Wausau ethics board denies in part motion to dismiss complaint against Mayor Doug Denny, preserves investigatory powers and sets prehearing schedule

The Wausau Ethics Board reconvened in open session and voted unanimously to deny in part and grant in part a motion to dismiss a complaint against Mayor Doug Denny, dismissing only the portion identified in the complaint as relating to 18 U.S.C. (mentioned in the record as "18 USC section 595") while allowing all other claims to proceed. The board also denied a motion in limine insofar as it would have limited the board's investigatory powers.

Board member Robin DeVos moved the combined disposition of the motion to dismiss and the motion in limine; a colleague seconded the motion. After brief discussion, the chair called the vote and declared, "The motion carries unanimously." The board then voted unanimously to direct outside legal counsel Eric Larson to prepare the board's final written determination and to authorize the chair to sign it when it is complete.

Why this matters: the rulings preserve the bulk of the complaint against the mayor for adjudication by the ethics board and affirm the panel's authority to investigate under the city's ethics code, keeping evidentiary and discovery matters open ahead of a scheduled hearing.

In prehearing matters, board legal counsel Eric Larson reported that the parties have not yet produced an agreed statement of uncontested facts, though he said respondents have proposed edits and the respondent's counsel is still reviewing the latest draft. The board's scheduling order sets discovery to close on August 29. Larson and other counsel discussed outstanding subpoenas for the city clerk and the city attorney; those witnesses have not yet been deposed.

Counsel for the respondent reported difficulties securing depositions. Attorney Erlinson said counsel for Ms. Bernardi and attorney Jacobson advised that witnesses and staff were "out of the office" and unavailable, and that the private attorney Sam Hall had "exhausted the budget that he was authorized for in this matter." Erlinson said the result so far is that depositions have not occurred and that he did not know whether the next step would be to find the witnesses or to exclude their testimony.

Larson said he had issued supplemental amended notices for depositions set for the 29th and indicated he did not anticipate those depositions occurring based on current communications. Attorney Erlinson and Larson expressed concern about taking testimony "piecemeal," with Larson saying he did not "love the idea of doing it piecemeal" because the city clerk and city attorney may have communications material to other witnesses'accounts and because doing so risks a record that does not provide full discovery rights.

Given the uncertainty about whether depositions of the city clerk and city attorney will be completed, board members discussed contingency scheduling. The board agreed to keep the hearing date of September 5 on the calendar but set a short, limited meeting for 6 p.m. on September 3 at the council chambers to address any developments and possible requests to adjourn the hearing. The board noted that if the respondent requests a later hearing date, the respondent must petition for it under the board's code; otherwise the board is required to hold the hearing within 30 days.

The board concluded by noting that further procedural questions about hearing format and procedure could be discussed either at the September 3 meeting or at the start of the hearing on September 5.