No criminal misconduct found in Nickolaus' actions

Sept. 28, 2011

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Kathy Nickolaus

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By Mike Johnson of the Journal Sentinel

The state Government Accountability Board said Wednesday it found probable cause to believe that Waukesha County Clerk Kathy Nickolaus violated the state law requiring county clerks to post all returns on election night, but concluded that the violation in the April election was not an intentional act and did not constitute criminal misconduct.

Nickolaus became the focus of formal complaints and national attention after she failed to include City of Brookfield votes in her unofficial election night results in the April 5 Supreme Court race between incumbent Justice David Prosser and challenger JoAnne Kloppenburg, an assistant attorney general.

Nickolaus waited until two days later to explain her mistake in a news conference, but the foul-up prompted criticism and cynicism over her alleged motives and partisanship. Nickolaus had explained her mistake as human error, saying that she'd forgotten to save the Brookfield votes in her database.

Kloppenburg initially had led incumbent Prosser by 204 votes but ultimately lost by about 7,000 votes. A statewide recount confirmed the outcome.

The Government Accountability Board on Wednesday released the independent investigation report by former Dane County prosecutor Timothy Verhoff that concluded Nickolaus' failure to include Brookfield's results appeared to be an "honest mistake or ineffectiveness."

The report says Nickolaus' failure to immediately tell GAB officials about the scope of the potential problem with the Brookfield totals showed a "lapse in judgment."

Nickolaus was unavailable for interviews on Wednesday, her office said. But she released a statement that said, "I am pleased that the investigation confirmed the reporting error in the April 5th spring election was an honest mistake."

Included in the released documents was a separate GAB report on its review of Nickolaus' procedures and a letter from Government Accountability Board Chair Thomas H. Barland to Nickolaus that was critical of her actions. The letter stated that Nickolaus had damaged public trust.

"Your failure to post election returns at the reporting unit level on Election Night led candidates for the office of Supreme Court Justice, Wisconsin voters and members of the media at the state and national level to believe the election for State Supreme Court Justice was within 200 votes when in fact unofficial returns would have shown a difference of more than 7,000 votes out of approximately 1.5 million votes cast," Barland wrote.

"This action has significantly undermined public confidence in the conduct of elections in Wisconsin and Waukesha County. As a result state and local election officials, and you in particular, will have to regain the trust of the Wisconsin electorate in the administration of elections in Wisconsin and Waukesha County," Barland states.

The board ordered Nickolaus to follow the law and have procedures in place by the Feb. 21 primary election and subsequent elections "to ensure accountability and transparency in your actions," according to the letter.

It ordered her to post election totals by reporting unit level in future elections instead of just countywide totals, as she did in the April 5 election. Had totals been posted by municipality or reporting unit, the missing Brookfield returns would have been noticed immediately, the GAB said in a staff report that it released on Wednesday.

In her statement, Nickolaus said she would honor all GAB recommendations and that she was looking forward to "rebuilding the trust of Waukesha County residents."

The documents released by the GAB say it received more than 2,000 questions and complaints demanding an investigation into Nickolaus. Some believed that, because Nickolaus is a Republican and Waukesha County is a Republican stronghold, Nickolaus somehow manipulated the votes to turn the outcome in Prosser's favor.

Among those filing complaints was Melissa Mulliken, manager for the Kloppenburg campaign, who on April 20 called for an independent investigation of Nickolaus.

"Kathy Nickolaus broke the law. She committed not one but numerous acts that violate the obligations imposed upon her by the law," Mulliken said. "I thought that the GAB's letter to her did contain some strong language. It does reveal the need for significant changes in Waukesha County in order to guarantee the election process is open, clean and transparent."

Although a nonpartisan race, the Supreme Court election became highly charged because of Republican Gov. Scott Walker's controversial budget-repair bill that ultimately ended most collective bargaining for most public employee unions.

Union supporters backed Kloppenburg and made the race a referendum on Walker's union measure.

Republicans and business interests were pushing to keep Prosser on the seven-member court to preserve the conservative majority.

After the election, the high court ultimately weighed in on the collective bargaining change, ruling 4-3 that lawmakers adopted the measure correctly. Prosser voted in the majority.

Verhoff concluded in his report that Nickolaus did not sway the vote, saying it could not have happened because the City of Brookfield independently reported the correct vote totals to multiple news outlets on election night.

"The evidence establishes this is not a situation in which a number of ballots were discovered, hidden or surreptitiously added to the vote totals," Verhoff says in the report.

Although Nickolaus has said she failed to save the data, the report concludes that probably wasn't the case. The report says she likely imported a blank spreadsheet template for the City of Brookfield that contained zeros as the vote totals and did not check her work.

The database program she was using automatically saves data, the report points out.

"By her own account, she failed to go back and double check the numbers before posting the final results. The Waukesha County Clerk's Office failed to have adequate systems and procedures in place to receive and verify vote totals before posting the results to the public," the report says.