 decision to hire Screnock came after another failed attempt to schedule a recall date, and in the face of warning from the GAB that legal action to force the election had already been started by the office of Wisconsin Attorney General J. B. Van Hollen.

The refusal to schedule a suitable date had already led Van Hollen’s office to issue a “Summons and Injunction” advising that the petitioners had filed a lawsuit against Enix, Hanna and Wendt, and warning, “If you do not provide a proper answer within 20 days the court may grant judgment against you for the award of money or other legal action requested in the complaint...”

“A judgment may be enforced as provided by law,” the notification went on. “A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.”

The June 28 meeting was apparently called in response to a prompt letter of advice from Schrenock. It preceded by just one day another order from the GAB, this time signed by GAB Director Kevin J. Kennedy, ordering them to schedule the recall election or face legal consequence

In his letter, addressed to Wendt, Schrenock wrote: “I understand that the Town Board will be meeting tonight for the purpose of taking action to set a date for recall elections in response to recall petitions filed against Supervisors Darrell Enix and James Hanna. As you know, (Wisconsin Statutes) ... delegates to the Town Board the task of calling a recall election once presented with a certificate from the Town Clerk that a given recall petition is sufficient. On June 18, the Wisconsin government Accountability Board reviewed the facts surrounding the Clerk’s certification of the Enix and Hanna petitions and issued an order directing the Town Board to ‘promptly convene to call the recall elections.’ “ He added that GAB also recommended scheduling the recall in conjunction with the Aug. 14 partisan primary. Action at the June 28 meeting allowed just enough time to comply with that recommendation, so there would be no impediment. According to his letter, the only possible alternative date would have been Tuesday, Aug. 7. Screnock also recommended the Aug. 14 date to avoid administrative burdens and additional costs that would result from setting it for any other date.

“As to the pending Circuit Court action,” Screnock wrote, “I have been in contact with Assistant Attorney General Christopher Blythe regarding the GAB’s petition for a court order compelling the town Board to set recall election dates, and he is in agreement that the Circuit Court action could be resolved relatively quickly in the event the Town Board sets a recall election consistent with GAB’s order.”

On April 13, town resident Michael J. Luebke had filed petitions with Clerk Jean Grosse, seeking recalls of Hanna and Enix. Those petitions, with 212 and 202 signatures respectively, were found sufficient by Grosse and filed with the Wisconsin Government Accountability Board (GAB) on May 11. Only 145 valid signatures are required to order a recall election for Brazeau officials.

State law requires that when a valid recall petition is filed the governing body, school board or board of election commissioners (in this case the town board) “shall” call a recall election, and that election “shall” be held on the Tuesday of the 6th week commencing after the certificate is filed. The only exception is if that 6th Tuesday falls on a legal holiday, in which case they are to be held the following day. In Wisconsin legalese, “shall” designates an action that is mandatory, not optional.

The recall efforts began in February, when Luebke and Porior filed statements of intent to circulate the petitions.

The entire process was challenged by Enix, but in a June 29 ruling the challenge was dismissed.

According to the June 29 GAB ruling, a registration statement filed with the Town Clerk on Feb. 22 did not include a depository account number for the recall committee, but that was remedied on March 5, and signatures collected between those two dates are valid. There also had been a challenge of a $300 deposit Leubke made to the recall account on March 1, but the GAB ruled that would have no effect on the sufficiency of the recall petition, and did not violate the rule that donations over $25 must be reported within five business days. Despite finding a few invalid signatures, the GAB determined that the recall petition filed against Enix contains 198 valid signatures, exceeding the minimum requirement of 145, and therefore affirmed the Certificate of Sufficiency filed by Clerk Grosse on May 11.

At the town board meeting on May 18 the board refused to schedule the recall elections, and voted two to one to reject the clerk’s certification of the recall petitions.

The petitions subsequently were challenged by the two supervisors, but so far the GAB has concurred with the findings of Grosse that they are sufficient and ordered the town board to schedule the elections.

In his official capacity as Oconto County District Attorney, Evans then advised the board that it had a mandatory duty to promptly schedule the recall elections.

On Wednesday, June 13 the town board approved a motion to schedule elections just six days later, on Tuesday, June 19. Again, Hanna and Enox were in favor and Wendt opposed.

By an order dated Monday, June 18 and signed by Kennedy, the GAB invalidated the town board’s action and directed the board to convene and schedule the recall elections “in a reasonably timely manner, as required by the statutes.” That order states that state statutes contemplate a period of approximately six weeks between the date the recall election is scheduled by the governing body and the election, in order to publish the required notices, circulate nomination papers, print ballots, conduct absentee voting, and prepare personnel and materials for the election.

The June 18 “Findings and Order” stated that continuing failure of the board to promptly call the recall elections “would constitute election fraud ... as a willful neglect or refusal to perform a prescribed duty under Wisconsin’s election laws.”

The GAB’s look at the validity of signatures is continuing, but their message was that the recall had to be scheduled, but could be canceled if the petitions are found insufficient. Failure to set a date, the order warned, could have led to various legal actions against town board members, both as individuals and in their official capacity as town officials.

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