MacIver News Service | July 4, 2018
By M.D. Kittle
MADISON – A nearly five-month investigation into allegations of administrative misconduct in the troubled Ozaukee County court system has found plenty of errors but no legal wrongdoing, according to a report issued Tuesday.
In fact, the investigator, former Dane County Judge Patrick Fiedler, came to a conciliatory conclusion as he effectively asked, “Can we all get along?”
“In my opinion, the conclusions and findings of this investigation do not hinge on a credibility determination. Everyone who was interviewed was credible. But everyone answered questions from his/her own individual perspective,” Fiedler wrote in the 27-page report.
The investigator concluded that “there is no basis to believe” that Ozaukee County Clerk of Courts Mary Lou Mueller, the court’s head judge and an administrator violated the law, though Fiedler repeatedly notes Ozaukee County Circuit Court Judge Joe Voiland, who originally raised the misconduct questions, was correct that errors were made by the accused.
The private practice attorney, tapped in February to investigate the allegations, does recommend the Director of State Courts conduct an audit of the Ozaukee County Clerk of Court’s office to determine whether it is in compliance with state statute on its handling of custodial studies and the fees associated with them.
But much appears missing from Fiedler’s investigation. He was brought in not long after Mueller accused Voiland in a local newspaper of making “false and unfounded” allegations. As Fielder’s investigation often notes, Voiland’s concerns were indeed founded, but the investigator concluded that Mueller and other administrators had simply made “errors.”
Fielder, too, it seems, was supposed to make a determination on whether court officials violated the law in failing to provide legally required physical placement studies in family court cases. Ozaukee County presiding Judge Paul Malloy also ordered Court Commissioner Barry Boline to defy Voiland’s orders. Malloy wanted to wait until the Ozaukee County Board came up with a policy to deal with the lapse in services.
Fielder found Voiland was “correct in his allegation about custody studies” while simultaneously insisting that Boline was placed in an “untenable position” because the commissioner had received “inconsistent directions” from the judges. That’s because Voiland ordered Boline to follow the law while Malloy instructed him not to. That would seem to be a significant legal concern. Fiedler didn’t find it so. The investigator thought prudent Malloy’s attempt to “maintain a good relationship with the county board in working toward the passage of a county ordinance.”
This is the conflict in Fiedler’s finding: As he insists court officials did not break state law on custody studies and whether court administration followed the law on family court services fees, he seeks an audit of the Ozaukee County Clerk of Courts to determine if the county was and is in compliance with state statute. That seems to be a question the investigation should have answered.
MacIver News Service’s investigation in January found possible misconduct and certain dysfunction in the southeastern Wisconsin circuit court. Nearly three weeks later, Chief Judge Jennifer Dorow launched a probe into the allegations.
Dorow, a Waukesha County judge who heads up the Third Judicial Administrative District, “initiated an administrative investigation to address recent reports and concerns related to court administration in Ozaukee County,” according to a statement issued on behalf of the judge by the Wisconsin Court System.
The chief judge at the time said that she expected ‘the (investigative) process to identify any necessary next steps to ensure that the people of Ozaukee County have full confidence in the administration of the courts,” the press release states.
According to a Court System, Fiedler was tasked with looking into the following allegations:
1) Clerk (of Courts) altering and/or deleting circuit court records such as documents, dates, presiding court officials without making an appropriate record entry or notifying the assigned judge, including a case designated as a John Doe case;
2) Clerk/Register in Probate changing cases between formal and informal and back to formal without the approval of the assigned judge, and granting extensions in those cases;
3) County failed to maintain a separate account exclusively for purposes of providing family court services as required by section 814.615 of the Wisconsin Statutes;
4) Failure of County to appoint a director of family court services as required by section 767.405(1m)(a) of the Wisconsin Statutes;
5) Presiding Judge Paul Malloy directing Court Commissioner Barry Boline to disregard a court order issued by Judge Joseph Voiland to provide family court services.
As MacIver News first reported, in the spring of 2016 when Voiland took his concerns to then-Jefferson County Judge Randy Koschnick, who also served as chief judge in the Third Judicial District. Koschnick, who is now Wisconsin’s director of State Courts, was concerned enough to get the director of the Consolidated Court Automation Programs (CCAP), the online state court records system, involved.
An examination of dozens of Voiland’s case files found someone had indeed been altering the records, a felony crime – depending on intent.
The state Department of Justice subsequently opened a lengthy investigation into the complaint.
After a year and a half and some prodding for a resolution by Koschnick, the DOJ recently released its report concluding – without explanation – it would not seek charges in the matter.
On the accusation that court officials had altered or deleted court records, Fielder found Voiland “was correct” and that Mueller, the clerk of courts “was in error in erasing” an entry regarding a case. Mueller had failed to consult with Voiland, but Fielder ultimately determined that “Mueller took this action based upon her belief that this was the more efficient course to take and not because she was attempting to usurp the authority” of the judge.
Such sentiments fill Fiedler’s report. In a couple of cases, he acknowledges that mistakes or miscommunication took place, but that he had encountered similar problems when he was a judge.
“I find that the explanation by Mary Lou Mueller is reasonable,” Fiedler wrote. “As an aside, the situation described by Judge Voiland also happened to me on occasion when I was a judge …”
In short, just a comedy of errors. No harm, no foul.
In one case, Mueller acknowledged that she had erased a John Doe case, but that it was a simple mistake. She told Fielder that the Clerk of Court’s office was not that familiar with John Doe cases and did not have a good policy on dealing with them.
“I find that Judge Voiland was correct in his allegation that CCAP records had been erased and that Mary Lou Mueller made an error in erasing the record … but that she has acknowledged her error and that she now has a procedure in place to ensure this type of error will not reoccur.”
Dorow seems pleased with Fiedler’s findings.
“I appreciate former Judge Patrick J. Fiedler’s willingness to take on this task and thank him for doing so. I have reviewed the report and accept its findings and recommendations,” Dorow said in a statement. “I will continue my work with the Director of State Courts to establish, consistent with my authority as Chief Judge, an appropriate plan of action. I remain committed to working with all Ozaukee County officials to now move forward in a positive manner.”
Fiedler’s report does not deal with emails, obtained and made public by MacIver News Service, raising questions about Dorow’s potential conflict of interest in ultimately overseeing the investigation. Fiedler doesn’t appear to have requested much in the way of internal communications, relying heavily on the word of the people he interviewed.
“I asked each interviewee to be as truthful and accurate as possible,” the investigator wrote. “I further told them not to assume that I would be asking all of the right questions and that they should feel free to volunteer any information that may helpful.”
Reached Tuesday, Voiland said he does not comment on pending matters.
Fiedler, as others have discovered, found a communication breakdown in Ozaukee County courts. He describes it as a “serious problem.” As a “fair and impartial, neutral and detached outsider and a former judge,” Fiedler questions how professional relationships deteriorated so.
“My strong suggestion is that, going forward, all involved attempt to resolve any differences of opinion among themselves in a professional and respectful manner,” he wrote.