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Whistleblower’s life upended

Rosario Dominguez

Wisconsin Center for Investigative Journalism

Dan Bethards was a special agent in the Wisconsin Department of Justice in 2012.

His 14-year career and life were upended after he reported his supervisor and friend, Jay Smith, for making and selling firearms without a license, a possible federal offense.

Since blowing the whistle on Smith, Bethards has been fired. He lost his home to foreclosure. He figures his future in law enforcement is over.

Bethards said he regrets his choice to report Smith, and wouldn’t do it again.

"In particular with me, it wasn’t a good thing because the ‘thin blue line’ became a negative thing. You don’t snitch on cops. That’s just the way it is, you just don’t. Otherwise, bad things happen. And bad things happened for me," Bethards said.

Bethards said he was aware of Smith’s activities for several years before he decided to report him. He was prompted to blow the whistle after Smith approached him, asking for help to modify an allegedly stolen government-issued AR-15 rifle to a fully automatic machine gun.

Even more disturbing to Bethards, he knew then-Attorney General J.B. Van Hollen and Division of Criminal Investigation administrator Ed Wall both had purchased guns from Smith.

Bethards said he reported the activity despite the risk to his career because "we are the cops, we are supposed to do the right thing every time, all the time, without question, right? That’s what you expect from your police officers."

After Bethards made his allegations, he was put on paid leave and later fired. In response, he filed a series of retaliation complaints, which sparked a legal battle between the former narcotics agent and DOJ.

In May, the state Court of Appeals ruled against Bethards. The court found the way Bethards reported his allegations — by notifying both his superiors and the head of DOJ’s human resources department — nullified whistleblower protection.

The agency argued Bethards notified the wrong people at DOJ of his allegations, that only members of his chain of command should have been informed.

DOJ spokesman Johnny Koremenos declined comment on the litigation.

Bethards said he cannot afford to take the case to the Supreme Court.

"The chances of even getting heard are minimal, and the chances of winning there are miniscule," he said. "You can’t go up against the government and win. They are just too powerful — and arrogant."

Strife in DOJ’s

Superior office

Jim Ohm was a special agent who worked in the same office as Bethards. Their bureau in Superior was made up of four agents including Smith and Smith’s wife, Michelle.

Ohm said the work environment changed for the worse after Smith was promoted to supervisor in 2011 and his wife joined the office. Ohm started recording some conversations and meetings with DOJ officials, including one discussion in which Wall joked about a gun he had bought from Smith.

Attempts to reach Smith through the DOJ were unsuccessful.

"As special agent seniors, our responsibility and our authority was to be self-motivated and your expected level of supervision is very minimal, and we were being treated as though we had just been hired, as if we were probationary agents. There were a lot of conflicts and confrontations from both Jay and his wife,’" Ohm said.

Bethards went on stress leave in October 2012 as he was contemplating whether he should speak up about Smith. Two months later, Bethards sent an email to two DOJ officials notifying them that Smith may have been violating state and federal firearms laws. The two officials were David Matthews, then-administrator of the Division of Criminal Investigation, and Mary Casey, director of human resources.

After several months on leave, Bethards asked to return to work. At the request of Matthews, Bethards was evaluated by a DOJ-appointed psychologist, who verified he was fit to return to duty. Bethards went back for one day, but he was put on leave the following day, June 2, 2013, while the agency investigated him. Bethards was fired Oct. 10, 2013.

No charges, no

internal investigation

Under DOJ policy, "all suspected violations of laws … brought to the administrator’s attention shall be investigated." According to Bethards, that was never done. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives did investigate.

Bethards, who was a witness in the investigation, said the ATF determined Smith had built and sold some firearms but that the U.S. Attorney’s Office in Minnesota, which handled the case because of a potential conflict of interest, did not routinely prosecute such violations.

Smith was never charged.

The decision not to prosecute Smith is puzzling to Kyle Torvinen, the attorney representing Bethards in his whistleblower lawsuit. Torvinen said he was never able to get copies of the ATF’s investigative reports.

In Bethards’ termination letter, the DOJ cites numerous alleged rule violations. Among them was allegedly using his work email to purchase parts for his own private firearms business. Bethards said he bought the supplies for guns used at work.

Another claim was that Bethards lied when he claimed his former boss possessed a stolen semi-automatic weapon — an accusation Smith denied.

"Somebody had to be lying, and they picked Dan and that was another reason that they fired him for," Torvinen said.

Bethards said he knew blowing the whistle would have significant consequences. He knew his friendship with Smith was going to be destroyed as would his career. He was right.

"Everybody turned their back on me," Bethards said.

In the four years since being fired by DOJ, Bethards said he has been mostly unable to find work.

He briefly worked for Lac Courte Oreilles Tribal Police near Hayward, Wis. He said the job lasted just six months, until a local district attorney refused to prosecute any of his cases. Bethards acknowledged that if called to testify, a defense attorney could raise his firing to damage his credibility as a witness.

Long legal battle

ends in defeat

Bethards filed multiple complaints of retaliation with the state Department of Workforce Development. The agency initially determined Bethards may have been subjected to illegal whistleblower retaliation.

However, when the three complaints were consolidated into a single case, Administrative Law Judge Allen Lawent determined that Bethards did not qualify for whistleblower protection because he had notified Casey, the human resources director, who was not in his "supervisory chain of command."

Bethards then took the matter to Douglas County Circuit Court. Judge George Glonek disagreed with Lawent’s ruling and found in 2015 that Bethards had not violated the procedure in the state Whistleblower Law. DOJ appealed that decision, which in May ruled against Bethards.

According to Torvinen, if the appeals court had sided with Bethards, the case would have been sent back for a hearing before an administrative law judge where Bethards would have been able to present the evidence supporting his allegations.

"I believe the Department of Justice is using the system itself … as kind of a weapon to deplete (Bethards’) motivation," Torvinen said. "The hardest part for me is the justice system being utilized in a way that essentially denies the benefit that it sort of promises."

Whistleblowing

a hard road

Bethards said the experience of being a whistleblower has been devastating.

"I wasn’t much of a father to my son and daughter this last, probably, five years," he said, confessing that he initially turned to alcohol for comfort.

Those children are now working in a factory to save money for college; Bethards said he is not able to support them financially anymore. He said he is grateful that he is still married but added, "I don’t know why she’s still with me."

Others have witnessed the hardships Bethards has gone through.

"His home went into foreclosure because he couldn’t make payments and he’s had to move all over the state and just take any jobs he can get, and it’s sad," Torvinen said.

Bethards brother Jeff, a Douglas County Sheriff’s Office detective, has seen it, too.

"There was almost an immediate change in Dan when he blew the whistle," Jeff Bethards said. "He started receiving messages from friends and coworkers questioning his actions. Dan knew how serious the accusations were and understood under DOJ policy, an investigation would be opened."

Bethards said he stopped coaching basketball and baseball out of embarrassment. Jeff Bethards said it has been "heartbreaking" to watch the impact on his brother, a decorated and successful agent.

"The DOJ did everything they could to destroy or discredit Dan," he said. "I have been forced to watch as Dan has been humiliated, and ruined financially and professionally. Dan is not the same person he was when all of this started."

Bethards would like to return to law enforcement but wonders if it is too late.

"So I want to go back in," he said, "but I do not want to be the guy who is calling on the radio for backup but nobody is coming."

This story was produced as part of an investigative reporting class in the University of Wisconsin-Madison School of Journalism and Mass Communication under the direction of Dee J. Hall, the Wisconsin Center for Investigative Journalism’s managing editor. The nonprofit center (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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