In recent months, two Wisconsin law enforcement officials have been charged with sex crimes stemming from the inherent power imbalance between government officials and civilians or supervisors and subordinates.
Yet in neither case will the official face consequences specifically for a violation of the public trust through Wisconsin’s misconduct in public office statute.
Marshfield Police Chief Rick Gramza was charged last November with three felony counts of misconduct in public office, one misdemeanor count of fourth degree sexual assault and one misdemeanor count of disorderly conduct from incidents involving a subordinate that occurred between 2014 and last summer.
Last month, Portage County Circuit Court Judge Thomas Eagon ruled there wasn’t enough evidence to find probable cause in the misconduct charges and dismissed them.
In February, Burnett County Assistant District Attorney Daniel Steffen was charged with three felonies for surreptitiously recording himself having sex with multiple women — one of whom was a defendant he was responsible for prosecuting.
Misconduct in Public Office
The criminal complaint notes that the Wisconsin Department of Justice (DOJ) began investigating Steffen after receiving a tip that he was trading sex for leniency in cases, although he’s facing no charges for criminal misuse of prosecutorial power.
After the charges against Steffen were announced, line prosecutors from across the state grumbled that the three charges of capturing an intimate representation, each punishable by up to three and a half years imprisonment, weren’t enough for such a flagrant abuse of prosecutorial power and violation of legal ethics.
“For those of us who hold a position of public trust, much responsibility is given and there must be a corresponding level of accountability when that trust is violated,” Dane County prosecutor Awais Khaleel wrote on Facebook. “If there’s evidence of guilt beyond a reasonable doubt of crimes, then prosecutors (like myself) need to be prosecuted to the fullest extent of the law — especially under [Wisconsin’s misconduct in public office statute].”
The statute, 946.12, is broken into five sub-categories, making it a felony for public officials to violate the public trust in a variety of ways. One of those categories makes it illegal for an official to break the law in the carrying out of official duties.
The hurdle in the cases of Steffen and Gramza is a court precedent set in 1983 by the state’s court of appeals.
State v. Schmit
That case, State v. Schmit, involved a jail deputy who had a sexual relationship with an inmate. The court ruled that the deputy had violated the law the state had at the time that made “fornication” between unmarried people a misdemeanor, but this violation was not part of the deputy’s official duties — so a misconduct in public office charge was unwarranted.
“Although the meaning of the statute is far from clear, it requires on its face more than a mere violation of the criminal code by a public official,” the decision states. “It requires both that the officer commit the act in an official capacity, and that the act be one which he is forbidden by law to do in an official capacity.”
It continues: “The purpose of the law appears to be the prevention of the misuse of power entrusted to public officers, rather than the imposition of an additional penalty for conduct which is forbidden to all persons generally when that conduct is committed by a public officer or employee.”
The Schmit precedent is cited by Eagon in his decision to toss out the misconduct in public office charges against Gramza.
“The court in Schmit indicated it must be an act in which a person is forbidden to do in his or her official capacity rather than an act that is forbidden to everyone regardless of the official capacity,” Eagon said. “The appeals court stated that the purpose of the misconduct in public office laws prevent the misuse of power entrusted to public officers rather than the imposition of an additional penalty for conduct that is forbidden for all persons, generally.”
The high bar set by State v. Schmit that prevented Gramza from facing the additional charges — even though he’s accused of sexually assaulting a subordinate and his official duties involved serving as the manager of department employees — doesn’t sit well with legal professionals across the state. When the decision not to charge Steffen with misconduct is added on top, the precedent prevents real accountability from Wisconsin’s public officials, according to Dunn County Assistant District Attorney Amber Hahn.
“[State v. Schmit] found that a prison guard having sex with an inmate while working was engaging in a ‘personal frolic’ and not acting in her ‘official capacity.’ This case makes it especially difficult to charge misconduct in public office in the context of a public officer who is engaging in a sexual relationship with an individual who is interacting with them in a professional capacity under the misconduct in public office statute,” Hahn says. “Public officials need to be held to a higher standard because of the position of power they hold.”
“In a relationship between a public official and an individual they are interacting with in their professional capacity the relationship is almost always unequal,” she continues. “Public officials must be cognizant of the inequality and should be held responsible when they use their position to the disadvantage of the other individual.”
Other legal experts around the state say that misconduct in public office certainly seems to apply in the cases of Gramza and Steffen, but that prosecutors are often considering more factors than just what they can technically charge a defendant with.
Ben Kempinen, chair of the State Bar of Wisconsin’s ethics committee, compared misconduct in office to disorderly conduct — saying it’s a one-size-fits-all crime that can get tacked on for all sorts of reasons. But even though a prosecutor can add the charge, it comes with thorny legal questions about the definition of “official capacity.”
The ‘Slam Dunk’ Case
In a case like Steffen’s, according to Kempinen, why should the DOJ prosecutor in charge of the case add the more nebulous misconduct in office charge when the felony charges already filed are a “slam dunk” because of the video evidence and cooperative victims.
“I think this one arguably could apply, obviously sexual harassment or committing sexual assault isn’t one’s official capacity,” Kempinen says. “My sense is, if I’m a prosecutor, I’m looking at the elements of the crime and what I can prove. If you’ve got a cooperative victim and evidence of the filming, that’s a slam dunk conviction, basically I don’t have to scratch my head and ponder what is the duty of the public official.”
Charging decisions aren’t necessarily value statements from prosecutors, according to Mel Johnson, a former Assistant U.S. Attorney in Milwaukee. Instead, prosecutors are trying to be successful and make sure the official faces consequences for the actions.
“There’s no question this is wrong,” Johnson says about Steffen’s case. “As far as the choice to charge him filming a sex act for somebody without their consent, sometimes prosecutors make charging decisions which are not based upon their view as to what the essential charge is but their view that they need to address the conduct and they think the decision not to charge with misconduct in public office is more a practical decision.”
“As far as whether that’s enough, that’s a matter of judgement and the judgement is probably based on a lot of information we don’t necessarily have,” he continues. “What were the details of the harassment? How willing or unwilling were the women to engage? Was there really going to be a quid pro quo?”
Plus, bringing the charges that are more sure to get a conviction also means it’s more sure that an abusive official will face some sort of consequences for those actions. For risk-averse prosecutors, Kempinen says, this is often the better option than bringing the misconduct charge and potentially losing.
“DOJ can get this guy on a felony; they don’t have to take on an ambiguous theory about what’s misconduct and get him jail time,” he says. “If I can do that with one charge, why take on the more complicated one? If I can get this guy on a couple felonies, make sure he can’t be a DA again, make sure he faces civil liability, possibly lose his law license. There’s a whole litany of consequences.”
Several experts brought up the possibility that officials face other consequences if found guilty for a smaller charge than misconduct in public office.
Steffen is almost certainly going to face regulatory consequences for violating state ethics rules, according to Kempinen. The Marshfield Police and Fire Commission has started the process to hold hearings to remove Gramza from his position — even though the felony misconduct charges were dismissed.
“Certainly they’re being accused of misusing their powers and they’re being held accountable but not through that one [charge],” Kevin Kennedy, former director of Wisconsin’s now-defunct Government Accountability Board, says. “The two cases, it strikes me that, at least in terms of the prosecution they’re heading towards some level of accountability, just not under a particular statute.”
Another important factor for the prosecution to consider is making sure officials are unable to hold public office in the future, according to Johnson
“It’s possible that the prosecutive choices with regard to these two guys are going to adequately handle the situation,” Johnson, who served in the Office of Professional Responsibility at the U.S. DOJ investigating attorneys accused of misconduct. “Regardless of whatever penalties, they’ll be out of a job and will not get similar jobs in the future. That really is a big point about trying to disqualify them from similar jobs in the future.”
There’s also another layer of discretion built in the system that can hold abusive officials accountable differently than a normal citizen — sentencing.
“In Wisconsin, where judges have discretionary authority to sentence, maybe if you’re an average Joe you get probation,” Kempinen says. “But if you’re a public official, maybe that is reflected in the sentence by a year in prison. It’s not like the judge is without tools to deal with the fact that this guy’s betrayal of the public trust is arguably worse.”
The Wisconsin Department of Justice did not respond to a request for comment, and several phone calls to the Wood County District Attorney’s Office went unanswered. An attorney for Gramza was unavailable, and an attorney for Steffen did not respond to a request for comment.
Gramza is next scheduled to appear in court for a final pretrial conference on March 22. The hearings to determine if the police and fire commission will terminate him are set to be held this month.
Steffen is next scheduled to appear in court for a preliminary hearing on March 12.