District attorney concludes records release consensual
BY KEVIN BONESKE
Two Rhinelander City Council members who were accused by another alderman of violating the state’s Open Records Law when they publicly released performance review forms they filled out about former city administrator Kristina Aschenbrenner will not face prosecution by the Oneida County district attorney’s office.
In a letter dated Oct. 28, district attorney Michael W. Schiek informed alderman Mark Pelletier, who filed the complaint against council members Steve Sauer and Tom Gleason, that the investigation conducted by the Oneida County sheriff’s department determined Aschenbrenner consented to the release of those records, which “negates any violation of the Open Records Law, as a result I do not find any violation occurred and will close the file.”
Pelletier said he had no comment at this time about the district attorney’s decision. Gleason said he is pleased with the outcome and wants to put the matter behind him and move forward with doing the city’s business.
Sauer and Gleason both opposed Aschenbrenner’s termination as city administrator Aug. 29 when the City Council voted 6-2 at a special meeting to end her employment with the city after not quite a year on the job. Council members had approved the review forms at their Aug. 8 regular monthly meeting to fill out for the city administrator’s annual performance review.
In anticipation of possible legal action being brought by Aschenbrenner, council members held a special emergency meeting the evening of Sept. 6 when they unanimously passed a resolution directing all city officials and employees to keep all information regarding her employment with the city confidential, unless required to disclose by law, and to cease any communication with her.
An email message sent out with a statement from Sauer and Gleason along with the review forms attached had been provided to local media 17 minutes after the Sept. 6 meeting was scheduled to start.
Schiek determined the performance reviews Sauer and Gleason filled out “were released prior to a gag order.”
Though Schiek also found that the performance reviews released at that time were exempt from disclosure, as defined by state statute, and “standing alone” should not have been released, he also noted “the relevant fact which cannot be ignored in this situation is that the ‘subject,’ Ms. Aschenbrenner, specifically gave consent for release of the records. I believe that giving consent to release the records waives any right to then claim a violation occurred under the Open Records Law.”
A memo dated Sept. 7 from city attorney Carrie Miljevich to Sauer and Gleason took issue with them releasing the review forms and stated that to comply with the state’s Open Records Law “there is a strong likelihood that written notice of the decision to release the record, either by certified mail or by personally serving Kristina Aschenbrenner with the records in question, was warranted. At the least, consultation or dialogue regarding the releasing of your records was needed in order to determine compliance under that statute and the application of the balancing test.”
Schiek further found that what Sauer and Gleason released “does not disclose any disciplinary matter, does not disclose any record obtained through a search warrant and the record was not prepared by an employer.”
In their reviews of Aschenbrenner, Sauer and Gleason both stated she was doing “a great job” as city administrator. The review forms they filled out, along with forms filled out by five of the six council members who voted for Aschenbrenner’s termination, have subsequently been legally obtained by the Star Journal through an open records request.
Currently pending related to the review forms Sauer and Gleason released is a city ethics complaint filed against them by council president George Kirby. Though a hearing on that matter has been scheduled for the council’s Nov. 14 meeting, Kirby said he will be meeting later this week with Miljevich to determine how that should be handled.