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Howard attorney says no conflict of interest for board members but urges caution

By LeAnn R. Ralph

TOWN OF HOWARD —  An attorney for the Town of Howard says neither town supervisor  has a conflict of interest regarding the Albertville Valley Sand Mine but does urge caution for one of the supervisors.

The Howard Town Board received the opinion about the conflict of interest from Paul Kent of Stafford Rosenbaum Attorneys LLP at the May 5 meeting.

The question is whether a potential conflict of interest exists in voting on issues for the sand mine for Dennis Dvoracek, Supervisor 2, who at one time owned a company that did business with the Red Flint Group, which will be associated with mine operations, and whether a potential conflict of interest exists for Todd Wanish, elected to the Supervisor 1 position April 7, because Wanish’s in-laws have signed a lease for the sand mine.

According to the letter from Kent dated April 28, Dvoracek, through Area Financial Services, Inc., worked with Red Flint Group regarding group health insurance coverage.

Kent wrote it was his understanding that Red Flint Group is not the mine permit applicant but may serve as the mine operator in the future, and as of February 1, 2014, Dvoracek no long has an interest in Area Financial Services, and Red Flint’s insurance business has been transferred to another Area Financial Services agent.

Kent also wrote it was his understanding that land owned by a limited liability company controlled by Wanish’s in-laws has been leased to Northern Sands, and because Wanish’s in-laws do not have e-mail, Wanish’s wife, Heather Rothbauer-Wanish, receives e-mails from Northern Sands and Red Flint Group about the proposed sand mine on behalf of her parents on her personal e-mail address.

Code of Ethics

Kent based his opinion that neither Dvoracek nor Wanish have a conflict of interest under the Code of Ethics for Local Government Officials, Section 19.59 (1)(a), which states, “No local public official may use his or her public position or office to obtain financial gain or anything of substantial value for the private benefit of himself or herself or for his or her immediate family, or for an organization with which he or she is associated.”

Section 19.59 (1)(c) states that no local public official may “take any official action financially affecting a matter in which the official, a member of his or her immediate family, or an organization with which the official is associated has a substantial financial interest.”

“The legal question here is whether Mr. Dvoracek or Mr. Wanish stand to use their public position to obtain anything of value in connection with the mine. I have come to the conclusion that neither is the case,” Kent wrote.

Since Dvoracek is no longer selling insurance to the Red Flint Group, he will not stand to gain anything financially or obtain anything of substantial value because of voting on issues pertaining to the sand mine in his capacity as a town board supervisor, according to Kent’s letter.

“Mr. Dvoracek’s past relationship with Red Flint Group does not give rise to an appearance that he is using his office for private gain or being asked to take action in which he has a financial interest,” Kent wrote.

“As for Mr. Wanish, the concern appears to be that Mr. Wanish could be taking action in which a family member has a substantial financial interest,” Kent wrote.

The ethics code does not define “substantial financial interest,” and “immediate family” is defined to mean an official’s spouse or relative by marriage, lineal descent or adoption, if that family member receives, directly or indirectly, more than one-half of his or her support from the official or contributes, directly or indirectly, that amount for the official’s support,” Kent wrote.

“Based on what you have told me [the letter was addressed to Susan Haake, town clerk], I do not believe that either Mr. Wanish or his in-laws provide one-half of the other’s financial support,” Kent wrote.

E-mail

Wanish’s in-laws’ interest in the sand mine as land owners also does not create a financial interest in the mine for an immediate family member of Wanish’s, according to Kent’s letter.

Receiving e-mails for Rothbauer-Wanish’s parents does not create a financial interest in the sand mine attributable to Wanish either, the letter states.

The letter goes on to say, however, that Wanish is prohibited from using or revealing non-public information he obtains as a town board supervisor.

“While Mr. Wanish is not prevented from being involved in discussions or taking actions related to the mine, as a reminder, the Ethics Code does prevent him from using or disclosing non-public information he learned as a Board Member. Wis. Statute 19.45(4),” Kent wrote.

In other words, Wanish is prohibited from revealing information to his wife or in-laws that he learns, for example, during a closed session of the Howard Town Board when the town board is negotiating the mine licensing agreement for the Albertville Valley Sand Mine.

Kent also urges Wanish’s in-laws to communicate directly with the sand mine company rather than through their daughter’s e-mail.

“To avoid the appearance of such a disclosure, it may be advisable for Mr. Wanish’s in-laws to communicate directly with Northern Sands, rather than through Ms. Rothbauer-Wanish’s e-mail account,” Kent wrote.

Concern 

Tom Zwiefelhofer, former Supervisor 1 who lost the election to Wanish on April 7, brought the issue of the sand mine e-mails to Heather Rothbauer-Wanish to the attention of the Howard Town Board at Zwiefelhofer’s last meeting April 14.

Zwiefelhofer reported that the e-mail had been forwarded to him by Lee Jensen, a landowner in the Town of Howard who has signed a lease for the Albertville Valley Sand Mine.

Zwiefelhofer said he was concerned about the potential for a conflict of interest and that it would be in the best interest of the town board to seek a legal opinion.

Taking action to seek a legal opinion sparked heated discussion at the Howard Town Board’s April 14 meeting and again at the Town of Howard’s annual meeting April 21.

The proposed 1,300-acre Albertville Valley Sand Mine would be located along the western edge of the Town of Howard, a few miles southeast of Colfax, along the border with the Town of Colfax.