Busalacchi says timing of reassignment, handling of contract study a coincidence

By PATRICK MARLEY
 

Posted: Dec. 17, 2004

Madison - The top attorney for the state Department of Transportation was quickly demoted after he released a report under the state open records law that his superiors apparently wanted to keep secret.

Jim Thiel, 60, had been the chief counsel for the DOT for 31 years until he responded to a Journal Sentinel request for the report on department contracts.

Agency spokeswoman Peg Schmitt told the Journal Sentinel last month - just as the report was being written - that the department was no longer studying whether it was cheaper to have some engineering work done in-house rather than by consultants.

The latest report bolsters an earlier DOT contention that state engineers are cheaper than consultants, a conclusion opposite of what Gov. Jim Doyle's Department of Administration found in a separate report.

Thiel said he was given no explanation for his removal and that he could only assume it was linked to the release of the records, particularly because Transportation Secretary Frank Busalacchi's top aide became upset when he heard the report had been released.

Thiel e-mailed a copy of the report to the Journal Sentinel at 12:30 p.m. on Dec. 10, a Friday. At 8 a.m. the following Monday, he was told he was being removed and put in charge of "special projects."

"I can't do anything about the timing, but I can tell you (the release of the report) had absolutely nothing to do with it," Busalacchi said Friday. "We take public records requests very, very seriously in our department.

"People can read into it what they want to read into it. I made a management decision to reassign Jim, and that's what I've done."

Busalacchi said that he had been contemplating demoting Thiel for some time and decided to put someone in the post whom he was "comfortable with."

Thiel's old post has yet to be filled. He remains an attorney in the department and has retained his $106,837 salary.

Touchy topic

The recently released report exposes again the ongoing rift between the two departments over the cost of consultants.

Doyle wants to make good on a promise to cut 10,000 state jobs by 2010. At the same time, he has been confronted with contracts for outsourced work that haven't been a good deal for taxpayers.

The DOT has steadily resisted releasing information about its findings that state workers are cheaper than consultants. It took seven months for the department to respond to open records requests from public employee unions after it completed its initial report, and it has refused to make the people who wrote it available for press interviews, despite numerous requests.

The latest analysis was written Nov. 19, four days after the Journal Sentinel reported the DOT and Department of Administration had come to opposite conclusions on consultant costs.

Around that time, Schmitt, the department spokeswoman, told a reporter that the department would not review the issue further. She said Friday that she was not aware the second report was being drafted at that time.

Thiel said Busalacchi twice approved the release of the report last week. Under state statutes, most records must be released in a timely manner when requested by the public.

A few hours after he e-mailed the document to the Journal Sentinel, Thiel said, he asked Randy Romanski, Busalacchi's executive assistant, if he should also send it to the department's district managers.

"He said, 'What? What? What? You released it?' He said, 'You were supposed to clear it with me first,' " Thiel said in describing Romanski's reaction.

Romanski initially told him not to send the report to the managers, Thiel said. The department ultimately sent the report to those managers this week.

Asked about the encounter, Romanski said: "I had a private conversation with Jim, and I'm not going to get into the details . . . You have a copy of the document. We comply with the open records law."

Demotion a surprise

Busalacchi did not seem worried about the release of the document that afternoon, Thiel said. "What happened between then and Monday morning, I don't have a clue," he said.

Thiel said Busalacchi's statement that he needed a legal counsel he felt comfortable with did not make sense because the two had gotten along well and often spoke on weekends about department business. Thiel said he considered Busalacchi a close friend.

Because he had never clashed with Busalacchi, he said, he could only conclude that the release of the records inspired his removal from the top job.

"I don't want to burn bridges," Thiel said. "I mean, I like these guys, but I don't know how else to figure it."

Melanie Fonder, a spokeswoman for the governor, said Doyle did not have a hand in the decision.

"This was a Department of Transportation decision," she said. "It's up to the secretary."

Jay Heck, executive director of government watchdog group Common Cause in Wisconsin, said he believed Doyle's administration was behind Thiel's demotion.

"It sounds to me like this is a classic power play by the Department of Administration where a career civil servant who thought he was doing the right thing is frozen out," he said.

Busalacchi called Thiel "an adequate attorney." But a former colleague said he was much more than that, lauding him for his legal analysis and principled stands.

"Jim prides himself on making independent legal judgments and giving advice to the secretary whether he's Democratically appointed or appointed by a Republican," said Jerry Hancock, a longtime state attorney who worked under Thiel for much of the 1980s.

"He is such a good lawyer that he's almost always right, and that's been upsetting to a lot of governors."

In April, the DOT wrote a report that found state engineers are 18% cheaper than consultants. Requests for the report from unions, and later the Journal Sentinel, were not fulfilled until November.

When it was released, it was given out along with an October report from the Department of Administration that found that the DOT's methodology was faulty. The unions perceived the pairing of the reports as an attempt to water down the DOT's findings.

The latest report is a six-page rebuttal by the DOT to the administration's report. It says the administration used assumptions and data that were "dramatically inaccurate."

For instance, it notes that the administration maintains the full cost of a $22-an-hour state engineer is $148,720 a year when benefits and overhead are taken into account. The DOT says the administration double-counted some costs, overstating the cost of such an employee by about $45,000, or 43%.

The administration's report also fails to include the DOT's cost for overseeing consultants, thus underreporting the cost of consultants.

"This pretty much says what we've been saying all along," said Mark Klipstein, president of the State Engineering Association.

Those findings should put a stop to a proposal to cut 365 DOT positions, including engineers, he said. The governor has expressed support for the plan.

"You're potentially laying off people who could be doing the work much cheaper, which doesn't make a lot of sense," Klipstein said.