Despite his liberal personal politics, John Greene, a former assistant attorney general at the Wisconsin Department of Justice, was hired by a Republican attorney general and promoted into leadership by another.
When Brad Schimel took office in 2015, that tradition — of respecting and rewarding competence and professionalism over politics — died, Greene said.
“Former attorneys general, no matter their party affiliation, always respected the professional and independent judgment of the attorney staff,” said Greene, who retired in 2016 after 26 years at the agency. Greene led DOJ’s consumer protection unit after being appointed by former Republican Attorney General JB Van Hollen. Greene later worked in criminal appeals.
When he left, Greene said morale was “extremely bad and sinking.”
He is far from alone in that sentiment. A dozen employees, both current and former, shared similar concerns with the Cap Times. In addition, 45 former assistant attorneys general signed an open letter in August opposing Schimel’s re-election on the same grounds. About 14 of those who signed the letter, including Greene, outlined their grievances against the state Department of Justice and their support for Josh Kaul, Schimel’s Democratic opponent, at a press conference at the Capitol Wednesday.
The attorneys are a part of one division within the Department of Justice, which has more than 800 employees who deal with criminal justice issues across a variety of areas outside of the courtroom. Employees at the state crime lab, another division within DOJ, have also complained of poor morale and pay at the agency, according to a consultant report released by the agency in August.
Bill Gansner, who served as a former assistant attorney general for several decades and retired from the department a year after Schimel took office, said Schimel’s management has “damaged the reputation of the department” and that the state Department of Justice is no longer seen as a place where young attorneys can come and grow, being allowed to exercise their professional legal judgment over political considerations.
“Little room is left for discussion, criticism, and nuance,” he said, speaking about the department’s criminal appeals unit.
Gansner called the move by the former employees “unprecedented” and disputed any notion that he and the others gathered were partisan activists.
“I am not here out of allegiance to a particular party,” he said.
A Department of Justice spokesman denied the accusation that the agency has become politicized and the head of a prominent conservative legal think tank also strongly disagreed, but Democratic lawmakers say the department under Schimel, a Republican, has become simply an arm of the Republican Party of Wisconsin.
Much of the contention centers around the Office of the Solicitor General, a unit within the Department of Justice. Forty states have similar offices, and they routinely handle legal appeals, cases that often carry a lot of political baggage. Many Republican attorneys general, for example, challenged the Affordable Care Act during President Barack Obama’s administration and many Democrats are now challenging actions by the Trump administration and solicitors general have been key parts of these fights.
Paul Nolette, an associate political science professor at Marquette University, who has studied attorneys general offices nationwide, said states have been using their solicitors general “more and in a partisan way” in recent years. And while he said Schimel has been part of that trend, he did not identify him as an outlier.
One thing that isn’t in dispute is that the Office of the Solicitor General has grown tremendously under Schimel. Where it was once a single employee, it is now seven. Critics of the department say its employees are favored greatly over others and that it has been poaching cases that in years past would have been handled by less partisan units within the office.
For this story, four former Department of Justice employees spoke to the Cap Times on the record with their names. Other current and former employees spoke to the Cap Times on the condition their names not be used for fear of retribution by the department and for violating a new nondisclosure agreement all employees are required to sign. The agreement, implemented by Schimel, bars them from speaking about workplace issues even after they have left the department. It’s a requirement no other state agency has, according to the state Department of Administration.
The Cap Times shared the critics’ allegations with the Department of Justice, and its spokesman, Alec Hanna, disputed them all. In particular, he denied the accusation of excessive partisanship:
“The attorney general is exceedingly proud of the entire DOJ team and thus it is sad that a few attorneys are anonymously trying to paint a picture that does not comport with reality. The agency has not become ‘politicized.’”
The creation of a solicitor general position is not necessarily a Republican enterprise. The late Democratic Attorney General Peg Lautenschlager (who also happens to be Kaul’s mother) first created the role here, which was a part-time position, when she held office.
Her successor, JB Van Hollen, campaigned on eliminating the position when he ran for the office. He got rid of it upon taking office in 2006 to free up agency money for other things, he said at the time. Van Hollen, who now works as a lobbyist for Facebook and Motorola Solutions, did not respond to a request for comment for this story.
The office today is led by Solicitor General Misha Tseytlin and includes six attorneys and one paralegal. Most of its full-time attorneys, despite prestigious academic credentials, have little trial experience or experience in Wisconsin-specific case law.
A chief complaint among agency critics is that the solicitor general’s office frequently poaches cases from longtime DOJ attorneys with specialized knowledge of the case — a departure from the way the department has functioned in the past.
Warren Weinstein is one of them.
A former assistant attorney general who retired in January after 31 years with the department, he said complex sexual predator cases were taken from him and given to less experienced attorneys in the solicitor general’s office.
Though the cases taken were won, Weinstein said the emphasis on the department’s win/loss record was never the focus of criminal appeals before.
“Of course we do have an obligation to sustain convictions if we can, but the most important thing was the development of the law because what we really want to do is make sure that the law is such that people who commit crimes are convicted of them,” Weinstein said. “We also would always want to try to clarify an area that is confusing to the prosecutors or if there is a case that is at odds with the law.”
The focus on winning was especially pronounced heading into this election year, noting colleagues shared stories with him where they were advised not to take cases they were uncertain they would win.
“It was common knowledge that they were concerned with portraying Brad’s record in the election,” Weinstein said.
Hanna confirmed that the solicitor general’s office may take cases from attorneys in the department, but added that there have been instances when an assistant attorney general felt so strongly about keeping a case that the decision to take the case away was reversed. Those decisions are made by Deputy Attorney General Paul Connell, he said.
Hanna had no apologies for the office’s winning record.
“As explained in our previous press releases, the Office of the Solicitor General was undefeated last term, prevailing in every merits decision where it represented the state and its agencies as parties,” Hanna said. “Since its inception, the Office of the Solicitor General’s record is nearly perfect, including multiple wins at the U.S. Supreme Court. Few other AGs offices in the country have established this kind of record.”
Hanna also pointed to Tseytlin’s qualifications, which includes a U.S. Supreme Court clerkship with recently retired Justice Anthony Kennedy.
“Taxpayers should take comfort in Attorney General Schimel designating a highly credentialed attorney in his executive office to exercise diligent oversight over the lawyers at DOJ,” Hanna said.
Rick Esenberg, who has tracked the DOJ as executive director of the conservative Wisconsin Institute for Law and Liberty, agreed with Hanna that the Office of the Solicitor General has first-rate attorneys, and also in disputing the argument that the department is inordinately partisan. He added that the office is good for Wisconsin, regardless of which party is in power.
“If there is a Democratic attorney general, I think the SG's office should be retained for the same reasons that it was created under AG Schimel,” he said, adding that the attorneys in the solicitor general’s office would be paid much more in the private sector for the specialized legal work they do.
The solicitor general’s office has led or joined several cases seeking to invalidate federal laws, all of which have political ramifications.
During Schimel’s tenure, the state supported suits to challenge the federal Clean Air Act with Texas and the Clean Water Act with Georgia. It is leading on a federal lawsuit aiming to invalidate the Affordable Care Act, which has been criticized by Democrats.The suit, if successful, could affect those with pre-existing conditions.
“The entire ACA should fall,” Tseytlin said last month when asked by a federal judge in Fort Worth, Texas, which parts of the law should stand.
It’s that kind of statement that has prompted Democrats, led by state Rep. Chris Taylor, D-Madison, to call the solicitor general’s office no more than a legal arm of the state Republican Party. She sees the DOJ’s partisan streak as the result of the Walker administration’s ideological influence.
“Under Brad Schimel, the Attorney General’s office has been politicized and turned into a right wing law firm. Nothing demonstrates this better than his re-establishment of the Solicitor General’s Office to bring politically motivated, federal lawsuits that hurt the people of the state of Wisconsin, including attacking patients in the Affordable Care Act and environmental protections,” Taylor said.
Tom Dawson agrees with the Taylor’s sentiment, particularly the comments about the environment. He left the DOJ in 2016 after 37 years there prosecuting businesses that polluted the environment, and he has been outspoken in his criticism of the agency’s handling of those cases.
“If the law is not fairly as well as firmly enforced professionally and correctly, a big part of our legal system is put in jeopardy,” Dawson said.
Policy preferences aside, he said poor management has chilled workplace dialogue and created an atmosphere of competition and suspicion.
“Nobody can speak frankly,” Dawson said. “Everything seems to be based on politics and power and it has totally eroded the professionalism the lawyers in that department want to adhere to. I have worked under both Democratic and Republican attorneys general, three Republicans, all of whom understood proper procedure and professionalism.”
Dawson is among the 45 former DOJ attorneys who signed the letter, and so is Chris Wren. He worked for five former Wisconsin attorneys general before Schimel, including time as solicitor general under Lautenschlager. Most recently he worked in the agency’s criminal appeals unit until his retirement in March.
"In my view, a pervasive sense of unfairness results in low morale, which leads in turn to inefficiencies wasting lots of tax dollars," Wren said, referring to the current DOJ leadership. "No organization, whether public or private, can efficiently and effectively carry out its mission when employees feel consistently dumped on."
“There is a direct link between the poor management of the department and the low morale of the staff under Brad Schimel,” he said.
Addressing disgruntled employees should be the beginning of the conversation, not the end of it, Wren said, noting that the real issue is that DOJ employees “not only feel deeply miserable about their working conditions but believe that they suffer if they speak up.”
He cited Dawson as example.
He was demoted in 2016 from his position at the head of the environmental protection unit and after retiring from DOJ that year, publicly criticized how the agency handles environmental pollution cases. The agency tried to withhold back-pay owed to him, a move he contested and eventually won.
That move by DOJ management was widely seen as a “warning shot to anyone who might voice complaints about Schimel’s administration,” Wren said.
When he left the agency shortly after Dawson, morale had “sunk to a level I could not have imagined before,” he said. “I know many former co-workers who would leave in a heartbeat if they were in a position to do so.”
Other former employees noted that there were long-standing open positions that affected the agency’s ability to manage its caseload in the criminal litigation and appeals division.
According to figures provided by the state’s nonpartisan Legislative Fiscal Bureau in July, DOJ had 11 unfilled positions out of 102 total full-time positions in the agency’s division of legal services, four unfilled for longer than six months.
Salaries in the solicitor general’s office are a chief source of discord among employees in the DOJ.
According to the nonpartisan Legislative Fiscal Bureau, full-time salaries in the office range from $93,745 to $137,716, which Tseytlin earns.
Two of the longest-serving assistant attorneys general at the agency, David Perlman, who started in 1991 and Dan O’Brien, who started with the state in 1981, both made $121,306 in 2017, according to the figures from the state Department of Administration.
The lowest paid attorney in the solicitor general’s office makes about $12 more per hour than a similarly experienced assistant attorney general in the state’s division of legal services, which starts at $33.19 an hour, according to figures released earlier this year by the Legislative Fiscal Bureau.
Hanna disputed those figures. He pointed out that DOJ has increased salaries in one part of the division of legal services, the criminal appeals unit, since 2015 by $4,343 and that attorneys in the solicitor general’s office are paid less than the average attorney at DOJ.
He said that because of several retirements of long-serving attorneys, “the average attorney at DOJ and in criminal appeals is actually younger, has less experience, yet still makes more money than a few years ago.”
Ultimately, morale, pay and opportunities for advancement at DOJ matter because it affects the types of employees the agency attracts, Weinstein said.
“What it means is that the job becomes less attractive. You get less talented people there unless they have the ideology of the day, and that ends up ultimately costing people money because you lose cases,” he said. “It’s subtle things, but they’re important.”
Diane Sorensen, a former assistant attorney general at DOJ, and a former Dane County judge, who was a part of the press conference Wednesday said she has not been a part of political campaign, but just wants things to improve.
“The attorney general’s office is broke, it needs fixing,” she said.
Editors note: This story has been updated to clarify the number of positions throughout DOJ and the current number of paralegals within the solicitor general's office.