The state says financial commitments to support biodigesters and other projects violated the state constitution.
By Miles Maguire
Two former UW Oshkosh officials have renewed their calls for criminal charges against them to be dismissed in a case relating to the school’s charitable foundation.
The state’s recently amended complaint against former Chancellor Richard Wells H. Wells and former Vice Chancellor Thomas G. Sonnleitner still contains defects and should be rejected, their lawyers argued in a brief filed Nov. 15.
The two men face five felony counts of misconduct in office for their role in facilitating real estate transactions by the UWO Oshkosh Foundation. While the two did facilitate those transactions, the unresolved issue is whether they were criminally exceeding their authority in doing so.
The state argues that what the two did, giving banks financial commitments backed up by UW Oshkosh, was a violation of the Wisconsin Constitution. But this argument has been shot down by two judges, and the University of Wisconsin System ultimately did make good on those commitments, undercutting the idea that those promises were outside the law.
In its amended complaint, the state Department of Justice points to a 2013 email that was sent to Sonnleitner warning him that certain proposed financial promises on behalf of the university were illegal. But this email did not reference earlier financial promises that had already been extended to the foundation in the form of memorandums of agreement.
This email “does not provide a sufficient factual basis to establish, for probable cause purposes, that the defendants were without authority and knew they didn’t have authority and were acting illegally in 2012,” the defense asserts.
At least one senior UW System official, Vice President of Finance Deborah Durcan, knew about the promises made by the former officials and did not try to block those commitments. The defense has seized on this fact to show that the men had reason to believe that they had not exceeded their authority.
“Durcan knew or should have known at least the same as the defendants, and she never disputed the defendants’ authority to act,” the defense brief states.
The prosecution has also raised some new legal arguments by citing previous decisions that it says support its view about how to evaluate the defendants’ state of mind.
But the defense argues those decisions are not on point, in part because of the underlying facts. One case involves a sexual assault by a therapist and the other involves a defendant who desecrated an American flag by defecating on it.
The next steps in the case are now up to Winnebago County Circuit Judge John A. Jorgensen, who has has scheduled an oral ruling for Jan. 15.