After criticism, Wisconsin county shelves plan to prosecute journalists and officials who speak about water issues without permission

Patrick Marley | Milwaukee Journal Sentinel

DARLINGTON - A county board in southwestern Wisconsin shelved plans Tuesday to prosecute journalists and discipline elected officials for how they handle information about the county's water quality.

In an at-times contentious meeting, the Lafayette County Board backed away from those ideas and put off for another day a decision on how to release information about private wells contaminated with fecal matter.

The meeting was marked by confusion and sharp words, with Board Chairman Jack Sauer threatening to throw out critical members of the public, complaining about Facebook posts and accusing attendees of being Democrats.

"I’m tired of your crap at these meetings," Sauer told one attendee.

The push to change how information about water quality is released came in response to an August study that showed 32 of 35 private wells that had earlier been found to be contaminated continued to have contamination.

The study and the dustup that ensued highlighted the sensitivity in rural Wisconsin of well contamination and who is responsible for the problem.

The study of the 35 wells was taken from locations in Lafayette, Grant and Iowa counties. Scientists traced well contamination to both human and livestock sources.

Some officials were frustrated by how those results were reported and pushed back by initially pursuing the resolution that said journalists would be prosecuted if they did not quote a county news release verbatim when they wrote about the issue in the future.

The proposal caught national attention as free speech advocates contended it violated the First Amendment right to freedom of the press.

A committee stepped away from prosecuting journalists Tuesday morning with a revised version of its resolution. But the new proposal still raised alarms among free speech proponents because it threatened to punish officials who talked publicly without getting permission from the government.

Under it, county supervisors and other officials could have been subjected to discipline if they spoke about a water quality studies without first getting permission from a panel of county officials.

“Do I think this is a flagrant breach of the First Amendment? Absolutely,” said Supervisor Kriss Marion, who fought the plan. “When you become a public official, you don't suddenly become, you know, hamstrung as to what you can talk about.”

By Tuesday night, Supervisor Gerald Heimann offered an amendment that softened the resolution again. That version would allow supervisors to speak freely but said the county's official opinion could come only from the county, not from individual supervisors.

The board adopted that amendment 12-2 and then voted 13-1 to put off the resolution. Supervisors left open the possibility a committee could revisit the issue.

Dozens of people packed both of Tuesday's meetings in the basement of the Lafayette County courthouse. They excoriated county officials for their handling of water quality issues and accused them of trying to hide information from the public.

“I’m abashed to be living in this county with this kind of stuff going on,” said Ginny Bean of Argyle at the committee meeting.

Tom Ellefson, a beef farmer from Lamont, called the proposal draconian and said before the vote he feared the County Board wanted to spin a story about the quality of the county’s water.

“When I got wind of this proposal, I was angry,” he told the board. “And as I sit here tonight and I hear from these concerned, informed people, I'm just more sad than anything — more sad — because I think we have too many people sitting at this table up here (where the board sits) that don't want to be confused by the facts."

Before the plan was scrapped, Sauer said supervisors and other officials could face discipline under the county's ethics code. The ethics code covers a wide variety of activity and includes provisions for firing employees, expelling county supervisors from office and fining county officials up to $1,000.

"We have a way to present information for the county," Sauer said after the committee vote. "Not everybody gets to talk about things. Some things shouldn't be talked about."

Bill Lueders, president of the Wisconsin Freedom of Information Council, said requiring elected officials to get government approval before they can speak is bad policy.

“The whole reason we have independently elected public officials is so that we have the benefit of their perspective, not that they’re put in a chair somewhere and told to shut up,” he said.

Tom Kamenick, an attorney who specializes in the open records law, said it’s important to hear from officials who have dissenting opinions.

Elected officials “have the constitutional right, and even the duty, to speak out on matters of public concern when they feel it is in the public's best interest. We trust and expect the people we elect to speak freely about issues that concern us all,” said Kamenick, who recently launched a law firm focused on the open records law called the Wisconsin Transparency Project.

The resolution the committee debated had a “legal note” on it that said passing it was “within County Board authority.” But county officials acknowledged the resolution had not been reviewed by its corporation counsel, Nathan Russell.

The County Board chairman brushed off concerns about the legality of the resolution before it was abandoned.

"It already passed legal muster," Sauer said. "It was already written by an attorney."

He declined to provide the name of the lawyer in the morning but later said attorney Andrew Phillips worked on an amendment to the resolution. Phillips, of the Milwaukee law firm von Briesen & Roper, performs work for local governments and was recently hired by Republican lawmakers to assist them with how to handle state litigation.

Charlotte Doherty of Darlington asked the county committee members why they feared having information about water quality made public. She said their response to the study reminded her of someone who is afraid to get a test for cancer.

“If you have cancer, not knowing is not going to change anything,” she said. “It’s just going to make it worse.”

Sauer said he’s not worried about the public having information but wanted to make sure they don’t get misinformation.

"I don't mind them speaking publicly, but I want to tell the truth," the County Board chairman said.

Donald Downs, an emeritus professor of law and political science at the University of Wisconsin-Madison, said a U.S. Supreme Court decision would give the county the ability to restrict the speech of county employees who work directly on water issues.

But the county has less authority to control what other county employees could say about water issues because they would be speaking more as citizens than as county officials, Downs said. He called putting restrictions elected officials “really problematic.”

“It’s clearly a gag order,” he said.

Larry Dupuis, legal director of the American Civil Liberties Union of Wisconsin, urged the board ahead of the vote to abandon the resolution.

“Government and elected officials do not surrender their First Amendment right to freedom of expression by serving the public,” he said in a statement. “In fact, they are often in a unique position to speak about government affairs that would otherwise be hidden from public view.”

The August results of 35 wells were randomly selected by researchers from wells that in previous rounds of testing were found to be contaminated with coliform bacteria or high levels of nitrate.

The research was conducted by the U.S. Agricultural Research Service, U.S. Geological Survey and the Wisconsin Geological and Natural History Survey.

The August study was an effort by the scientists to go back to contaminated wells and use DNA techniques to determine whether contaminated water came from livestock or humans.

The results showed that it came from both: 30 of the 35 wells found contamination from human waste and septic systems, 17 from cattle and five from swine. In some wells, researchers found a mix of human and animal waste.

More studies are planned.

Journal Sentinel reporter Lee Bergquist contributed to this report.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.