The state Department of Justice will be violating its own policies if it does not launch an internal investigation into allegations that a top official engaged in illegal gun sales and manufacturing, a law enforcement expert said.
Dan Bethards, a 14-year veteran of the Division of Criminal Investigation who made the allegations, also charged the DOJ put out false information about his
credibility and whether the federal criminal investigation into Jay Smith’s activities will result in criminal charges.
Bethards alleges Smith made and sold guns to top DOJ officials without a license, including Attorney General J.B. Van Hollen. The matter is under investigation by the St. Paul, Minn., office of the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, or BATFE.
Until May, Smith was in charge of the Division of Criminal Investigation’s Superior office. The office was slated for closure in a move that officials insist had nothing to do with the criminal probe. Smith continues to work for the department as a special agent and was not put on leave.
The policy and procedure manual for the Division of Criminal Investigation states that “all alleged or suspected violations of laws, ordinances, rules, regulations or orders brought to the administrator’s attention shall be investigated.”
DOJ spokeswoman Dana Brueck described that as a “guideline” that leaves the decision about whether to investigate alleged criminal wrongdoing to the DCI administrator, Dave Matthews.
Michael Scott, director of the UW-Madison Law School’s Center on Problem-Oriented Policing, disagreed. He said his reading of the policy is that it requires “that all suspected/reported law violations — particularly serious criminal law violations — shall be investigated.”
“Law violations by law enforcement officials are generally deemed serious because they undermine the fundamental integrity of the agency’s law enforcement function and jeopardize public trust in the agency,” he said.
Brueck said the agency is not conducting an internal investigation “out of deference” to the ongoing BATFE criminal probe.
But, “The fact that we have chosen not to conduct an internal investigation at this time ... does not mean that we will not conduct an internal investigation at some point, if appropriate,” she said.
Scott, a former police chief who teaches police ethics, said it is not unusual for an agency to wait until police have finished their criminal probe before starting an internal investigation. He said officers who are not charged with a crime can still be disciplined or fired for violating administrative policies.
But Scott added that he believes the DOJ policy is discretionary only as far as “who shall be assigned to conduct that investigation — not whether it will be investigated.”
DOJ stands by Smith
Bethards, who worked under Smith in the Superior office, reported to Matthews on Dec. 19 that Smith was manufacturing and selling guns without a license, and had asked him to procure parts for a stolen machine gun. Bethards is a federally licensed gun manufacturer.
Bethards reported the allegations to the U.S. Attorney in Madison. The next day, Brueck said, Matthews contacted BATFE with Bethards’ allegations.
“Since that time, DOJ has been in regular contact with ATF and federal prosecutors to determine whether there might be any reason to believe that Mr. Smith had, in fact, committed any crimes,” Brueck said on June 6. “To date, we have never had reason to believe that this is the case.”
She added, “We fully expect that (the investigation) will be closed shortly and that no charges will be forthcoming.”
But later that day, on June 6, BATFE investigator Dave Nygren told Bethards in a text message, “With reference to the DOJ statement, I have never advised Wisconsin DOJ that no charges would be forthcoming. The investigation has still not been submitted to the District of Minnesota — US Attorney’s Office for review.”
Bethards said Nygren reiterated that stance during a phone call earlier this month. BATFE spokesman Robert Schmidt declined comment beyond saying that the investigation is ongoing.
In an email exchange, Brueck declined to explain why DOJ officials believe there would be no charges filed against Smith. “We have answered this question,” she said.
In fact, Nygren told Bethards earlier this month that the investigation would be complete once he received a tape recording that Bethards offered to provide from a 2010 meeting in which then-DCI Administrator Ed Wall discussed a .45-caliber handgun that Smith was making for him.
Bethards said Nygren told him last week he received and listened to the tape and would soon send the case to the U.S. Attorney’s Office in Minnesota, which will decide whether charges will be filed.
In that recording, provided to the State Journal, Wall described an ivory-grip pistol Smith was making for him and suggested that DOJ special agent Jim Ohm, who recorded the Dec. 20, 2010, conversation, order one from Smith. The meeting included Smith, Wall, Bethards, Ohm and Smith’s wife, Michelle, who also worked in the Superior office.
However, in an emailed response, Wall, now the secretary of the state Department of Corrections, said he didn’t remember that conversation.
He added, “I have never ordered or purchased anything from Jay Smith. Additionally, I have never been interviewed by anyone regarding this matter.”
Meanwhile, the DOJ launched an “internal review” against Bethards and put him on paid leave June 2 for unspecified policy and procedure violations.
Bethards said the agency’s statements that his allegations were not credible though they were serious enough to refer to a federal police agency are “really quite silly.”
Two and a half years ago, the DOJ considered the Superior office “a jewel in our crown” of the Division of Criminal Investigation. Then-Administrator Wall made those comments during a Dec. 20, 2010, meeting with the four-member office, according to a tape recording of the meeting provided by former DOJ agent Jim Ohm.
DCI’s Superior office was designed to help law enforcement agencies in northwestern Wisconsin with major crimes including murder, drug conspiracies and organized crime.
Wall vowed that the office, opened 10 years earlier, would never close so long as Van Hollen was in charge. “He’s a big believer in your office,” Wall said during the meeting.
Today, the four-person office in Hawthorne is being shuttered. Smith is under federal investigation, and a 25-year veteran of the agency, Ohm, resigned in April alleging harassment by Smith. Bethards, another longtime agent, is on paid leave and Jay Smith’s wife, Michelle, retired.
Ohm and Bethards say the office did not so much close as implode.
They charge that working conditions at the office went rapidly downhill after Smith was made the special agent in charge in February 2011. They said Smith’s supervision of the office including his wife and his aggressive management style — including yelling and swearing — created a toxic work atmosphere.
The relationship between Ohm and Bethards and the Smiths deteriorated amid charges that Jay Smith was micromanaging the two veteran agents and giving preferential treatment to his wife.
In a recorded meeting in December that lasted three and a half hours, Smith and Wall accused Ohm and Bethards of failing to follow Smith’s orders and undermining his authority. Wall alleged Ohm was “keeping book” on fellow employees and making picayune written and verbal complaints about Michelle Smith.
During that meeting, recorded by Ohm and provided to the State Journal, Wall threatened to invoke the “nuclear option” of forcing Ohm and Bethards to transfer to Milwaukee and Madison, respectively.
“I’m not going to move the supervisor,” Wall told the two.
Bethards and Ohm provided copies of their personnel files showing that each received positive annual job evaluations every year while working at DCI — until Smith became the supervisor.
Bethards charged that DOJ’s public statements and the internal review were attempts “to dirty up the main witness in the case against Jay Smith” by painting him as “no longer credible.”
“If I am not credible as a police officer,” Bethards said, “then conduct an internal investigation, prove what I alleged is not true, and fire me.”