Wisconsin lawmakers pass bill that labels legislators' discipline records 'confidential'

MADISON - Wisconsin lawmakers on Wednesday sent Gov. Tony Evers legislation that could make it harder to get records about lawmakers who are disciplined or accused of harassment, government transparency experts warn.

The measure would formally create a human resources office for the state Legislature and says disciplinary records and complaints against lawmakers should be treated confidentially, bolstering a legislative practice of withholding complaints against lawmakers.

The proposal passed the Senate Wednesday and goes to Evers just as a Dane County Judge ruled that Assembly leaders violated the public records law by withholding a sexual harassment complaint against a Democratic lawmaker after the Milwaukee Journal Sentinel and other news outlets sued seeking the records. 

"This greatly magnifies the concern that I have over the proposed human resources office," Bill Lueders, president of the Wisconsin Freedom of Information Council, said. "The Legislature is trying to change the law after getting caught breaking it."

The measure passed both the Assembly on Tuesday and the Senate on Wednesday with no opposition. 

Christa Westerberg, vice president of the Wisconsin Freedom of Information Council and attorney who specializes in open government issues, said "at best," the bill is ambiguous as to whether is simply codifies existing statutory exemptions to disclosure.

"At worst it creates (or will be interpreted as creating) a broad new exception to disclosure for any records “relating to human resources matters” in the Legislature," Westerberg said in a memo to council members.

"This could apply to important records relating to matters including legislative misconduct, as well as mundane matters swept up in the bill’s broad language," she said.

Westerberg said no other state or local government body is allowed to withhold all records related to human resources matters.

"The bill is unnecessary, as employment-related records are subject to other exceptions in the law or, as appropriate, the balancing test," she said.

The measure would put into state law the duties of the Legislature's human resources office. It does not exempt the records from the state's public records law.

The bill passed its final chamber on Wednesday just after Dane County Judge Juan Colás ruled the Assembly leaders — which include the Legislature's human resources officials — violated the public records in law in keeping private records related to complaints against a state lawmaker. 

Rep. Mark Born, a Beaver Dam Republican and co-chairman of the finance committee that passed the bill earlier this month, said the legislation was meant to formalize actions legislative leaders took last year when they formed their human resources department.

“My understanding is that the bill in its entirety is putting in place exactly what was created by the Committee on Org when that agency was created some time last year. So this is just continuing current practice,” he said.

Born did not explain why he believed the discipline of lawmakers and their staffs should be kept from the public. Asked if he would support a similar policy that would keep discipline confidential for Gov. Tony Evers’ cabinet secretaries, Born said, “Have a good day,” and walked away from a Journal Sentinel reporter.

Democratic Rep. Evan Goyke of Milwaukee voted for the legislation in committee but said he wasn’t sure that lawmakers’ disciplinary records should be kept secret.

“I don’t know that it should be in every case,” he said.

He added that he considered the legislation a “step in the right direction” because it would ensure the Legislature has a human resources department like ones in the private sector.

“At least we’re institutionalizing a more professional HR procedure than the fox guarding the henhouse,” Goyke said.

The Legislature has typically rejected requests from media outlets for records related to sexual harassment by state lawmakers. 

Four news outlets including the Milwaukee Journal Sentinel sued the state Assembly in March of 2020 under the state's open records law for withholding documents about a then-state lawmaker who was stripped of his committee assignments for sexually harassing an aide. 

The lawsuit contended the Assembly cannot hold back the documents because the records law provides the public with broad access to information about the government. Exceptions allowing records to be withheld are supposed to be rare. 

Legislators from both parties have supported keeping details about complaints and how they handle them confidential. They argue doing so protects victims and helps ensure legislative workers will report harassment when it happens.

Employment lawyers and advocates for government transparency have called that approach wrongheaded. They say releasing information would help voters know whether their lawmakers are fit for office — and whether their colleagues are committed to cracking down on harassment.

Under the records law, officials can black out parts of documents to keep names or personal information private. But the Assembly didn't go that route, instead withholding the documents in their entirety. 

The Legislature last dealt with sexual harassment allegations in 2017, when two women accused Democratic state Rep. Josh Zepnick of Milwaukee of kissing them against their will. Zepnick lost his re-election bid a year later. 

The issue has surfaced in Wisconsin's Legislature amid a national reckoning with sexual harassment and sexual assault.

In 2014, then-Assembly Majority Leader Bill Kramer was charged with two felony counts of second-degree sexual assault of a woman outside a Republican Party event in 2011. And in 2012, taxpayers shelled out $75,000 to resolve a sexual harassment and racial discrimination claim made by an aide to then-state Sen. and now City of Milwaukee Treasurer Spencer Coggs.

In the cases involving Kramer and Coggs, the Legislature refused to release the related complaints. In 2017, legislative officials said there had been three other undisclosed complaints of sexual harassment in the Legislature in the past decade — one more in the Senate and two more in the Assembly — but did not release details. 

Patrick Marley of the Milwaukee Journal Sentinel contributed to this report. 

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Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.