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State agency thumbs nose at law

Bill Lueders

By Bill Lueders

The law hardly could be clearer or more unequivocal: Wisconsin state statute 16.705(8) requires the state Department of Administration to file a report by Oct. 15 of each year regarding the hiring of outside contractors to perform services for state agencies.

Public employee unions and others scrutinize these mandatory filings, known as Contractual Service Purchasing Reports, to find wasteful spending and track trends in the hiring of outside contractors.

A review of the reports for fiscal years 2006-10 shows spending on these services has been substantial, ranging from $417 million to $490 million annually. The report for fiscal year 2011, the first since the election of Republican Gov. Scott Walker, shows …

Actually, it doesn’t show anything, because it apparently has not been produced.

In the past, these reports have been filed late — between one and seven weeks late, going back to 2006, notes Bill Franks, a steward with the Wisconsin Professional Employees Council, a union representing state employees. The Walker administration has that topped; its report for 2011 is more than eight months late.

“(Former Democratic Gov.) Jim Doyle was not a fan of this requirement,” Franks said. “But it was never this late.”

State Democratic lawmakers and union officials have made repeated inquiries, to no avail. Detailed messages left by the Wisconsin Center for Investigative Journalism for DOA Secretary Mike Huebsch and Deputy Secretary Chris Schoenherr over a period of several days also yielded no reply.

“It’s quite disappointing,” said state Sen. Julie Lassa, D-Stevens Point, who still is awaiting a reply to her Feb. 9 letter to Huebsch wondering why the report was, at that time, about four months late. “We need to know to what extent state agencies are using outside contractors, and how much it’s costing us.”

Lassa cites a 2009 Legislative Audit Bureau report which found that almost 60 percent of the work done by outside consultants on highway projects could have done less expensively using state employees. In other cases, it found that using consultants was cheaper.

Walker’s proposed 2011-13 budget called for axing this annual report, as well as a requirement that state agencies perform a cost-benefit analysis for service contracts of more than $25,000.

Lassa credits state Sen. Robert Cowles, R-Green Bay, for getting these proposed changes stripped from the budget, except for the University of Wisconsin System. (Cowles’ office did not respond to requests for confirmation.)

Cowles was the lead Senate sponsor of the 2005 bill that mandated the cost-benefit-analysis. Doyle was governor then, and GOP lawmakers led the push for greater accountability in hiring outside contractors.

Union steward Duane Konkel alleges that the absence of a report makes it easier for the Walker administration to “reward campaign donors by giving them lucrative public contracts.”

State Rep. Mark Pocan, D-Madison, airs another grievance: “A governor who talks about waste, fraud and abuse might want to prove he’s actually looking for it.” Pocan, who sent a letter about the missing report to Walker on June 20, has looked into what can be done to compel the DOA to obey the statute. His sense: “Not much.”

But Bob Dreps, a Madison attorney who advises news media on records and access issues, said the same remedy often used in open records litigation — a writ of mandamus — could be invoked against an official who ignores a mandatory duty.

Dreps acknowledges a writ of mandamus is considered an “extraordinary” remedy, so it’s not supposed to be easy to get. “But when an executive branch official is shirking a mandatory duty imposed by statute, mandamus is the means to get a court order to compel performance.”

All it would take is at least one lawyer and at least one litigant interested in taking on the Walker administration.

What are the chances of that?

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for  Investigative Journalism.

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