Ethics Board

AGENDA OF THE ETHICS BOARD THURSDAY, FEBRUARY 3, 2022, 5:00 PM Virtual Meeting. Public may join via Zoom. A. Zoom Meeting Instructions. 1. This item contains Zoom information, instructions, and a link to the Virtual Comment Form. B. Roll Call. 1. William Vande Castle, Chair; Aaron Weinschenk, Vice Chair; Alder Bill Galvin; Cheryl Renier-Wigg; Said Hassan; Janet Hathaway C. Approval of the Agenda. 1. Approval of the Agenda for the February 3, 2022 Ethics Board meeting D. Approval of Minutes. 1. Approval of the minutes from the December 14, 2021 Ethics Board Meeting. E. Regular Business. 1. Discussion with possible deliberation and action on the following topics related to the Ethics Complaint filed by Kimber Rollin against Mayor Eric Genrich under the City of Green Bay Code of Conduct for Elected Officials: 1. Recusal issues. 2. Jurisdictional issues. 3. Other matters and future scheduling. The Board may convene in closed session pursuant to Section 19.85(1)(a), Wis. Stats., for purposes of deliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governmental body. The Board will thereafter reconvene in open session pursuant to Section 19.85(2), Wis. Stats., to take action on items discussed in closed session, if appropriate, and to consider the remainder of the agenda. F. Adjournment. Agenda of the Ethics Board February 3, 2022 Page 1  1) THIS MEETING IS RECORDED: THE VIDEO OF THIS MEETING AND MINUTES ARE AVAILABLE ONLINE AT www.greenbaywi.gov 2) ACCESSIBILITY: Any person wishing to attend who requires special accommodation because of a disability, should contact the City Safety Manager at 920-448-3125 at least 48 hours before the scheduled meeting time so that arrangements can be made. 3) QUORUM: Please take notice that a majority or quorum of the Common Council will attend this Ethics Board meeting and will constitute a meeting of the Common Council for purposes of discussion and information gathering relative to this agenda. 4) REPRESENTATION: The party requesting the communication, or their representative, should be present at this meeting. Agenda of the Ethics Board February 3, 2022 Page 2 Virtual Meeting Instructions Ethics Board 2-3-2022 Zoom Meeting Information Join Zoom Meeting https://us02web.zoom.us/j/88539089659?pwd=cERTdll6SFhMaEJlVDlBcXJuMVlmUT09 Meeting ID: 885 3908 9659 Passcode: 929926 One tap mobile +19292056099,,88539089659#,,,,*929926# US (New York) +13017158592,,88539089659#,,,,*929926# US (Washington DC) Dial by your location +1 929 205 6099 US (New York) +1 301 715 8592 US (Washington DC) +1 312 626 6799 US (Chicago) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) Meeting ID: 885 3908 9659 Passcode: 929926 Find your local number: https://us02web.zoom.us/u/kxbQ7KMBN Public Comments If you wish to speak at this public meeting or leave a comment, please fill out the online Comment Form prior to the meeting. Additional Information 1. Wisconsin Open Meetings Law still applies a. 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If you’re using a smartphone, look at your screen and click the Mute button  Report to the Ethics Board of the City of Green Bay MEETING DATE PREPARED BY February 3, 2022 AGENDA ITEM # E.1 Discussion with possible deliberation and action on the following topics related to the Ethics Complaint filed by Kimber Rollin against Mayor Eric Genrich under the City of Green Bay Code of Conduct for Elected Officials: 1. Recusal issues. 2. Jurisdictional issues. 3. Other matters and future scheduling. The Board may convene in closed session pursuant to Section 19.85(1)(a), Wis. Stats., for purposes of deliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governmental body. The Board will thereafter reconvene in open session pursuant to Section 19.85(2), Wis. Stats., to take action on items discussed in closed session, if appropriate, and to consider the remainder of the agenda. BACKGROUND RECOMMENDATION FISCAL IMPACT ATTACHMENTS 1. Complaint - Rollin v Genrich 2. Lenz letter w jurisdictional arguments 3. Rollin Response to Jurisdictional and Recusal Issues 4. Genrich Reply Letter 5. Genrich Reply Exhibit 100 North Jefferson Street, Room 608, Green Bay, Wisconsin 54301-5026 (p) 920.448.3400 (f) 920.448.3426 greenbaywi.gov December 9, 2021 City of Green Bay Ethics Board c/o Attorney Michael May Boardman & Clark LLP 1 South Pinckney Street, Suite 410 PO Box 927 Madison, WI 53701-0927 Re: Rollin Code of Conduct Complaint To the City of Green Bay Ethics Board, On behalf of Mayor Genrich, thank you for giving our client an opportunity to address the jurisdictional defects in Kimber Rollin’s Ethics Complaint (the “Complaint”), dated November 4, 2021. The 2020 General Election was conducted to the highest standards governing elections in Wisconsin. Mayor Genrich is proud of the city staff and election officials who worked to ensure that citizens in Green Bay were able to exercise their right to vote. Mayor Genrich, city departments, and staff have continued to be open and transparent, in accordance with Wisconsin law, about how the 2020 General Election was administered. Every court that has reviewed the matter has affirmed that Wisconsin administered the 2020 General Election in accordance with state and federal law. 1 Most recently, the Wisconsin Elections Commission issued its decision in Carlstedt, et al. v. Wolfe, in which Mayor Genrich was also named as a respondent, finding no probable cause that anyone violated any law or committed any abuse of discretion related to grant funding the City received so it could run a safe and inclusive election. Mayor Genrich absolutely denies that, at any time, he failed to live up to the “highest standard of ethics” as described in the City of Green Bay Code of Conduct (the “Code”). The Complaint is based on blatant, disproved falsehoods and an incorrect understanding of the law. The Complaint also presents a number of jurisdictional issues which require dismissal: (1) The Complaint is untimely; (2) The Complaint fails to follow the procedures set forth in the Code; (3) The Complaint is comprised of allegations that fall outside the Code and which have already been conclusively and repeatedly litigated. 1 See, e.g., Trump v. Wis. Elections Comm’n, 506 F. Supp. 3d 620 (E.D. Wis.), aff’d, 983 F.3d 919 (7th Cir. 2020), cert. denied, 141 S.Ct. 1516 (U.S. 2021); Feehan v. Wis. Elections Comm’n, 506 F. Supp. 3d 596 (E.D. Wis. 2020), petitions for extraordinary relief denied, No. 20-859 (U.S. Mar. 1, 2021), vacated on remand after appeal dismissed as moot, No. 20-cv-1771-PP, ECF No. 95 (E.D. Wis. Mar. 16, 2021); Wis. Voters Alliance v. Pence, 514 F. Supp. 3d 117 (D.D.C. 2021); Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629; Wis. Voters Alliance v. Wis. Elections Comm’n, No. 2020AP1930-OA (Wis. Dec. 4, 2020); Trump v. Evers, No. 2020AP1971-OA (Wis. Dec. 3, 2020). First, the Complaint is not timely. The Code provides, “A complaint under the Code must be filed no later than one year from the date of discovery of the alleged violation.” City of Green Bay Code of Conduct, § 8.B. This is analogous to a statute of limitations in civil or criminal law. In Wisconsin, failure to file a complaint within the applicable statute of limitations deprives the body of jurisdiction over the matter. Hester v. Williams, 117 Wis. 2d 634, 641, 345 N.W.2d 426, 429 (1984) (Court loses subject matter expiration after the expiration of a civil statute of limitations); State v. Muentner, 138 Wis. 2d 374, 384, 406 N.W.2d 415, 420 (1987) (Court loses personal jurisdiction over a defendant after the expiration of the statute of limitations). Rollin’s November 4, 2021 Complaint contains no factual allegations regarding activity which occurred in the year prior to Rollin submitting it to the clerk. The first paragraph of the Complaint is devoted to allegations of activities that occurred in June and July of 2021. The second and third paragraphs all pertain to allegations of activities on the date of the 2020 General Election – November 3, 2020 – at Central Count in Green Bay. That was one year and one day prior to Rollin’s submitting the Complaint. The Complaint contains two references to November 4: (1) That Mayor Genrich was present at Central Count and (2) that Mayor Genrich “allowed Michael Spitzer Rubinstein to return to Central Count and resume his position running Central Count.” (Complaint, p. 2). To be clear, this is wildly inaccurate. A member of the City Clerk’s staff was Chief Inspector at Central Count. Regardless, Central Count was completed at 4:00 am on November 4, 2020. The ballots were returned to City Hall at approximately 4:40 am. Mr. Spitzer Rubinstein actually left Central Count, where had been observing, several hours earlier, around 1:00 am. The Complaint does not contain a time stamp, but Green Bay City Hall generally does not open to the public until 8:00 am2. Even assuming that Rollin submitted the Complaint immediately at 8:00, that was more than a year after any of the alleged violations occurred. Rollin also cannot claim that she did not discover the alleged violations until later. Again, under the analogous court decisions analyzing statutes of limitations in Wisconsin, a person can only rely on this rule if they exercised “reasonable diligence.” Jacobs v. Nor–Lake, Inc., 217 Wis. 2d 625, 634, 579 N.W.2d 254 (Ct. App. 1998). The Code encourages anyone who wishes to file a complaint to do so as soon as they obtain relevant information. That did not happen here, to put it mildly. The allegations in the Complaint center on activities which occurred in public and were the subject of contemporaneous media reports 3. 2 City Hall opens at 7:00 am on election days. 3 Mary Spicuzza, Wisconsin's Five Largest Cities Awarded $6.3 Million In Effort To Make Elections Safer Amid Coronavirus Pandemic, Milwaukee Journal Sentinel, July 6, 2020, available https://www.jsonline.com/story/news/politics/2020/07/06/wisconsins-five-largest-cities-awarded-6-3-million-effort- make-elections-safer-amid-coronavirus-pand/5382546002/?utm_campaign=snd-autopilot (last visited December 9, 2021); Katrina Nickell, Green Bay Receives $1 Million Grant For Elections, Fox11 News, July 6, 2020, available at https://fox11online.com/news/election/green-bay-receives-1-million-grant-for-elections?src=link (last visited December 9, 2021). The CTCL grants were unanimously approved at a July 21, 2020 public meeting of the City Council. They were also the subject of pre-election litigation in federal court. Wis. Voters Alliance v. City of Racine, No. 20-C-1487 (E.D. Wis. October 14, 2020). As required by law, Central Count was open for public observation until it completed its work. Wis. Stat. § 7.41. There were, in fact, many observers present. The entire process was also live-streamed on Youtube4. This was perhaps the most-watched election in history. Because the allegations are untimely, this Board lacks jurisdiction over the Complaint must dismiss the Complaint without further proceeding. Second, the Complaint does not meet the basic requirements set forth in the Code. The Code requires that: Attached to the complaint the person making the complaint shall provide all documents or other materials in the complainant’s possession that are relevant to the allegation, a list of all documents or other materials relevant to the allegation that are available to the complainant but not in the complainant’s possession, and a list of all other documents or other materials relevant to the allegation but unavailable to the complainant, including the location of the documents if known, and a list of witnesses, what they may know, and information to contact those witnesses. City of Green Bay Code of Conduct, § 8.B. The Complaint does none of these things. It includes no effort to attach, describe, or identify any document beyond the City Attorney’s April 21, 2021 Memorandum. That memorandum does not support but contravenes the allegations contained the Complaint. The Complaint does not contain any contact information or identifying information for potential witnesses, though Rollin requested two hours to present evidence and additional time for rebuttal. It does not identify or attach the “numerous emails, testimony from poll workers and documents” that Rollin apparently gathered. To the extent that Rollin sought to base the Complaint on information and belief, she was obliged to identify her sources. City of Green Bay Code of Conduct, § 8.B. She did not. The Complaint is deficient on its face and does not follow the rules set forth in the Code for a complainant who wishes to proceed to an evidentiary hearing. It should be dismissed. Third, the Complaint does not describe a violation of a “requirement, prohibition, or guideline” contained in the Code. City of Green Bay Code of Conduct, § 8.A. Rather, it is a clear attempt to relitigate baseless allegations that the 2020 General Election was unlawful. The Complaint references only one section of the Code – Section I – which generally describes the City’s commitment to the Code and 4 Casey Nelson, Green Bay to Live Steam Ballot Countiing Process, wncy.com, October 29, 2020, available at https://wncy.com/2020/10/29/green-bay-to-live-stream-ballot-counting-process/ (last visited December 9, 2021). preserving ethical behavior among elected officials. The Complaint does not describe any specific requirement, prohibition, or guideline, other than a general allegation that Mayor Genrich failed to act ethically. (Complaint, p. 2). The Code contains many actual prohibitions and provisions, such as a rule prohibiting Council members from soliciting political support from City staff. City of Green Bay Code of Conduct, § 3.D. The Complaint, on the other hand, is much more specific about other laws that Rollin believes may have been violated: Wisconsin State Statutes Chapter 7 and sections 5.86, 5.87, and 946.12, “among others.” Chapter 5 and 7 of the statutes are, under Wiscosin law, enforced in the first instance by the Wisconsin Elections Commission. Wis. Stat. § 5.05. Section 946.12 is a criminal statute, enforceable by a district attorney or the Attorney General. None of the laws fall within the ambit of the City Code of Conduct. The Wisconsin Elections Commission, which is the proper entity to hear such a complaint, just issued its decision in Carlstedt, et al. v. Wolfe, Case No. EL 21-24, finding that there was no probable cause to find that anyone, including Mayor Genrich, violated the law or committed an abuse of discretion related to the CTCL grants. The Commission decision (which is enclosed for the Board’s convenience) is just the latest decision in the long run of pre- and post-election litigation over Wisconsin’s November 2020 election, including the cases cited in note 1, above. These issues have been heard and decided in other arenas. This Board is not the proper forum for rewarmed allegations already rejected by state courts, federal courts, and the Wisconsin Elections Commission. Because the Complaint seeks to adjudicate issues outside the Code, and because its allegations related to those issues have been exhaustively litigated and repeatedly found baseless, it should be dismissed. On behalf of Mayor Genrich, we look forward to appearing before the Board on December 14. If we can provide any additional information to the Board before that time, please contact me at dlenz@lawforward.org or at 608-556-9120. Thank you Electronically signed by Daniel S. Lenz Daniel S. Lenz Staff Counsel Law Forward, Inc. CC: Kimber Rollin Stafford Rosenbaum LLP January 28, 2022 Via email City of Green Bay Ethics Board c/o Attorney Michael May Boardman & Clark LLP 1 South Pinckney Street, Suite 410 PO Box 927 Madison, WI 53701-0927 Re: Rollin Code of Conduct Complaint To the City of Green Bay Ethics Board, On behalf of Mayor Genrich, thank you for giving our client an opportunity to provide this reply in support of the jurisdicational arguments raised in our December 9, 2021 letter. As explained below, Complainant Kimber Rollin’s (“Rollin”) Response to those arguments, submitted on January 18, 2022, failed to address the jurisdictional defects that doom her original Complaint. Because those fatal defects persist, the Complaint should be dismissed. To be clear, not only is Rollin’s Complaint deficient under the City of Green Bay Code of Conduct (the “Code”), it is also based on blatant falshehoods and borderline slanderous accusations. Thanks to the dedication and work of countless city employees, poll workers, and volunteers, the 2020 General Election was administed in full compliance with the law and in accordance with the ethical principles applicable to the Mayor and all city officials. Apart from the many courts and administrative agencies which have unanimously rejected the allegations rehashed in Rollin’s Complaint, on May 4, 2021, the Common Council adopted a resolution expressing full confidence in the City’s administration of the August and November 2020 Elections. That resolution noted that decisions about the elections were made publicly and approved by the Common Council, and it rejected allegations of impropriety. Similarly, the City Attorney prepared an exhaustive report1 for the Common Council, finding “no issues affecting the integrity of the election.” Under intense scrutiny and in the midst of a pandemic, the City of Green Bay fulfilled its obligation to the people who live and vote in this community. While the jurisdictional problems with Rollin’s Complaint require dismissal, the Mayor nonetheless wishes to reiterate his pride in how the City conducted the 2020 General Election. 1 Available at https://greenbaywi.gov/DocumentCenter/View/6657  1. The Complaint is Not Timely Rollin does not attempt to argue that she filed her Complaint within a year of the alleged events. Rather, Rollin claims that some of her Complaint2 should nonetheless be allowed because she did not “discover” the alleged violations until later. Rollin and Mayor Genrich agree that the Code’s timeliness rule is best analogized to Wisconsin’s “discovery rule.” (Rollin Resp., pp. 2-3) (internal citations omitted). That’s where Rollin’s argument falls apart, however, as she neither demonstrates any reasonable diligence nor responds to the arguments raised by Mayor Genrich. As Rollin points out in her Response, a party can rely on the discovery rule only if they have exercised reasonable diligence. (Rollin Resp., p. 3). A party seeking to rely on the discovery rule bears the burden of demonstrating that, “the delay in their discovery of the claim was reasonable.” Christ v. Exxon Mobil Corp., 2015 WI 58, ¶66, 362 Wis. 2d 668, 866 N.W.2d 602. Parties “may not close their eyes to means of information reasonably accessible to them and must in good faith apply their attention to those particulars which may be inferred to be within their reach.” Spitler v. Dean, 148 Wis. 2d 630, 638, 436 N.W.2d 308 (1989). In the Response, Rollin asserts that she discovered the facts alleged in the Complaint on or after March 12, 2021 – the date that the City of Green Bay published its responses to election-related open records requests on its website. (Rollin Resp., pp. 3-4). That is insufficient to show that Rollin exercised any diligence, let alone the degree of diligence required by Wisconsin law. Despite this being one the most closely-watched elections in recent history, and despite the existence of pre-election litigation and media reports, Rollin does not describe any efforts she undertook to find more information, other than to passively wait for the City of Green Bay to provide documents to her. Despite arguing that reasonable diligence is a “question of fact,” Rollin made no showing of what she did to meet that standard – for example, by requesting documents, making inquiries, or reading news reports - and therefore has not met her burden. Even if the Board were willing to engage with Rollin’s reasonable-diligence argument, it fails on its face. Having abandoned her claims regarding pre-election activity, Rollin’s Response largely discusses allegations surrounding activity on election day, November 3, 2020. The facts Rollin cites, however, underscore that her Complaint was not timely. Rollin recites second-hand accounts of what allegedly occurred at Central Count on November 3, 2020. (Rollin Resp., pp. 3-5). It is not the case that this information was outside Rollin’s grasp until March 12, 2021. As required by law, and as confirmed by the Observer Log, Central Count was open for observation on election day. Wis. Stat. § 7.41. Even if Rollin was not willing or able to appear as an observer at Central Count, the City of Green Bay livestreamed the entire proceeding. Similarly, information regarding Michael Spitzer-Rubenstein was 2 Rollin makes no effort to argue that the portions of the Complaint alleging events that occurred in June and July of 2021 were timely. available long before November 3, 2020. In the City Attorney’s April 21, 2021 Memorandum, City Attorney Chavez pointed out that the National Vote at Home Institute began offering best-practice assistance in Wisconsin in the late spring of 2020. Mr. Spitzer-Rubenstein began offering support to the City of Green Bay in mid-August. Mr. Spitzer-Rubenstein maintains a public LinkedIn profile that identifies him as a resident of New York3. Mayor Genrich addressed many of these facts – that Central Count was open to the public; that the activities there were livestreamed; that many of the allegations raised in Rollin’s Complaint were the subject of pre-election litigation and media reports – in his December 9, 2021 letter brief. Ms. Rollin chose not to respond to those facts, which amounts to a concession. Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). In any event, the fact that the whole proceeding was public is fatal to Rollin’s reasonable-diligence argument. Reasonable diligence is absent “when another method of investigation probably would have discovered the defendants' identity sooner.” Jacobs v. Nor-Lake, Inc., 217 Wis. 2d 625, 635, 579 N.W.2d 254 (Ct. App. 1998). Rollin had every opportunity to observe Central Count, which was run by an employee of the City Clerk and comported in every way with the legal and ethical requirements for election administration in Wisconsin and in the City of Green Bay. Rollin chose not to do so, and then she waited too long to file this Complaint, in violation of the procedure set forth in the City of Green Bay Code of Conduct. City of Green Bay Code of Conduct, § 8.B. It should be dismissed as untimely. 2. Rollin’s Complaint Does Not Allege a Violation of the Code The Code unambiguously requires that a Complaint include the following: (1) The complainant’s name, address and contact information; (2) The name and position of the City official who is the subject of the complaint; (3) The nature of the alleged violation, including the specific provision of the Code allegedly violated; and (4) A statement of the facts constituting the alleged violation and the dates on which, or period of time during which, the alleged violation occurred. City of Green Bay Code of Conduct, § 8.A (emphasis added). Rollin does not seem to dispute that her November 4 Complaint did not meet this requirement. Instead, her Response generally references two different sections of the Code – Sections 3 and 4 – which Rollin did not reference or cite in the Complaint. Apart from being even more untimely, these new, unsworn allegations provide no information to the Board about the nature of Rollin’s complaint. Rollin again fails to identify the specific provision of the Code allegedly violated or what facts she believes support those assertions. Instead, she describes Sections 3 and 4 in generalities, followed by a list of factual misstatements. Both Sections 3 and 4 contain 3 https://www.linkedin.com/in/mspitzerrubenstein/ actual provisions regarding ethical conduct in the City of Green Bay. City of Green Bay Code of Conduct, §§ 3.A – 3.D; 4.A – 4.D (i.e., provisions requiring elected officials to refer to staff by their title followed by last name in public meetings; prohibiting elected officials from attempting to unethically influence purchasing decisions; and requiring elected officials to be fair and equitable in allocating public hearing time). Apart from being baseless, Rollin’s new allegations are also unsworn, untimely, and do not follow the procedure required by the Code. This appears to be an attempt to fix the major problem with the Complaint – it is an effort to relitigate before this Board various theories about the 2020 General Election that have already been debunked elsewhere. Rollin again cites Chapter 7 of the Wisconsin Statutes, which is outside the Code and is instead administered by the Wisconsin Elections Commission. (Rollin Resp., p. 6). Finally, a significant number of the new factual allegations in Rollin’s Response involve Mr. Spitzer- Rubenstein. (Rollin Resp., pp. 3-6). Mr. Spitzer-Rubenstein is not and has never been an elected official subject to the Code. City of Green Bay Code of Conduct, § 8.A. 3. Rollin’s Complaint Did Not Meet the Requirements of Section 8.B of the Code Rollin simply did not respond to the Mayor’s argument that her Complaint fails to meet the requirements of Section 8.B of the Code because it includes no information identifying documents and/or witnesses relevant to the allegations. Here, too, Rollin’s failure to respond constitutes a concession. Charolais Breeding, 90 Wis. 2d at 109. Rollin’s Response attaches and references a number of publicly available documents and affidavits. If Rollin sought to rely on these documents, the Code required her to attach them to, or at minimum to identify them in, her Complaint. City of Green Bay Code of Conduct, § 8.A. Moreover, the information Rollin has now provided does nothing to support her allegations The affidavit of Andrea Johnson does not mention Mayor Genrich at all, and it confirms that an employee of the City Clerk ran Central Count. (Johnson Aff., ¶ 26). The affidavit of Elizabeth Rankin and the declaration of Andrew Kloster similarly have little to do with Mayor Genrich’s conduct, and neither does anything to support the allegations contained in the Complaint. Even if these documents were credible (and they are not), they do nothing to cure the original deficiency or avoid the necessity for dismissal. 4. Carlstedt et al. v. Wisconsin Elections Commission Rollin states, correctly, that on January 6, 2022, after Mayor Genrich’s December 9, 2021 letter to the Board, several individuals filed in the Circuit Court for Brown County an appeal from the decision of the Wisconsin Elections Commission decision in Carlstedt et al. v. Wolfe et al. That matter remains pending before the Circuit Court. The Wisconsin Elections Commission decision, which is the subject of the appeal and referenced in Mayor Genrich’s December 9 letter, found no probable cause to believe that any respondent, including Mayor Genrich, violated the law or committed an abuse of discretion in connection with the City’s receipt or use of grants during the 2020 General Election. The decision also noted that there was a prior complaint filed against Mayor Genrich in 2020, which was also dismissed for lack of probable cause. 5. Requests for Recusal As part of her Response, Rollin has requested that Board members Cheryl A. Renier-Wigg and Alder Bill Galvin be recused from this matter, and she seems to reserve the possibility of requesting further recusals. Mayor Genrich has not requested the recusal of any member, and he defers to the decisions of the Board and its members. The Mayor denies without qualification Rollin’s accusations that he has or would improperly influence the Board or its members. On behalf of Mayor Genrich, we look forward to appearing before the Board in February. If we can provide any additional information to the Board before that time, please contact me at dlenz@lawforward.org or at 608-556-9120. Thank you Electronically signed by Daniel S. Lenz Daniel S. Lenz Staff Counsel Law Forward, Inc. CC: Kimber Rollin Stafford Rosenbaum LLP  Direct line: 608-252-9326 Email: jpa@dewittllp.com December 8, 2021 VIA EMAIL: kaardal@mklaw.com Erick G. Kaardal, Esq. Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street, Suite 3100 Minneapolis, MN 55402 RE: In the Matter of Carlstedt, et al. v. Wolfe Case No. EL 21-24 Dear Mr. Kaardal: As you know, the law firm of DeWitt LLP (“DeWitt”) is retained as special counsel for the Wisconsin Elections Commission (“Commission”) with respect to the above-referenced matter. This letter is in response to the Complaint, dated April 8, 2021, which you submitted to the Commission on behalf of your clients, Richard Carlstedt, Sandra Duckett, James Fitzgerald, Thomas Sladek, and Lark Wartenberg (collectively, the “Complainants”). Procedural History The Complaint, brought pursuant to Wis. Stat. § 5.06, is filed against Meagan Wolfe, Administrator of the Commission; Eric Genrich, Mayor of the City of Green Bay; Celestine Jeffreys, the former Chief of Staff for the Green Bay Mayor and current Clerk for the City of Green Bay; and Kris Teske, the former Clerk for the City of Green Bay. Complainants accompanied the Complaint with an Appendix of nearly 400 pages. By email to all parties dated May 15, 2021, DeWitt established a deadline of June 15, 2021 for Respondents to respond to the Complaint. On June 15, 2021, Respondents Genrich and Jeffreys filed a joint Answer (“Answer”) and supporting Affidavit of Vanessa R. Chavez, Respondent Teske filed a response, the City Attorney for the City of Green filed a separate Motion to Dismiss Respondent Teske, and Respondent Wolfe filed both a Response and a Motion to Dismiss All Claims Against Her, along with a supporting brief. By email dated June 23, 2021, DeWitt established a deadline of July 28, 2021 for Complainants to reply. On July 28, 2021, Complainants filed a single Memorandum of Law and Appendix in the above-referenced matter and four others (Case Nos. EL 21-29, 21-30, 21-31, and 21-33). Respondents Genrich and Jeffreys objected to the combined Memorandum of Law and Appendix by letter dated August 9, 2021. By email dated August 12, 2021, DeWitt notified all parties that Complainants’ combined Memorandum of Law and Appendix were not accepted and were to be considered stricken from the record in this matter. DeWitt permitted Complainants to file a separate reply for this matter by August 19, 2021. In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 2 On August 19, 2021, Complainants filed a separate Reply in the above-referenced matter, along with a lengthy Appendix of 1077 pages. Respondents Genrich and Jeffreys again objected to the Reply by letter dated August 24, 2021, arguing that the Reply incorporated new facts and issues not raised in the initial Complaint. By email dated August 30, 2021, DeWitt granted Respondents the opportunity to file a sur-reply brief no later than September 13, 2021, which deadline DeWitt later extended to September 27, 2021 by email dated September 9, 2021. Respondents Genrich and Jeffreys filed a sur-reply brief on September 27, 2021. Also on September 27, 2021, Respondent Wolfe filed a reply brief in support of her motion to dismiss. The Commission has reviewed the above-identified Complaint; Respondents’ various responses, answers, and motions; Complainants’ Reply; and Respondents’ various sur-reply and reply briefs. The Commission provides the following analysis and decision pursuant to Wis. Stat. § 5.06 and the Delegation of Authority adopted by the Commission in 2018 and most recently amended on February 27, 2020. In short, the Commission finds that Complainants did not show probable cause to believe that a violation of law or abuse of discretion occurred with regard to the claims asserted in the Complaint. Complainants’ Allegations The Complaint states that Complainants are all Wisconsin electors residing in Green Bay, Wisconsin. Complaint, ¶¶ 1-5. No respondent has provided any evidence to contest Complainants’ residency. Complainants allege that, beginning in May and June 2020, “the City of Green Bay adopted private corporation conditions on the election process affecting state and federal elections.” Complaint, p. 2. Specifically, Complainants object to the City of Green Bay’s acceptance of private grants provided by the Center for Tech and Civic Life (“CTCL”), a private non-profit organization headquartered in Chicago, Illinois. Complaint, ¶ 18. The Complaint alleges that the CTCL grant money was issued pursuant to a grant application referred to as the “Wisconsin Safe Voting Plan” (“WSVP”). Complaint, ¶¶ 25, 28. The Complaint alleges that CTCL money was accepted by the City of Green Bay, the City of Racine, the City of Kenosha, the City of Milwaukee, and the City of Madison. Complaint, ¶¶ 25-26, 28. The Complaint refers to these five municipalities as the “WI-5” or “Wisconsin Five.” Complaint, ¶ 32. By accepting the CTCL grant money and working with CTCL representatives, Complainants allege that “Green Bay failed to comply with state laws, including obtaining from the Commission a prior determination of the legality of the private corporate conditions in the election process, and failed to comply with the U.S. Constitution’s Elections and Electors Clauses which guarantee the state Legislature the exclusive role in approving Wisconsin’s legal conditions relating to federal elections.” Complaint, p. 3. See also Complaint, ¶¶ 102-108. Complainants argue that the acceptance of the private grant funds led to “the ubiquitous involvement of private corporations in the Wisconsin 5 cities’ election administration prior to, during and after the election,” for which the City of Green Bay, Complainants assert, had no legal authority. Reply, pp. 3-5. In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 3 Complainants also argue that the acceptance of the CTCL grant money by the “Wisconsin Five” “affected [Complainants] as a demographic group.” Complaint, ¶ 46 (“[W]ith the added private conditions on Green Bay’s election process, the Green Bay Complainants were within a jurisdictional boundary that affected them as a demographic group.”). See also Complaint ¶ 47 (“[B]y the Wisconsin Five cities contracting with CTCL and allied private corporations, the Wisconsin Five cities chose to favor the Wisconsin Five’s demographic groups of urban voters over all other voters in the State of Wisconsin.”). In their reply, Complainants went further with this assertion, arguing that “[t]he Wisconsin 5 cities’ WSVP provisions violate the Equal Protection Clause because it contains contract provisions picking and choosing among groups of similarly situated voters for improved in-person and absentee voting access.” Reply, p. 4. With respect to Respondent Wolfe, the Complaint alleges that “WEC Administrator Meagan Wolfe … has supported the Wisconsin Five cities’ claimed prerogative to adopt private corporate conditions on federal elections without approval by Congress, the state legislature and the Commission.” Complaint, ¶ 100. The Complaint generally cites testimony Respondent Wolfe gave on March 31, 2021 before the General Assembly’s Campaigns and Elections Committee (although Complainants do not provide any specific quotations from such testimony). In their Reply, Complainants take the position that Respondent Wolfe’s “testimony confirms an admission of issuing an unwarranted advisory opinion on a disputed claims when the Commission itself has that sole authority.” Reply, p. 87. The Complaint seeks six essential forms of relief:  Complainants first request that the Commission “investigate the circumstances and factual allegations asserted in this Complaint regarding the legality of Green Bay’s acts and actions juxtaposed against state and federal election laws to ascertain whether those election laws were violated.” Complaint, pp. 4, 31.  Complainants also ask that the Commission “issue an order requiring the Administrator, City of Green Bay and its City Clerk to conform their conduct to Wisconsin Statutes and the Election and Electors Clauses, restrain themselves from taking any action inconsistent with Wisconsin Statutes and the Election and Electors Clauses and require them to correct their actions and decisions inconsistent with Wisconsin Statutes and the Election and Electors Clauses—including prohibiting the placement of private corporate conditions on state and federal elections and the involvement of private corporation and their employees in election administration.” Complaint, p. 32.  Complainants request that the “Commission … issue an order declaring that Green Bay’s private conditions on federal elections and engagement of private corporations and their employees in election administration violated state law and federal law.” Complaint, p. 32. See also Complaint, p. 4.  Complainants argue that the Commission should “reiterate that the Administrator may not render a decision without the approval of the Commission related to the legality of any agreement between private corporate entities and municipalities related to imposing private In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 4 corporate conditions on its elections or related to private corporations and their employees being engaged in the administration of election laws.” Complaint, pp. 32-33, 4.  Complainants ask that the Commission consider “direct[ing] to the proper local or state authorities” “any further prosecutorial investigation.” Complaint, pp. 33, 4.  “Finally, if the Commission determines that election laws were violated or that the law is unclear to provide the Commission itself with the ability to determine the legalities of private corporate conditions directly or indirectly affecting the election process and administration,” Complainants ask that “the Commission … make recommendations to the State Legislature for changes to state election laws to ensure the future integrity of the election process.” Complaint, pp. 4-5, 33. Respondents’ Asserted Defenses to Complaint None of Respondents dispute the essential fact that the City of Green Bay accepted and received the CTCL grant money. Respondents Genrich and Jeffreys assert several defenses to the Complaint, including the following:  “Complainants fail to point to any law which prohibits the City’s acceptance of outside funds in order to provide a safer voting experience for its electorate, or even any law they claim was violated.” Answer, p. 2. Respondents Genrich and Jeffreys argue that “[t]he Legislature has acknowledged that current law includes no such provision [prohibiting municipalities from using private grant funds] by its ongoing attempts to enact such a law.” Answer, p. 2 (citing 2021 Wis. S.B. 207 and 2021 Wis. A.B. 173).  “[T]he CTCL grants were issued to municipalities without regard to the partisan make-up of their electorates. In fact, the City was one of 218 municipalities in Wisconsin to receive grant funds from CTCL.” Answer, p. 3. Complainants do not contest this fact, although, in their reply, they cite reports from two non-profit organizations contending that “large cities” received the majority of CTCL funds. See Reply, pp. 7-9.  “The Complaint is not timely.” Answer, p. 4. See also Answer, pp. 5-14.  The Complaint “does not set forth facts establishing probable cause to believe that a violation of law has occurred.” Answer p. 4. See also Answer, pp. 14-16.  “Complainants seek to have the Commission do administratively that which is the sole purview of the legislature: craft new election law.” Answer, p. 4. See also Answer, pp. 22-23; Sur-Reply, p. 10 (“Complainants[’] … true goal … is to have the Commission go beyond its legislatively-created authority to investigate election law violations, and instead create a policy that will apply to future elections. The Commission is an administrative, In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 5 not legislative, body. The appropriate forum for Complainants’ requested policy changes in therefore the legislature, not the Commission.”). The City Attorney for the City of Green Bay further argues that Respondents Genrich, Jeffreys, and Teske are not proper parties to the Complaint. This argument is presented as follows: “[A]ll of Complainants’ legal arguments center around the acceptance of the CTCL grant funds and approval of how those funds were to be used. Neither the Mayor, his Chief of Staff, nor the City Clerk, in any of their professional capacities, had authority to accept the grant. The Common Council took that action. The named Respondents are not synonymous with the entire City government; they have specific roles within it, and those roles do not include authority to accept the CTCL grant funds.” Answer, p. 15. See also Motion to Dismiss Respondent Teske. In her Response to the Complaint, Respondent Wolfe admits that she gave legislative hearing testimony before the General Assembly’s Campaigns and Elections Committee on March 31, 2021. Response, p. 51. However, Respondent Wolfe asserts several defenses to the Complaint, including the following:  Respondent Wolfe argues that the mere act of testifying before a legislative committee cannot be unlawful. Brief in Support of Motion to Dismiss, p. 9 (citing Wis. Stat. § 13.35(1)).  Respondent Wolfe argues that her “legislative testimony on March 31, 2021 cannot possibly have contributed to any illegality in the conduct of the 2020 Presidential election, which had already taken place more than three months earlier.” Brief in Support of Motion to Dismiss, p. 10 n.3.  Respondent Wolfe alleges that, in her legislative hearing testimony, she declined to comment on the lawfulness of the municipalities’ actions, stating: “I cannot offer my opinion or speculation on actions of individual municipalities. … It would be outside of my statutory or delegated authority to determine if a municipality has acted lawfully.” Brief in Support of Motion to Dismiss, p. 10 n.3. Complainants did not contest the accuracy of this quotation.  Respondent Wolfe alleges that she “did not make any determinations as to (1) the legality of actions or communications by municipal officials related to municipal acceptance or use of private grant funds; or (2) any relations between municipals officials and outside consultants.” Response, p. 52.  Respondent Wolfe denies “that she has engaged in, supported, or endorsed any activities contrary to federal law, state law, or directives of the Commission.” Response, p. 56. She asserts that, despite Complainants’ allegations that she “publicly supported” the decision to accept grant funding (Complaint, p. 2 and ¶ 100), Complainants failed to back their assertions with actual facts: “[T]he Complaints do not identify any actual actions through which she purportedly provided such public support, other than legislative committee testimony that she gave almost five months after the 2020 election had taken place, and In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 6 even longer after the municipalities had received and used the funds in question. Nor do they allege any facts concerning any non-public actions by the Administrator.” Reply Brief in Support of Motion to Dismiss, p. 3. Commission Authority and Role in Resolving Complaints Under Wis. Stat. § 5.06 The Commission’s role in resolving complaints filed under Wis. Stat. § 5.06 is to determine whether an election official acted contrary to applicable election laws or abused their discretion in administering applicable election laws. See Wis. Stat. § 5.06(1) (“Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act … is contrary to law, or the official has abused the discretion vested in him or her by law …, the elector may file a written sworn complaint with the commission….”). The Commission has the inherent, general, and specific authority to consider the submissions of the parties to a complaint and summarily decide the issues raised. See Wis. Stat. § 5.06(6) (“The commission may, after such investigation as it deems appropriate, summarily decide the matter before it….”). Here, the essential fact underlying all of Complainants’ allegations – the City of Green Bay’s acceptance of CTCL grant funds – is undisputed. As described below, the Commission concludes that this essential fact fails to give rise to probable cause to find that Respondents committed a violation of law or abuse of discretion. Therefore, the Commission issues this letter, which serves as the Commission’s final decision regarding the issues raised in the Complaint. Commission Findings A. There Is No Probable Cause To Find That Respondents Committed A Violation Of Law Or An Abuse Of Discretion. Under Wis. Stat. § 5.06(1), a “complaint shall set forth such facts as are within the knowledge of the complainant to show probable cause to believe that a violation of law or abuse of discretion has occurred or will occur.” Probable cause is defined in Wis. Admin. Code EL § 20.02(4) to mean “the facts and reasonable inferences that together are sufficient to justify a reasonable, prudent person, acting with caution, to believe that the matter asserted is probably true.” “Information which may establish probable cause includes allegations that set forth which persons are involved; what those persons are alleged to have done; where the activity is believed to have occurred; when the activity is alleged to have occurred and who are the witnesses to the events.” Wis. Admin. Code EL § 20.03(3). Complainants, therefore, have the obligation to set forth sufficient facts to show probable cause to believe that Respondents Genrich, Jeffreys, and Teske committed a violation of law or abuse of discretion as a result of the City of Green Bay’s acceptance of CTCL grant money, which allegedly resulted in the adoption of “private corporation conditions on the election process” and the “involvement of private corporations in … election administration.” In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 7 Complainants also have the obligation to set forth sufficient facts to show probable cause to believe that Respondent Wolfe committed a violation of law or abuse of discretion as a result of allegedly supporting “the Wisconsin Five cities’ claimed prerogative to adopt private corporate conditions.” The Commission concludes that Complainants have not set forth sufficient facts to show probable cause as required under Wis. Stat. § 5.06(1), for the reasons discussed below. i. The Acceptance of Private Grant Money, With Or Without Conditions And Consultant Involvement, Is Not Prohibited By Any Law The Commission Administers. This is not the first complaint the Commission has received related to the CTCL grant money. On August 28, 2020, another complaint was filed in Case No. 20-18 asserting that several respondents (including Eric Genrich and Kris Teske, who are Respondents in this action) acted contrary to law and/or abused their discretion as a result of acceptance of the CTCL money. The Commission concluded, in part, that the complaint did not state probable cause because “the complaint does not allege any violations of election law that the Commission has authority over to enforce or investigate.” The Commission has “the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws relating to campaign financing.” Wis. Stat. § 5.05(1). See also Wis. Stat. § 5.05(2w). A complaint under Wis. Stat. § 5.06(1) must therefore assert a violation of one of these chapters of the Wisconsin Statutes, or “other laws relating to elections and election campaigns.” The Complaint in this matter cites Wis. Stat. § 7.15(1), the Elections Clause of the United States Constitution, and the Electors Clause of the United States Constitution as the basis for Complainants’ action. In their Reply, Complainants also referenced the Equal Protection Clause. Respondents argue that none of these statutory or constitutional provisions explicitly prohibit the acceptance of private grant monies or the use of outside consultants. Respondents are correct. Wis. Stat. § 7.15(1) states that municipal clerks have “charge and supervision of elections and registration in [each] municipality.” The municipal clerk “shall perform” certain duties specified in subsections (a) through (k) of the statute, as well as “any others which may be necessary to properly conduct elections or registration.” Wis. Stat. § 7.15(1). There is no language in section 7.15(1) that prohibits municipal clerks from using private grant money or working with outside consultants in the performance of their duties. The Elections Clause of the U.S. Constitution states as follows: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. U.S. Const., art. I, § 4, cl. 1 (cited at Complaint, ¶ 13). In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 8 The Electors Clause of the U.S. Constitution provides: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress. U.S. Const., art. II, § 1, cl. 2 (cited at Complaint, ¶ 14). Complainants argue that the Elections and Electors Clauses “provide no power to municipal governments to adopt private corporate conditions on federal elections or to introduce private corporations and their employees into federal election administration.” Complaint, ¶ 15. However, Complainants do not show that either the Elections Clause or the Electors Clause of the U.S. Constitution prohibit the adoption of private corporate conditions or the introduction of private corporation employees into the election process. As Respondents Genrich and Jeffreys note in their Response, two bills introduced in March 2021 demonstrate the absence, in existing law, of any prohibition on the acceptance of private grant money or the use of outside consultants. 2021 Senate Bill 207 and 2021 Assembly Bill 173 would prohibit any official from “apply[ing] for or accept[ing] any donation or grant of private resources” (including “moneys, equipment, materials, or personnel provided by any individual or nongovernmental entity”) “for purposes of election administration.” The bill would also prohibit the appointment of any poll worker who is an employee of an “issue advocacy group.” This language is not currently in any Wisconsin statute; nor was it in the lead up to the November 2020 election. Furthermore, a number of courts around the country have remarked upon whether the U.S. Constitution or federal election law prohibits the activities to which Complainants are objecting in this action. These courts have not found such prohibitions in the U.S. Constitution or federal laws. For example, the United States District Court for the Eastern District of Wisconsin previously concluded that a group of plaintiffs (represented by the same attorney as is currently representing Complainants in this matter) failed to show a reasonable likelihood of success on the merits of a claim based upon similar allegations. In Wisconsin Voters Alliance v. City of Racine, No. 20-C- 1487, 2020 WL 6129510 (E.D. Wis. Oct. 14, 2020), the plaintiffs alleged that various cities (including the City of Green Bay) were prohibited from accepting and using private federal election grants by, among other things, the Elections Clause of the U.S. Constitution. The court declined to grant a temporary restraining order, stating: Plaintiffs have presented at most a policy argument for prohibiting municipalities from accepting funds from private parties to help pay the increased costs of conducting safe and efficient elections. The risk of skewing an election by providing additional private funding for conducting the election in certain areas of the State may be real. The record before the Court, however, does not provide the support needed for the Court to make such a determination, especially in light of the fact that over 100 additional Wisconsin In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 9 municipalities received grants as well. Plaintiffs argue that the receipt of private funds for public elections also gives an appearance of impropriety. This may be true, as well. These are all matters that may merit a legislative response but the Court finds nothing in the statutes Plaintiffs cite, either directly or indirectly, that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL. Absent such a prohibition, the Court lacks the authority to enjoin them from accepting such assistance. 2020 WL 6129510, at *2, appeal dismissed sub nom. Wisconsin Voters All. v. City of Racine, No. 20-3002, 2020 WL 9254456 (7th Cir. Nov. 6, 2020) (emphasis added) (internal citations omitted). Other courts have likewise concluded that no language in the U.S. Constitution or other election- related laws prohibits municipalities from accepting private grant money. See Election Integrity Fund v. City of Lansing, No. 1:20-CV-950, 2020 WL 6605985, at *1 (W.D. Mich. Oct. 2, 2020) (“Plaintiffs’ complaint and motion allege that the Cities’ receipt of grants from CTCL violates the Constitution, the Help America Vote Act, 52 U.S.C. § 20901, et seq., and the National Voters Registration Act, 52 U.S.C. § 20501, et seq. But Plaintiffs never identify language in any of those laws that explicitly prohibits cities from accepting private grants to administer elections. On the Court's review, no such explicit prohibition exists.”) (denying motion for temporary restraining order); Iowa Voter All. v. Black Hawk Cty., No. C20-2078-LTS, 2020 WL 6151559, at *3-4 (N.D. Iowa Oct. 20, 2020) (“Plaintiffs have not provided any authority, nor have I found any, suggesting that the Elections Clause imposes specific limits or restrictions as to how a federal election must be funded. … There may be valid policy reasons to restrict or regulate the use of private grants to fund elections. However, it is for Congress and/or the Iowa Legislature, not the judicial branch, to make those policy judgments.”); Georgia Voter All. v. Fulton Cty., 499 F. Supp. 3d 1250, 1255 (N.D. Ga. 2020) (“Fulton County's acceptance of private funds, standing alone, does not impede Georgia's duty to prescribe the time, place, and manner of elections, and Plaintiffs cite no authority to the contrary.”). The Commission is persuaded by the case law cited above. Complainants have failed to identify any existing state or federal law prohibiting the acceptance of the CTCL grant money or work with outside consultants. Multiple federal courts have failed to find that existing law prohibits such activities, and the Commission likewise does not find such a prohibition to exist. Unable to cite an explicit prohibition in existing law, Complainants attempt to save their claims with a different argument. Citing Trump v. Wisconsin Elections Commission (“Trump v. WEC”), 983 F.3d 919, 927 (7th Cir. 2020), Complainants argue that Respondents violated the Electors Clause by committing a “diversion of … election law authority” when they accepted the CTCL grant money. See Complaint, ¶¶ 106-107. However, this citation works against Complainants, not for them. The Trump v. WEC case concerned contested guidance issued by the Commission prior to the election. In its decision, the United States Court of Appeals for the Seventh Circuit examined the scope of the Electors Clause. “By its terms,” the court noted, “the Clause could be read as addressing only the manner of appointing electors and thus nothing about the law that governs the administration of an election (polling place operations, voting procedures, vote tallying, and the like).” 983 F.3d at 926. The court acknowledged, however, that the Electors Clause has been In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 10 applied more broadly in some instances to “encompass[] acts necessarily antecedent and subsidiary to the method for appointing electors—in short, Wisconsin's conduct of its general election.” Id. As examples of the Electors Clause being applied broadly, the court cited both Bush v. Gore, 531 U.S. 98 (2000) and Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020). In those two cases, courts found violations of the Electors Clause where state actors invaded the province of the legislature without being granted such authority by the legislature. In Bush v. Gore, for example, three Justices were critical of a departure from the legislative scheme put in place by the Florida legislature, finding that it violated “a respect for the constitutionally prescribed role of state legislatures.” 531 U.S. at 115 (Rehnquist, C.J., concurring) (emphasis original). In Carson, the Eighth Circuit concluded that the Minnesota Secretary of State likely violated the Electors Clause by adding a week to the deadline for receipt of absentee ballots. The court remarked that “only the Minnesota Legislature, and not the Secretary, has plenary authority to establish the manner of conducting the presidential election in Minnesota. … Thus, the Secretary's attempt to re-write the laws governing the deadlines for mail-in ballots in the 2020 Minnesota presidential election is invalid.” 978 F.3d at 1060. This line of authority does not support Complainants’ position because it is distinguishable from the circumstances now before the Commission. The Seventh Circuit explains the distinction in Trump v. WEC. The court remarked that – unlike in Bush v. Gore or Carson – the Commission had taken actions “under color of authority expressly granted to it by the Legislature.” 983 F.3d at 927. Accordingly, “even on a broad reading of the Electors clause,” the court could not find that the Commission acted unlawfully. Id. The “authority expressly granted to [The Commission] by the Legislature … is not diminished by allegations that the Commission erred in its exercise.” Id. Here, as in Trump v. WEC, the acceptance and use of CTCL funds was done “under color of authority expressly granted … by the Legislature” for the charge and supervision of elections under Wis. Stat. § 7.15(1). Even if there were errors in the exercise of that authority, those errors do not diminish the authority and do not give rise to a violation of the Electors Clause. Finally, Complainants attempt to assert a violation of the Equal Protection Clause. However, courts around the country considering similar claims have cast aspersions on the argument that acceptance of CTCL money results in a violation of equal protection law. A federal court in Minnesota, for example, rejected that argument as follows: The City's actions in applying for and accepting the CTCL grant and using the grant money to improve all manners of voting in Minneapolis in the 2020 election affect all Minneapolis voters equally. All individual Plaintiffs are Minneapolis voters. Plaintiffs fail to explain how they will be uniquely affected by Minneapolis's actions. They assert that, because Minneapolis voters are statistically more likely to be progressive, Minneapolis's actions enhancing voting in general favor progressive voters and thereby suppress Plaintiffs’ votes. However, as Minneapolis residents, Plaintiffs, themselves, are equal recipients of Minneapolis's actions to make voting safer during the pandemic. The City's grant-funded expenditures will make it easier for the individual In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 11 Plaintiffs to vote safely for the candidates of their choosing and to have those ballots processed promptly, no matter which method of casting a ballot they choose. Grant money will be used to assist with mail-in voting; voting by absentee ballots via a secure drop box; voting in person at early-voting sites; voting in-person on Election Day; and voter education to assist voters in choosing how to vote. Minnesota Voters All. v. City of Minneapolis, No. CV 20-2049 (MJD/TNL), 2020 WL 6119937, at *7 (D. Minn. Oct. 16, 2020) (emphasis added). Once again, the Commission finds this case law persuasive. Although use of the CTCL grant money in Green Bay may have resulted in benefit to Green Bay voters over those outside of Green Bay, and although voters within Green Bay may have the tendency to favor a particular political party over another, that does not constitute an equal protection violation. See Texas Voters All. v. Dallas Cty., 495 F. Supp. 3d 441, 469 (E.D. Tex. 2020) (“Ultimately, Plaintiffs’ complain that people with different political views will lawfully exercise their fundamental right to vote. That is not a harm. That is democracy.”). This is particularly true where other municipalities were free to seek the same grant money as did the City of Green Bay. In fact, it is undisputed that over 200 municipalities in Wisconsin received such funding. In an attempt to bolster their equal protection argument in their Reply, Complainants point to language in the WSVP to argue that the CTCL grant money was used to disproportionately benefit certain voters from within the City of Green Bay, to the disadvantage of others. However, the WSVP was, as Complainants state, merely the grant application. Complainants provide no facts showing that the CTCL grant money was, in fact, used to disadvantage certain segments of the electorate over others. Absent such facts, Complainants fail to raise probable cause of a potential equal protection violation. As the Eastern District of Wisconsin stated when dismissing the Wisconsin Voters Alliance suit: Plaintiffs have offered only a political argument for prohibiting municipalities from accepting money from private entities to assist in the funding of elections for public offices. They do not challenge any specific expenditure of the money; only its source. They make no argument that the municipalities that received the funds used them in an unlawful way to favor partisan manner. Their brief is bereft of any legal argument that would support the kind of relief they seek. Wisconsin Voters All. v. City of Racine, No. 20-C-1487, 2021 WL 179166, at *3 (E.D. Wis. Jan. 19, 2021). In the absence of existing state or federal law prohibiting the acceptance of private grant money or the use of outside consultants, the Commission cannot find a violation of law or abuse of discretion resulting from the CTCL grant money in the City of Green Bay. To do so would be to essentially create new election law, which is the job of the legislature, not the Commission. Complainants urge the Commission to act notwithstanding the absence of explicit legal authority, asserting that “the Commission is not impotent” and has been provided by the legislature “with an arsenal of weapons to exercise its powers and duties.” Reply, p. 48. Specifically, Complainants cite the Commission’s statutory authority to administer laws, investigate, take testimony, bring civil In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 12 actions, and sue for injunctive relief. Id. This is all true, but Complainants do not and cannot argue that the Commission has the authority to create law. That is undeniably the province of the legislature. For all of the above reasons, the Commission finds that there is no probable cause to believe that the acceptance of CTCL grant money was itself or resulted in any violation of law or abuse of discretion. ii. There Is No Probable Cause To Find A Violation Or Abuse Of Discretion By Respondent Wolfe. Complainants also fail to state facts sufficient to raise probable cause to believe that Respondent Wolfe committed a violation of law or abuse of discretion, for multiple reasons. First, although Complainants assert that Respondent Wolfe supported the City of Green Bay’s decision to accept the CTCL grant funding, Complainants fail to identify any specific action or statement on the part of Respondent Wolfe in which she allegedly provided such support. The Commission does not know with whom Respondent Wolfe allegedly communicated, what Respondent Wolfe allegedly did, what Respondent Wolfe allegedly stated, or any of the context for such details. Without such information, the Commission finds that “a reasonable, prudent person, acting with caution” could not find that Respondent Wolfe violated the law or abused her discretion. See Wis. Admin. Code EL § 20.02(4). Second, the Commission rejects Complainants’ argument (asserted for the first time in their Reply) that Respondent Wolfe issued an unauthorized advisory opinion. Again, Complainants fail to state any actual facts underlying that assertion. Advisory opinions are governed by clear statutory procedures set forth in Wis. Stat. § 5.05(6a)(a). Such opinions must be requested “in writing, electronically, or by telephone” – and there is no allegation that such a request was made. Such opinions must be “written or electronic” – and there is no allegation that Respondent Wolfe issued any physical or electronic writing. Advisory opinions, “[t]o have legal force and effect,” must “include a citation to each statute or other law and each case or common law authority upon which the opinion is based” – and there is no allegation that Respondent Wolfe ever provided such citations. Again, given Complainants’ allegations, the Commission finds that “a reasonable, prudent person, acting with caution” could not find that Respondent Wolfe issued any unauthorized advisory opinions. iii. The Commission Need Not Determine The Remaining Issues Raised By Respondents. In light of its conclusion that there is no probable cause to find that the acceptance of the CTCL grant money violated election law or constituted an abuse of discretion, the Commission need not address Respondents’ other defenses, including those concerning timeliness and whether the Mayor, Chief of Staff, and former City Clerk are even proper parties to an action that relates to grant money accepted by the Common Council of the City of Green Bay. In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 13 Commission Decision Based upon the above review and analysis, the Commission finds that the Complaint does not raise probable cause to believe that a violation of law or abuse of discretion has occurred. All claims are hereby dismissed. The Commission will not conduct its own investigation of the circumstances and factual allegations asserted in the Complaint and will not issue an order with the declarations Complainants have requested. The Commission notes that Complainants also asked that the Commission direct “any further prosecutorial investigation … to the proper local or state authorities” and “make recommendations to the State Legislature for changes to state election laws.” Complaint, p. 33. The Commission will not provide either of these forms of relief, both because Complainants failed to establish probable cause and because they are not available forms of relief under Wis. Stat. § 5.06. A party filing a complainant under Wis. Stat. § 5.06 may only request – and the Commission may only order – that officials be required to conform their conduct to the law, be restrained from taking action inconsistent with the law, or be required to correct any action or decision inconsistent with the law or any abuse of their discretion. See Wis. Stat. § 5.06(1) and (6). Referring matters for prosecution and making recommendation to the legislature are not options for relief under section 5.06. Right to Appeal – Circuit Court This letter constitutes the Commission’s resolution of this complaint. Wis. Stat. § 5.06(2). Pursuant to Wis. Stat. § 5.06(8), any aggrieved party may appeal this decision to circuit court no later than 30 days after the issuance of this decision. If any of the parties should have questions about this letter or the Commission’s decision, please feel free to contact me. Sincerely, COMMISSION By: Jon P. Axelrod and Deborah C. Meiners Special Counsel JPA:sd cc: Commission Members Vanessa R. Chavez, Esq. Lindsay J. Mather, Esq. Thomas C. Bellavia, Esq. In the Matter of Carlstedt, et al. v. Wolfe December 8, 2021 Page 14 Steven C. Kilpatrick, Esq. Ms. Kris Teske