Kathy Nickolaus destroying ballots? Waukesha County DA says “Nothing is being destroyed today”

UPDATE – Statement from Wisconsin GAB received at 4:30 regarding this story.

Today, the GAB contacted Waukesha County Corporation Counsel regarding claims that ballots and election materials from the June 5 Recall Election would be destroyed today.  The Waukesha County Corporation Counsel’s office indicated that these materials would be transferred to offsite storage today.  All further questions should be referred to Waukesha County Corporation Counsel or Clerk.  The G.A.B. is not authorized to provide Waukesha County with legal advice regarding the public records law, nor does the G.A.B. have any authority to enforce the public records law.

In a must-read Brad Blog article this morning; emails from Waukesha County Clerk Kathy Nickolaus to election protection group legal counsel created a firestorm. Nickolaus referenced what would amount to illegally destroying election materials in the face of open records requests; which would preserve the ballots beyond the statutory-defined 30 days:

Unless I receive a court order by noon on Monday, August 13, 2012 directing otherwise, I will proceed to retain or destroy the election materials from the June 5, 2012 Recall election according to state statute and GAB guidelines.

This statement appears to be contrary to the GAB advice to County Clerks, sent in a July 3 email:

Ultimately, each county and municipality is subject to the application of Wisconsin’s public records laws and individually responsible for compliance therewith.  Failure to comply with public records laws does expose the counties and municipalities to civil penalties and potential attorney’s fees.  It is strongly recommended that you each obtain adequate legal counsel to appropriately comply with these public records requests, as well as maintain the chain of custody and integrity of the June 5, 2012 election materials. 

Badger Democracy contacted Waukesha County District Attorney Brad Schimel for comment at 8:30 this morning. Schimel stated he knew nothing of the requests prior to this morning, expressed his concern about the Nickolaus situation, and “…now is not a good time to be destroying any election materials.” When asked about the Nickolaus emails, Schimel stated he would contact County Corporate Counsel Thomas Farley and call back with an update.

At 10:15 am, Corporate Counsel Farley called back Badger Democracy with only the following statement, citing attorney/client confidentiality:

Kathy Nickolaus, my client, will act responsibly.

Within minutes, DA Schimel called Badger Democracy with further information. After discussion with the County Clerk’s office, Schimel stated “Nothing is being destroyed today. Measures have been taken to preserve all election materials from the recall election, and things are on hold at this point.”

Schimel also expressed his concern in the situation in light of Nickolaus not seeking re-election for another term. Kathy Nickolaus is out of the office today, and unavailable for comment. Badger Democracy phoned Nickolaus’ private number and left a message. Updates will be posted if she responds.

Kathy Nickolaus likely sent the threatening email without consulting counsel. It would also appear that the DA and Corporate Counsel in Waukesha County are in damage control mode again – because of ever – vigilant citizen election protection groups…and Kathy Nickolaus. The pressure should be maintained in light of this information.

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