Wis. board says clerk's actions not criminal misconduct

By Jessica M. Karmasek | Sep 28, 2011

MADISON, Wis. (Legal Newsline) -- Wisconsin's Government Accountability Board said Wednesday that a county clerk who admitted to omitting thousands of ballots in April's heated state Supreme Court election did not do so willfully.

The board, following an extensive investigation into Waukesha County Clerk Kathy Nickolaus' actions, said she violated the state law requiring county clerks to post all returns on Election Night, but concluded the violation was not willful and therefore did not constitute criminal misconduct.

As of 4 p.m. April 6 -- the day of the election -- a final but unofficial vote count had showed state Assistant Attorney General JoAnne Kloppenburg with 204 more votes than incumbent state Supreme Court Justice David Prosser.

That was before Nickolaus admitted to omitting some 14,000 ballots.

The city of Brookfield sent its results to Nickolaus, who reportedly put them in the system but forgot to save the data. She later discovered her mistake and added the missing votes again, giving Prosser a 7,500-vote lead over Kloppenburg.

After losing a recount by about 7,000 votes, Kloppenburg later conceded defeat to Prosser.

Under Wisconsin Statutes, the board is authorized to hire outside investigators to review complaints alleging violations of laws under its jurisdiction. In this case, it hired attorney Timothy Verhoff.

Verhoff served as Deputy Dane County District Attorney from 2003 to 2010, and was named Wisconsin's Deputy District Attorney of the Year in 2007. In 2010, Verhoff went into private practice as a criminal defense attorney in Madison.

Despite allegations that Nickolaus somehow manipulated votes from the city of Brookfield to sway the election for Prosser, Verhoff determined that this could not have happened because Brookfield independently reported the correct vote totals to multiple news outlets and they were published by the online news website Brookfield Patch on Election Night.

Verhoff's 40-page report notes that, while Nickolaus was unable to give a definite explanation as to how the error occurred, the most likely explanation for her misreporting of unofficial results is that she uploaded a blank template into a reporting database, rather than a template that included actual vote totals, for Brookfield.

Nickolaus gave both the blank and completed templates the same file name and saved them in the same file location on the computer, the attorney said.

Verhoff also concluded that Nickolaus' failure to post election night results from Brookfield "appears to be either an honest mistake or ineffectiveness," and that "her conduct does not appear to rise to the level of conduct that can be described as willful neglect or a refusal to comply with the law."

As a result, he did not recommend referral for criminal prosecution.

Verhoff's investigation also looked at problems with ballot bags and security seals used in Waukesha County, and found no evidence of criminal wrongdoing either by Nickolaus or other local election officials, and no evidence that those problems were the result of any fraud.

As a result of the investigation, the board has issued an order requiring Nickolaus to conform her conduct to law and take certain steps to ensure accountability and transparency in her Election Night reporting practices prior to the February 2012 spring primary. Those steps include releasing detailed results on Election Night, instead of only county-wide figures.

Had Nickolaus reported all results separately on Election Night, her failure to include numbers from Brookfield would have been apparent immediately, rather than the next morning when she discovered the problem, the board said.

"Your actions following the April 5, 2011 Spring election did not conform to the legal requirements imposed on county clerks," Board chairman Thomas H. Barland wrote in a Sept. 12 letter to Nickolaus.

"When one election official fails to act consistent with those responsibilities, steps must be taken to correct the failure in order to prevent it from recurring, and to restore public confidence and trust in the administration of elections."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

More News