The Mercer Trial: Win Or Lose, Walker Loses

The Milwaukee Journal Sentinel is dedicating a lot of man hours having three different reporters covering the trial regarding the pension lawsuit that Milwaukee County has filed against Mercer.

In a very small nutshell, the County is accusing Mercer of failing to give accurate numbers regarding the true cost of the Ament pension scandal. The County is hoping to recoup some of the cost of the backdrop enhancement that was enacted in 2000. Mercer has laid out the groundwork for a number of different defenses, including the fact that the author of the backdrop plan, Gary Dobbert, was sentenced for fraud for it and that the County should really be going after Ament, Dobbert and that gang as well as the law firm of Reinhart Boerner Van Deuren, who was the firm that was supposed to give legal advice for the whole pension deal.

The paper feels that Milwaukee County Scott Walker has more to gain than he has to lose in this lawsuit:

Scott Walker, from a personal standpoint, has more to gain than lose in the case.

The county executive had nothing to do with the pension scheme, so has nothing to fear from trial testimony. A big win gives Walker a major talking point as he pursues his long-held dream of being governor in the 2010 election.

Still, if the county loses, Walker would have to explain why he backed a losing legal strategy against Mercer instead of going to court in a long-shot bid to halt the flow of some of the big payouts - or suing the Milwaukee law firm that advised the county on pension matters. That firm was led by a close GOP ally of Walker's. He could also take political flak if taxpayers have to fund legal fees in a losing effort.

For the regular reader of this humble site, it will come as no surprise that I am not in complete agreement with this assessment. I think Walker will lose no matter what the results of the trial are.

First some history.

When the story of the pension scandal first broke, and the actual cost of the pension enhancements and backdrops were actually going to cost, it opened the door for the right wing front group Citizens for Responsible Government to do a massive recall. The result of these recalls were seven County Board Supervisors losing their jobs and CRG being able to get their guy into Ament's old office.

Another thing that happened was that County Board Supervisor John Weishan sent a letter off to then District Attorney E. Michael McCann asking him to investigate. Due to McCann having a conflict of interest, as that he was eligible for the enhanced benefits, McCann forwarded this request to then Wisconsin Attorney General Jim Doyle. It was Doyle's investigation that led to Dobbert's conviction and laid the very groundwork for the Mercer lawsuit.

(Side note: I do encourage the reader to read the entire post linked to above and here. It is rather enlightening as it came from someone who lived through those times and saw the events, including the inner workings, first hand.)

In 2005, the County Board, over the objections of Walker, held a press conference announcing that they intended to file a lawsuit. Walker then switched positions (a common behavior of his - just think about the stimulus funding flip flops) and started to back the lawsuit against Mercer.

However, as noted in the cited section from MJS, Walker refused to go with a lawsuit against the legal firm that was supposed to be giving legal advise about the pension enhancers, Reinhart Boerner Van Deuren.

There were a couple of reasons for Walker's resistance. One reason was pointed out by Bruce Murphy:

He declined to pursue legal action against the Reinhart Boerner Van Deuren law firm for the advice it gave county officials on the pension plan. The head of the firm, back when Walker made this decision, was then state Republican chair Rick Graber, who had donated campaign money to Walker.

The other reason is covered by Gretchen Schuldt at her old Story Hill site:

A judge has rejected plaintiffs in a lawsuit related to the county pension scandal have no standing to pursue their claim that lawyers with the Reinhart Boerner Van Deuren firm have a conflict of interest in the case, according to Journal Sentinel.

Reinhart lawyers helped design the pension package and are defending the county in the lawsuit, filed on behalf of county employees who claim the enhancements were improperly enacted, among other things.

If one keeps reading, the gentle reader would see how the law firm is tied up into the whole pension scandal. Yet due to his own political aspirations, Walker refused to seek all of the potential remedies available that he could have used to help the County in desperate budgetary times.

Now, for how this becomes a lose-lose scenario into which Walker has put himself.

Walker has been going around for the last seven years blaming the County Board for the pension scandal. He has done this as recently as last fall when he was running radio commercials against the sales tax referendum:

In the ad, Walker says, "The same County Board that voted to increase their own pensions - now want your permission to raise taxes by $130 million."

If the County wins the lawsuit outright, and they gain all the recompense that it is seeking, this only prove that Walker had been lying all of these years as that the victory would exonerate the Board. (Not to mention the simple fact that most of the supervisors at that time are no longer serving.)

If the County wins, but only gains a partial reward, it would still serve to illustrate the above point as well as raise questions about why Walker put his own personal political aspirations above doing his job and suing the law firm. People would have to wonder how many millions of dollars Walker's ambition has cost the taxpayers of Milwaukee County.

One would also have to wonder how much Walker's own grandstanding, and casting blame on the Board and on his predecessor went into allowing Mercer to avoid at least part of what they might have otherwise been ordered to pay. (I've heard more than one person state that Walker is Mercer's best witness. I've also heard that Walker has had to be repeatedly warned by County lawyers not to keep saying so much publicly.)

And if Mercer is able to successfully defend itself against the lawsuit, it would give a person more than ample reason to wonder how much Walker sabotaged the case with his showmanship. It would also again force one to wonder how much Walker potential money frittered away by not pursuing a lawsuit against the legal firm. And if one were even able to rationalize those two points away with desperate feats of illogic, that would only leave the conclusion that Walker squandered sorely needed tax payer money on a frivolous lawsuit.

So whether the County wins big, wins small, or loses outright, Walker has managed to bollix things up for himself that an opponent would be able to make him out to be inept, hypocritical and/or corrupt.

It also wouldn't be very hard for a campaign manager to show that Governor Doyle, as the Attorney General at the time, laid the groundwork for a successful lawsuit, or in case of defeat, did more than Walker to resolve the pension problems.

Can I Have A Witness?

Things aren't looking to good for Scott Walker and Milwaukee County's chances to recoup any money regarding the pension scandal.

Scott Walker has dedicated county staff and money to a lawsuit against the Mercer Human Resource Consulting Inc. to try to get some money back from the pension scandal. (I should specify that this is the first pension scandal, with the large backdrops, etc. The second pension scandal, involving buybacks of time, is still on the shelf to the best of my knowledge.) The premise is that Mercer failed to adequately notify the County that the pension enhancements were going to cost a lot of money.

Even though the hearing isn't scheduled until January, there have been lots of action going on, and none of it looks good for the County.

Gretchen Schuldt, at Milwaukee Rising, has been doing a wonderful job of keeping us informed of issues surrounding the case. She has pointed out that Stuart Piltch, who was supposed to be a key witness for the County, has made some apparently untrue claims that he was secretly trained by the CIA, even though he was not supposed to tell anyone about this supposed training.

Now that it came out that the CIA has denied having anything to do with Piltch, he has suddenly succumbed to "health concerns" and has removed himself from the list of witnesses for the County.

To make things even worse, Ms. Schuldt reports that Mercer has filed a motion to dismiss the lawsuit. The rationale for the motion is based on a number of key depositions that contradict previous statements made by the witnesses. Those who are having their testimony challenged include County Board Supervisors Borkowski and DeBruin, as well as members of the Pension Study Committee.

This weekend, the County has yet another new problem. The untimely death of Gary J. Dobbert, who had been accused of being the master mind behind the whole pension debacle.

Now, I am no lawyer, nor do I play one on TV or in the blogs, but it would seem to me that if there is any discrepancies in any of the testimony that Dobbert gave during various depositions and interviews, this would open the door for Mercer's lawyers to jump all over it, and discredit the whole case.

Obviously, no one is to blame for the unfortunate passing of Dobbert. But one must wonder who thought that it would be a good idea to hire a person to be your star witness without vetting the person first.

And for my 2.3 readers, who are already aware that I am by no means a fan of Scott Walker, I am not blaming him for this. At least not directly.

He gave the order for the lawsuit to be approved, but I doubt that he is trying to micromanage the case. After all, as Mike Mathias and Dan Cody point out, he's been a real busy fellow.