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Wudtke v. Bieber

United States District Court, E.D. Wisconsin

May 23, 2017

WADE WUDTKE, Plaintiff,
v.
ADAM BIEBER, SHAWANO COUNTY, DEBORAH NOFFKE, JERRY ERDMANN, BONNIE OLSON, GENE HOPPE, and WILLIAM SWITALLA, Defendants.

          DECISION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          William C. Griesbach, United States District Court Chief Judge

         Plaintiff Wade Wutdtke, a former deputy sheriff of the Shawano County Sheriff's Office, filed a complaint alleging claims under 42 U.S.C. § 1983 against Shawano County Sheriff Adam Bieber as well as Deborah Noffke, Jerry Erdmann, Bonnie Olson, Gene Hoppe, and William Switalla, members of the Shawano County Administrative and Insurance Committee (the Committee defendants). He also asserts state law claims against Bieber, the Committee defendants, and Shawano County. Arising under federal law, the § 1983 claims provide this court with jurisdiction under 28 U.S.C. § 1331. The court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. The defendants have filed a motion seeking summary judgment on all of Wudtke's claims. Wudtke has filed a motion for leave to file a sur-reply in opposition to the defendants' motion for summary judgment. For the following reasons, Wudtke's motion for leave to file a sur-reply will be granted and the defendants' motion will be granted-in-part and denied-in-part.

         BACKGROUND

         Wudtke was employed as a deputy sheriff for the Shawano County Sheriff's Office from January 1999 to March 19, 2015. He served in the capacity as a detective from December 2007 until March 2015. The Sheriff's Office employed six detectives: Wudtke, Richard Wright, Chris Gamm, Troy Ugoretz, Keith Sorlie, and Sergeant Detective Gordon Kowaleski. In 2014, the position for Sheriff of Shawano County was up for re-election. Adam Bieber opposed the incumbent, Randall Wright, in the primary election for Republican candidate. Bieber had been employed as a police officer by the City of Shawano Police Department for approximately 11 years.

         On July 22, 2014, a picnic was held in Wescott, Wisconsin to allow the Republican sheriff candidates, Sheriff Wright and Bieber, to give campaign speeches. Wudtke attended the picnic with fellow detectives Gamm and Wright and recorded the speeches with his camera. Although Sheriff Wright took questions during his speech, Bieber indicated that he would be available to address any questions after the speeches. Bieber returned to his family's picnic table, and Detectives Wudtke, Wright, and Gamm approached him to discuss his campaign position. Wudtke intended to audio-record this conversation. Specifically, Wudtke inquired as to where Bieber obtained his ten years of experience as a drug officer, why he opposed purchasing a Mine-Resistant Ambush Protected Vehicle (MRAP), and why he stated the Sheriff's Office had performed an unlawful search of County Board member Noffke's residence. These discussions also included comments from Detective Wright, Detective Gamm, Sheriff Wright's wife, and District Attorney Greg Parker.

         The parties left the picnic with varying perspectives as to what occurred during the conversation. That evening, Bieber published the following statement on his “Bieber for Sheriff” Facebook page:

Had a great time at the picnic tonight...up until my family and I were surrounded by three county detectives and the Sheriff's wife...at least they stopped bad mouthing me when my son started crying.

(ECF No. 24-1 at 47.) On the same night, Wudtke responded to Bieber's post on his own Facebook page:

It is interesting that Mr. Bieber would say the detectives “surrounded” him and were “bad mouthing” him in front of his children, that caused his children to cry. I seem to remember it a bit differently. My video camera, that I had also remembers that the detectives were keeping level voices and simply asking a few professional questions, when Bieber became very flustered and immediately challenged the detectives to ‘whip out our d!*ks and measure them' in front of his own children.... The Sheriff's wife did come up to Bieber and simply told him that she would pray for him, after the “whip out” comment. It is extremely unfortunate that Biebers [sic] children had to hear their Father make those comments and raise his voice, like he did. There was no “surrounding” or “bad mouthing.” There were no unlandished [sic] questions asked, only very unprofessional answers given on Biebers [sic] behalf. Just remember that just because a video camera isn't pointing at you doesn't mean that it is not recording. It is extremely disappointing that the public has to resort to videotaping a candidate to make sure that they are not speaking untruths. That type of politics is cancer. We all pray for you Mr. Bieber.

(ECF No. 25-1.) A few days later, Wudtke published two additional Facebook posts campaigning against Bieber. (ECF No. 25-2.) Wudtke contends that his conversations at the picnic and his Facebook posts constitute speech on matters of public concern and deserve First Amendment protection.

         After the picnic, County Board Supervisor Erdmann received reports from Marcus Jesse, an individual who had attended the picnic but did not actually witness the discussions, and Noffke that there had been a confrontation between Bieber and the detectives. Erdmann attempted to corroborate these reports with DA Parker who had been involved with some of the conversations at the picnic. Although DA Parker did not see the beginning of the discussions, he had also received information that a confrontation had occurred. Erdmann believed the detectives' actions were confrontational. Accordingly, at the August 6, 2014 public safety meeting, he recommended that Sheriff Wright investigate the detectives' picnic-related conduct. Sheriff Wright concluded he would not authorize an investigation, indicating that no citizen complaint form had been filed and the detectives were off duty during the picnic.

         At a closed Administrative and Insurance Committee meeting held by the Shawano County Board of Supervisors on August 19, 2014, Erdmann shared his concerns regarding the alleged confrontation. Although committee member Noffke did not participate in the discussions relating to the picnic because of the Sheriff's Office's investigation of her, she did participate in the Committee's ultimate vote. All five committee members-Erdmann, Noffke, Hoppe, Switalla, and Olson-voted to retain Attorney Dan Borowski to investigate the events at the picnic. The purpose of the investigation was to determine whether the detectives were off-duty while attending the picnic, whether they used their positions of authority to intimidate or harass Bieber, whether Sheriff Wright had directed them to confront Bieber, whether they used county equipment during the picnic, and whether the conversations about the Noffke search warrant with DA Parker violated department policies prohibiting deputies from discussing information regarding criminal cases outside the department. (Defs.' Proposed Findings of Fact (DPFOF) ¶¶ 71-73, ECF No. 19.)

         On October 1, 2014, the County issued letters, known as Garrity warnings, to Detectives Wudtke, Gamm, and Wright in accordance with Wis.Stat. § 164.02. (ECF Nos. 22-4, 23-3, 25-5.) The Supreme Court's decision in Garrity v. New Jersey, 385 U.S. 493 (1967), holds that where a government employee suspected of misconduct is told failure to answer questions about the alleged misconduct could result in loss of employment, any statement made is considered coerced and cannot be used against him in criminal proceedings. Id. at 497-98. The Garrity warnings issued by the County instructed the detectives that while they were required to answer questions put to them about their official duties as a condition of their employment, the information they provided could not be used against them in any criminal proceeding. (ECF No. 27-5.) The letter sent by the County also notified the detectives of the nature of the investigation. (Id.) Wudtke also received a disciplinary notice from Chief Deputy Gutho of the Sheriff's Office advising him of his right to have a union representative present during the interviews and informing him that the “interview could result in disciplinary action, demotion or dismissal.” (ECF No. 27-4.)

         Borowski conducted an interview with Wudtke on October 1, 2014 with two union representatives present. At the close of the interview, Borowski asked Wudtke for additional documentation, including Wudtke's recording of the speeches and his conversations at the picnic as well as copies of his Facebook postings. Although Wudtke produced his Facebook posts, he never produced the recordings taken at the picnic because his camera malfunctioned and failed to record the conversations. After receiving the supplemental information, Borowski conducted a follow-up interview with Wudtke on November 8, 2014. Borowski also interviewed Bieber, Amy Dillenburg, DA Parker, Detective Wright, and Detective Gamm as part of his investigation. At the October 22, 2014 County Board of Supervisors open meeting, Borowski presented a status report of his investigation in the form of a PowerPoint presentation. Although Borowski did not name the detectives who were the subject of his investigation, he indicated the investigation regarded “potential deputy misconduct” at the picnic. Several board members believed the investigation was a “witch hunt” and that any discussions regarding the investigation should be shared in a closed meeting. (Pl.'s Proposed Findings of Fact (PPFOF) ¶¶ 38, 67, ECF No. 31.)

         Bieber ultimately won the race for Sheriff of Shawano County and took office on January 5, 2015. On January 9, 2015, Borowski presented his conclusions from his investigation to a joint meeting of the Administrative and Insurance Committee and the Public Safety Committee. Borowski could not find that the detectives committed any violations at the picnic. Based upon his report, the Committee took no further action regarding the picnic investigation and effectively closed the matter. Wudtke never received any discipline from the County or Sheriff's Office regarding his conduct at the picnic. His job duties and responsibilities did not change. Wudtke contends he was never notified as to the results of the picnic investigation, though the defendants assert he learned of the investigation's results through his union representative in February 2015.

         On January 21, 2015, the Sheriff's Office held a command staff meeting with Sheriff Bieber, Detective Wudtke, Chief Deputy John Gutho, Captain Thomas Tuma, Detective Sergeant Gordon Kowaleski, and Administrative Coordinator Brent Miller in attendance. The purpose of the meeting was to address confidential information regarding the Coroner's conduct during a death investigation. Wudtke recorded the meeting with a pen-camera to document any instructions he received but did not notify the other participants he would record it. Chief Deputy Gutho and Sergeant Kowaleski noticed the recording device but did not say anything to Wudtke about it during the meeting. On the walk back to their offices after the meeting, Sergeant Kowaleski directed Wudtke to turn the recording device off, and Wudtke complied. Once in his office, Wudtke determined he did not need the recording to clarify his assignments regarding the investigation. He therefore uploaded the file from the pen-camera to his computer and deleted it without reviewing it.

         On the same day, Bieber and Chief Deputy Gutho instructed Sergeant Kowaleski to retrieve Wudtke's pen-camera to obtain the recording taken during the meeting. Kowaleski found the recording device inserted in the USB port of Wudtke's county-issued desktop computer. Kowaleski informed Wudtke that he needed to take the pen-camera, and Wudtke responded he did not know if it recorded anything. Gutho instructed Captain Tuma to obtain a written statement from Wudtke about the recording incident. Tuma provided Wudtke with his Garrity rights and asked, “why did [he] feel it was necessary to record a meeting with his supervisors?” (DPFOF ¶ 116.) Wudtke prepared a written statement about the recording on January 21, 2015. A forensic examination of the pen-camera revealed that several files had been deleted from it. Wudtke's desktop computer was subsequently confiscated so that it could be subjected to a forensic review. This investigation revealed that the photos and videos taken during the January 21, 2015 command meeting had been downloaded onto Wudtke's computer.

         Bieber soon became concerned about Wudtke's trustworthiness, and the County initiated an investigation into the events surrounding the recording incident. Wudtke did not want to be placed on administrative leave during the investigation because he did not want anything negative in his file. The County agreed to refrain from putting Wudtke on administrative leave while it discussed a possible resolution to the recording incident with the union. Union representative Ingram explained to Wudtke that he could either resign from the Sheriff's Office or fight the charges and be investigated. He continued that a finding of just cause termination could affect Wudtke's career as a law enforcement officer. After learning about the grievance procedure and his options, Wudtke instructed Ingram to reach a resolution with the County that would include his resignation. Wudtke's interview regarding the investigation was delayed several times as a result of the pending resolution.

         On March 11, 2015, Ingram advised the County that Wudtke would submit a non-rescindable resignation letter with an end date of employment of June 5, 2015. On March 13, 2015, Wudtke's squad car, duty gear, and weapon were recovered from his home. Wudtke was also locked out of the Sheriff's Office and denied access to his email account. At that point, Wudtke had not yet submitted a letter of resignation. After the County seized his equipment and denied him access to his office, Wudtke unilaterally submitted his resignation on March 19, 2015, effective immediately. On March 21, 2015, Wudtke began a new position with the City of Clintonville.

         Wudtke had been looking for alternative work as early as October 2014, when he applied for a position with the Village of Ashwaubenon as a public safety officer. Wudtke had also spoke to the Chief of Police for the Village of Bonduel regarding potential employment. In January 2015, approximately one week after Bieber was sworn in as Sheriff, Wudtke applied for a position as a law enforcement officer with the City of Clintonville.

         On June 11, 2015, Bieber revoked the Bonduel Police Department's access cards thereby limiting the Department's access to the Shawano County Sheriff's Office. The City of Bonduel police officers were the only municipal law enforcement officers that were not deputized by Shawano County. On June 29, 2015, Bieber told the Bonduel Village board members that it would “stir a lot of bad feelings with the Sheriff's department” and would be a “big deal” if the Bonduel police department hired an officer the Sheriff's Office no longer trusted part-time. (PPFOF ¶¶ 96-97.) In spite of these warnings, the Bonduel Police Department made an offer of employment to Wudtke on January 4, 2016. Wudtke began working as a part-time officer for the Department on January 24, 2016. Wudtke is presently employed as a full-time public safety officer with the Village of Ashwaubenon Police Department, as well as a part-time officer with the Bonduel Police Department.

         ANALYSIS

         I. Summary ...


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