Wisconsin Department of Justice field trainer Jerry Mullen wants Attorney General Josh Kaul to play by the same rules DOJ employees have been forced to follow when it comes to COVID testing and vaccination status.
It appears Mullen is asking for too much.
Mullen filed an open records request in November seeking the vaccination status of Kaul and Deputy Attorney General Eric Wilson. He was simply asking for the same information that Wisconsin executive branch employees were forced to provide.
In December, Assistant Attorney General Paul Ferguson denied Mullen’s request, interestingly citing HIPPA (the Health Insurance Portability and Accountability Act) in denying the release of the documents.
Mullen said the hypocrisy is on full display and it is clear that there is a double standard at DOJ.
“State employees were told by DOA (Department of Administration) that HIPAA only applies to health care providers, insurance companies and related businesses. Therefore, there was no right to privacy and employers were within their rights to demand the vaccination status of their employees,” he wrote in a recent letter to state Representative Dan Knodl (R-Germantown) and State Senator Duey Stroebel (R-Saukville).
“The public is the Josh Kaul’s employer (it may be arguable whether or not Eric Wilson is subject to the same standard). The justification for providing vax status and constant testing was to protect the public from the unvaxxed,” Mullen added.
The whistleblower said those who chose not to disclose their vaccine and testing status were treated as unvaccinated. Using that standard, he asserts Kaul and Wilson must be unvaccinated against COVID-19.
“I believe the public has a right to know this as the leadership at DOJ has never apologized for the constant pressure for all employees to take the ‘safe and effective’ COVID vaccine which has proven to be dangerous and ineffective,” Mullen wrote.
Mullen claims Kaul is in violation of at least two statutes:
The Attorney General is in violation of at least two statutes:
- Wisconsin Open Records law
- Federal Statute Title 21 USC 360bbb (Authorization for medical products for Use in Emergencies)
The Department of Justice’s media relations team did not return requests for comment. The Wisconsin Daily Star sought to ask whether Kaul and Wilson were vaccinated against COVID, and whether they received the recommended booster shots.
‘Unfit for Duty’
Mullen knows firsthand about the pressure of DOJ administrators and Gov. Tony Evers’ Department of Administration, each pushing demands that state employees either get the shot or constantly report on their testing status.
As Wisconsin Spotlight first reported last fall, Mullen served as a dedicated Special Agent with the FBI for over two decades. The former police officer and Captain in the U.S. Marines has extensive experience in criminal and counterterrorism investigations, law enforcement and pubic safety.
But Kaul’s DOJ determined he was “unfit for duty” because he refused to declare his COVID vaccination status.
Mullen, who has worked as a DOJ law enforcement training compliance officer for more than five years, fought what he calls a draconian and illegal requirement by the Evers administration and blindly enforced by Kaul’s agency.
He lost.
But his fight to shine light on what he believes to be unelected bureaucrats drunk with power goes on. He knows they could abuse their authority all over again, under the next “health emergency.”
Disparate Treatment
The basis of Mullen’s complaint is that the Evers administration, specifically then-Department of Administration Secretary Joel Brennan, implemented a policy requiring all executive branch employees to submit their vaccination status into PeopleSoft, a Human Resources portal in violation of federal law on “Emergency Use of Medical Products.”
A DOA memo to all executive branch employees went out on Aug. 23, 2021 requiring they provide their COVID-19 vaccination status and documentation by September 9, 2021. Mullen didn’t comply. Instead he asked DOJ’s Human Resources department what would be the consequences for non-compliance. Guidance only stated employees may be subject to discipline. HR didn’t provide specifics. He wasn’t subject to discipline at that time, but he did receive weekly email reminders to declare his vaccination status.
On Oct. 18, 2021, all executive branch employees not vaccinated, or who had not reported their vaccination status, had to submit to the weekly testing requirement. Ten days later, Mullen sent an email to HR laying out his object to the policy and his refusal to comply. He pointed to the department’s prohibition against discrimination, including discrimination against an individual based on “use or nonuse of lawful products off the employer’s premises during nonworking hours.” Mullen argued that portion of the policy applies to employees refusing to submit to COVID tests “since they are being treated differently and discriminated against compared to all other employees.” He also alleged the policy targeted a specific group of state workers — the executive branch.
It’s disparate treatment, Mullen said.
“You can’t ask someone if they’re HIV positive. How is this any different,” the DOJ agent told Wisconsin Spotlight.
DOJ didn’t think much of Mullen’s argument. They scheduled an investigatory hearing for Nov. 23, 2021 in which Mullen was to answer for possible violations of state work rules and department policies. He was accused of failing to comply with a written agency policy or procedure, and for “disobedience, insubordination, inattentiveness, negligence, failure or refusal to carry out written or verbal assignments, directions, or instructions.”
Mullen told his interrogators that he was not obligated to comply with an illegal policy. They refused to give him a copy of the report.
That December he was ordered to attend a pre-disciplinary hearing. It was already determined by DPJ officials that he had violated policy. DOJ Chief of Staff Ashley Viste informed Mullen that he was being placed on administrative leave. He was then told he was “unfit for duty.” He was forbidden from conducting any in-person duties at the office or with DOJ clients.
He filed a discrimination complaint with the Department of Workforce Development. Mullen argued the state state was threatening discipline for refusing to submit bodily fluids containing DNA to Fulgent Genetics, “a public corporation whose stated mission is to develop genetic testing. Complying with policy would compel employees to waive their privacy rights in their DNA,” Mullen said.
DOJ attorneys moved for the complaint to be dismissed. They said there was no requirement to use Fulgent for COVID testing. But Mullen argues that doesn’t address the concern over submitting DNA, which is a byproduct of testing regardless of the vendor.
“Unelected bureaucrats like Joel Brennan do not have the authority to override federal law. The policy of requiring weekly COVID testing is not rationally related to a legitimate government interest,” Mullen said at the time.
He argued the COVID testing kits were never approved by the FDA, and that the state of Wisconsin never informed employees of their right to refuse and that consent was absolutely essential. Instead, they threatened discipline to coerce compliance with an unlawful policy.
Mullen had sought and received clearance to work remotely during the complaint process, so the initial discipline was never enforced. But in March, after the Evers Administration ended its mask mandate and COVID testing requirements, Mullen received a written letter of reprimand in lieu of a one-day suspension. He was then cleared to return to full duty.
DWD dismissed his complaint.
But Mullen won’t be silenced in his crusade.
‘Disgraceful’
He said he recently checked job postings online and the state is still mandating new applicants for state employment to disclose their vaccine status within the first two weeks of employment:
“This is disgraceful,” he wrote in the letter to the lawmakers. “State employees from the legislative or judicial branch are not subject to this policy. Although my discrimination complaint was denied by DWD (which is not a neutral party), I believe I have standing to challenge this policy since I was disciplined for taking a principled stand.”
Mullen asserts the state of Wisconsin is in violation of the HIPAA statute by the admission of Ferguson, the assistant attorney general, who does not address this contradiction in his letter.
The whistleblower sent a follow-up records request last month asking for the number of DOJ employees who were disciplined for non-compliance with the Covid policy. He’s not seeking names or identifying information, just numbers and the types of discipline.
Ferguson said the DOJ needed more time to process the request for “redactions.”
Mullen said he has yet to hear back on his latest request.
“I was unjustly disciplined by DOJ for civil disobedience of the unlawful Covid policy. I suspect that the denial of my previous Open Records request for the AG’s vax status and what appears to be another denial is motivated by a personal animus towards me as a DOJ employee who has defied the corrupt leadership,” Mullen wrote.
He added that he finds it ironic that the attorney general, who swears an oath to the constitutions of Wisconsin and the United States and is responsible for enforcing the law, has “declared himself ‘above the law.’”
“He has not been held accountable for his lawless actions, Mullen wrote to the lawmakers, asking the Legislature to take action against the Department of Justice. “In our system of checks and balances, it is the responsibility of the legislature to hold the AG accountable.”
The offices of Knodl and Stroebel have yet to respond to the letter, Mullen said.
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M.D. Kittle is the National Political Editor for The Star News Network.
Photo “Josh Kaul” by Josh Kaul. Background Photo “Wisconsin Capitol” by Carol M. Highsmith.
