Friday, January 22, 2010

More On Wyser's Little Hatch Act Problem

The Star's Jon Murray is posing the question on his blog as to why the Little Hatch Act kept former Brizzi Chief of Staff Helen Marchal from keeping her job and running as a candidate for prosecutor, while Brizzi's chief trial deputy, David Wyser, sees no obstacle in running for Hamilton County Prosecutor and retaining his job with the Marion County Prosecutor's Office. Here's Wyser's explanation of why the law doesn't apply to him:

As chief trial deputy, he isn't the supervisor of any federally-funded programs and oversees deputy prosecutors' trial work, but not the employees themselves. If any of their work is paid for in part by federal grants, Wyser said, his own connection to the money is merely casual. "Not only did I look into it, but I consulted with one of the leading experts on the Hatch Act in the country," he told me. "I don't need to do anything different than what I've been doing."

I called the expert Wyser cited, James Bopp Jr., a Terre Haute lawyer involved in a lot of high-profile cases involving partisan issues. Among his clients was Terre Haute Mayor Duke Bennett, whose opponent, former Mayor Kevin Burke, launched a Hatch Act challenge based on Bennett's work for a mental health nonprofit agency that received federal funding for its Head Start program. A local judge ruled Bennett eligible, the Indiana Court of Appeals disagreed, and then the Indiana Supreme Court reversed, allowing Bennett to retain the office.

Bopp told me that, in his estimation, Wyser interacts so infrequently with prosecutors participating in federally funded programs that the connection is "de minimis." "I do believe, as I advised him, that he is not 'Hatched' -- that he is not prevented from running for office. I think he's sufficiently removed from any federal funds that are used in the office that he can do this."

It remains to be seen whether Democrats or any eventual opponents will press Wyser further on the issue.
If a candidate wanted to play it safe, he or she could ask for an opinion from the U.S. Office of Special Counsel; otherwise, someone who objected to his candidacy could file a complaint with that same federal agency seeking a contrary ruling.


karma09 said...

So some factual questions come up. What is the difference between supervising a prosecutor's trial work, but not the individual himself? What if a prosecutor is recommended for reprimand or recognition based on Wyser's supervision, still no problem, or de minimus?
If it is shown that Wyser has impact on hiring/firing decisions involving funded programs or prosecutors, does it become a Hatch problem? What if he consulted w/ Brizzi or Marchal in such decisions? What if he officially acted on such decisions himself?
Wyser's waving it away does not answer the verifiable questions of exactly who he interacts with, to what extent, and whether his involvement is truly as "de minimus" as Mr. Bopp, in an office in Terre Haute, based on Wyser's own description of his activities, seems to believe.

Perhaps John Murray could ask for a comprehensive list of all relevant categories (hiring/firing/disciplining/ transferring) involving federally funded employees since Wyser filed his candidacy, and a list of all emails from Wyser's MCPO account involving those actions or employees, to try to get a picture of Wyser's actual involvement.

Wyser purposefully and inaccurately mis-states his role in personnel supervision.

Gary R. Welsh said...

I'm not a resident of Hamilton County, but if I were, I would file a complaint so I could get to the bottom of it. Wyser should have sought an opinion if he was so intent on continuing to work in the office.

aaron said...

I can't say I am surprised that David Wyser wouldn't own up to supervising federally funded prosecutors. That's his MO. I know for a fact he oversees the entire grand jury which is federally funded. And since people are starting to see what kind of guy David Wyser really is it makes me really question why on earth he let a woman guilty of murder go free after failing to complete even the minimum. I believe the Indy Star brought light on that subject at the end of 2009. Or maybe it was Brizzi? Either way it's another issue of character and integrity!

napoleon said...

Wyser could start doing things differently by not lying about his perfidious influence in the office.

His response to the Star is the first time he's tried to minimize his inflated and negative influence at MCPO.

A quick and easy glance at Wyser on the internet shows these items in the first 10 minutes of looking (though I'll look some more):

4/13/05 MCPO press release names Wyser as "Deputy Chief of Staff/ Chief of Trial Division," with duties including supervision of activity in all courts, including major felony (maybe he can tell us when Helen Marchal was in that unit), misdemeanor and D-felony, juvenile, and child support (which definitely involves federal money). This also made the Indiana Law Blog on 4/14/05.

On 3/18/09, Wyser described the firing of dep. pros. Kristine Whittenburg, enjoy the irony in the following Wyser quote:
"We don't believe she was 100% honest with us. At the very least, there's an appearance of impropriety. Worse (sic) case scenario, she may be involved in the crime itself."
If Wyser can stand it, he should look in a mirror when reciting these words, they clearly apply to himself as well. More importantly, this clearly has everything to do w/ a job action, a personnel decision made only by people w/ the power to supervise and punish, not just review their trial performance (which was not involved in Whittenburg's termination). De Minimus? This was from Channel 6's web site.

Wyser also appears to be a frequent proxy and stand in for Brizzi at multiple monthly meetings of the Community Corrections Advisory Board, a policy making entity involving judges, sheriff, mayor, prosecutor, lots of folks doing things other than supervising trial performance of deputy prosecutors. Wonder if any federal grants or programs are ever discussed at the Board? Clearly again, looks like Wyser's functioning beyond his "de minimus" description he gave the press.

This is just in 10 minutes.

Perhaps the deputy prosecutors at MCPO can at least be comforted by the thought that if he doesn't actually supervise them directly, they can now really tell him what they think of him, without fear of it affecting their job status.

napoleon said...

AI, looking at that same 4/13/05 press release, it also catches Helen Marchal in an exaggeration of her claimed office functions.

On 4/13/05, she is made "Associate Counsel to the Prosecutor," and given a variety of supervisory duties. The release describes her previous office positions as a dep. pros. in misdemeanor, d-felony, drug court, and community prosecution unit. Noticeably absent is any time as a major felony prosecutor, the big boy crimes.

Now as a candidate in her own right, just a few days ago, she lists a stint in major felony, despite having been in the Brizzi School of Management since 4/13/05.

When was Helen in major felony? Helen needs to provide a time frame and list of cases she handled to prove her claims of major felony experience. The office, the prosecutors before and since that have done the job, and the general public deserve to know exactly what her experience has been.

Coming from the ethics and honesty-impaired Brizzi office, as his hand-picked successor, she has not earned the benefit of any doubts.

Should be easy to shoot this criticism down. Maybe I'm wrong. Maybe not.

napoleon said...

good grief, his own Vote for Wyser web site says, "as chief trial deputy of Marion County, I have supervised hundreds of deputy prosecutors..."

Just in a de minimus way, I guess.

redstorm said...

What exactly is the Little Hatch Act? What are the penalties? How do I file?

Set the Hatch Act aside as I think there are bigger character defects.

Have you looked at David Wyser's finance reports? I took a look and it appears to be pretty interesting. You talk about guilt by association - take a look at his biggest contributors. Over the 3 years listed, he has received thousands from Tim Durham, Carl Brizzi, Marcus Schrenker and John Bales. It makes me question his personal involvement and possible ties to insider trading. What are the odds? Two of those listed above happen to be big players in ponzi schemes throughtout the country. Maybe David Wyser has bigger issues than the Little Hatch Act.

Gary R. Welsh said...

In a nutshell, the Little Hatch Act is a federal law that applies to any state and local government employees whose jobs are funded with federal dollars or who are directing the expenditure of federal dollars. Education employees are exempt. Employees of nonprofit agencies are covered.

Paul K. Ogden said...


Wyser shouldn't brg about being a supervisor of deputy prosecutors. It is the supervisory level of the Marion County Prosecutor's Office that IS the problem. Most of the rank-and-file prosecutors are fine. It's the bad charging decision in the office, the failure to dismiss bad cases, etc. The deputy prosecutors complain all the time that their supervisors al the time leave them stuck defending bogus or inflated charges and do not let them the discretion to do the right thing on their cases

Unknown said...

Helen was in the Major Felony Division for years when I was a prosecutor in the office. It was around 2001 timeframe. She handled all of the major felony arson cases in the office as well as other major felony crimes.

Carlos F. Lam said...

aaron said: I know for a fact he oversees the entire grand jury which is federally funded.


Can you prove to me that all Marion County grand juries are federally funded? I've been a deputy prosecutor (not Marion County) for more than 5 years and have yet to see a federally-funded STATE grand jury.

fortherepublic said...

Would the Hatch Act apply to Mark Bowen as he runs for Hamilton County Sheriff? If he is 2nd in command, surely he is managing federal funds.