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Did Team Evers break the law?

Empower Wisconsin | June 12, 2020

By M.D. Kittle 

MADISON — Did Team Evers break Wisconsin’s privacy laws when they secretly recorded a meeting with Republican leadership? 

No, if someone from Evers’ staff knew that the recording was being made. If the conversation was recorded by some Evers lackey without the knowledge of any party involved in the discussion (unlikely), that could present some legal problems for the surreptitious recorder, a legal expert tells Empower Wisconsin

Ultimately, the real problem is a serious rupture of trust in Wisconsin’s bitterly divided government, said Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty. 

“It’s clear both sides don’t trust each other. I can’t think of anything that would undermine trust more than surreptitiously recording a conversation. It’s something that people who have respect for people don’t do,” he said. 

But can they? 

Yes. At least in Wisconsin. 

Wisconsin is a one of 38 states and the District of Columbia with “one-party consent” laws. In short, a person can record a conversation with someone without getting the other party’s permission. 

That appears to be what happened during the tele-meeting last month between Evers, his staff and Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) and members of their staffs. The conversation occurred on May 14, the day after the Wisconsin Supreme Court struck down the Evers administration’s statewide lockdown, declaring the public health edict in response to the pandemic “invalid.” Democrat Evers and the Legislature’s majority leaders discussed next steps to safely reopen Wisconsin. 

Evers’ spokeswoman Melissa Baldauff told the Milwaukee Journal Sentinel that the governor was not aware of the recording. He has instructed his staff not to do it again, according to Baldauff. The meeting was also recorded to “make sure” Evers team “had an accurate account of what happened because Republicans and Democrats have publicly disagreed over how past meetings had gone,” the newspaper reported. 

Baldauff, who refuses to answer Empower Wisconsin’s questions, further told the Wisconsin State Journal that the recording was never intended to be distributed to the media. Well, it was. Republican leadership learned of the secret tape after the Journal Sentinel sought similar recordings from Vos’ and Fitzgerald’s offices. They could not fill the request because, unlike Evers staff, the Republicans’ didn’t record the meeting. 

“The recording was intended for internal use only to inform detailed note-taking and planning next steps,” Baldauff told the State Journal. “This was not intended for release to the media or anyone else. However, we were obligated to comply with the open records law to release these records once they were requested.”

But who recorded the meeting? As of Thursday, that wasn’t clear, but it is clear someone on staff did. 

‘Bush league’

Conservatives and privacy advocates were livid. Even some liberals called for heads to roll in the Evers administration. 

Assembly Minority Leader Gordon Hintz (D-Oshkosh) said the administration’s actions don’t help the already-strained relationship between Democrats and Republicans in state politics. 

“It’s not acceptable. It’s not how we do things,” he said Thursday morning on the Fresh Take with Josh Dukelow on WHBY Radio in Appleton. It’s pretty bush league and amateur to have something like that happen and I do not condone that in any way.”

State Rep. Jonathan Brostoff (D-Milwaukee) tweeted Thursday that “whoever that person is should be fired immediately.” 

Of course it was only a matter of time before Brostoff was pilloried by his friends on the radical left. He walked back his tweet, or at least “clarified” it to say that “secretly recording conversations is never a good look.” And then he doubled down on the narrative Team Evers and their pals in the mainstream media really wanted to push — that Vos made “racist” comments and “should resign immediately.” 

On the recording, the speaker talks about the spread of COVID-19 among the area immigrant populations. 

“I know the reason at least in my region is because of a large immigrant population where it’s just a difference of culture where people are living much closer and working much closer,” he said, according the Journal Sentinel story published Thursday morning. 

The piece, of course, goes on to quote infuriated liberal activists who would have no idea of Vos’ comments without release of the secretly recorded audio — without the Journal Sentinel being tipped off by someone about the audio. 

As the newspaper noted (at the bottom of the story) — Latinos make up 13 percent of the population of Racine County, the speaker’s district, and account for 23 percent of confirmed and probable cases. 

“There is nothing in the recordings that I would not say in public, but to learn that what were assumed to be private conversations between leaders was recorded secretly is an absolute breach of trust,” Vos said in a message to Racine Republicans. 

He told the Journal Sentinel that the real issue is Evers’ staff “choosing to secretly record the Legislature.” 

Is this the first time the governor’s team secretly recorded conversations? Empower Wisconsin is trying to find out. We have filed a request with the governor’s office for that information. 

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