Wisconsin Superintendent candidate Jill Underly broke state law by using her government email address during the work day to send campaign-related emails to fellow school district superintendents.
At 11:44 am on Monday, April 20, 2020, Underly used her Pecatonica School District email address to ask a number of superintendents to send her their email addresses as she attempted to build support for her run for State Superintendent. Underly recognized that such campaign solicitation was unlawful, as she prefaced it by acknowledging that she could not legally send the email to the superintendents' school email addresses.
"I have something I need to send out to you, but I don't want to nor should I send it to your school email," she wrote.
After a number of the superintendents contacted the Pecatonica School District concerned that Underly's email had been hacked, she sent a follow-up email at 12:45 pm.
"I didn't know how to ask for your personal email without being all vague," she clarified. "Please don't call my school district asking about it--this isn't a spam message. I will send you more information, but it's regarding the state superintendent race and I didn't want to send it over district emails."
She did, though, and this was a direct direct violation of Wisconsin Statute § 230.40, which provides that "no person holding a position in the classified civil service may directly or indirectly solicit or receive subscriptions or contributions for any partisan political party or any political purpose while on state time or engaged in official duties as an employee."
Underly, who held a position in civil service and was on state time as an employee when she sent the emails, was rather obviously soliciting support for her candidacy--a "political purpose" prohibited by the statute.
"No person holding any position in the classified civil service may during the hours when on duty engage in any form of political activity calculated to favor or improve the chances of any political party or any person seeking or attempting to hold partisan political office," that statute continues.
Compiling a list of superintendents who would be likely to endorse Underly's campaign was a form of political activity designed to improve her chances of winning the following year's election, and since Underly was on duty when she solicited the superintendents' emails, she was in clear violation of the statute.
A spokeswoman for the Underly campaign denies that Underly did anything wrong.
"This is standard practice, to make sure taxpayer resources aren’t utilized and was done specifically to comply with state laws regarding use of public email," Alanna Conley said in a statement to The Wisconsin State Journal. "She is literally saying, 'Don’t email me at work, talk to me only on my personal email.'"
This excuse does not hold water, as the crime was committed when Underly used her government email while on the clock to engage in political activity. In fact, Underly likely used her government email address to lend gravity to her request. Had had she sent an email soliciting the support of fellow superintendents using her personal address, it is entirely possible that it would have been dismissed. By using the "@pecatonica.k12.wi.us" domain, it was readily apparent that this was an official communication from a school employee.
It was also so unusual that several of the superintendents called the school district because they were worried someone had hacked Underly's account and was using it inappropriately.
In 2011, the use of government computers on government time became the subject of a wide-ranging John Doe investigation into then-Governor Scott Walker's Milwaukee County Executive office. One of them, Kelly Rindfleisch, was charged with four felony counts of misconduct in public office for sending campaign-related emails to and on behalf of a candidate for lieutenant governor while on the clock. She eventually reached a plea deal and, after losing an appeal of her conviction, served her six-month jail sentence in home confinement with an electronic ankle monitor.
Another aide, Darlene Wink, was charged with doing campaign work for Walker while on the clock and pleaded guilty to one count of misconduct in public office. She was sentenced to a year's probation and $1,000 in fines.
There thus recent precedent for prosecuting Underly's use of government time and resources to campaign for State Superintendent, and it warrants as thorough and as serious an investigation into Rindfleisch and Wink. Underly on her campaign website lists more than 30 school superintendents as endorsing her campaign, and it is unclear how many of them received her illegal emails "regarding the state superintendent's race."
This would be a clear solicitation of support and "calculated to favor or improve [her] chances" as she was "seeking or attempting to hold partisan political office. Because it was done "during the hours when on duty," Underly violated the law. It is highly likely, then, that she sent more emails from her private account immediately after the initial two from her government account. Since the second of these was sent at 12:45 pm and the typical workday does not end until 4:00 or 5:00 pm, she would have been doing even more campaign work on state time.
This is a crime--punishable by up to a year in jail--and while it may not result in a John Doe investigation, the extent to which Underly abused her government position to do campaign work absolutely needs to investigated and prosecuted.
And Democrats who support Underly’s campaign should agree. In 2012, then-Democratic Party of Wisconsin spokesman Graeme Zelinski said in a statement that the investigation into Rindfleisch and Wink revealed that Walker “was running Milwaukee County like his campaign office. Emails to and from Scott Walker himself, introduced into the court record, remove any doubt about whether he was involved in the commission of crimes.”
Then wasn’t Underly as well? After all, she was engaged in the exact same behavior. In 2012, Milwaukee Mayor Tom Barrett ran against Walker in a recall election against Walker and even cut TV ads hammering Walker over his aides doing campaign work on public time.
Barrett has endorsed Jill Underly for State Superintendent. Was he, like the superintendents, contacted on state time for that endorsement? An investigation would determine that, and one would presume that Barrett and every other Democrat who supports Underly’s campaign and who pressed for further investigation into Walker’s county executive office would demand a full investigation into just how much illegal campaigning on public time Jill Underly did.
Campaigning on public time, after all, formed the basis of what became known as the Caucus Scandal in the early 2000s.
A Wisconsin State Journal investigation found that employees at four state agencies secretly campaigned for legislative candidates on state time and from their state offices.
As the paper reported in May, 2001:
The caucuses, one each for Assembly Democrats and Republicans and one for each party in the Senate, are officially charged with helping lawmakers with legislative tasks such as researching bills, drafting news releases and printing newsletters.
The state Ethics Board has advised legislators and their employees that it is illegal to campaign on state time or with state resources. But a State Journal investigation involving hundreds of records and interviews with more than 70 people found that the caucuses operate as secret campaign machines, especially during the election season.
Dane County District Attorney Brian Blanchard launched a John Doe investigation, and a number of top legislative leaders were criminally charged. Democratic Senator Brian Burke was charged with 18 criminal counts and, as a result, dropped out of the race for Attorney General.
He had pleaded guilty to having Senate aides work on that campaign on public time.
Democratic Senate Majority Leader Chuck Chvala was also charged with 20 counts and pleaded guilty to two, eventually serving nine months in jail and two years’ probation.
On the Republican side, Assembly Speaker Scott Jensen and Assembly Majority Leader Steve Foti were both charged with felonies in the Caucus Scandal, while Representative Bonnie Ladwig was charged with a misdemeanor.
Foti spent 60 days in jail, while Jensen appealed his conviction and, after a new trial was ordered, agreed to a plea deal in which he avoided jail time. Ladwig was sentenced to 30 days in jail, which she served under home confinement.
All of these top legislative leaders were convicted of serious crimes and some even went to jail for engaging in the exact same behavior that Jill Underly did. She claims that she only sent two emails using her government account, but that is only part of her potential legal problem.
How much campaigning has she done on public time over the past year? This question prompted two different John Doe investigations in two different counties over the past two decades in Wisconsin. Campaigning on public time has always been treated as a serious crime in this state, and its residents deserve to know whether a woman who wants to run Wisconsin’s school system broke Wisconsin’s laws.