Thursday, August 29, 2019

Settlement talks break down in case against former UW Oshkosh officials; critical hearing set for January

Former UW Oshkosh Chancellor Richard Wells, center, and former Vice Chancellor Thomas Sonnleitner, right, leave their seats after a Winnebago County Circuit Court hearing. Steven Biskupic, left, is Sonnleitner's attorney.

By Miles Maguire

Settlement discussions between two former UW Oshkosh officials and the state have broken down, and the case is now set for a critical hearing and oral ruling in January.

That hearing will address a motion to dismiss filed on behalf of former Chancellor Richard Wells and former Vice Chancellor Thomas Sonnleitner. They stand accused of felony counts of misconduct in office for their role in enabling a range of real estate investments by the UW Oshkosh Foundation.

The two men had reached a tentative agreement to settle a related civil case, but a new law, passed in last year’s lame duck session, prevents the state Department of Justice from accepting the terms without getting approval from state legislators, according to the agency.

A joint resolution of the civil and criminal cases was anticipated by the state as recently as June.


In the criminal case, the parties have been “working diligently” to come to a resolution, said Winnebago County Circuit Court Judge John A. Jorgensen at a hearing Thursday morning. But “apparently as this point in time we are at a point where no resolution has been reached and so we are going to proceed forward in a contested manner.” 


The new hearing date comes almost exactly three years after the state first announced that it was pursuing civil claims against Wells and Sonnleitner. At issue was their role in providing loan guarantees for real estate projects that failed to meet financial targets and helped to drag the university’s foundation into U.S. Bankruptcy Court.

The underlying dispute was resolved through mediation in December with the state paying out millions but also receiving major real estate assets, including a campus welcome center, in return. “UW has also now received a payment from its insurance carrier on a fraud/crime policy,” the Department of Justice said in a July 19 memo to the Joint Finance Committee, which has approval authority over court settlements.

The Justice Department has struggled to find a way to comply with the new law requiring legislative approval of actions by an executive branch agency, and Democrats have seized on the law as an example of Republican overreach.

“Wisconsinites cast their vote to allow Josh Kaul to act on their behalf, and in the best interest of our state,” said Rep. Gordon Hintz, who represents the Oshkosh area and serves as the minority leader in the Assembly. “In one of the most blatant attacks on democracy in our state’s history, Republicans have decided to override the will of the people and strip powers away from the democratically elected Attorney General. What a mess.”

The motion to dismiss the criminal charges is based on procedural issues as well as the argument that any actions Wells and Sonnleitner took were within the scope of their authority as it was understood at the time.

The defense is expected to file a supplemental brief to its motion to dismiss by Oct. 1 with the state responding by Nov. 1.


Jorgensen said he would issue an oral ruling Jan. 15.

Wednesday, August 28, 2019

If you're wondering what went wrong at Oshkosh's shiny new arena, here are 10 things to know

Photo by Adam Jungwirth
Greg Pierce, president of Fox Valley Pro Basketball, also runs investment firm Windward Wealth Strategies.

By Miles Maguire
What the heck happened?

The financial implosion that occurred this summer at the Menominee Nation Arena has left a lot of Oshkosh residents asking that question. The $21.5 million showcase has been considered one of the best things to happen to the city in a very long time, but now the trail of unpaid bills and lawsuits stretches from Green Bay to Milwaukee.

While the parties to the dispute have been tight-lipped, a review of court records provides some clues to where the project got off track and what’s been going on behind the scenes. The following material is drawn from official documents and/or statements made under penalty of perjury.

Here are 10 things to know about the arena project.

1. Individual investors walked away.
The original idea had been to sell shares to wealthy individuals in a company called Fox Valley Pro Basketball Inc., which built the arena and also owns a portion of the Wisconsin Herd, the Milwaukee Bucks’ minor league affiliate.

But “many individuals that had supported and orally [committed] to financially support the project backed out,” said 
Greg Pierce, the president of Fox Valley. “That left us significantly short of the amount we expected to raise.” (The original has the word commitment instead of committed.)

According to paperwork filed with the U.S. Securities and Exchange Commission, the original goal had been to raise $27.2 million. But as of May 5, 2017, only one investor had come forward, kicking in $5 million. By May of this year, SEC filings say there were 75 investors who had contributed $19.7 million.

2. Local banks took a pass. 
As construction costs rose and investor support evaporated, Pierce approached “area banks.” Unfortunately, “they all turned us down,” Pierce said. “The most often cited reason was that the arena was perceived as a single-use property, leaving the banks with a lack of a clear understanding of what the collateral value of it would be.”

3. Everyone knew there was risk.
Bayland Buildings Inc., the Green Bay company that served as general contractor for the arena, started work on the project before any money had been raised. “The Milwaukee Bucks required Bayland to guarantee that it would complete construction regardless of [Fox Valley’s] ability to pay for it,” Pierce said. “Bayland agreed to do so.”

4. Larger banks were willing to lend but not as much as needed.
Bayland’s bill came to $21.5 million, and Fox Valley paid $9.6 million of that amount. That left an $11.9 million gap. “Due to the specialty nature of the building, bank lenders were only willing to go to a maximum of 40 to 50% loan to value,” Pierce said. At best this would mean a loan of only about $10.75 million, and that would be assuming the banks would value the building at cost and not at its lower assessment.

5. Timing was always a problem. So were environmental issues. 

Because the city was in a race with other communities to have a facility available for the Herd by late 2017, decisions were made without complete information. The project went ahead even though the full extent of the environmental problems at the site were not completely understood. Later, when Pierce attempted to work out a special securities offering to fill the loan gap, he got hung up on a different environmental issue that had not been anticipated. By the time a solution had been found, “the lender had backed out,” Pierce said.

6. Sponsorships and refreshments have been supplying much of the cash.
Ticket sales are dependent on bookings, and event revenue fluctuates dramatically at the arena. For November, the facility is expecting to take in just $15,900, but that number jumps to $143,500 in December. A steadier flow of income derives from food and beverage sales, which are projected to bring in $80,000 in October and go all the way up to $145,000 in January. Sponsorships, which include payments for the advertisements that cover the inside walls, are the arena’s best revenue source. For the four months from October through January, sponsorship income is projected to total $669,720.

7. City incentive payments are critical.
The single largest revenue source that the arena is looking at from October through January is a tax incentive payment that could arrive in November. That amount is expected to be about $430,000, and similar annual payments could be made through 2036.

8. City taxpayers shouldn’t complain about the incentives because they are already enjoying the benefits.
The incentive program is perhaps one of the most misunderstood aspects of this project, and the idea that the city will be paying a private developer so much money infuriates some local residents. But the city is only reimbursing the developer for money it has already spent on improvements that the public enjoys today. The incentive payments are capped at $5.5 million, covering $3 million of environmental remediation at the site, which the city still owns, and $2.5 million for street repairs on South Main Street as well as “upgrades on sewers and stop lights in front of the building.”

9. Interest costs are killer.
The lack of permanent financing is the biggest challenge for this project. Because the developer was not able to get conventional long-term loans, it has had to pay extremely high rates to investors. Local businessman Eric Hoopman charged the project 18%, and the contractor, Bayland, started its mortgage loan at 12% and then boosted the rate to 24% when the arena went into default. Already the developer says it has paid $2.2 million in interest to Bayland.

10. It’s personal.
In some cases court filings are are almost too dull to read. But the lawsuits that have been filed in the last few weeks are full of raw emotions. Bayland’s extreme frustration comes through in references to its “numerous requests … via email, via telephone and via in-person meetings for payment” as well as its allegation that Pierce has “provided creditors and investors with false financial information in an attempt to raise capital.” 

For his part Pierce describes his shock at the turn of events that landed him in court. “I was surprised by Bayland’s filings,” he said, because he thought he was in the midst of negotiations about “some ideas ... for Bayland’s consideration involving long-term financing.” Their last conversation was just days before Bayland filed suit, according to Pierce, and another discussion was planned for the following week.

Anger and mistrust are evident in the available documents, which include some contradictions. SEC filings say that Pierce and other insiders proposed to pay themselves $1.4 million in management fees. But in court papers, Pierce says that he and other insiders have taken no money out except for incidental reimbursements and instead have put more than $600,000 in cash into the arena to keep it operating.

Pierce was the big winner in the first round in the fight for control of the arena. He not only secured bankruptcy protection but also got permission to be the short-term lender of last resort, through another company he owns, to the project. Unlike other creditors, he is essentially guaranteed to get his money back along with 9% interest and a $6,000 fee. The loan will be in the form of a revolving line of credit for up to $200,000.

While Pierce is arguing that everyone will be better off if he keeps control of the project, Bayland is not backing down. Even if Pierce’s company emerges from bankruptcy, he personally guaranteed some of the loans outstanding, and it looks like his creditors have no intention of letting him off the hook. On Wednesday, Bayland filed a letter in Winnebago County Circuit Court pointing out that while the U.S. Bankruptcy Court has kept creditors away from Fox Valley Pro Basketball, the “proceedings related to Gregory Pierce are not stayed.”


Tuesday, August 27, 2019

He won with 97 percent of the vote; a year later Busby leaves Winnebago County coroner's office in disgrace


Oshkosh Examiner
Coroner Barry Busby checks his phone outside a closed hearing of the Judiciary and Public Safety Committee.

By Miles Maguire

A year ago on Halloween, Winnebago County Coroner Barry L. Busby was just days away from a sweeping victory at the polls and re-election to his eighth full term in office with the highest vote count of anyone on the local ballot.

But 10 months later he is about to leave office in disgrace. This Halloween will be his last day on the job.

Busby’s stunning fall, announced at last week’s meeting of the Board of Supervisors and made official the next day with a letter of resignation, has its roots in the October 2017 conference of the Wisconsin Coroners and Medical Examiners Association. It was at that meeting that Busby, apparently under the influence of alcohol, made lewd comments to and groped at a woman in attendance, a licensed physician assistant who was also an Army veteran.

She filed a formal complaint with the coroners organization, which in turn formed an Ethics Committee to look into the matter. Although the WCMEA has yet to take action on the complaint, word of the investigation became known to members of Busby’s staff.

This was not the first time that Busby had behaved inappropriately toward women, as evidenced by state and county investigations sparked by complaints filed by former Deputy Coroner Donna Francart. But this time the sexual harassment allegations arrived amid growing concerns about Busby’s ability to carry out his duties.

Sunday, August 25, 2019

Oshkosh woman gets probation on methemphetamine possession charge after Murdock Avenue drug bust


By Miles Maguire
A 32-year-old Oshkosh woman was sentenced Aug. 21 to three years of probation after police found 8 grams of methamphetamine in her purse during a forced-entry search of a house in the 1500 block of West Murdock Avenue.

The woman, Jack Lyn N. Young, was a passenger in a car that drove up to the house during the search on March 19, court records show. She told police that she had been living at the house for a week and that she had shot up meth earlier in the day.

Young was arrested along with the driver of the car, Richard C. Stamper, who faces trial next month on drug possession and manufacturing charges.

Young, who pleaded no contest, was represented by Ryan Ulrich. Amanda Folger appeared for the state. Judge Daniel Bissett presided. He imposed costs of $518 and ordered Young to undergo drug abuse assessment.

***

A 41-year-old Neenah man who arrived two minutes early at the Warming Shelter on High Avenue was sentenced Aug. 21 to 34 days in jail for threatening to kill a police officer in the wake of a dispute about not being able to spend the night.

The Warming Shelter does not allow clients to line up for the night before 6 p.m. But James C. Brown and another man came to the door at 5:58 p.m. on March 18 and were sent to the back of the line when the shelter opened up, according to court papers. By the time they got back to the front of the line, the shelter was full, and they were denied admission. While the other man left peaceably, Brown started to create a disturbance, according to court records, and he was eventually arrested.

Because Brown had a cast on his leg, he had to be taken to a hospital for a medical evaluation before going to jail. While being wheeled to the emergency room, he unleashed a series of threats against police, including “something to the effect of putting the crosshairs on my head and blowing up my head,” the arresting officer said in a court filing.

The defendant said he would use a .338 bullet, which was developed for use by military snipers, and that it would “cut right through my body armor,” the officer said. “I took that as a threat that he was going to shoot me in my head and through my body armor.”

Brown was represented by Steven Smits and pleaded no contest before Judge Scott Woldt. Adam Levin appeared for the state. Court costs of $518 were assessed.

***

A 54-year-old sex offender who had been living on Division Street was sentenced to nine months in jail after police found pornography and a large number of online accounts on his cellphone during a search on March 12.

Leslie E. Bush is on the sex offender registry because he had groped his 8-year-old daughter “on a couple of occasions,” according to a criminal complaint. His use of the internet is limited by the terms of his release.

He pleaded no contest on Aug. 22 at a hearing before Judge John Jorgensen. Bush was represented by Steven Smits, and Anthony Prekop appeared for the state. Court costs of $518 were assessed.

***

A 2015 case that began with accusations of false imprisonment and repeated sexual assault of a child ended Aug. 22 with a no contest plea to a charge of genital exposure.

The case involved then 18-year-old Mitchell B. Elliott, who had sex five times over a two-day period with a 13-year-old runaway, according to a criminal complaint. The sex began in the basement of a house in the 1500 block of Algoma Boulevard, with other assaults occurring in a house “somewhere near Burger King in the city of Oshkosh,” the complaint says.

Elliott was sentenced to two years probation by Judge Daniel Bissett. The defendant was represented by Daniel Muza, and Tracy Ann Paider appeared for the state. Court costs of $518 were taken out of a previously posted $3,000 bond.

Friday, August 23, 2019

Pierce fronts $200,000 to keep arena open


By Miles Maguire

The owner of the Menominee Nation Arena has won court approval to kick in $200,000 to keep the facility operating in the short term.

“We are putting our own money on the line to make this work,” said Greg Pierce, the president of Fox Valley Pro Basketball Inc., which built and now operates the arena. He is also the president of a local investment advisory firm, Windward Wealth Strategies Inc., which will provide the short-term loan.


Fox Valley filed for Chapter 11 bankruptcy protection on Monday in a successful effort to head off an effort by the general contractor on the project, Bayland Buildings Inc., to force the arena into receivership.

The loan plan that was approved by U.S. Bankruptcy Judge Brett H. Ludwig Friday was significantly scaled back from Fox Valley’s original proposal after objections were raised by the U.S. bankruptcy trustee, Michele Kramer. A bankruptcy trustee is a lawyer who is appointed to look out for the best interests of the entity that has sought legal protection to try to maximize value for creditors.

An attorney for Future Bucks LLC, the owner of the Wisconsin Herd, also expressed some reservations.

The parties will return to court next month to hash out details. The judge has set aside time over two days in case the discussion turns into “a dogfight,” in his words.

The arena has identified secured and unsecured debts of more than $20 million. Legal filings and public statements point to the tensions between Fox Valley and its creditors, primarily Bayland, which has the largest loan outstanding.

Bayland received only about $9.6 million in construction payments on the $21 million arena. It holds a mortgage on the property and has received $2.2 million in interest, according to court papers.

In one document Pierce says he was “surprised” to learn about Bayland’s receivership filing, saying the news came to him from a reporter. In a press release the his company said it “was close to securing full financing to satisfy the claims of all creditors” when Bayland went to court.

Pierce also pointed out that in February Bayland “called a default and asserted a default interest rate of 24%, double the original 12% rate. That raised interest alone to $250,000 per month.”

The emergency loan will be used to make payroll, to pay for supplies and to cover other costs.

An attorney for Fox Valley put an optimistic spin on the situation. “We believe that the company should be able to exit Chapter 11 within a relatively short time and expect the principal amounts due to all creditors to be paid in full,” said Jerome Kerkman, a lawyer at Kerkman & Dunn. “This will be a superior result than what creditors can expect in a receivership.”

Wednesday, August 21, 2019

Barry Busby makes his resignation official; Gov. Evers to appoint replacement to serve as county coroner

Winnebago County Coroner Barry Busby announces his resignation to the Board of Supervisors.

By Miles Maguire
Winnebago County Coroner Barry L. Busby submitted his resignation in writing to Sheriff John Matz Wednesday morning.

Busby announced Tuesday evening at a meeting of the Board of Supervisors that he was retiring as of Oct. 31, but there had been some concern expressed that he made the announcement to head off a censure vote and would not follow through.


Before announcing his resignation, Busby made an impassioned speech about his work as a coroner and noted his own struggles with post-traumatic stress disorder, which appeared to have won him some sympathy among listeners.

County Executive Mark Harris responded by urging the censure vote to go forward. "I must point out that that is not official or irrevocable until he submits it in writing to the sheriff and at any point prior to that he could change his mind," Harris said.

The censure and no confidence resolution was adopted 29-1 with five abstentions.

Matz notified the governor and county officials of Busby's resignation.


Under state law it is now the responsibility of Gov. Tony Evers to appoint a coroner to fill out Busby's term. His office did not immediately respond to a request for comment.

"He will probably ask for applications, and I assume he will approach the sheriff and me to see if we have any thoughts" about who should take the coroner's post, Harris said in an interview.

The appointment could extend for the rest of Busby's term, which ends in 2022, or to an earlier date linked to a special election, Harris said. 

Busby will likely end up being the county's last elected coroner. An option under state law is to have a medical examiner instead. 

Bill Wingren, chair of the county's Judiciary and Public Safety Committee, said the panel "will investigate the process of changing over." Harris went further, saying he is "quite confident the board will switch the position to a hired position that will be accountable to the county executive."

Medical examiners typically have more training than coroners, but they also typically get paid more.

Most Wisconsin counties have a choice between using an elected coroner or an appointed medical examiner. Currently 40 counties, out of 72, have a medical examiner, according to the Wisconsin Department of Health Services. Because of their size, Milwaukee and Dane are required to use medical examiners. 

Over the last five years the statewide trend has been away from coroners and toward the use of medical examiners. Most of the counties that border on Winnebago County use medical examiners, including Calumet, Waupaca, Waushara and Fond du Lac. Outagamie and Green Lake counties have coroners. 


Tuesday, August 20, 2019

Winnebago Coroner Barry Busby announces retirement; supervisors move ahead with censure

In an emotional address that touched on his career, the experience of recovering the bodies of dead children and the challenges of dealing with post-traumatic stress disorder, Winnebago County Barry L. Busby announced that he will retire Oct. 31.

Busby revealed his plans to the Board of Supervisors as it prepared to take up a resolution of censure and no confidence. The resolution was adopted 29 to 1 with 5 abstentions.

The resolution came after weeks of investigation by county officials, who focused on three areas of concern:
  1. Extended absences by the coroner in 2018 and 2019, some of which were documented through records of Busby’s county-issued cellphone, which showed that he was making or receiving calls from out of state for most of the last winter.
  2. Higher county expenses because of the need for deputy coroners to “cover Coroner Busby’s absence, incurring a cost to taxpayers because deputies are paid on a per diem basis with additional expense reimbursement.”
  3. Sexual harassment allegations “leveled against Mr. Busby, some of which Mr. Busby does not deny.”
The coroner, a Republican, has served in that office for 22 years and earns an annual salary of $72,989. He oversees a budget of slightly more than $500,000 and is assisted by three part-time workers: an administrative associate and two deputy coroners. A website biography says Busby worked in the Oshkosh Police Department for 27 years and retired as a sergeant. 

Oshkosh wrestling promoter adds to financial pileup at Menominee Nation Arena; claims now top $20 million



By Miles Maguire

ACW Wisconsin, which recently pulled its Night of Legends event from the Menominee Nation Arena, has joined the list of creditors suing Fox Valley Pro Basketball Inc.

The Oshkosh-based wrestling promoter filed suit in Winnebago County Circuit Court on Tuesday, saying it is owed about $30,000.

It joins a long list of creditors, whose claims, secured and unsecured, now come to more than $20 million.


In an Aug. 15 Facebook post, ACW said the Night of Legends would be moving from the arena to the Masonic Temple.

“With the intimate venue of the Masonic Center, tickets will be extremely limited so make sure to get yours NOW,” the Facebook post said.

ACW Wisconsin was started by Dylan Postl, who grew up in Oshkosh and wrestled under the name Hornswoggle.

Fox Valley Pro Basketball filed for Chapter 11 bankruptcy protection Monday.

Its largest creditor is Bayland Buildings Inc., the general contractor for the project, which is owed $13 million. 

A list of its 20 largest unsecured creditors can be found here.

Oshkosh arena owner provides ownership statement after warning from bankruptcy clerk court

The developer of the Menominee Nation Arena is seeking bankruptcy protection. 

By Miles Maguire

After being warned that its Chapter 11 bankruptcy could be dismissed, the owner of the Menominee Nation Arena has filed a required document showing that an entity called Fox Valley Arena Management LLC owns 100 percent of the "voting common stock."


On Tuesday morning the U.S. Bankruptcy Court for eastern Wisconsin warned Fox Valley Pro Basketball Inc., the arena developer, that its petition for Chapter 11 protection is missing a critical document and could be dismissed.

"You must file the corporate ownership statement IMMEDIATELY," according to a notice posted Tuesday on behalf of Janet L. Medlock, the clerk of court. This sentence is in boldface on the notice.

"If you do not file the corporate ownership statement immediately, a trustee, creditor or other interested party can file a motion asking the court to dismiss your case," the notice warned. 


Fox Valley filed for bankruptcy protection on Monday to fend off an effort by the builder of the arena to force it into receivership so that it could be sold.

Fox Valley has paid a retainer of $27,000 to the Milwaukee law firm of Kerkman & Dunn, according to court papers. The developer is planning to pay fees of up to $425 per hour to be represented in the case. 

Most of the money for legal fees, $15,000, was sent via wire transfer from Windward Wealth Strategies Inc., an Oshkosh firm that is headed by Gregory B. Pierce. Pierce is also the president of Fox Valley, which is the developer and owner of the arena. 

Pierce is also listed as the registered agent for the arena management company that appears on the new filing. 

The law firm did not respond immediately to a request for comment.

Wisconsin Herd owed $340,000 by arena owner

The Wisconsin Herd is one of the largest creditors of the company that built the Oshkosh arena

By Miles Maguire

The company that owns and operates the Menominee Nation Arena owes the Wisconsin Herd $340,000 in sponsor expenses, commissions and fees.

In a bankruptcy court filing made late Monday, Fox Valley Pro Basketball Inc. listed its creditors with the largest 20 unsecured claims, including the Herd, which is the minor league affiliate of the Milwaukee Bucks and the prime tenant at the arena.


In response to news of the filing, the Herd repeated its earlier statement of commitment to Oshkosh. "We remain committed today, and in the foreseeable future, to working with Bayland Buildings to operate Menominee Nation Arena and will continue to make it the best venue in the G League,” said Wisconsin Herd President Steve Brandes.

Bayland was the general contractor on the project and is likely the largest creditor overall. Its debts, roughly $13 million, are secured by a mortgage on the arena. 

Bayland had hoped to force the arena into receivership, but this effort was thwarted by Fox Valley's Chapter 11 bankruptcy filing on Monday afternoon.

Those unsecured creditors making the list from Oshkosh are Blue Door Consulting, $181,629, and Eric Hoopman, $1 million. Blue Door has provided advertising and marketing services while Hoopman provided a loan in that amount at an interest rate of 18 percent, according to a court document. He has filed suit seeking the principal as well as accrued interest.


Blue Door did not immediately respond to a request for comment.

The largest unsecured creditor is listed as Peter and Carol Gehrke, of Amherst, who hold a promissory note for $3 million.







Monday, August 19, 2019

Oshkosh arena developer files for bankruptcy, blocking receivership with moments to spare before hearing


The developer of the Menominee Nation Arena has struggled to raise capital for the project.
By Miles Maguire
With moments to spare, the developer of the Menominee Nation Arena filed for Chapter 11 bankruptcy Monday afternoon, blocking the effort of the general contractor to seize control of the building.

The contractor had hoped to have Paul G. Swanson, an Oshkosh attorney who specializes in bankruptcies and restructurings, appointed receiver of Fox Valley Pro Basketball Inc. and given responsibility for taking possession of and selling the arena.

The motion to appoint Swanson was before Judge John A. Jorgensen, who said he was unable to act on it because of the federal bankruptcy case. Jorgensen said he had received the notice of the filing about an hour before the receivership hearing was scheduled to begin.

“Federal law requires a stay of all proceedings,” Jorgensen said. “At this point, this action will be stayed. Nothing will be scheduled until we hear further from the plaintiffs.”

In the Chapter 11 bankruptcy filing, Fox Valley said it had 100 to 199 creditors as well as both assets and liabilities in the $10 million to $50 million range. The case has been brought in U.S. Bankruptcy Court for the Eastern District of Wisconsin, which is based in Milwaukee.

In a Chapter 11 bankruptcy case, the debtor is given breathing room to reorganize its financial affairs. In this case, the developer holds an asset, the arena, that is worth roughly $20 million while facing claims of roughly $13 million. The claim amount could rise, however, if more creditors come forward.

The receivership motion had been drafted on behalf of Bayland Buildings Inc., the Green Bay company that served as general contractor for the construction of the arena and that says it is still owed $13.2 million for the job.

If it had been approved, the receiver would have been given authority to take over the arena and to “sell any and all property of Fox Valley Pro Basketball free and clear of all liens.”

Fox Valley did not send a representative to the hearing, but a notice of the bankruptcy case was filed in Winnebago County Circuit Court.

Bayland is the plaintiff in one of three lawsuits filed this month against Fox Valley, which built the arena and was instrumental in getting the Milwaukee Bucks to locate its minor league affiliate, the Wisconsin Herd, in Oshkosh. 

The other lawsuits were filed by Fox Valley’s former law firm, Caliber Law, and by a local businessman, Eric Hoopman, who was one of the local investors in the arena. Caliber says it is owed $97,000 while Hoopman is seeking payment of $1.1 million.

The Bayland and Caliber lawsuits also name Gregory B. Pierce, the president of Fox Valley and of a local investment company, Windward Wealth Strategies Inc. He issued personal guarantees for the missed payments, court papers say.

The arena, at 1212 S. Main St., opened in December 2017 at a derelict industrial site that had been the home of Buckstaff Co.’s furniture factory.

The parcel, which is still owned by the city and leased to Fox Valley, is currently valued at $17.7 million, according to the city assessor’s website. The actual cost of construction at the site, according to Bayland’s lawsuit, was much higher: $21.5 million.

During construction costs rose as soil conditions were found to be worse than expected and changes were made to the original development plan. 

When Fox Valley ran into trouble financing the project, Bayland agreed to take a mortgage on the site to cover the outstanding bills on a temporary basis while Fox Valley looked for a long-term loan.

At the beginning of the project, Fox Valley agreed to pay for $2.5 million in public infrastructure improvements to move construction along. In turn the city agreed to reimburse it for this expense as well as an extra $3 million for environmental remediation through a process called tax incremental financing. 

None of this money has been paid back to the developer, and the first installment, about $430,000, would not have been paid until November. The total was capped at $5.5 million.

Fox Valley had hoped to take the promise of incentive payments from the city to the financial markets and sell it for an upfront transfer of $4 million. According to legal documents, Fox Valley would have used this money to reduce the amount it owed Bayland and then gone after a conventional mortgage to cover the rest. 

Lingering environmental concerns delayed the process of obtaining financing for the project. 

In addition, Bayland's lawsuit says, Fox Valley is in default “of the development agreement with the city of Oshkosh, its obligations to the Milwaukee Bucks LLC and its obligations to other creditors."

According to the lawsuit, Fox Valley and Pierce “have provided creditors and investors with false financial information in an attempt to raise capital.”

Saturday, August 17, 2019

High Avenue shooting nets sentence for gun possession


By Miles Maguire

One of the men accused of involvement in the June 22 shooting on High Avenue has been sentenced to 18 months in prison, court records show.

Arhmed L. McGraw, of Fond du Lac, entered a no contest plea Aug. 12 to a charge of possessing a firearm illegally based on a prior felony conviction.

According to court papers, McGraw brandished a .22 caliber pistol during a confrontation between two other men who were arguing over a woman. Police said one of the men appeared to have at least two or three gunshot wounds and was semiconscious when they arrived.

McGraw, 23, and several others left the scene in a car that was pulled over in a traffic stop.

McGraw initially gave a fake name but acknowledged that he went to the High Avenue address with a female and her boyfriend, police reported. At the time McGraw said he was carrying a handgun but never took it out of his pocket.

Police said they found multiple guns in the car, including a silver and black Phoenix Arms .22 caliber “long rifle,” which despite its name is actually handgun. “Based on witness statements about the description of one of the guns and the physical description of the person holding his gun, this was the firearm that McGraw had in his possession,” police said.

Another Fond du Lac man, 26-year-old Deangelo W. Johnson, is scheduled for a plea hearing Aug. 26 on charges of second-degree recklessly endangering safety and illegal possession of a firearm.

The McGraw case was heard by Judge Scott C. Woldt. Daniel Muza represented McGraw, and Tracy Ann Paider was the prosecuting attorney. Court costs came to $518.


***

A 29-year-old Oshkosh man who briefly evaded police before being subdued with an electric stun gun, pleaded guilty to bail jumping and was sentenced Aug. 16 to court costs of $518 and 31 days in jail, which had already been served.

Trever D. Buhrow was living at a residence on Grand Street when police came to serve an arrest warrant in July. Knowing that he had a “history of taking off,” officers were stationed at the back of the house while others made contact at the front door, court papers say.

Buhrow made it past the officers at the back door but was cornered against a fence near the Boys and Girls Club, according to court documents. When he continued to resist by clinging to a fence, police warned him that they would use an electric stun gun and then did so.

A “bag of pills, identified on drugs.com as a prescription drug, citalopram,” was found on Buhrow, police said, adding that the man did not appear to have a prescription. Citalopram is an antidepressant that can produce a feeling of euphoria when used in large amounts.

Two other charges were dismissed but read in, meaning they can be considered in the sentencing for another crime. They were resisting an officer and possessing an illegally obtain prescription.

The case was heard by Judge Barbara Key. Rebecca Castonia represented Buhrow, and Eric Sparr was the prosecuting attorney.

Monday, August 12, 2019

Wisconsin Herd: We're ready to operate Menominee arena as builder seeks control of southside facility

Photo by Miles Maguire

The Wisconsin Herd, the Milwaukee Bucks' minor league affiliate, warms up at the Menominee Nation Arena.



By Miles Maguire
The Wisconsin Herd said it is ready to operate the Menominee Nation Arena in the wake of two lawsuits filed last week against the facility's developer, which has been described as essentially bankrupt.

"We remain committed today, and in the foreseeable future, to working with Bayland Buildings to operate Menominee Nation Arena and will continue to make it the best venue in the G League,” said Wisconsin Herd President Steve Brandes in an email statement. 

Bayland is the Green Bay company that served as general contractor on the project and that last week sued the developer, Fox Valley Pro Basketball Inc., for an unpaid bill of more than $13 million.

In its filing Bayland asked the court to appoint Paul Swanson, an Oshkosh attorney who is highly regarded for his work on restructurings and bankruptcies, to serve as receiver and take control of the arena.

"We care deeply about the city of Oshkosh, the entire Fox Valley and our incredibly supportive Herd fans, and are excited to build on the roots we established in this area as operator of the Menominee Nation Arena," Brandes added. "We are proud to be part of the community, excited for the upcoming season and dedicated to continuing the success of G League basketball in Oshkosh."

"I am encouraged that the Herd remain committed to staying in Oshkosh and appreciate their willingness to work with Bayland and whoever ultimately assumes ownership responsibilities for the arena," said City Manager Mark Rohloff.

A hearing has been scheduled Sept. 6 before Judge John A. Jorgensen in the Bayland case.

Swanson declined comment until after the receivership request is decided.

In addition to the Bayland action, a second lawsuit was filed by local businessman Eric Hoopman, who says the developer is $100,000 behind in its payments to him. He argued that Fox Valley should be forced to settle this debt and return $1 million in principal. Hoopman lent Fox Valley this amount at a rate of 18 percent in January 2018, court papers show.

The city has agreed to pay up to $5.5 million in tax incentives to the developer. But none of this money has been paid out yet. The developer is not eligible for the first installment of these payments until Nov. 1 and would have to settle outstanding bills from the city first.

“All property taxes were paid for the property, however the city does have outstanding bills for police and fire services ($12,658.64), utilities ($4,419.87) and other general invoices ($172.71),” City Attorney Lynn Lorenson wrote in a memo to the Common Council last week. “The city expects these outstanding costs to be paid.”

Bayland’s lawsuit paints a bleak picture of the situation at 1212 S. Main St., where the new arena has replaced a derelict factory and has been seen as the catalyst for the revitalization of the surrounding area, now called the Sawdust District. The facility has drawn thousands to minor league basketball games, concerts and other events since its opening in late 2017.

But the developer owes Bayland $13 million and is in default “of the development agreement with the city of Oshkosh, its obligations to the Milwaukee Bucks LLC and its obligations to other creditors,” the Bayland lawsuit says. 


Winnebago County Coroner Busby censured, issued vote of no confidence by committee of supervisors

Photo by Miles Maguire

Winnebago County Coroner Barry Busby, far right, and members of his staff await committee censure vote.
By Miles Maguire
The county’s Judiciary and Public Safety Committee voted unanimously Monday to censure Coroner Barry Busby and to put on record its lack of confidence in his job performance.

The censure resolution references Busby’s frequent travels out of state, added costs to taxpayers because of his absences and sexual harassment complaints “some of which Mr. Busby does not deny.” The resolution next goes to the full Board of Supervisors and would be sent to Gov. Tony Evers, who has the power to remove Busby from office under the state constitution.


Busby attended the committee meeting along with members of his staff, but he was not on the agenda and did not speak. After the vote he denounced the action and said the committee members were “being fed a lot of” excrement. “The truth will come out, and the people who are smearing will be dealt with accordingly.”

The vote came after the panel heard testimony from a former deputy coroner, Donna Francart. Francart was fired by Busby after filing a sexual harassment complaint that was not upheld but was given enough weight by county officials that they made arrangements to keep the two of them from meeting face to face.


Francart added a new area of concern, alleging that Busby had encouraged funeral home owners to push for organ donations as a way of funneling commissions to a Busby relative who was working for a tissue bank. 

Committee members said they had heard similar stories before. Francart’s testimony “will not be ignored,” said committee chair Bill Wingren.

The committee went behind closed doors for an hour before voting on the no confidence motion.


Previously the committee has held at least two closed-door meetings on Busby, who was re-elected last November.  Since then he has spent long periods of time out of state, fired his top deputy and been the subject of  a sexual harassment investigation by the Wisconsin Coroners and Medical Examiners Association.

The former chief deputy coroner has accused of Busby of misusing county resources by applying travel funds to training conferences but then skipping the sessions to play golf. The former deputy, Chris Shea, also said Busby treated the office administrator “as his own personal assistant for countless hours” of private business, including dealing with family members, handling paperwork and arranging personal travel.

The coroner, a Republican, has served in that office for 22 years and earns an annual salary of $72,989. He oversees a budget of slightly more than $500,000 and is assisted by three part-time workers: an administrative associate and two deputy coroners. A website biography says Busby worked in the Oshkosh Police Department for 27 years and retired as a sergeant.

Busby, 72, has enjoyed high regard among voters and taken a high profile role in initiatives to address suicide and drug overdoses. But it has apparently been an open secret in certain circles that the coroner is frequently away from the office and is known for making inappropriate contact with women.

“This investigation is continuing” Wingren said, adding that a private attorney has been hired to carry out the probe of Busby’s conduct. It was the private attorney who heard Busby’s acknowledgement of sexual harassment, Wingren said.

The resolution references the importance of high ethical standards, state laws that prohibit public officials from using their office for personal gain and the fact that the coroner would step in to fill the role of the sheriff and undersheriff if they were away from the county.

Friday, August 9, 2019

Menominee Nation Arena developer called insolvent; builder wants the keys, says false financial data used



Two lawsuits have been filed this week against the developer of the Menominee Nation Arena.

By Miles Maguire
The developer of the Menominee Nation Arena is insolvent and should be forced to hand over control of the facility to a court-appointed receiver, a Green Bay construction company says in a lawsuit filed late Friday.

In its filing Bayland Buildings Inc. paints a bleak picture of the situation at 1212 S. Main St., where the new arena has been viewed as the key to the remaking of a former industrial area now called the Sawdust District. The facility has drawn thousands to minor league basketball games, concerts and other events since its opening in late 2017.

But Fox Valley Pro Basketball Inc., the developer, owes Bayland $13 million and is in default “of the development agreement with the city of Oshkosh, its obligations to the Milwaukee Bucks LLC and its obligations to other creditors,” the lawsuit says.

Bayland says it was told by Fox Valley that it “has no cash” and alleges that the developer and its president and primary owner, Gregory B. Pierce, “have provided creditors and investors with false financial information in an attempt to raise capital.”

In a separate lawsuit filed Thursday, local businessman Eric Hoopman says that the developer is $100,000 behind in its payments to him and should be forced to settle this debt and return $1 million in principal. Hoopman lent Fox Valley this amount at a rate of 18 percent in January 2018, court papers show.


Winnebago Coroner Busby is retaliating over pay, benefits, according to his former chief deputy

A former chief deputy coroner has told county officials of disarray in the way the office operates.

By Miles Maguire

Coroner Barry Busby feels justified in not performing his job because he believes “the county has screwed him over on pay, benefits and retirement,” his former chief deputy said in a written statement provided to Winnebago officials earlier this year.

After he lost his job as chief deputy coroner on March 6, Chris Shea met with County Executive Mark Harris and other officials and provided them with a four-page document describing what Busby “was doing or not doing,” Shea said in a complaint filed with the state.

Busby, whose 102-year-old mother died earlier this week in DeKalb, Illinois, did not respond to a request for comment. He faces the possibility of a formal censure vote on Monday by the county Judiciary and Public Safety Committee. County officials have expressed concern about Busby's extended travels out of state and about multiple complaints of sexual harassment.

The coroner has defended the operations of his office and pointed to the lack of public complaints about any official responsibilities. He also said he fired Shea according to regulations and in consultation with the county’s Department of Human Resources.

In the document Shea accused of Busby of misusing county resources by applying travel funds to training conferences but then skipping the sessions to play golf. Shea also said Busby treated the office administrator “as his own personal assistant for countless hours” of private business, including dealing with family members, handling paperwork and arranging personal travel.

The administrator, Kimberly Maki, has also driven “Barry to and from special appointments and flights … all on Winnebago County time and payroll,” Shea wrote.

Maki, who has also worked as a deputy coroner, has been employed in the coroner’s office since 2013, according to county records. She did not respond to a request for comment.

In Shea’s description, Maki is the one doing much of the work that should be the duty of the coroner. He noted that the coroner is involved in a variety of programs and task forces working on issues such as child deaths, suicides and drug use.

“Barry Busby wants his name highlighted as the founder/presenter, but Kim Maki, the secretary, is actually the only one gathering all the information and spending hours of her time that Barry Busby, as the elected Winnebago County coroner, should be doing,” Shea wrote. “It’s his job. Not hers.”

A review of county records supports this point. Maki has been a regular participant at meetings of the Child Death Review Team and the Overdose Fatality Review Team, but since late last year Busby has rarely attended, meeting minutes show.

Shea depicts Busby as disengaged from the administrative operations of his office. “He does not do payroll,” Shea said. If Maki is not available to handle pay claims, another deputy does it using “Maki’s secure log-in,” Shea said.

Payroll is not a routine issue in the coroner’s office because the deputies are paid on a per-diem basis and have fluctuating workloads.

Busby has trouble with the technology required to sign death certificates, Shea said. “He needs another member of the staff there to help him or do it for him,” Shea said.

According to Shea, Busby rarely makes trips to the field. “If Barry goes to death scenes, they are only high-profile cases so he can have his name and face seen in the public,” Shea wrote. “This then turns into an unprofessional social hour for him with law enforcement officers and deputies cringing and turning their back to him in embarrassment.”

Along with the letter, Shea provided county officials with a copy of a sexual harassment complaint filed against Busby with the Wisconsin Coroners and Medical Examiners Association.

“I have witnessed Barry being inappropriate in conversations publicly and in the office as well,” Shea said. He will freely comment on the phone to a female … or in public, “You have a sexy voice, do you have a boyfriend? Do you like older men? What’s a beautiful woman doing out all by herself,” Shea added.

“Be prepared because Winnebago County will have to deal with this injustice Barry Busby has created, all on his own,” Shea wrote.

Wednesday, August 7, 2019

Winnebago Coroner Barry Busby faces censure vote



Oshkosh Media
The 72-year-old coroner has been accused of sexual harassment and of spending excessive time out of state.

By Miles Maguire

The county’s Judiciary and Public Safety Committee has scheduled a vote of censure and no confidence regarding Coroner Barry Busby.

In a meeting notice dated Aug. 5, the committee said it plans to go into closed session on Monday to consider possible litigation as well as to discuss “medical or personal histories which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories.”

After it comes out of closed session, the committee will consider and possibly vote on a “declaration of censure and no confidence” in the coroner, according to the meeting notice.

The committee has held at least two closed-door meetings on Busby, who was re-elected last November but since then has spent long periods of time out of state. He also fired his top deputy and has been awaiting the results of a sexual harassment investigation by the Wisconsin Coroners and Medical Examiners Association.

The coroner, a Republican, has served in that office for more than 20 years and earns an annual salary of $72,989. He oversees a budget of slightly more than $500,000 and is assisted by three part-time workers: an administrative associate and two deputy coroners. A website biography says Busby worked in the Oshkosh Police Department for 27 years and retired as a sergeant.

Busby, 72, has enjoyed high regard among voters and taken a high profile role in initiatives to address suicide and drug overdoses. But it has apparently been an open secret in certain circles that the coroner is frequently away from the office and is known for making inappropriate contact with women.

For his part Busby has defended the operations of the coroner’s office and noted that there have been no complaints registered with the county by members of the general public.

Busby was not immediately available for comment.

The censure vote, even if adopted by the full county Board of Supervisors, would not necessarily lead to changes in the coroner’s officer. As an elected official, Busby does not have any administrative supervisor and answers only to voters.

Officials have considered the idea of reducing the funding for the coroner’s office as a way of forcing Busby to resign. But they fear that such a move would have a negative impact on county residents.

As coroner, Busby is responsible for investigating suspicious or unexplained deaths such as murders, suicides and overdoses as well as providing services such as cremation permits and death certificates. Members of the coroner’s office, are frequently called on to interact with people who have lost a loved one under sudden and painful circumstances.

Sunday, August 4, 2019

Strangulation, stolen weapon, undercover drug deal among recent court cases in Winnebago County




By Miles Maguire

A 29-year-old Oshkosh man was sentenced July 31 to three years probation after pleading no contest to a charge of strangling and suffocating his live-in girlfriend, court records show.

Dillon R. Simmons, a Grand Street resident, was initially charged with five counts of domestic abuse, four of which were dismissed but “read in,” meaning that they could be considered at a future sentencing for another crime. Court costs came to $618.

According to police records, Simmons was arrested June 27. Simmons “forcefully grabbed [his girlfriend] by the neck for approximately three to five seconds, hard enough where [she] could not breathe,” according to a probable cause order. Police had been called to the residence on at least two previous occasions.

The case was heard by Judge Daniel J. Bissett. Matthew Goldin represented Simmons, and Eric Sparr appeared for the prosecution.


***

An undercover drug buy at the North Washburn Street Kwik Trip has led to 60 days in jail and three years of probation for a 31-year-old Oshkosh man, court records show.

According to a criminal complaint, Avie K. Hannah, of South Main Street, drove to the convenience store around 11:45 a.m. on Aug. 29, 2018, with a woman and young child. When Hannah arrived, he parked at a gas pump and then walked to the south side of the building, police said.

Once there Hannah exchanged two baggies of heroin for $180 with a confidential informant who drove up and who was working with the Lake Winnebago Area MEG Drug Unit, police said. Hannah pleaded no contest.

In addition to the 60 days in jail, imposed at a sentencing hearing July 29, Hannah received terms of 60 days in jail and three years in prison, both of which were stayed. His sentence also includes three years of extended supervision, which were imposed but stayed, and three years of probation. Court costs came to $698.

The case was heard by Judge John A. Jorgensen. Steven Smits represented Hannah, and Anthony Prekop appeared for the prosecution.

***

A Doemel Street man pleaded no contest July 29 to a charge of receiving a stolen gun and was sentenced to 18 months probation.

Jacob A. Hewitt, 24, told police he traded for the gun with a young woman he knew and that he planned to sell it for cash, according to court documents.

Court fees of $528 were assessed. The defendant was ordered to undergo drug and alcohol assessments and maintain absolute sobriety.

The case was heard by Judge Barbara Key. Daniel Muza represented Hewitt, and Amanda Folger appeared for the state.

***

When Oshkosh police arrived at a Ceape Avenue address on April, they expected to deal with a report of someone putting methamphetamine in someone’s dog food but instead came across a sawed-off shotgun.

James E. Gwinn, now a resident of Boyd Street, pleaded no contest July 31 to a charge of possession of the illegal weapon. The 29-year-old was sentenced to 12 months’ probation. Court fees of $518 were assessed.

Police said they found the weapon in a closet “with a barrel that had clearly been sawed off.” They said Gwinn acknowledged modifying the weapon and also to having a stun gun, for which he did not have a conceal-carry permit, and to owning a duty belt described as “almost identical to what law enforcement” uses.

According to court papers, Gwinn made the belt “to wear for his protection as someone gives him some problems at Salvation Army.”

Gwinn initially was charged with possession of electric weapon, but that charge was dropped. He pleaded no contest in May to a misdemeanor weapons charge.


The case was heard by Judge Scott C. Woldt. Steven Smits represented Gwinn, and Adam Levin appeared for the state.