Just two months into his governorship, Scott Walker signed a law removing 37 state positions from civil service requirements, including 14 general counsels. The law was criticized by Wisconsin Common Cause and others, who argued it would politicize these positions and make information less accessible to the public. That's exactly what happened in the case of Department of Health Services Secretary Dennis Smith and chief legal counsel Mary Spear, who ended having a sexual affair the department did its best to cover up.
Smith was the highest-profile hire for Walker. He had a strong connection to the Bush administration, having served as the head of the U.S. Centers for Medicare & Medicaid Services. In the post-Bush years, Smith joined the Heritage Foundation, where he wrote a piece urging states to drop out of Medicaid. After Walker hired him in January 2011, Smith soon became the governor's point man in resisting federal health care changes leading up to Obamacare.
But Smith meanwhile made contact with an old friend he had known since grade school, Mary Spear, and hired her in January 2012. It was a curious choice. While she had held attorney jobs in the past, she had no job at the time, and the announcement of her hiring did not disclose how long ago her last job had been. A lawyer with the Department of Health Services told the Milwaukee Journal Sentinel Spear was the only candidate for the job, which Smith denied. But in reality, Smith could hire anyone he wanted, as it was no longer a civil service position.
Within months, Smith and Spear were having an affair, and by August, her husband, Andrew Spear, had discovered revealing emails between them, precipitating an ugly incident. Spear was originally charged with attempted murder for allegedly pouring gasoline on his wife and then igniting the gas with a lighter -- a story that would eventually fall apart.
But it took awhile, as both Smith and Mary Spear denied the affair and resisted any attempts to examine their emails.
Both the Wisconsin State Journal and Milwaukee Journal Sentinel requested emails between Smith and Mary Spear over a period of time, and the Department of Health Services -- then being run by Smith -- largely stonewalled them. "Purely personal emails sent or received by employees or officers on [a government] computer system, evincing no violation of law or policy, are not subject to disclosure," wrote deputy chief legal counsel Sandra Rowe.
But it was precisely the personal emails the newspapers sought, to test whether there was an affair. The idea that state employees are protected from disclosure of personal emails while working on government computers on government time seems to drive a large hole in the open records law.
Meanwhile, Mary Spear's attorney fought the request of her husband's lawyer, Brian Brophy, to turn over email records and computer hard drives, whose information might back up his client's version of what had happened. Just a few days after Brophy filed his legal motions, Smith abruptly resigned his post as health secretary and took a job in Washington, D.C.
Three months later, at a June 12, 2013 hearing, in discussing Brophy's request for potentially exculpatory evidence showing an affair had occurred, Judge William E. Hanrahan said this wasn't necessary. Hanrahan essentially said the files provided to the court by Andrew Spear showed that he knew his wife and Smith were having an affair. "I think any objective, reasonable person, upon reading the emails...would not have such a hard time believing it," the judge said.
The charges against Andrew Spear eventually dropped from a mountain to a molehill. Originally charged with first degree attempted murder and false imprisonment, with a total maximum penalty of 66 years, he instead pleaded guilty to numerous misdemeanor charges and was sentenced to 225 days imprisonment.
Another email surfacing in the case showed that Mary Spear expected to move with Smith to Washington, D.C., once he was tapped for a job by Mitt Romney (had he been elected president). Smith ended up moving anyway after the Spear scandal heated up. He now serves as managing director of the D.C. office of McKenna Long & Aldridge. As for Mary Spear, she is divorcing Andrew.
The way in which Smith's department handled the open records requests from the media justifies the concern of Common Cause. Politically appointed legal counsels and communications directors are likely to serve themselves and their bosses, not the public. As for the sexual affair, that can happen in any office, but is a good deal more likely if the boss can quietly hire a favored friend for the job. Ironically, if Smith hadn't been able to skip civil service rules in hiring Spear, he would probably still be serving as Walker's health secretary.
Bruce Murphy is the editor of UrbanMilwaukee.com.