Back in April quite possibly the most flawed candidate to ever run for public office in Franklin was Marcelino Rivera III. In a bizarre political move Rivera who has been a major player in lawsuits against Franklin decided to run for alderman to represent the city…he’s taken to court!
Rivera ran against incumbent Alderman Mike Barber and came close, but didn’t win.
Barber: 497 votes (52.87%)
Rivera: 442 votes (47.02%)
Rivera was not a gracious loser.
Just a few short weeks after the election Rivera filed complaints, plural, against Barber with the Wisconsin Ethics Commission.
And chalk up more Rivera losses.
See the dismissal document:
BEFORE THE STATE OF WISCONSIN ETHICS COMMISSION
In re: MIKE BARBER
DISMISSAL OF COMPLAINT
Case Nos. 2022-ETH-43
The Wisconsin Ethics Commission reviewed the complaints and response in this matter in Closed Session at its meeting on August 30, 2022. Having duly considered the complaints and response, the Commission dismisses the complaints based upon the following:
COMPLAINTS AND RESPONSE
- The Wisconsin Ethics Commission received the first complaint on April 18, 2022.
- In the first complaint, the Complainant alleged that Alderperson Mike Barber
(“Respondent”) used a photograph taken of him by City of Franklin municipal staff at a Common Council meeting for a campaign mailing.
- The Commission received the second complaint on May 2, 2022.
- In the second complaint, the Complainant reiterated the allegation of paragraph 2 and alleged that the Respondent communicated information he obtained as a result of his public position or office to other individuals.
- On June 16, 2022, the Respondent provided the following in response to the complaint:
a. The Respondent denied any violation of WIS. STAT. § 19.59.
b. The Respondent served as the government component of VOLITION, a
community-based coalition that works to prevent alcohol, tobacco, and other drug use by educating young people to make informed decisions.
c. VOLITION recently held a community event that included a red-light tree lighting ceremony as a way of creating public awareness for the Light and Unite Week.
d. On March 15, 2022, at the Common Council meeting, a Mayoral proclamation was issued supporting supporting the efforts of VOLITION.
e. At that meeting, Mayor Olson asked the Respondent to read the proclamation into the record.
f. This request was consistent with the practice at other meetings where alderpersons had been recognized to read a proclamation into the public record or present the proclamation to those being proclaimed.
g. The Respondent did not ask Mayor Olson to allow him to read the proclamation into the record, nor did he ask city employees to take photos of the event.
h. The photograph taken at that meeting was subsequently provided to the Respondent because of his involvement in VOLITION.
CONCLUSIONS OF LAW
- The Wisconsin Ethics Commission has jurisdiction of this matter pursuant to WIS. STAT. § 19.49(2)(a).
- As an Alderperson, the Respondent was a “local public official” at all times to this complaint. WIS. STAT. § 19.42(7w)(a), (7x).
- WIS. STAT. §§ 19.59(1)(a) & (c)2. are implicated by the allegations.
a.WIS. STAT. § 19.59(1)(a) prohibits an alderperson from using his public position or officeto obtain financial gain or anything of substantial value for the private benefit of himself, his immediate family, or an organization with which he is associated.
Participating in an official capacity in discussions, contract negotiations, and votes is a use of office. 1997 Wis Eth Bd 6, ¶ 7; 1996 Wis Eth Bd 13, ¶ 4. “Financial gain” is not a defined term within subscriber III of Chapter 19. “Anything of value” is a broadly defined term and includes any money or property, favor, service, payment, advance, forbearance, loan, or promise of future employment.
WIS. STAT. § 19.42(1). “Substantial value” is anything of more than token or
inconsequential value. 2008 GAB 02, ¶ 4. The prohibition on a use of office to
obtain something of value also includes a use of office to avoid a financial loss.
2003 Wis Eth Bd 17, ¶ 3; 2002 Wis Eth Bd 02, ¶ 9.
b. WIS. STAT. § 19.59(1)(c)2. prohibits an alderperson from using his public position or office in such a way as to produce or assist in the production of a substantial benefit for himself, an immediate family member, or an organization with which he is associated. Participating in an official capacity in discussions, contract negotiations, and votes is official action and a use of office. 1997 Wis Eth Bd 6, ¶ 7; 1996 Wis Eth Bd 13 ¶ 4. A “substantial benefit” is not a defined term, but the term “substantial value” has been held to be anything of more than token or inconsequential value. 2008 GAB 02 ¶ 4. Similarily, a “substantial benefit” is anything of more than token or inconsequential benefit.
- It does not appear that the Respondent used his office or position to speak during the Mayoral Announcements portion of the City of Franklin Common Council meeting on March 15, 2022.
- The complaint does not specify how the Respondent’s alleged communication of information he obtained as a result of his public position or office to other individuals would benefit himself, his immediate family, or an organization with which he was associated.
- Therefore, the complaint does not present reasonable suspicion that the Respondent violated WIS. STAT. § 19.59(1)(a) or (c)2.
- The Commission, having duly considered the complaints and response thereto, finds there is no reasonable suspicion to believe a violation of the laws within its jurisdiction has occurred or is occurring.
- Pursuant to WIS. STAT. § 19.49(2)(b)3., this complaint is dismissed.
ENTERED by the Wisconsin Ethics Commission at its meeting in Madison, Wisconsin on Tuesday, August 30, 2022.
Pat Strachota, Chair Shauntay Nelson, Vice Chair
Rivera also filed a complaint against Ken Humont, a member of Franklin’s Board of Zoning and Building Appeals who is also an administrator for a Franklin community Facebook page. Humont’s page has posted several articles and comments critical of Rivera who objected to the free speech content. That complaint was also dismissed by the Ethics Commission.