State Board Cites Errors, But Clears Waukesha County Clerk Nickolaus

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 .