Milwaukee Journal Sentinel, December 31, 2004

By Patrick Marley

Madison - Attorney General Peg Lautenschlager is investigating the state Elections Board over suspected violations of open government laws in the awarding of a $13.9 million contract to create a voter database, an aide said Thursday.

The inquiry into suspected violations of open records and open meetings laws means Lautenschlager will be unable to defend the board in a lawsuit filed last week by groups seeking to rescind the contract with Accenture, said Mike Bauer, Lautenschlager's legal services administrator.

The investigation and the lawsuit focus on whether election officials had the power to award the contract administratively, rather than by a board vote. It would be a conflict to investigate and to represent the board, Bauer said.

Without the attorney general's legal aid, the board likely will have to hire pricey outside counsel to defend itself against the lawsuit.

Disclosure of the investigation came a day after the Wisconsin Freedom of Information Council asked Lautenschlager to look into an apparent open records violation at the Department of Transportation.

An investigator from the Justice Department's Public Integrity Unit will be assigned to that case Monday, Bauer said.

In the Elections Board matter, investigators are looking into whether a decision to hire the Chicago company should have been made at a public meeting.

Decision defended

Kevin Kennedy, the board's executive director, has said that he followed Department of Administration guidelines in considering bids to create a database of the state's estimated 4 million voters, as required under a federal law passed after the 2000 election troubles.

The board never voted on the contract, which runs through 2010. Kennedy has maintained that similar decisions have been made administratively for more than 20 years.

Kennedy declined to comment Thursday.

The Justice Department is also looking into how the board handled an Oct. 21 request from Wisconsin Voter Lists for records related to Accenture's selection for the voter database contract. The board has not responded to that request, said Barry Ashenfelter, a business representative of the company, which also bid on the project.

Under state law, public documents are to be released "as soon as practicable and without delay."

Ashenfelter said Thursday: "I have no idea why they haven't responded. We've gotten zilch back."

The lawsuit against the board was filed Dec. 23, a day after Lautenschlager began her investigation. The plaintiffs are Wisconsin Voter Lists, state Rep. Mark Pocan (D-Madison), two union leaders and the head of election watchdog Wisconsin Democracy Campaign.

The lawsuit seeks to void the contract with Accenture, which has come under fire for its role in creating a flawed list of felons for Florida's voter database. Wisconsin unions have contended that state workers should compile the list, and they have criticized Accenture because its parent company is based in Bermuda, helping it avoid taxes.

The suit also seeks to have the board adopt a new plan for implementing the federal Help America Vote Act.

The legal wrangling could make the state miss the January 2006 federal deadline to create a statewide voter list.

Requests for report

In the Department of Transportation case, investigators are to look into how requests were handled for a report that shows state engineers are 18% cheaper than consultants. The department outsources more than half its engineering jobs.

The report's conclusion conflicts with that of Gov. Jim Doyle's budget office, which found in October that outside engineers are cheaper than state workers.

Officials with the State Engineering Association have said they made repeated requests for the April report. The Wisconsin State Employees Union later made requests as well.

But Busalacchi aide Randy Romanski said Thursday that the unions agreed to give the secretary more time before releasing the report.

"The secretary said, 'Just give us more time,' and the unions said, 'That's fine, that's fine,' " Romanski said. "That's not a public records request."

Union officials have agreed that Busalacchi asked for more time, but they have said they were led to believe the report had not been completed at that time.

The association's early requests for the report were made orally, so there is no record of them. Tim Hanley, then the association's president, sent Busalacchi and at least two other department officials an e-mail Aug. 2 asking for a copy of the report.

Busalacchi told the Journal Sentinel this month that he was not aware of that e-mail. Romanski said Thursday that the union again agreed to give Busalacchi more time to produce the report in a subsequent meeting.

Busalacchi also has maintained that the report remained a draft until November. Drafts are not subject to the open records law.

But a November Transportation Department memo says the report was completed in April, and that it was presented to officials at the Department of Administration. Once documents are circulated to other agencies, they no longer may be considered drafts, according to a 15-year-old state Supreme Court ruling.

Jim Thiel, the Transportation Department's top attorney, released the November memo to the Journal Sentinel on Dec. 10, a Friday. Thiel was demoted the following Monday after 31 years as chief department counsel. His $112,579 salary was not cut.

Busalacchi has denied any connection between the demotion and the release of the memo.

The Freedom of Information Council, made up mainly of journalists and media groups, has asked Lautenschlager to look into Thiel's demotion.