Hello -- You may have already seen this, but if not, please consider sharing this with your members via your newsletters or by posting on your Web site. The Attorney General has issued a finding from its investigation into the allegations the Lakeland Times made concerning a DNR employee who added on to his home. The AG found no wrongdoing and closed the case. Attached below is the letter, and the link to the Lakeland Times article is below. This is an important issue given the Lakeland Times has used its allegations to discredit the decisions the employee and other DNR officials in northern Wisconsin have made regarding protection of public lakes and rivers.

Attorney General Peg Lautenschlager has asked that I respond to your various letters complaining about Department of Natural Resources employee Scott Watson’s additions of various decks to his property in 1998. Mr. Walker, in his letter and in various articles, has alleged that there was an inappropriate Ordinary High Water Mark (OHWM) made by DNR employee Liesa Nesta at Mr. Watson’s property. In response to your complaint, I received materials from Mr. Walker, the Department of Natural Resources, and I offered the Oneida County Planning and Zoning Department the opportunity to provide me materials. I have had an opportunity to review all of these materials, and have come to the conclusion that neither Mr. Watson nor Ms. Nesta violated any Wisconsin public integrity laws with regard to the construction at the Watson residence.

In reviewing the Zoning Department’s file in this matter, it appears that Mr. Watson obtained a series of building permits for his property in Oneida County over time. This particular dispute revolves around a series of permits he obtained in 1997. The Zoning Department’s file shows that in 1997, Mr. Watson was granted two permits to add on decks and a screened-in porch on his property. Once this permit was granted, but prior to construction, Mr. Watson asked DNR employee Liesa Nesta, the local water management employee, to come to the property and determine the OHWM at that time. Mr. Nesta came to the property and did determine what she believed to be the OHWM. Based upon this determination, Mr. Watson adjusted his decks in order to move them back the required 75 feet. At the time of the re-inspection in 2003, Liesta Nesta once again located where she had determined the OHWM to be in 1998. It was also readily apparent that in the intervening years, the water levels had risen and were different than what they were when the decks were built.

In March 2003, the Oneida County Planning and Zoning Department received a complaint from Richard Moore alleging possible OHWM setback violations at the Watson property. The Zoning Department advised Mr. Watson of this complaint and performed two on-site inspections in May of 2003 to verify the setbacks to the OHWM of all existing structures. The Zoning Department, in measuring setbacks used the OHWM determination made by Liesa Nesta of the south bog in 1998. The Zoning Department would have had authority to determine what they believed the OHWM to have been in 1998 but elected to accept Liesa Nesta’s determination. Based upon these measurements, the Planning and Zoning Department determined that the structures had been built in compliance with the permits which had been approved. They found that no violations existed and the complaint was abated.

The question before me is whether, given these facts, Mr. Watson or Ms. Nesta violated any Wisconsin public integrity statutes. I have not reviewed this matter to determine whether or not there were zoning violations because the Zoning Department has concluded that there were none and have not pursued the matter any further. The Wisconsin statute which is most relevant to this discussion is Wis. Stat. § 946.12, Misconduct in Public Office. The various provisions prohibit governmental officials from impermissibly using their position to advance their personal ends. I have concluded from my review that Mr. Watson and Ms. Nesta did not violate any of the provisions of § 946.12. With regard to Ms. Nesta, she was merely responding as the local water management employee to a citizen’s request for the determination of an OHWM. This is clearly within her job duties and the fact that the requester was a fellow DNR employee does not make her actions criminal. She did not gain anything personally by making the measurement, nor is there any proof that she gained an employment advantage because Mr. Watson was not her supervisor. Questions have been raised about her placement of the OHWM. The placement of an OHWM is a discretionary decision. In addition, from the information I have, it appears that the OHWM at this property may have risen between of the time of her measurement in 1998 and the inspection in May of 2003 because of beaver dam activity. Although, the Oneida County planning and zoning officials appear to question the placement of the OHWM five years after its determination, they have officially accepted it. For these reasons I do not believe that Ms. Nesta violated any state laws in her placement of the OHWM at the Watson property.

In reviewing the facts with regard to whether or not Mr. Watson may have violated Wis. Stat. § 946.12, it is very important to note that at the time he requested that Ms. Nesta determine the Ordinary High Water Mark (OHWM), he already had his permit in hand. He could have lawfully constructed the decks without determining the OHWM. Mr. Watson went beyond what he was required to do by the Zoning Department and had an OHWM established and varied his building accordingly. His act of having a fellow employee determine the OHWM does not appear to have violated any of the provisions of misconduct in public office. He did not fail or refuse to perform a known mandatory duty as provided for in Wis. Stat. § 946.12(1). He did not do an act in excess of his lawful authority under § 946.12(2) because he was requesting as a private citizen the determination of an OHWM. I do not believe he violated Wis. Stat. § 946.12(3) because he did not gain a dishonest advantage by the determination of the OHWM because he had already obtained the permit and permission to construct. The conclusion that he obtained no dishonest advantage is bolstered by the Oneida County Zoning Department’s decision that there was no violation and that no enforcement action was appropriate. In Mr. Walker’s letter he raises a concern about Mr. Watson’s failure to diagram the lakebed when requesting the 1997 permit. The question is whether this absence may have violated Wis. Stat. § 946.12(4). I do not believe the lack of this lakebed drawing on the permit application violates subsection (4) because it prohibits material misstatements, and there were no misstatements on the diagram; and it appears that the Oneida County Zoning Department did not believe the omission was material enough for it to question the permit when the complaint was raised in 2003. Section 946.12(5) appears to be inapplicable to the facts in this case.

For the reasons set forth in this letter, I do not believe that Mr. Watson or Ms. Nesta violated Wisconsin’s official misconduct statute. For that reason, our office is closing this matter and will pursue it no further.

Sincerely,

Steven E. Tinker

Director, Criminal Litigation

Antitrust and Consumer Protection Unit

SET:jjn

c: Scott Hassett

Scott Watson

Liesa Nesta

\\dls01\users\tinkerse\cor\nass re watson & nesta.doc

	AG ruling on Lakeland Times charge re: DNR employees
	From: Gaumnitz, Lisa L. [mailto:Lisa.Gaumnitz@dnr.state.wi.us] Sent: Tuesday, June 29, 2004 3:47 PM To: stewardship@wsn.org; michaell@wisconsinrivers.org Subject: AG ruling on Lakeland Times charge re: DNR employees Hello -- You may have already seen this, but if not, please consider sharing this with your members via your newsletters or by posting on your Web site. The Attorney General has issued a finding from its investigation into the allegations the Lakeland Times made concerning a DNR employee who added on to his home. The AG found no wrongdoing and closed the case. Attached below is the letter, and the link to the Lakeland Times article is below. This is an important issue given the Lakeland Times has used its allegations to discredit the decisions the employee and other DNR officials in northern Wisconsin have made regarding protection of public lakes and rivers. Thanks for your interest. Lisa Gaumnitz Public Affairs http://lakelandtimes.com/news.php?story=534 PEGGY A. LAUTENSCHLAGER ATTORNEY GENERAL Daniel P. Bach Deputy Attorney General 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857 www.doj.state.wi.us Steven E. Tinker Assistant Attorney General tinkerse@doj.state.wi.us 608/266-0764 FAX 608/267-2778 June 21, 2004 The Honorable Stephen L. Nass State Representative 12 West State Capitol Madison, WI 53702 Mr. Gregg Walker General Manager The Lakeland Times P.O. Box 798 Minocqua, WI 54548 Dear Gentlemen: Attorney General Peg Lautenschlager has asked that I respond to your various letters complaining about Department of Natural Resources employee Scott Watson’s additions of various decks to his property in 1998. Mr. Walker, in his letter and in various articles, has alleged that there was an inappropriate Ordinary High Water Mark (OHWM) made by DNR employee Liesa Nesta at Mr. Watson’s property. In response to your complaint, I received materials from Mr. Walker, the Department of Natural Resources, and I offered the Oneida County Planning and Zoning Department the opportunity to provide me materials. I have had an opportunity to review all of these materials, and have come to the conclusion that neither Mr. Watson nor Ms. Nesta violated any Wisconsin public integrity laws with regard to the construction at the Watson residence. In reviewing the Zoning Department’s file in this matter, it appears that Mr. Watson obtained a series of building permits for his property in Oneida County over time. This particular dispute revolves around a series of permits he obtained in 1997. The Zoning Department’s file shows that in 1997, Mr. Watson was granted two permits to add on decks and a screened-in porch on his property. Once this permit was granted, but prior to construction, Mr. Watson asked DNR employee Liesa Nesta, the local water management employee, to come to the property and determine the OHWM at that time. Mr. Nesta came to the property and did determine what she believed to be the OHWM. Based upon this determination, Mr. Watson adjusted his decks in order to move them back the required 75 feet. At the time of the re-inspection in 2003, Liesta Nesta once again located where she had determined the OHWM to be in 1998. It was also readily apparent that in the intervening years, the water levels had risen and were different than what they were when the decks were built. In March 2003, the Oneida County Planning and Zoning Department received a complaint from Richard Moore alleging possible OHWM setback violations at the Watson property. The Zoning Department advised Mr. Watson of this complaint and performed two on-site inspections in May of 2003 to verify the setbacks to the OHWM of all existing structures. The Zoning Department, in measuring setbacks used the OHWM determination made by Liesa Nesta of the south bog in 1998. The Zoning Department would have had authority to determine what they believed the OHWM to have been in 1998 but elected to accept Liesa Nesta’s determination. Based upon these measurements, the Planning and Zoning Department determined that the structures had been built in compliance with the permits which had been approved. They found that no violations existed and the complaint was abated. The question before me is whether, given these facts, Mr. Watson or Ms. Nesta violated any Wisconsin public integrity statutes. I have not reviewed this matter to determine whether or not there were zoning violations because the Zoning Department has concluded that there were none and have not pursued the matter any further. The Wisconsin statute which is most relevant to this discussion is Wis. Stat. § 946.12, Misconduct in Public Office. The various provisions prohibit governmental officials from impermissibly using their position to advance their personal ends. I have concluded from my review that Mr. Watson and Ms. Nesta did not violate any of the provisions of § 946.12. With regard to Ms. Nesta, she was merely responding as the local water management employee to a citizen’s request for the determination of an OHWM. This is clearly within her job duties and the fact that the requester was a fellow DNR employee does not make her actions criminal. She did not gain anything personally by making the measurement, nor is there any proof that she gained an employment advantage because Mr. Watson was not her supervisor. Questions have been raised about her placement of the OHWM. The placement of an OHWM is a discretionary decision. In addition, from the information I have, it appears that the OHWM at this property may have risen between of the time of her measurement in 1998 and the inspection in May of 2003 because of beaver dam activity. Although, the Oneida County planning and zoning officials appear to question the placement of the OHWM five years after its determination, they have officially accepted it. For these reasons I do not believe that Ms. Nesta violated any state laws in her placement of the OHWM at the Watson property. In reviewing the facts with regard to whether or not Mr. Watson may have violated Wis. Stat. § 946.12, it is very important to note that at the time he requested that Ms. Nesta determine the Ordinary High Water Mark (OHWM), he already had his permit in hand. He could have lawfully constructed the decks without determining the OHWM. Mr. Watson went beyond what he was required to do by the Zoning Department and had an OHWM established and varied his building accordingly. His act of having a fellow employee determine the OHWM does not appear to have violated any of the provisions of misconduct in public office. He did not fail or refuse to perform a known mandatory duty as provided for in Wis. Stat. § 946.12(1). He did not do an act in excess of his lawful authority under § 946.12(2) because he was requesting as a private citizen the determination of an OHWM. I do not believe he violated Wis. Stat. § 946.12(3) because he did not gain a dishonest advantage by the determination of the OHWM because he had already obtained the permit and permission to construct. The conclusion that he obtained no dishonest advantage is bolstered by the Oneida County Zoning Department’s decision that there was no violation and that no enforcement action was appropriate. In Mr. Walker’s letter he raises a concern about Mr. Watson’s failure to diagram the lakebed when requesting the 1997 permit. The question is whether this absence may have violated Wis. Stat. § 946.12(4). I do not believe the lack of this lakebed drawing on the permit application violates subsection (4) because it prohibits material misstatements, and there were no misstatements on the diagram; and it appears that the Oneida County Zoning Department did not believe the omission was material enough for it to question the permit when the complaint was raised in 2003. Section 946.12(5) appears to be inapplicable to the facts in this case. For the reasons set forth in this letter, I do not believe that Mr. Watson or Ms. Nesta violated Wisconsin’s official misconduct statute. For that reason, our office is closing this matter and will pursue it no further. Sincerely, Steven E. Tinker Director, Criminal Litigation Antitrust and Consumer Protection Unit SET:jjn c: Scott Hassett Scott Watson Liesa Nesta \\dls01\users\tinkerse\cor\nass re watson & nesta.doc