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State Board Cites Errors, But Clears Waukesha County Clerk Nickolaus

Wisconsin Government Accountability Board says Kathy Nickolaus failed to properly report state Supreme Court election results on election night, but her conduct was not willful or criminal.

Updated 4:55 p.m. with Kloppenburg campaign statement: An independent probe into Waukesha County Clerk Kathy Nickolaus found she likely violated state elections laws in , but her conduct was not willful or criminal.

Nickolaus failed to release the on election night for the hotly contested race between incumbent Justice David Prosser Jr. and challenger JoAnne Kloppenburg. Adding the city's 14,315 votes two days later flipped the winner from Kloppenburg to Prosser in a race that became enveloped in the controversial clampdown on public employee collective bargaining rights.

Kloppenburg had declared victory on election night with a 204-vote lead out of about 1.5 million cast. Nickolaus' error gave Prosser the win with a 7,316-vote lead. A rare statewide recount sought by Kloppenburg upheld Prosser's return to the high court for another 10-year term.

The state Government Accountability Board was inundated with about 2,000 complaints and calls for investigation into Nickolaus, who had , Kevin Kennedy, GAB's director and general counsel, wrote to the board in a report released today.

"The concern was fueled in part by Clerk Nickolaus' ties to the Republican Party and her alleged past association with Candidate Prosser," Kennedy said. Prior to being elected county clerk in 2002, Nickolaus worked as a staffer in the state Capitol's Republican Caucus, of which Prosser was a former member.

But an independent investigator assigned by GAB released his 40-page report today, finding that Nickolaus' violation of state law requiring release of all elections results on election night was not intentional or a fraudulent attempt to change the election outcome. Nickolaus' email and phone records were reviewed during the investigation, records say.

"Despite allegations that Clerk Nickolaus somehow manipulated votes from the City of Brookfield to sway the election for Justice David Prosser, (the) 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 GAB said.

The board informed Nickolaus that in the future she must release not just a countywide election total, but results broken down by municipality and reporting units.

Board Chair Thomas H. Barland criticized Nickolaus in a order directing changes she make.

"Your failure to post election returns at the reporting unit level on Election Night ... significantly undermined public confidence in the conduct of elections in Wisconsin and Waukesha County," Barland wrote. "As a result state and local election officials, and you in particular, will have to regain the trust of the Wisconsin electorate in the administration of elections in Wisconsin and Waukesha County."

The order directed Nikolaus to develop written procedures and safeguards by Dec. 1 for review by the GAB at its Dec. 12 meeting to ensure proper procedures are in place for the Feb. 21, 2012 spring primary election.

In a press release, Nickolaus said, "I am pleased that the investigation confirmed the reporting error in the April 5th spring election was an honest mistake."

She noted that in a subsequent election her office handled, an Aug. 9 recall election, "results were properly reported upon receipt."

"I will honor all Government Accountability Board recommendations by working with their staff on writing procedural documentation and look forward to rebuilding the trust of Waukesha County residents in the election process as it is the foundation of our democracy."

Kloppenburg campaign manager Melissa Mulliken said, "This report confirms what we asserted in our complaint: that Kathy Nickolaus broke the law and committed a number of acts that violate the obligation imposed upon her by the law.

"The Government Accountability Board has ordered Kathy Nickolaus to 'conform your conduct to law' and we hope that a result of this investigation is a better, cleaner more transparent election process in Waukesha County," Mulliken said.

Brian Nemoir, Prosser's campaign manager, said the Prosser campaign had no comment about the probe's findings. The Democratic Party of Wisconsin also declined to comment on the outcome.

Kloppenburg's campaign did not return a call for comment.

The investigation, sought by Kloppenburg's supporters, was conducted by former Dane County prosecutor Timothy Verhoff.

Verhoff said that Nickolaus did not give a definitive answer for how she failed to include the City of Brookfield's votes, but she likely uploaded a blank template. The error was likely not, as Nickolaus initially said, a failure to save the results in Access, which automatically saves, the report found.

"Clerk Nickolaus gave both the blank and completed templates the same file name and saved them in the same file location on the computer," the GAB said. 

Verhoff said her error "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."

Therefore he did not recommend she be criminally charged with misconduct. 

The bungle occurred on a county computer, not a personal computer as some speculation falsely alleged, the report said.

The report also looked into complaints about unsecured ballot bags and the potential for fraud but found no evidence of actual fraud or criminal conduct in the handling of the bags and security tags.

Some of the , which Nickolaus said was caused by heavy stacks of paper ballots tearing the plastic ties and bags. She has recommended use of .

Steve September 29, 2011 at 11:16 PM
So you admit that Walker did not turn down the money. We have $60 million + in new tax burden in Milwaukee because of a street car. Woo hoo hope and change and more deficit. I am sure that nice visit to the white house secured Tom a few dollars for the project (more federal deficit)
the 'sha guy September 30, 2011 at 02:25 AM
I probably didn't expect you to believe me and to be fair, the secretary also cried both times Bush won as well. Maybe she is just super emotional, but these are both true examples of what you asked for in your earlier post. If you do not believe these two true stories it is related more to your inability to reason yourself out of a position that you reasoned yourself into, than it is their own validity. Sorry if you can not fathom this behavior, but I would really never have a reason to lie to a stranger about something so trivial. peace
Lyle Ruble September 30, 2011 at 03:14 AM
Although Nickolaus was cleared of willful intent and criminality, she was not cleared of incompetence; and this is not the first time. She has quite a controversial history. Of course the Republicans in Waukesha County are the equivalent of the "yellow dog democrats" of the past. They don't care who runs as long as they have an R behind their name. Hats off to the Republicans for surviving another near miss.
Keith Best September 30, 2011 at 10:39 AM
@Lyle Ruble-- The reality is there are quite a few Republicans in Waukesha County that are not happy with the performance of Kathy N. so your comment above jumps to incorrect conclusions and is meaningless. We all know without her mistake, Prosser would have been declared the winner on election night instead of Kloppy presumptuously and arrogantly declaring herself the winner with only a 294 vote margin. Nickolaus will be primaried. Once again the voters will decide.
Lyle Ruble September 30, 2011 at 12:43 PM
@Kieth Best...It is my hope that the Waukesha Republican Leadership do not come out and endorse her prior to the primary. I understand your statement that many Waukesha Republicans are less than satisfied with her performance. If the Republicans return her to office through the primary process and election, then my "yellow dog" analogy is correct.
Bob McBride September 30, 2011 at 03:19 PM
Since it's pretty much a given that, going forward, any election that involves her office while she's still holding it is going to be challenged by the Democrats, there's no incentive for Republicans in Waukesha County to keep her. Unlike Milwaukee, where, for instance, a tarnished alderman (or woman) can successfully stand for re-election time after time despite being the target of legitimate legal investigations, the folks in Waukesha County tend to focus more closely on the cost of government. They'll cut their losses with her and the costs associated with having her in that office. I wouldn't be surprised if she's already been informed that, should she attempt to seek the office again, she will not be receiving the support of the Republican party. Finding suitable candidates with a R behind their names is hardly going to be an issue in that area.
Keith Best October 01, 2011 at 01:08 PM
"Waukesha County Clerk Cleared" of any wrongdoing. Where are the apologies from all the liberal Democrats accusing her of illegal activities? "Fightin' the Left, exposing gtheir hypocrisy"
Lyle Ruble October 01, 2011 at 11:44 PM
@Nate...Who's being scapegoated now? I don't see that your statement is relavant.
James R Hoffa October 03, 2011 at 01:57 AM
OK, so let me get this straight. The independent investigator concluded that Nickolaus' "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." Even the story notes “[t]herefore he [the investigator] did not recommend she be criminally charged with misconduct.” And Kloppenburg responded to the report by saying "[t]his report confirms what we asserted in our complaint: that Kathy Nickolaus broke the law and committed a number of acts that violate the obligation imposed upon her by the law." MY GOD MAN - Apparently Kloppenburg can't read or comprehend English very well to issue a statement with conclusions not at all supported by the conclusions made by the investigator in the actual report! And yet this woman wanted to be a justice on the highest court in our state - UNBELIEVABLE!!! So, I guess Kloppenburg, in the role of judge, would have found Nickolaus guilty regardless of the FACTS found and conclusions made by the investigating officer. My God, she would have been more corrupt than Boss Hogg from the Dukes of Hazard! If this doesn’t clearly show that Kloppenburg lives in her own make believe world and would have made a HORRIBLE justice, as apparently she has no concept of what ‘FACTS’ are, then I don’t know what does. I guess we can all be forever thankful that she lost the election! Impartial my BUTT!!!
James R Hoffa October 03, 2011 at 07:19 AM
I'm calling FOUL on Patch's reporting here. The author states in her opening sentence "[a]n independent probe into Waukesha County Clerk Kathy Nickolaus found she likely violated state elections laws...[,]" and yet, upon reading the actual report, the only law the investigating officer found she violated was Wis. Stat. S 7.60(1), wherein the officer summarized the violation by saying "[s]imply put, she failed to comply with her mandatory duty to post all returns[]" "by failing to include the City of Brookfield in the results she did post." And yet, by that standard, any county clerk who had a change in their results arise either in the official county canvass or in the recount would also be guilty of violating this very same law. So, without the requisite intent, there wasn’t even a “likely” violation. This is evident in how the Kennedy letter neglects to mention any supposed violation of any election laws occurring, as you'd have to charge every county clerk in the state with such a violation with the exception of the one county that had no changes in their vote tallies.
James R Hoffa October 03, 2011 at 07:27 AM
Without at least explaining the context of the supposed way in which "she likely violated state elections laws," to say such is highly misleading and deceptive. Especially when one considers that the official position of the GAB found no such violations, or even likely violations, being present. That is why the GAB addressed their sweeping recommendations of "further guidance and direction from the G.A.B. to [all] counties." The only one asserting that there was a solid concrete violation of the law here is Kloppenburg. Need I remind that during the recount, she attempt to have a write-in vote stating "the Democratic one" counted in her favor, despite the election being non-partisan and her claiming to be impartial throughout the campaign - YES, that really is how STUPID Kloppenburg was and continues to be. She should be banned from holding any type of position within the Wisconsin judiciary for life for intentionally LYING to the public at large. And that isn’t even the only example – there’s plenty more where that FACT came from!!!
Keith Best October 03, 2011 at 11:35 AM
After all kinds of accusations coming from liberal Democrats against Kathy Nickolaus, accusing her of all kinds of illegal activities, I have yet to hear one apology coming from anyone on the Left. Not one! It appears they are quick to condemn even when they have NO facts. There was no criminal attempt by Nickolaus. Where are the apologies??????????????
Jeff Klass October 05, 2011 at 06:41 PM
Nah - I could go on. But hag & shrew pretty much sums it up for all lib chicks, so I decided to stop there. You morons assuming a a 200+ vote lead after so many cast was a done deal shows what is fundamentally wrong with liberals - no brains. Thanks for clearing that up, Rubes!
Jeff Klass October 05, 2011 at 06:42 PM
I am as pleasant as a teddy bear. Ask anyone who knows me. I am not bitter at all - we are crushing the liberals in this state. Why would I be bitter about that? My business is thriving, my employees are happy and my party is in control. All good from what I see.
Jeff Klass October 05, 2011 at 06:43 PM
Go Keith! Huzzah!
Jeff Klass October 05, 2011 at 06:45 PM
Ouch! Recover from that b!tc# slap yet? Trying to sound so high & mighty - yet just palin wwrong. Somehow encapsulates the entirety of liberalism. Wonderful job, sweets.
Jeff Klass October 05, 2011 at 06:48 PM
Sandy Pasch has all of them!
Lyle Ruble October 05, 2011 at 09:12 PM
@Nate...Learn what and from whom?
Jeff Klass October 05, 2011 at 09:32 PM
No offense taken. As James Taylor said, "You've got a friend." Everything the left touches - it's like the Anti-Midas effect. Solyndra, SDC, public education, cable bill "reform" (mine went UP - how about yours?, Dodd-Frank, Fannie/Freddie. It is comical that liberals still think they are relevent or can do anything right. I'd expect by now to see them pretending to be pigeons & jumping out windows everywhere. Maybe in 2012. One CAN dream, right? Liberal street pizza, anyone?
Bob McBride October 05, 2011 at 10:11 PM
C'mon, now Jeff, the left has SOME good ideas. In fact, here's a short of list of them, in the ever-popular "demand" format.... http://occupywallst.org/forum/proposed-list-of-demands-for-occupy-wall-st-moveme/
Jeff Klass October 05, 2011 at 10:22 PM
I will only allow implementation of any of these insane demands if, after implementing them, we can make every liberal crawl the length of Lambeau Field on their hands & knees while we kick them in the ass over & over & over. Free college? Guaranteed living wage regardless of employment status? yeah - some deep thought went into these -- the kind of deep thought you can only ever get by either too many bong hits or too much academia - but then that's a bit redundant, isn't it. Idiot spoiled liberal kids need a good belt to the behind.
Bob McBride October 05, 2011 at 10:33 PM
I can't believe we've not a had a "report from the front lines" article in the Shorewood Patch. SOMEBODY from there has to be at the Occupy Wall Street off-the-charts-lefty confab.
Bren October 05, 2011 at 10:36 PM
'Sha, I don't understand your post. Your stories aren't documented either.
Lyle Ruble October 05, 2011 at 10:37 PM
@Bob McBride...Don't worry, it will soon be here. October 15th is the kick off date for Milwaukee's first demostration. See you there! :-D
Bren October 05, 2011 at 10:39 PM
Hey Keith, once again, given her history of incompentence and partisanship it was not unreasonable to question yet another mistake that favored the Republican candidate. If Waukesha voters elect her to another term, Waukesha County should pay for the next recount and any other mistakes she makes.
Bob McBride October 05, 2011 at 11:00 PM
I may actually have to bike by if the weather is decent. I kind of miss the yearly circus parade and while there won't be any lions and tigers and giraffes and definitely not any elephants there should be plenty of jackasses and clowns, I'd imagine.
Jeff Klass October 05, 2011 at 11:47 PM
I'd love to come counter demonstrate but I'll actually be traveling to Minneapolis on business. you know - because I have a job. And make money. And own a company that has evil profits. Hope for the coldest, wettest windiest October day for the 15th. Bunch of buffoons.
Jay Sykes October 05, 2011 at 11:59 PM
@Lyle Ruble... I hope you convince your fellow protesters to obey the law and leave the Chase Bank Plaza as clean as they found it;behave like the Tea Party crowd!! FYI: that branch is not open on Saturdays.
Randy1949 October 06, 2011 at 12:11 AM
" we can make every liberal crawl the length of Lambeau Field on their hands & knees while we kick them in the ass over & over & over." I think you've done that already. It might sound far-fetched, but is it unreasonable to ask that a full time job pay a living wage? And since a job with a living wage seems impossible to get without a college degree, maybe we should consider extending public education to the four years of college. It's either that or restore value to the high school diploma.
Lisa Sink (Editor) October 06, 2011 at 12:25 AM
OK, friends. Watch the language, please. Debate the issues without the cursing.

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