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Tony Evers staffer who secretly recorded call may have committed felony, according to attorney

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The staffer who secretly recorded a phone call last month between Democratic Gov. Tony Evers and GOP leaders may have committed a felony if nobody on the call authorized the recording, according to a memo from the nonpartisan Legislative Reference Bureau.

Citing the LRB memo, Senate Majority Leader Scott Fitzgerald, R-Juneau, who is a candidate for the 5th Congressional District, renewed pressure on Evers to reveal who in the governor’s staff recorded a May 14 phone call between Evers and Republican legislative leaders.

“If the governor didn’t know that his staff was recording him, this is a bigger problem than he thinks,” Fitzgerald said in a statement. “The governor should be in control of his office — the buck stops with him. So if one of his staff committed a felony, he needs to hold that person accountable.”

Like most states, Wisconsin, is a “single-party consent” state, meaning one legally does not need to disclose that he or she is recording a conversation if that person is a party to the conversation.

A Monday legal memo from LRB chief Rick Champagne notes Evers’ chief of staff Maggie Gau and chief legal counsel Ryan Nilsestuen as the only staffers from the governor’s office to announce as participants on the call.

According to the LRB memo, the recording would be legal if it was recorded or authorized by Gau or Nilsestuen.

“In other words, it is not unlawful for a person who is a party to the communication to record or authorize another person to record the conversation without the knowledge or consent of the other parties,” according to the memo.

Nilsestuen said during a Thursday media briefing that staff had authorized the recording, but would not say who authorized or recorded the call.

Illegally recording a phone call is considered a Class H felony, subject to a fine of up to $10,000 and six years in prison.

Evers has declined to identify the staffer who recorded his conversation with Fitzgerald and Assembly Speaker Robin Vos, R-Rochester, after the Wisconsin Supreme Court overturned Evers’ stay-at-home order. None of the three knew the call was being recorded by one of Evers’ staffers.

Evers’ office did not immediately respond to a request for comment on the LRB memo.

While Evers has said staff will not record future phone conversations, he has declined to share what, if any, disciplinary action would be taken. The incident has prompted bipartisan calls for the staffer to be fired, with some Republicans comparing Evers to former Republican President Richard Nixon for the secret recording.

“The governor needs to immediately make clear who from his office created the recording, who authorized it, and what disciplinary actions his staff is facing,” Fitzgerald said. “After bipartisan condemnation of these actions, he also needs to assure legislators that no more recordings exist between our members and the governor or his staff.”

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Related to this story

A staffer for Gov. Tony Evers taped what was supposed to be a private conversation the governor had with Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau. Gov. Evers claims he didn't know about the taping and is refusing to name or discipline the staffer involved.   

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