County Board vice chair election leads to lawsuit

COUNTY – A disputed leadership election on the Waupaca County Board has escalated into a court fight and a subsequent effort by the county’s attorney to “clean up” the legal fallout from the board’s own procedural missteps.

During an April 28 special meeting, the Waupaca County Board of Supervisors voted 22-3 to scrap and redo its election for vice chair and a highway committee seat after being notified that the previous week’s votes violated state statute and county ordinance.

The problem, according to Attorney Andy Phillips of the Wisconsin Counties Association, was that candidates were elected with only a plurality of votes, meaning more votes than any other candidate, instead of the required majority of the supervisors.

At the April 21 organizational meeting, newly elected Supervisor Joel Bartel challenged incumbent James Nygaard for the position of chairman. Nygaard won the chair seat, 18-8.

Bartel was then nominated for vice chair, along with supervisors Pete Bosquez, Ricky Ertl and Allen Kraeger. Bartel received nine votes, Bosquez five, Ertl seven and Kraeger five. Though no candidate received a majority of the 26 votes cast, Bartel was declared vice chair.

Phillips told supervisors at a special meeting last month that this outcome did not comply with state law, the county’s own ordinances or Robert’s Rules of Order, all of which require a majority vote to elect an officer.

Supervisors then voted to adopt a “clean slate,” triggering a new vote for vice chair and a contested highway committee seat, which was also initially selected by a plurality of votes rather than the required majority.

The board reopened nominations for vice chair and Bartel and Ertl were nominated. Ertl was elected vice chair by a 13-12 vote, with two supervisors absent. The board also re-ran the contested highway committee election, and Fred Zaug won that seat with 13 votes, while Barry Bartz received 11.

Bartel argued at the meeting that the board was retroactively undoing a valid election because some members disliked the result.

“Let’s be clear about the precedent that this sends,” Bartel said at the meeting. “If this stands, then any future election can be overturned the moment the majority decides they want a different outcome. That is dangerous, reckless, and it undermines the integrity of this entire board.”

The dispute did not end there. Bartel, of Fremont, filed a lawsuit May 8 against Ertl, of Iola, challenging the legitimacy of the special board meeting and leadership selection.

Phillips, speaking as the county’s outside legal counsel, said that the lawsuit relies on a state statute that allows a court to determine whether someone is lawfully holding a public office.

“Supervisor Bartel has sued Supervisor Ertl, saying ‘you’re not the vice chair, I’m the vice chair based on the outcome of the April 21 election. I’m entitled to that office; you are essentially usurping or wrongfully holding that office,’” Phillips said.

Phillips told supervisors he believes the case rests on shaky ground because, under a prior Wisconsin Attorney General opinion, the positions of county board chair and vice chair are internal leadership roles, not “public offices” in the sense contemplated by that statute. He also said the lawsuit misinterprets how a majority of the board is calculated under state law and county rules.

The lawsuit also alleges the April 28 special meeting may not have been called or conducted in compliance with Wisconsin law and county ordinances governing board meetings.

Phillips urged the board to take steps to protect its actions from legal challenge. He recommended a “ratification” resolution to reaffirm votes and decisions taken since the disputed organizational meeting, stating it’s a common legal mechanism to clean up procedural irregularities and limit the impact of the lawsuit.

The ratification resolution states that county officials acted in good faith at the special meeting, and that many subsequent county decisions relied on those actions.

Bartel spoke against the resolution at the meeting, calling it “fully out of context.”

“I acquaint many of you, you have to abide by the state statute,” he said. “Well, guess what, you guys aren’t abiding by the state statute, and that meeting was not legal.”

Supervisors voted 21-4 at the May 19 meeting to suspend their rules by a two-thirds margin in order to take up the ratification resolution. Supervisors then voted 19-5 with one abstention to approve the resolution.

The supervisors’ vote affirmed the decisions, votes and actions taken at the April 28 meeting, as well as actions taken afterward through May 19, to ensure the legal validity of those actions.