Mayor, clerk ordered to testify in records case

Port Washington Mayor Ted Neitzke and Clerk Susan Westerbeke must give depositions in an open records case filed by a Town of Port Washington resident seeking information about the Vantage Data Centers Lighthouse Campus, Ozaukee County Circuit Judge Adam Gerol ruled Monday.

Gerol ruled against a protective order sought by the city that would have shielded the two officials from providing depositions, paving the way for their testimony to be taken.

Monday’s hearing was originally scheduled to provide evidence in the case filed by attorneys for Lynde Uihlein, who in August filed an open records request for information regarding the data center.

Uihlein did not receive the documents and filed the lawsuit on Nov. 24, seeking a court order to have the city produce the requested documents or show cause for withholding them.

Neitzke and Westerbeke were scheduled to be deposed on Feb. 16, but only minutes before the depositions were to be taken the city notified them that the officials would not appear, Uihlein’s attorney Christa Westerberg said.

Attorney Mark Schmidt of von Briesen & Roper, who represented the city at Monday’s hearing, argued that Neitzke did not play a role in the open records request and therefore should not be compelled to testify.

“If Amazon fails to timely deliver a package, you don’t get to depose (company founder) Jeff Bezos,” Schmidt said. 

“The mayor gets a number of requests. It’s not reasonable to conclude the mayor would have to sit for a deposition every single time.”

Schmidt told Gerol that the city has since fully complied with the open records request seeking a total of about 2,500 pages of documents, with the last records provided on Friday, Feb. 20.

Because of that, he said, Westerbeke’s testimony isn’t necessary.

“The petitioner has received all the documents. Initially there was a delay,” he said.

But Westerberg disagreed, saying that the city hasn’t proven Neitzke has nothing to contribute to the case.

“The buck stops with the mayor,” she said. “The mayor was intimately involved in negotiations to bring the data center to the city. He will know what documents he has.”

Westerbeke is the city’s custodian of records, Westerberg said, and is responsible for handling open records requests.

She noted that they don’t know if they have received all the documents they sought, adding they may not agree with the city’s contention it has produced all the records.

Gerol noted that Uihlein is permitted to seek information through deposition, adding, “No party has the right to filter anyone else’s right to discovery.

“What the mayor might know, I believe, is relevant. It may well be the mayor has limited involvement. The plaintiff has a right to learn this (information) under oath.”

In regard to Westerbeke, he said, “I see her testimony could be potentially relevant.”

As to the city’s argument that all the records had been provided, Gerol said, “Maybe they have, maybe they haven’t. That’s for another day.”

Westerberg asked Gerol to pay the expenses for the depositions that were to occur on Feb. 16, calling the last-minute cancellation “unprecedented.”

Schmidt argued that the city did notify Westerberg of the cancellation before the depositions, although he conceded it was “very close” to the appointed time.

Gerol noted that Uihlein’s attorneys had given the city a week’s notice of the deposition and said it was “improper” that the city waited until the last minute to tell them Neitzke and Westerbeke would not be there.

“A more timely response should have been provided,” he said.

Gerol ruled that the city must pay the $354 bill for a court reporter that day as well as attorneys’ fees for the depositions.

He also set a final hearing in the open records case for May 29.