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G.A.B. Releases Report of Independent Investigation into Waukesha County Clerk Kathy Nickolaus

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Date: 
September 28, 2011

MADISON, WI – Based upon an extensive independent investigation into the actions of Waukesha County Clerk Kathy Nickolaus after the Spring Election, the Government Accountability Board found probable cause to believe that she violated the state law requiring county clerks to post all returns on Election Night, but concluded that the violation was not willful and therefore did not constitute criminal misconduct.

The Government Accountability Board today released the independent investigation report by former Dane County prosecutor Timothy Verhoff, as well as a G.A.B. staff report and related documents.  These reports detail how Clerk Nickolaus’ actions on Election Night and in the following days led to confusion and misinformation about the closeness of the Wisconsin Supreme Court election, and about the reason that official results varied so significantly from the initial unofficial results.

Despite allegations that Clerk Nickolaus somehow manipulated votes from the city of Brookfield to sway the election for Justice David Prosser, Attorney Verhoff’s report determined that this could not have happened because the City of Brookfield independently reported the correct vote totals to multiple news outlets and they were published by the online news website Brookfield Patch on Election Night. 

The report notes that, while Clerk Nickolaus was unable to give a definite explanation as to how the error occurred, the most likely explanation for her misreporting of unofficial results is that she uploaded a blank template into a reporting database, rather than a template that included actual vote totals, for the City of Brookfield.  Clerk Nickolaus gave both the blank and completed templates the same file name and saved them in the same file location on the computer.

Attorney Verhoff concluded that Clerk Nickolaus’ failure to post election night results from the City of Brookfield “appears to be either an honest mistake or ineffectiveness,” and that “her conduct does not appear to rise to the level of conduct that can be described as willful neglect or a refusal to comply with the law.”  As a result, he did not recommend referral for criminal prosecution.

Attorney Verhoff’s investigation also looked at problems with ballot bags and security seals used in Waukesha County, and found no evidence of criminal wrongdoing either by Clerk Nickolaus or other local election officials, and no evidence that those problems were the result of any fraud. 

As a result of the investigation, the G.A.B. has issued an order requiring Clerk Nickolaus to conform her conduct to law and take certain steps to ensure accountability and transparency in her Election Night reporting practices prior to the February 2012 spring primary.  Those steps include releasing detailed results on Election Night, instead of only county-wide figures.  Had Clerk Nickolaus reported all results separately on Election Night, her failure to include numbers from the City of Brookfield would have been apparent immediately, rather than the next morning when she discovered the problem.

“Your actions following the April 5, 2011 Spring election did not conform to the legal requirements imposed on county clerks,” G.A.B. Chairperson Thomas H. Barland said in a letter to Clerk Nickolaus.  “When one election official fails to act consistent with those responsibilities, steps must be taken to correct the failure in order to prevent it from recurring, and to restore public confidence and trust in the administration of elections.”

About the investigation and report

Immediately after the G.A.B. became aware of the problems with reporting accurate unofficial election results, the agency dispatched staff to Waukesha County and launched its own review to verify the accuracy of the vote totals and determine what went wrong.  On April 20, Supreme Court candidate Joanne Kloppenburg’s campaign manager filed a formal complaint against Clerk Nickolaus with the G.A.B., alleging several violations of the law and calling for an independent investigation.  In May 2011, the G.A.B. authorized an investigation of Clerk Nickolaus and hired Attorney Verhoff as the independent investigator.  Because of state laws requiring confidentiality in its investigations, the G.A.B. has been unable to comment on the Waukesha County investigation until now.

Kevin J. Kennedy, director and general counsel of the G.A.B., said he believes Attorney Verhoff’s independent report and the accompanying staff report fulfills the G.A.B.’s promise to give the public a complete accounting of exactly what happened in Clerk Nickolaus’ office on Election Night and in the following days.  Two days after the election, Clerk Nickolaus held a news conference to announce that the official canvass results certified by the Waukesha County Board of Canvassers contained an additional 14,315 votes from the City of Brookfield, which had been omitted from the unofficial results on Election Night.  The discovery of the Brookfield results changed the statewide results from an apparent unofficial 204-vote margin in favor of Kloppenburg to a 7,316-vote margin for Justice David Prosser.

“Clerk Nickolaus’ errors on Election Night caused many Wisconsin voters much concern about the integrity of Wisconsin’s elections,” Kennedy said.  “County and municipal clerks are our partners in administering Wisconsin’s elections, but the G.A.B. must hold them to certain standards to ensure public confidence in our electoral system.  One of the most important standards is transparency.  I encourage members of the public to read these reports for themselves to get a better understanding of the events that occurred after the polls closed in Waukesha County in the Spring election.”

Under Wisconsin’s Constitution, county clerks are independent, elected officials who are ultimately answerable to the voters, Kennedy said.  The G.A.B. does not have the power to remove a clerk from office, but may order a clerk to conform her conduct to the law, which it has done in this case.

The report also addresses several points of misinformation that were widely reported and discussed in the weeks after the election, including: 

  • Whether Clerk Nickolaus kept election results on her “personal computer.”  In fact, it was a county computer.
  • How she could forget to save information into a Microsoft Access database, which automatically saves data.  The report concludes that the error was most likely not due to the failure to save data, but because she imported a blank spreadsheet template for the City of Brookfield that contained zeros as the vote totals, but did not double-check to see whether she had imported the correct spreadsheet.

In addition to investigating Clerk Nickolaus’ actions in the April 4, 2011 Spring Election, the G.A.B. also sent staff investigators to interview her following the August 9, 2011 Senate Recall Election after receiving complaints about delays in posting results on that Election Night.  Staff found no evidence of any incorrect procedures for that election, and concluded that she reported the unofficial results promptly upon receiving the last totals transmitted from the Village of Menomonee Falls.

Excerpts from Attorney Verhoff’s report

“It is my opinion that if the government decided to issue a criminal charge against Ms. Nickolaus, it would be highly unlikely all members of a 12-person jury would be convinced beyond a reasonable doubt that Ms. Nickolaus’ actions involved willful neglect of a duty or the refusal to perform a duty.” – Page 37.

“The evidence establishes this is not a situation in which a number of ballots were discovered, hidden or surreptitiously added to the totals.” – Page 38.

[Regarding the Access 2007 database] “It appears … Ms. Nickolaus simply inadvertently uploaded a blank template into the database that did not contain the vote totals for Brookfield and posted inaccurate results on election night.  While this error may be fairly characterized as human error, the problem appears to stem from potentially larger issues.”  – Page 38.

“Ms. Nickolaus was the sole person responsible for uploading the spreadsheet/templates into the Access 2007 database on election night.  There was not a system in place to check for potential errors in this process.” – Pages 38-39.

“Compounding the problem was the way in which the matter was handled after Ms. Nickolaus discovered the error. … Ms. Nickolaus’ failure to immediately inform G.A.B. Director and General Counsel Kevin Kennedy or G.A.B. Elections Division Administrator Nat Robinson about the scope of the potential problem with the Brookfield totals also shows a lapse in judgment.” – Page 39.

“The manner in which Ms. Nickolaus decided to hold the press conference also exacerbated this situation. … During the press conference, for example, Ms. Nickolaus repeatedly stated the error was the result of failing to properly save the results of the Access 2007 database.  This explanation only fueled suspicion of fraud because members of the public familiar with the program were aware the program does not require a user to save data after it is uploaded and were aware the explanation did not make sense.” – Page 40.

“Despite these issues, it does not appear there was any intentional misconduct on the part of Kathy Nickolaus, nor were there significant problems with the manner in which the official canvass was conducted.  As previously indicated, the official canvass process, the G.A.B. review, and the statewide recount confirmed the official vote totals are correct, and that the unofficial vote totals published election night were in error.” – Page 40.

About the investigator

Under Wisconsin Statutes, the G.A.B. is authorized to hire outside investigators to review complaints alleging violations of laws under its jurisdiction.  Attorney Timothy Verhoff served as Deputy Dane County District Attorney from 2003 to 2010, and was named Wisconsin’s Deputy District Attorney of the Year in 2007.  In 2010, Verhoff went into private practice as a criminal defense attorney in Madison. 

For more information

The reports, findings of the Board, and correspondence to Clerk Nickolaus are available on the Government Accountability Board’s website: http://gab.wi.gov.

 

For more information, contact: 

Reid Magney, public information officer, 608-267-7887

AttachmentSize
Waukesha Independent Investigation Final Report.pdf2.76 MB
Waukesha County Independent Report Appendix.pdf915.59 KB
Corr to Clerk Nickolaus 9.12.11-signed.pdf44.54 KB
GAB Staff Review Report 9.12.11.pdf560.75 KB
Attachment to GAB Staff Report.pdf503.76 KB
Findings and Order signed.pdf270.91 KB
Board Memo re: August 9 Recall Election 8.23.11.pdf183.21 KB