Leading up to this April’s election, when County Board member Andy Berg (D) lost his seat, he admitted to handing out “hundreds” of county maps and “hundreds” business cards during the election season. This seems to be clearly illegal and seems to clearly violate county ordinances and state statute.

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KCE filed a complaint with the Kenosha County DA and the Wisconsin Ethics Commission. Kenosha DA Mike Graveley sent KCE’s complaint to the Milwaukee County DA. At the same time, then-County Board member Zach Rodriguez asked for the county’s lawyers to investigate the conduct.

The Wisconsin Ethics Commission sent an email to KCE stating in part, “Commission staff has conducted a preliminary review of your complaint as required by Wis. Admin. Code ETH 21.03(2) and determined that your complaint is sufficient to proceed to consideration by the Commission.” This is expected to be reviewed in July.

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KCE made a public records request to Berg to physically review the maps and he denied our request. In March, a Kenosha Judge ordered Berg to make available for inspection a large amount of county park maps and business cards that he was illegally distributing during his Spring 2024 election. Judge Frank Gagliardi also ordered Berg to pay KCE editor Mathewson’s legal fees, in the amount of $309.50 – neither have happened.

Instead, Berg has filed a claim on the County of Kenosha, demanding the County taxpayers pay the judgement. That’s exactly what happened. Kenosha County Executive Samantha Kerkman told KCE today, in part, “the county is paying the court fees associated with the judgement as prescribed under Wisconsin statute 19.37 (2)(a).“

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Indeed, according to state statute, the county taxpayers have to pay for Berg’s failure to follow the public records law. In his claim, served on the county, he asserts that since he got and followed bad legal advice from Kenosha County Government Lawyer Joey Cardamone, the County should foot the bill.

The County hired a well-known and respected law firm, Crivello, Nicols & Hall, S.C. The investigator assigned is named Attorney Sam Hall. Here is a summary of his report:

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As part of my investigation into the ethics complaint, I also conducted a telephone interview with Mr. Berg on April 23, 2024. Mr. Berg was represented by counsel, Attorney William Sulton, who also attended the interview. During the interview, Mr. Berg confirmed that he requested and obtained “hundreds” of 2023 “Kenosha County Activity Guides” (as Mr. Berg described them, but which also include a County map). I have attached an electronically formatted version of what was eventually distributed by Mr. Berg. Mr. Berg believed that he received approximately 600 of the 2023 Activity Guides to distribute and he also stapled his Kenosha County Board Supervisor business card to the Activity Guides. Mr. Berg acknowledged that the 2023 Activity Guides and the business cards were generated using public funds and constituted Kenosha County property.

Mr. Berg indicated that he distributed all of the materials provided by the County. However, he indicated that when he distributed the materials, he did not ring any doorbells, nor did he target households with registered or likely voters – he simply dropped them at every door within his County Supervisor district. However, Mr. Berg did not deliver the materials to County residents outside of his district.

Mr. Berg indicated that these materials were dropped off over the course of two-or-three days over the course of one week, during February of 2024. When attempting to identify what specific date the materials were distributed, Mr. Berg stated that he maintained a “Re-Elect Andy Berg” Facebook page and he indicated that he took a picture of himself while dropping them at doors and posted that picture:

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The above-captured post was made on February 18, 2024. Of note, this post was made on the “Kenosha County Supervisor Andy Berg” Facebook page and also shared on Mr. Berg’s personal page that same day:

Both Mr. Berg’s personal page and his “Kenosha County Supervisor Andy Berg” contain political and/or campaign content. While Mr. Berg indicated during our interview that he posted the picture to his “Re-Elect Andy Berg” Facebook page, I was unable to locate the posting on that particular page, suggesting that either Mr. Berg was mistaken in his statement or the post has been removed.

Mr. Berg indicated that he did not drop off these materials for campaign purposes, but that instead he dropped off these materials as a “constituent service.” I inquired about what constituent service was provided in dropping off these materials and Mr. Berg responded that he was “informing [his constituents] of services and recreation that the County provides.” Mr. Berg went on to indicate that he felt that he was actually “saving the County money” by distributing the maps so that they would not need to be thrown away and that he was “being responsible” for the County maps by making sure that they were distributed to residents.

While these materials include a county map and addresses for the County’s parks (which largely remain the same over the years), the activity guide provides a listing of “2023 Events,” which detail events and recreation opportunities that already occurred. Further, the business card that was also attached does not appear to support the constituent services rationale offered by Mr. Berg.

Moreover, I did inquire whether Mr. Berg had ever distributed these materials to his constituents previously in an effort to provide this sort of constituent service or to ensure that the maps reach residents; however, Mr. Berg refused to answer that line of questioning upon the advice of legal counsel.

In summary, Mr. Berg has conceded that he obtained and distributed approximately 600 Kenosha County-owned 2023 Kenosha County Activity Guides, along with his official business card, during February of 2024, while he was in the midst of a re-election campaign. These materials were dropped off at residents’ doors, similar to what would occur during a campaign lit-drop (albeit not targeted to registered or likely voters). The fact that these materials were being distributed was also promoted by Mr. Berg on multiple social media accounts that also include political posts.

Wis. Stat. § 11.1205 provides, in relevant part, that “no person elected to state or local office who becomes a candidate for national, state, or local office may use public funds for the cost of materials or distribution for 50 or more pieces of substantially identical material distributed” after the first day that nomination papers may be circulated. In adopting this law, the legislative intent was to prevent the use of public funds for what could be viewed as political purposes during the statutory recognized campaign period. See 69 Atty. Gen. 259.

In the case of Mr. Berg’s election and pursuant to Wis. Stat. § 11.1205, starting on December 1, 2023, Mr. Berg would be prohibited from distributing of 50 or more substantially identical pieces of material paid for by the County. Importantly, Wis. Stat. § 11.1205 provides a blanket prohibition on this conduct, regardless of the purported purpose or motive in distributing the materials. See 2018 Wisconsin ETH 03 (“the intent of the sender is irrelevant to the analysis of whether the 50-piece rule is violated by a given communication.”)

As such, the purported “constituent services” rationale for the distribution of these materials is of no consequence to the analysis of whether Mr. Berg’s conduct violated Wis. Stat. § 11.1205. From my review, there appears to be probable cause to believe that Mr. Berg violated Wis. Stat. § 11.1205; however, enforcement of that statute is expressly left to the Wisconsin Ethics Commission. See Wis. Stat. § 11.1205(1)(d).

First, the only “constituent service” that Mr. Berg described in my interview of him was explained as “informing [his constituents] of services and recreation that the County provides.” However, this explanation defies logic since the materials being provided described services and recreation that had already occurred. Moreover, there is no evidence that Mr. Berg ever conducted similar “constituent services” previously, outside of an election cycle.

Next, while Mr. Berg’s distribution of these materials was allegedly not targeted to registered voters or likely voters, the materials were distributed solely to residences within Mr. Berg’s district in a manner very similar to a campaign lit-drop, complete with Mr. Berg’s official business card stapled to the cover of the materials.

Finally, I believe that it is also relevant that Mr. Berg publicized his distribution of these materials on at least two different social media pages. Mr. Berg stated that he posted about this distribution on his “Re-Elect Andy Berg” Facebook page; however, I have been unable to verify whether that is accurate. Nonetheless, it was posted (and continues to be accessible) on the “Kenosha County Supervisor Andy Berg” Facebook page and Mr. Berg’s personal Facebook page. Both of these pages appear to have been used for political commentary and campaigning and the promotion of the distribution of these materials on social media certainly also supports the conclusion that the County-owned materials were used for campaign purposes, contrary to County Code.

Recommendations

In accordance with § 19.11-1 of the Kenosha County Ethics Code, I conclude that there is probable cause that the Ethics Code was violated and, as such, I recommend that the ethics complaint and the details of this investigation be forwarded to the Kenosha County District Attorney’s Office for potential prosecution.

Kenosha County sent the report to the Milwaukee County DA’s office. Three weeks later, Milwaukee County Assistant District Attorney Matthew Westphal reversed dozens of years of precedent and seemed to ignore the law. He said “there was no evidence that public funds were expended for the distribution of the maps.” Plainly put, Westphal lied. It took KCE one day to obtain the records proving the county paid for the maps:

In fact, the County paid over $6,000 for the maps. “ADA Westphal’s lazy ‘investigation’ and decision to take no action sets a dangerous precedent for elected officials. He’s giving them carte blanche to use government funds for their elections,” said an elected official who spoke with KCE.

Reached by KCE, Berg’s attorney, William Sulton called Attorney Hall’s report “bullshit.” The Milwaukee County DA is still deciding whether or not to charge Berg with felony theft for allegedly embezzling thousands of dollars from his charitable organization garden of eatin.

Believe it or not the Kenosha news only wrote about Milwaukee County District attorney’s decision not to take action. The rag that is barely surviving omitted the count’s outside counsel’s report that sharply contrasted the Milwaukee ADAs opinion. Kenosha news reporter Joe States is a Democrat, like Berg.

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