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.
A piece about the latest chapter in the case appeared in the Feb. 26 issue of the Ozaukee Press in Port Washington. According to the story:
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 set 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 didn’t 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 Westerberg were scheduled to be deposed Feb. 16, but only minutes before the depositions were to be taken, the city notified them that the officials would not appear, according to Uihlein’s attorney Christa Westerberg.
Attorney Mark Schmidt of von Briesen & Roper, representing the city at Monday’s hearing, argued that Neitzke did not play a role in the records request and therefore should not be compelled to testify. Schmidt told Gerol that the city has since fully complied with the open records request seeking a total of 2,500 pages of documents, with the last records provided on Feb. 20.
Because of that, Schmidt argued, Westerbeke’s testimony was not necessary.
Westerberg disagreed, saying the city hasn’t proven Neitzke has nothing to contribute to the case.
“The buck stops with the mayor,” Westerberg said. “The mayor was intimately involved in negotiations to bring the data center to the city. He will know what documents he has.”
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.”
The judge also agreed Westerbeke’s testimony could be relevant.
Gerol said the contention that the city has provided all documents will be left 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 said the city notified Westerberg of the cancellation before the depositions, although he conceded it was “very close” to the appointed time. Gerol 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,” Gerol said.
Gerol ruled 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.
