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Kevin Kennedy at podium (copy)

Wisconsin's top election official, Kevin Kennedy, and the state Government Accountability Board has been under fire in recent years from Republicans. In court records unsealed Friday, Wisconsin Club for Growth charges he and other GAB staff participated in an investigation into coordination between Gov. Scott Walker and conservative political groups without knowledge of the retired judges who run the GAB. 

The state Government Accountability Board’s top officials proceeded with a secret probe into coordination between Gov. Scott Walker’s campaign and conservative political groups for months without authorization from the six retired judges who run the board, court records unsealed Friday allege.

The documents filed by a target of the investigation also allege that the board voted to end its involvement in the probe in July but that staff continued to work on it.

The records add ammunition to Republicans in the state Legislature seeking to overhaul or abolish Wisconsin’s elections and ethics watchdog agency.

GAB spokesman Reid Magney referred questions about the unsealed records to the board’s attorney. A message left with Paul Schwarzenbart, the Madison attorney hired to defend the board, was not returned.

Waukesha County Circuit Court Judge Lee Dreyfus Jr. ordered most of the complaint filed by Wisconsin Club for Growth and one of its directors, Eric O’Keefe, unsealed Friday at the group’s request. The previously redacted parts of the lawsuit include snippets of internal GAB memos and minutes of meetings in which the secret John Doe investigation was discussed.

Wisconsin Club for Growth’s 50-page complaint was filed in May and amended in late November but largely sealed until Friday.

It alleges that GAB chief counsel Kevin Kennedy and Jonathan Becker, administrator of the agency’s ethics and accountability division, “unilaterally admitted the GAB to John Doe II without the knowledge or approval of the GAB Board.”

The lawsuit alleges that Kennedy and Becker waited two and a half months before informing the board of the five-county investigation and then “rather than informing the GAB Board about their prior involvement, Kevin Kennedy and Jonathan Becker misled the GAB Board about the time period in which they had ‘learned’ of John Doe II.”

Agency defended

But David Deininger, the retired appeals court judge who chaired the board during the launching of the John Doe investigation, defended Kennedy and the GAB staff Friday.

Deininger was skeptical about the assertions made in the complaint. He said he didn’t recall exactly when the board was made aware of the investigation, “but something of this magnitude would have been brought to our attention at the earliest opening.”

“They would know this would have been something the board needed to be up to speed on from the get-go,” Deininger said.

He also vouched for Kennedy and Becker, saying impartial administration of election laws was their “modus operandi.”

“They are professionals and they have always been so,” Deininger said.

The board officially approved the agency’s involvement in the investigation in June 2013 at a time when “it had already been participating in John Doe II for approximately 10 months,” the lawsuit alleges.

The investigation was launched by Milwaukee County District Attorney John Chisholm in summer 2012 after Walker won his recall election. The probe is focusing on coordination between Walker’s campaign and Republican and conservative groups during the 2011 and 2012 recalls.

The probe has been stalled since January, when Judge Gregory Peterson, who is overseeing the John Doe, quashed the subpoenas, questioning whether the activity under investigation violated the law.

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Republicans in the Legislature, who have been gunning for the nonpartisan agency for months, pounced on the allegations contained in the previously sealed court documents.

Assembly Speaker Robin Vos, R-Rochester, and Rep. Dean Knudson, R-Hudson, who is leading Assembly efforts to make “significant changes” to the GAB, called the allegations “shocking” and indicative of “complete structure failure at the GAB.”

“As we’ve said all along and as was exposed in last week’s non-partisan audit, the staff at GAB repeatedly operated outside the bounds of the law and board control,” the two said in a statement.

But in an op-ed piece penned in October, Deininger defended the GAB. He called Republican attacks on the agency “short on factual underpinnings and long on inflammatory rhetoric.”

Walker withdrew Deininger’s reappointment to the board in November 2013.

Detail on investigation

The records unsealed Friday shed more light on the scope of the investigation.

The lawsuit claims investigators examined “hundreds of thousands of documents” during the 2½-year investigation and GAB has hired four investigators and devoted significant additional staff time to conduct the probe.

Citing internal GAB records, the lawsuit alleges the John Doe has issued at least 30 subpoenas and five search warrants and that other subpoenas and warrants were planned including for “media figures such as Charlie Sykes and Sean Hannity.”

Estimated expenditures listed in the lawsuit remain redacted.

The main thrust of the Club for Growth lawsuit claims that the agency has no legal authority to conduct a criminal investigation, that it can only investigate and act on civil matters and that it has violated the procedures laid out in state law for GAB investigations.

GAB has “exceeded its statutory authority and evaded its statutory obligations by pursuing and funding a far-reaching criminal investigation into virtually every conservative-leaning group in Wisconsin,” the lawsuit charges.

In addition to the lawsuit filed in Waukesha County Circuit Court, Wisconsin Club for Growth and several unnamed plaintiffs have filed numerous legal challenges to the probe, some alleging that the activity under investigation — coordination between purportedly independent groups and Walker’s campaign — is legal.

The Wisconsin Supreme Court has agreed to hear three separate challenges to the investigation.

Club for Growth had challenged the legality of the investigation in federal court. But a federal appeals panel rejected the complaint.

State Journal reporter Matthew DeFour contributed to this report.

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