FOIA “request” in Wisconsin could be violation of whistleblower protection law

March 27, 2011

Wisconsinite Jean Detjen sent me a note correcting my misinformation:  Wisconsin does indeed have a whistleblower protection act.  The law protects Wisconsin state employees, against retaliation for disclosing information about wrongdoing.

William Cronon, Frederick Jackson Turner Professor of History, University of Wisconsin

William Cronon, Frederick Jackson Turner Professor of History, University of Wisconsin - University of Wisconsin photo

My reading suggests that, since professors are not specifically exempted, Prof. Cronon, at the University of Wisconsin, is specifically protected.

If the University of Wisconsin gives that answer to the Wisconsin Republican Party, however, the Party will argue that it is not a government official prevented from retaliating against a government employee.  That would be ample reason for the state to deny the FOIA request of the Party flatly and completely.

There is another, potentially more pernicious angle here:  The Republican Party in Wisconsin is, in this case, an agent of the Republicans in the state legislature, those whose tails are on the line for violating Wisconsin law, and as Prof. Cronon outlines it, Wisconsin tradition and historical norms.  It’s likely that the Party is acting at the direction of legislators.

In short, it’s kind of an organized crime action.  I think that the federal Racketeer Influenced and Corrupt Organization Act (RICO) would cover this sort of action — any retaliation for hire, or by an agent, which creates a pattern or practice of organized crime activities.  Worse for the Wisconsin Republicans, if there were an ambitious U.S. attorney out there somewhere, there is no scienter requirement on RICO actions — that is, there need not be a clear formation of criminal intent.  The mere actions of an organized crime group, even with no intent to break the law, can be a RICO violation.

Even worse for the Republicans, RICO is available for anyone to use.  Were I Prof. Cronon, and were the Republicans to press their FOIA request to court, I’d counterclaim in federal court with the RICO statute.

That’s a nasty escalation.  But in these days, in this case, where a state party organization has gone to the employer of a university professor to get his job after he merely reported history, I wouldn’t take chances that the Republicans would later play fair or nice.

Every step against Cronon, every press release, every statement from a legislator or party apparatchik, provides more evidence of the coordinated effort, and establishes further the “pattern and practice” of organized crime activity.

Maybe cool heads will soon prevail, maybe patriotism and love of the First Amendment will break out among Wisconsin Republicans, and they will retract their demand that Prof. Cronon deliver them all of his e-mails as a professor at  the University of Wisconsin.

Maybe badgers will fly.

“Badger” is supposed to be the mascot of Wisconsin’s top-flight university, not a tool of partisan politics.


%d bloggers like this: