Wausau Ethics Board delays hearing in complaint against Mayor Doug Denny

The Wausau Ethics Board on Tuesday voted to adjourn the evidentiary hearing in the pending complaint against Mayor Doug Denny and set a special meeting to consider recently filed motions and procedural steps.

The board voted unanimously to move the hearing scheduled for Sept. 5 to a later date — no later than the second Friday in October — and scheduled a meeting for 4 p.m. Friday, Sept. 12, to review filings, address prehearing motions and set a firm date for the evidentiary hearing. Board counsel was asked to prepare a notice releasing outstanding subpoenas for the Sept. 5 date and to reissue subpoenas once a new hearing date is set.

Why it matters: The adjournment responds to new filings by the respondent and to efforts to complete depositions of two city officials the respondent says are needed for the mayor’s defense. Board members and counsel said they need time to review a second motion to dismiss, an alternative motion to adjourn and a motion for reconsideration filed by the respondent the day before this meeting.

Board discussion and what prompted the delay

Chairman Dexter opened the meeting by reviewing earlier procedural rulings, including that at a previous meeting the board had granted the respondent’s motion to dismiss as to "18 U.S. Code section 595" but denied other parts of a prior motion and an earlier alternative motion in limine. He said the board had adopted a scheduling order with a deadline for prehearing motions (Aug. 8), a discovery deadline (Aug. 29) and an evidentiary hearing originally set for Sept. 5.

Respondent counsel Attorney Erlinson told the board he could complete the depositions the respondent seeks "in a day" but that the city clerk and the city attorney declined to appear without counsel and that funds the common council previously authorized for their depositions have been exhausted. "They will not appear, and it's based extensively on their view that they cannot show up and testify truthfully as to matters of historical fact without lawyers present," Erlinson said. He asked the board to allow time for depositions and for transcripts to be produced before holding an evidentiary hearing.

Board counsel Attorney Larson said the board will hold a hearing but the question was timing. "This matter is going to have a hearing. I don't want anyone to think that we're somehow gonna delay and delay. There will be a hearing. The question is whether it should be Friday," Larson said. Larson noted legal limits on the board’s enforcement powers and said issues about compelling testimony or contempt would be addressed later if necessary.

Members discussed the possibility that the common council might authorize additional legal representation for the two city employees the respondent seeks to depose; several members said that if counsel were provided, those employees’ attorneys might advise them about the consequences of refusing to sit for depositions and that could change their willingness to cooperate. Director-level or common-council action on additional funding for attorney Sam Hall was referenced as occurring on the council agenda the coming Tuesday.

Motions, scheduling and subpoenas

After extended discussion and consistent statements that the board needed time to review the filings received the prior day, the board agreed to cancel the Sept. 5 evidentiary hearing and adjourn it to no later than the second Friday in October (the board adopted a friendly amendment changing an earlier "first Friday in October" backstop). The board then scheduled a meeting for 4 p.m. Friday, Sept. 12, to review the newly filed motions, discuss the outstanding subpoenas and to set or confirm an evidentiary hearing date following consideration of those filings. The Sept. 12 meeting also was intended to allow members time to read an agreed statement of facts Attorneys Larson and Erlinson said they had prepared but not yet signed.

On outstanding subpoenas for witnesses scheduled to appear on Sept. 5, board counsel recommended releasing those subpoenas now and issuing new ones once a new date is set. Attorney Larson agreed to draft a notice to be sent by staff to the witnesses to explain that the Sept. 5 subpoenas were released and that they would be notified of any new date.

What was filed and potential evidentiary consequences

The respondent filed a second motion to dismiss (or in the alternative to adjourn) and a motion for reconsideration the day before the meeting; the board said it had not yet had time to review those filings and did not rule on them at this session. Erlinson told the board that if depositions of the city clerk and city attorney are not completed, the respondent may move to exclude documents or statements authored by those witnesses from the hearing record because they would not have been subject to adverse examination.

Closing and next steps

The motions to adjourn the hearing (to a date no later than the second Friday in October) and to schedule the Sept. 12 meeting passed unanimously. The board instructed counsel to draft and distribute a notice releasing the outstanding subpoenas for Sept. 5. The board will reconvene Sept. 12 to consider the new pleadings, determine whether additional legal representation will be authorized for the city employees, and set a firm evidentiary hearing date after those matters are resolved.