On his way out, Bucher lobs a stink bomb

In one of his last acts on his way to the unemployment line, Paul Bucher throws out a pre-election partisan stink bomb: The JS reports:

Bucher sees violation by Elections Board
DA won't file charges before Tuesday's vote

Saturday, November 4, 2006

Waukesha County District Attorney Paul Bucher said Friday he has evidence four members of the State Elections Board violated the open meetings law when they voted to force Republican gubernatorial candidate Mark Green to divest $467,844 from his campaign account.

"This decision was made well in advance" of the Aug. 30 meeting in Brookfield, Bucher said. "I believe I have evidence to show an open meetings violation and I will pursue that."

Four board members agreed to vote as a bloc, Bucher said. Because only seven of the board's nine members voted, the four who had strategized over the matter constituted a majority and violated the public meetings law, he said.

Bucher declined to name which members had agreed to vote as a bloc. Michael Maistelman, an attorney with Democratic Gov. Jim Doyle's campaign, sent e-mails to three Democratic board members - Kerry Dwyer, Carl Holborn and Robert Kasieta - spelling out a strategy to punish Green's campaign.

Bucher said his investigation showed a fourth member was privy to those communications.

Bucher is a Republican who lost the GOP attorney general primary in September to J.B. Van Hollen. Bucher disclosed his findings just four days before Tuesday's election between Doyle and Green, a member of the U.S. House of Representatives from Green Bay.

"This just reeks of partisanship," said Anson Kaye, a spokesman for Doyle's campaign. "The timing of this announcement drains it of any credibility."

Brian Blanchard, Dane County's Democratic district attorney, added: "DAs should not announce charges before they're filed. It's not fair to the accused . . . especially on the eve of an election."

... Bucher said he could not file civil charges unless he received a notarized complaint about the matter, and in any case would not do so before the election.

State Sen Mike Ellis (R-Neenah) asked Bucher to look into the case after the Journal Sentinel reported on Maistelman's e-mails in September. Ellis said Friday he would file the notarized complaint to facilitate charges being filed.

"I want to find out what really happened," Ellis said.

A finding of an open meetings violations would have no effect on the order against Green, Bucher said. The Elections Board said Green had to return some of the money he had transferred to his state campaign account from his congressional fund in 2005 because it came from political action committees not registered in Wisconsin...

Bucher said the case was extraordinarily complicated and had taken weeks to review because he had to look into whether the Elections Board hearing qualified as a "contested case" under the law. It was not a contested case, he found; had it been, Bucher said he would have reviewed whether Maistelman's e-mails violated other laws...

That excuse for the timing just won't wash.

The State Ethics Board looked at the same question and decided weeks ago that it did not qualify as a contested case - a formal, adversarial legal procedure which would have banned contact outside of the hearing.

Or Bucher could have asked Kevin Kennedy, executive director of the Elections Board. I asked Kennedy when the last time was the board heard a contested case, and Kennedy replied in a e-mail on October 19:

I am not sure if we have had a Chapter 227 contested case. The statute (Section 5.06) for resolving election administration complaints exempts the SEB from the contested case procedure. Our campaign finance enforcement actions are essentially charging decisions. We have to go to court under Section 5.05 (3) to enforce our decisions.

And why didn't Bucher ask for a notarized complaint to begin with? He's run it all backwards, producing the findings before a complaint is filed.

You don't think this is political, do you? I think Anson Kaye had this one exactly right when he said it "reeks of partisanship."

But, hey, we're talking Paul Bucher. What did you expect?

UPDATE: One Wisconsin Now wonders: Is Bucher setting the table for a challenge to the election?

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UPDATE 2. The AP certainly offers a different version of what Bucher concluded:

Bucher: No criminal violation in Green money decision

By JAMES A. CARLSON, Associated Press, November 4, 2006

MILWAUKEE (AP) -- There was no criminal violation when the state Elections Board decided Aug. 30 that Republican Mark Green could not keep $468,000 in donations he had transferred from his congressional campaign fund to his run for governor, Waukesha County District Attorney Paul Bucher says.

Bucher said that after reviewing the board's action, he concluded there was no technical violation of the law, even though he was very critical of what transpired.

The board held that Green's campaign had to divest of the money because it came from political action committees not registered in the state.

It later was revealed that a lawyer hired by the campaign of Democratic Gov. Jim Doyle had consulted in advance with Democrats on the board about what strategy to take in the vote. A top state Republican also had talked with a GOP member of the board before the vote that went 5-2 against Green.

Green has challenged the decision, but a judge upheld it and the state Supreme Court has declined to take up his appeal before Tuesday's election.

The state Ethics Board also reviewed the Elections Board's action and concluded Oct. 13 there was nothing improper about the contacts that political operatives had with Elections Board members before the vote.

The Ethics Board said the contact was not illegal because the Elections Board was not dealing with a "contested case." A contested case is defined as an agency proceeding in which two parties disagree over an issue and a hearing is required by law to make a ruling.

Bucher said Friday night he came to a similar conclusion, even though he feels the decision likely was a setup "but legally there's nothing I can do about it."

"I think what happened was inappropriate (and) it totally did not pass the smell test," Bucher said.

But because the board acted at a meeting and not at a special hearing required by statute, it could not be considered a violation of the law, he said.

However, he said he would proceed with an accusation that there was a violation of the state open meetings law.