Politics, Drop Boxes And City Hall Mics, Two Mayors Won’t Face Charges
A Republican DA and Democratic counterpart say the facts drove their decisions in both cases.
Eric Toney. Photo from Toney campaign Facebook page.
Two Wisconsin mayors under investigation for separate complaints in their communities will not face criminal charges, a special prosecutor announced Wednesday.
Fond du Lac County District Attorney Eric Toney — who was named as special prosecutor looking into unrelated allegations against Green Bay Mayor Eric Genrich and Wausau Mayor Doug Diny — announced Wednesday that a bipartisan review concluded no charges would be issued in either case.
The investigation into Genrich centered on his authorizing audio recording devices on some security cameras in city hall. Diny was investigated for moving an absentee ballot drop box ahead of the 2024 presidential election.
In his announcement, Republican Toney said he and Democratic Door County District Attorney Joan Korb — with help from Fond du Lac Assistant District Attorney Kennedy Cutts — determined no charges will be filed against Genrich or Diny “based on an inability to prove any violations beyond a reasonable doubt.”
Toney also said the prosecutors decided to make their announcement after Tuesday’s election “to avoid any possible influence on local races in Brown County and Marathon County.”
The complaints against the mayors date back years.
In 2023, the West Allis Police Department launched an investigation to determine whether criminal charges should be filed against Genrich or other officials over audio recording devices installed two years prior in city hall. The complaint led to litigation from the Republican-controlled Wisconsin State Senate, which was later settled.
In Sept. 2024, Diny made national news when he had himself photographed wearing a hard hat and carting a locked absentee ballot drop box away from the steps of the Wausau City Hall. A month later, the Wisconsin Department of Justice’s Division of Criminal Investigation, led by Democratic Attorney General Josh Kaul, took over the investigation into Diny’s actions.
In his statement, Toney, a Republican who is running against Kaul for attorney general, focused mostly on the ballot drop box investigation. That investigation began two months after the Wisconsin Supreme Court reversed a near-total ban on the receptacle.
A ballot drop box was returned to outside Wausau City Hall on Sept. 30, 2024 after it was removed a week earlier by the city’s mayor. Rob Mentzer/WPR
In 2022, Toney praised the ruling from the court’s former conservative majority putting the ban in place. In his statement Wednesday, he said he voted ahead of Tuesday’s Wisconsin Supreme Court election using an absentee ballot drop box.
“There are some that wanted charges issued based on politics and others that did not want charges issued based on politics,” said Toney. “However, the facts are the facts and the law is the law. No matter how badly someone may wish for a result, our duty is to follow the facts and the law, not politics or emotions. Partisan politics has no place in the justice system, and we will not engage in lawfare.”
Prosecutors ponder ‘expectation of privacy’ in Green Bay city hall
When looking at whether Genrich or other Green Bay leaders broke the law by installing audio recording devices on cameras in common areas of city hall, Toney and Korb noted Genrich had acted on the advice of the city’s attorney, “complicating any prosecution.”
A letter sent to Brown County District Attorney David Lasee said a large amount of video and audio from city hall was reviewed. The letter said none appeared to show any conversations that indicated individuals had an expectation of privacy based on the public space the discussions occurred in and notifications to city employees that spaces were being recorded.
“Accordingly, we do not believe the state could prove a violation beyond a reasonable doubt for Mayor Genrich or any other city employees based on audio recording devices being removed and a review of the available evidence and audio recordings,” said the joint letter.
In Wausau, the question was what is or isn’t an ‘absentee ballot drop box’
A letter sent by Toney, Korb and Couts to Marathon County District Attorney Kyle Mayo focused on the state’s definition of what is and isn’t an absentee ballot drop box.
The prosecutors noted the Wausau drop box wasn’t bolted to the ground, was sealed shut and was unable to accept items when Diny removed it. Therefore, they said, it didn’t fit the definition of a ballot drop box under state law and potential charges of election fraud and misconduct in public office couldn’t be proven beyond a reasonable doubt.
“Had the ‘Drop Box’ been unlocked with ballots inside when it was removed, the analysis would be different,” said the prosecutors.
The letter said the Wausau receptacle was meant to accept ballots and letters to various city departments, which also complicated potential prosecution, and said there is no protections for ballot drop boxes in Wisconsin law. The group of special prosecutors did have recommendations. They said municipalities wanting to use ballot drop boxes should comply with best practices set by the Wisconsin Elections Commission.
“We also recommend that the Governor and legislature work together for uniformity across Wisconsin and to add protections for ‘ballot drop boxes,’” they wrote.
Criminal charges won’t be filed against Green Bay, Wausau mayors was originally published by Wisconsin Public Radio.
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