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Former alderman can hold onto e-mails



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October 13, 2010 | 09:11 AM
After more than four months, the state's attorney general's office has responded with an opinion regarding the requirement of a former Lake Geneva official to respond to open records laws.

Last week, Assistant Attorney General Lewis Beilin wrote in a three-page letter to the Regional News that "Wisconsin public records law does not require former Alderman Tom Spellman to respond to a request for records created or maintained by him during his tenure as a city alderman, but that are now under his personal control."

In June, the Regional News and Janesville Gazette wrote letters to the Attorney General's office asking for help regarding requests for e-mails sent to Spellman and his response to them.

The newspapers made public records requests for e-mails revolving around the Mirbeau and Hummel development proposals.

At that time, Spellman told the Gazette he didn't have to respond because he no longer was a city official.

But, Spellman responded to the Regional News requests with a letter stating he was asking the city to provide him with legal counsel and a computer consultant to assist him.

He also stated in his letter that if the city didn't provide counsel, he would retain private counsel at $200 per hour and a computer consultant at $90 per hour and direct those costs to the Regional News.

He also stated that he would charge $30 per hour for his own time in responding to the request and included a bill to the Regional News for $90. That bill was not paid by the Regional News.

Although the opinion from the attorney general's office didn't answer Spellman's request for reimbursement, the opinion was clear regarding whether Spellman has to provide the documents.

According to Wisconsin's public records laws, elected officials are "authorities" and are the legal custodians of his or her records and the records of his or her office.

However, "Mr. Spellman has left office, so he is no longer an 'authority.' He simply has no legal obligation, under the Wisconsin public records law at any rate, to respond to requests for records that are under his personal control, whatever their origin, content, format or current location."

Beilin writes that the governmental body should "have policies that govern the use by public employees and officials of personal e-mail accounts, or personal computers, to conduct official business.

"If official business is conducted using such means, then some arrangement for the retention and custody of those records should be put into place."

Until recently, city officials used their own e-mail addresses for city business. However, now city officials use city-issued e-mail addresses which are stored at City Hall.

Mirbeau is suing the city for $29 million and Geneva Ridge Joint Venture, also known as Hummel, is suing the city for $99 million. The lawsuits surround the actions of city officials regarding the efforts to develop the 710 acres on the southeast side of the city, near Big Foot Beach State Park.

E-mail communication between city officials and area organizations appear to be at the heart of the lawsuits.

Former alderwoman Penny Roehrer provided more than 200 pages of e-mails, some of which included correspondence between her and other aldermen and the Friends of Geneva Lake group she was a member of discussing the Mirbeau-Hummel development project.

The Regional News has filed a suit in Walworth County Circuit Court trying to obtain e-mails from current Alderwoman Mary Jo Fesenmaier.

Several e-mails provided by Roehrer included Fesenmaier as a sender or recipient. However, Fesenmaier has contended that she was not in possession of the e-mails when the open records requests were made by the Regional News.

Claims of due process violations, racketeering and interfering with a contract have been made by Mirbeau and Hummel as the cases both currently are in the federal court system.

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