E-mail Exchange Shows DA And City Attorney Strongly Disagreed On Ethics Complaint; Investigation Underway
KFIZ is the first to bring you an e-mail conversation, showing two very different opinions relating to an Ethics Complaint filed back in May.
An email exchange May 6, 2021 shows a difference in opinion between Fond du Lac County DA Eric Toney and City of Fond du Lac Attorney Deborah Hoffmann, regarding Hoffman’s opinion given in the matter surrounding councilman Patrick Mullen.
An Ethics Complaint was filed against Mullen by Josh Wilsmann, which centered around the potential conflict of interest Mullen might have with his involvement in the lawsuit that was filed against the City of Fond du Lac last year regarding the Lakeside Park Project, prior to his being sworn in as council member. The City of Fond du Lac Ethics Board met and dismissed the complaint.
In an opinion delivered to Mullen by Hoffmann, it was stated that Hoffmann did not feel there was any conflict of interest. Mullen was part of a trio of candidates that ran for City Council seats in the April 6, 2021 election. The three candidates, Tiffany Brault, Keith Heisler and Mullen, combined forces to run on a platform that was heavily opposed to parts of the proposed development in Lakeside Park, and more specifically, the Restaurant/Multi-purpose building that was set to be built on the Lighthouse Peninsula. All three candidates won seats on the Council. It’s also important to note the lawsuit was dismissed March 5, 2021.
In an Open Records Request sent to the DA’s Office, KFIZ News has obtained the email exchange and subsequent letter sent from Toney to Hoffmann.
An email exchange dated May 4, and in the letter sent from FDL County DA Eric Toney to Hoffmann, it shows that Toney was concerned about legal fees for Mullen being paid by the PAC he (Mullen) was associated with.
“I’m curious if your recent legal opinion touched on 19.59(1)(br). In respect to a candidate for city counsel being a party to a lawsuit that addresses a pending matter before the counsel. With the legal fees having been paid on behalf of the candidate by a PAC during the candidacy and after the election but prior to the candidate taking office. I have concern based on what I am aware of, if the member takes votes on the issue but I don’t yet have all the facts.”
The legal article Toney refers to says “No local public official or candidate for local public office may, directly or by means of an agent, give, or offer or promise to give, or withhold, or offer or promise to withhold, his or her vote or influence, or promise to take or refrain from taking official action with respect to any proposed or pending matter in consideration of, or upon condition that, any other person make or refrain from making a political contribution, or provide or refrain from providing any service or other thing of value, to or for the benefit of a candidate, a political party, any committee registered under ch. 11, or any person making a communication that contains a reference to a clearly identified local public official holding an elective office or to a candidate for local public office.”
Toney goes on to say, in the letter, that “I understand there could be additional facts and/or statutes in this letter, which may not have been provided to the City when the initial ethics opinion was released. I also recognize the City Ethics Code does not mirror the State Ethics Code. I ask that you take this information into consideration to ensure that all available facts and law are reviewed in order to assist any councilmembers from inadvertently violating the State Ethics Code.”
Toney’s concern regarding Mullen and the potential Ethics Violation continues in the letter:
“Approximately 2 months after this lawsuit was filed, Mr. Mullen became a candidate for the Fond du Lac City Council, remained a party to this lawsuit throughout his candidacy, and while a member of the Fond du Lac City Council. As a party to the lawsuit, Mr. Mullen opposed development at Lakeside Park, which was a pending matter of consideration before the council, while he was a candidate for local office. During his candidacy the remainder of the legal fees incurred for the unsuccessful challenge to Lakeside Park development was paid by this PAC. The information suggests that Mr. Mullen and his spouse were, at various times, active participants and/or consulted with this PAC. My understanding is that Mr. Mullen was advised that once he was a candidate for City Council he should withdraw as a party to the lawsuit, which he did not do.”
Toney closes the letter with the following:
“The specific concerns relates to Councilmember Mullen being a candidate for local public office and during his candidacy, he was a party to a lawsuit which directly related to pending matters before the Fond du Lac City Council. Mr. Mullen’s spouse initiated the retainer of the attorney, paid the fee, and the lawsuit took a position in opposition to the City Council. This was clearly in relation to an issue in consideration of by the counsel. The legal fees, beyond the initial retainer, were paid for by political contributions through a PAC, which Mr. Mullen knew would occur. This PAC also took a contrary position to a pending matter in consideration by the Fond du Lac City Council and it appears that Mr. Mullen may have been an active participant in the PAC or related activities. Mr. Mullen then committed himself to opposition to matters in consideration of by the counsel and benefited from political contributions through a PAC for legal fees. He then continued his position as a member of the lawsuit as a candidate and after assuming office. Political contributions were made to this PAC which paid for the legal fees of participants of this lawsuit, including Mr. Mullen.”
KFIZ News reached out to the PAC, and was told the following, in an email:
“The PAC – Citizens for Preserving Lakeside Park – was working with Justin Wallace initially (Manitowoc) and then Chuck Hertel (Dempsey Law/Oshkosh) – from July 30 – September 24. Hertel was not hired completely and only due to a conflict of interest. Ms Hayes had retained Mary Beth Perentau out of Madison in early August. The two attorneys had separate purposes with Perentau’s purpose being that of writing the Direct Legislation petitions that were circulated. The PAC was working with both attorneys at the same time, overlapping. The PAC also met with an attorney and received legal advice but ultimately did not hire that lawyer, in part, because of a conflict of interest for that attorney.”
District Attorney Toney closes his letter to Attorney Deborah Hoffmann by saying, “If these facts as outlined are accurate, I have concern that any votes taking by Councilmember Mullen in relation to Lakeside Park Development would run awful of Wis. Stat. 19.59(1)(br). Any issues related to Wis. Stat. 19.59(1)(br) can likely be cured by the affected member abstaining from voting on issues germane to the Lakeside Park Development and the lawsuit funded by the PAC.”
According to numerous sources we’ve spoken to, a continuing investigation into the matter is likely, but as of Tuesday, KFIZ News has not been able to confirm if that investigation is going on, and if so, which agency or office is handling it.
It is important to note that, while this is the second current councilmember to face an Ethics Complaint, if an investigation is underway, or would be initiated, Mullen would be the only councilmember that would have been investigated for any wrong-doing.
UPDATED 6/16/2021 3:06 P.M.
KFIZ News has learned that an investigation into a complaint filed against Patrick Mullen is underway. KFIZ has also been told that the West Bend Police Department is conducting the investigation, and will be interviewing witnesses beginning this week.
You can read the complete letter here: