Augusta Township clerk accused of eavesdropping: 'I expect to be exonerated'
Augusta Township clerk Kathy Giszczak said she plans to “vigorously defend” her actions after a warrant was issued for her arrest on two felony eavesdropping charges.
Giszczak faces one count of eavesdropping and one count of use or divulgence of information unlawfully obtained for allegedly recording a conversation between township Supervisor Pete Hafler and former Deputy Treasurer Janice Blair. Giszczak said Tuesday Michigan law prohibits recording private conversations, but she recorded a public conversation in a public place.
“I am being accused of violating this law because a recording was made of a public, not private, conversation which took place in a common area of a public township hall,” she said. “The prosecution is unfounded and I expect to be exonerated.”
Washtenaw County Sheriff’s Office spokesman Derrick Jackson said Giszczak secretly recorded a conversation between Hafler and Blair and then played that conversation for former township Treasurer Angela Sherbine. Jackson said Blair was fired and filed a wrongful termination lawsuit against the township, which was eventually settled out of court.
The incident surfaced in a legal brief filed in an Open Meetings Act lawsuit filed late last year. The brief — filed in the Washtenaw County Trial Court by attorney Nik Lulgjuraj, who represents half of the Augusta Township Board of Trustees — stated Giszczak admitted to recording the conversation during a deposition in Blair’s wrongful termination case.
During the deposition for Blair’s wrongful termination case, Giszczak stated she “might have provided information to the treasurer that influenced the treasurer terminating Janice Blair,” the brief alleged.
The Open Meetings Act lawsuit was filed in September 2011 after a board meeting at which Sherbine resigned and her replacement was named without many trustees present. Several members of the board filed the lawsuit against the rest of the board.
If convicted, Giszczak faces a maximum of five years in prison on the eavesdropping charge and two years in prison on the charge of divulging information unlawfully obtained.
According to court records, Giszczak had not been arraigned on the charges as of Tuesday morning. She’s expected to turn herself into police sometime this week, Jackson said Monday.
“The resolution of this unfortunate charge will come in a court of justice, not in the court of public opinion,” Giszczak said. “I will vigorously defend my actions.”
Kyle Feldscher covers cops and courts for AnnArbor.com. He can be reached at kylefeldscher@annarbor.com or you can follow him on Twitter.
Comments
ann Sole
Wed, May 2, 2012 : 11:22 p.m.
If I read this right it was the township supervisor who was recorded without his permission, while having a private converstion with one of his township employees concerning the whereabouts of utility funds. The state law is clear in that the supervisor is responisble for township facilities & the legal agent. Did he place a recrdong device? no, Did he as "head of security" authorize the emplacement of bugs in his building? no. So what is the question? Does anyone really think the sheriff ot mayor (public place) can not expect to have a private converation with an employee. or in the White House?
chris crawley
Thu, May 3, 2012 : 12:37 p.m.
good question. Is any and every public buiding a public place. Can the offices of the FBI, CIA be bugged becasue they are governmenet buildings?
simmiejones@yahoo.com
Wed, May 2, 2012 : 12:58 p.m.
If this was recorded in a public area, I can't believe a prosecutor would issue a warrant. There is no expectation of privacy once you step outside your house. There are cameras/recording devices almost everywhere in public. Smart people should not have private conversations in public places. This is rediculous that a relatively small government official is being harassed to this extent. How can anyone do an efficient job while being forced to always to defend themselves against accusation after accusation. Augusta township seems to always be in turmoil. This type of thing just gives the State more ammunition to abolish local governments.
AugTwpRes
Wed, May 9, 2012 : 4:52 p.m.
This is a Governmental Building. The whole place is open to the public. When you are the only 2 people in the building you have a sense of privacy. If the Clerk had been present, the conversation would not have taken place. The Deputy Treasurer was attempting to protect the residents by informing someone who would listen, that large amounts of money were being moved "Without Board of Trustee" knowledge. Supervisor Hafler was concerned and listened. Clerk Giszczak was not present, they felt safe. The Deputy Treasurer was fired for doing the right thing and the recording was the proof that she had shared this information. Clerk Giszczak was in violation of the law for recording and not being present.
Urban Sombrero
Wed, May 2, 2012 : 2:09 a.m.
Is the issue here the recording? Forgive me, but I am not a lawyer or legal scholar. If the clerk had just hung around and overheard the conversation, then relayed what she heard, would it still be felony eavesdropping? Or, is it just because she actually recorded it?
Urban Sombrero
Wed, May 2, 2012 : 9:50 p.m.
@DBH, that makes total sense. I must be dense to have missed it. Thank you for your reply, I appreciate your kind tone and snark-free delivery.
DBH
Wed, May 2, 2012 : 2:47 a.m.
From the earlier story (see the link in the first paragraph of this story), "'Recording a conversation that you are not involved in without the parties' knowledge is where the eavesdropping comes in,' Jackson said. 'Giszczak is expected to turn herself in sometime this week.'" I am not an attorney either but, based on my reading (see the link I provided in the second comment above, the information there is pretty pertinent to this case, I believe), I think the problem is that she recorded the conversation without having been a participant in the conversation. If she had simply reported the content of the conversation based on her recollection of what was said while she was just listening within earshot, I don't think it would have been illegal because the conversation occurred in a public place and those involved in the conversation could not, or should not, have expected privacy if they were speaking in a manner in which someone could have overheard them. That's my take on it, at least.
Tru2Blu76
Wed, May 2, 2012 : 2:08 a.m.
Just wondering: to avoid such a charge, wouldn't it be wiser to just tell the party you want to notify that you overheard something incriminating was said but it would take a subpoena of the parties having the conversation to make it official and legally valid? You aren't violating rights then: you are calling for an investigation meant to uncover illegal activity. My overall opinion is that the right to privacy is frequently and blatantly abused, shielding criminal activity. I don't think criminal activity of any kind actually is protected. The intent of this right is to permit honest communication, not to aid criminals who cause damage to others or violate a trust.
ann Sole
Wed, May 2, 2012 : 11:30 p.m.
according to report the superviosor was attempting to get information on possible missing funds. So yes he was "investigating" possible criminal activity. Would that be his job, we think so, the events following, makes us think he was on the right track. Why did the treasurer fire the deputy for talking to supervisor about the missing funds? Why did she quit and leave the state soon after that? To avoid charges against her? The clerk admitted the action. but how was that any part of her state based statutory duties- to spy on the supervisor? we are not getting the whole story.
AugTwpRes
Wed, May 2, 2012 : 2:01 a.m.
Eavesdropping becomes a felony when the person recording a conversation is not present for the conversation. Clerk Giszczak responded to the "Where you present for this conversation?'" by answering "no." There have been many occasions when two persons were alone in the hall and somehow the subject of their conversation was known by the clerk. The clerk has considered herself impervious like teflon. Remember, even teflon wears out.
chris crawley
Thu, May 3, 2012 : 12:57 p.m.
If this was a constant event, are there more to come to light. Has court put a warrant on all the tapes? What should we out here do about all this>
trespass
Tue, May 1, 2012 : 7:52 p.m.
If the recording was made during a deposition, why was Giszczak in the room? A verbatim record is normally made at a deposition, either by court reporter or a recording, so how could anyone in the room expect privacy? If it was made outside of the deposition and outside of the deposition room, how could it be expected to be private? We need a few more details from the participants Kyle? How about posting the complaint and the reply?
Eep
Tue, May 1, 2012 : 8:02 p.m.
The way I'm reading the article: Giszczak was deposed for the lawsuit - during her deposition, she admitted to making the recording of a previous conversation. The previous conversation did not happen contemporaneously with the deposition.
Bradley Pearsall
Tue, May 1, 2012 : 6:47 p.m.
This is insane. I understand that Augusta Township is a major political player (place sarcastic smile here) but why is it that there cannot be a functioning township government here. Give me a break!
Average Joe
Wed, May 2, 2012 : 12:25 a.m.
Yes Bradley, it is insane, imagine small town clerk committing felony eavesdropping! But that is what she admitted to under oath, so now she has to defend herself in court!
Ron Granger
Tue, May 1, 2012 : 5:58 p.m.
Government servants: You work for us. Expect that we will monitor your performance and conduct as you execute your duties. There are so many secret meetings by our "public servants". While conducting business for the public, expect to be recorded. Especially in a public hall. The idea that government can record the public, but the public cannot record government, is a sham. Time and again we have seen police and prosecutors try to intimidate those who expose the behavior of government officials who want to keep their actions secret.
Ron Granger
Wed, May 2, 2012 : 1:15 a.m.
I believe it depends on whether it was a private conversation, and that is in dispute.
Average Joe
Wed, May 2, 2012 : 12:23 a.m.
It is unlawful to record the conversation of others without their knowledge regardless if they are a member of the public or an elected official. Clearly the actions by the clerk are suspect, for the township to settle for $60,000 tells me they didnt want to go to trial
Votekeeper
Tue, May 1, 2012 : 5:08 p.m.
Shame on the Sheriff and the Prosecutor for charging without any investigation whatsoever. They have allowed themselves to be used to ratchet up Augusta Township's ongoing political feuding, which is the last thing that community needs. Jerry Clayton should have smelled the rat--this is a township election year!! How about using your resources to investigate the underlying public corruption by certain financial interests, that has roiled Augusta and other communities with undeveloped land?
matt s
Thu, May 3, 2012 : 6:31 a.m.
@average joe: I don't recall that deputies had any requirement to have an IQ above average. As for the prosecutor? Are they genuises too? The silver lining is that once KC proves her self innocent...she indeed will be a shoein for clerk and she has my blessings. And her naysayers may finally get the idea that they are WRONG. The slander countersuit will prove very interesting I would expect.
Average Joe
Wed, May 2, 2012 : 12:16 a.m.
The prosecutor's office would not have brought charges without having the Sheriff's office first do the investigation!
Sparty
Tue, May 1, 2012 : 8:08 p.m.
She admitted taping them without their consent in a legal deposition ... what type of investigation is required? ROFL
DBH
Tue, May 1, 2012 : 4:31 p.m.
I agree, @craigjjs. Here is the first link I found when I Googled "felony eavesdropping in Michigan." The information related to a lawsuit against the Sally Jessy Raphael show seems fairly applicable to the Augusta Township situation. If so, Ms. Giszczak might be in trouble. http://www.sherlockpi.com/michigan-bug-sweep/listening_device_law.php
craigjjs
Tue, May 1, 2012 : 4:13 p.m.
It would be helpful to explain what constitutes felony eavesdropping.
matt s
Thu, May 3, 2012 : 6:39 a.m.
@Eep......If I sat on the bench or jury..... No township hall hall in America can be considered a private place ....by definition and fact and circumstance the Township hall is OWNED by the residents. The only place one would expect privacy is in the restroom! I can assume/hope Hafler has not placed minicams under the seats of the boys' room..... then again..... so CJ Macdonald (such a crazed fella indeed) can have a minicam in there stalking the clerk repeatedly but a township official can't have her tape on her own business desk?? What has the world come to?
Eep
Tue, May 1, 2012 : 4:36 p.m.
As used in sections 539a to 539i: (1) "Private place" means a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access. (2) "Eavesdrop" or "eavesdropping" means to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse. Neither this definition or any other provision of this act shall modify or affect any law or regulation concerning interception, divulgence or recording of messages transmitted by communications common carriers. (3) "Surveillance" means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed. (4) "Person" means any individual, partnership, corporation or association.
Eep
Tue, May 1, 2012 : 4:27 p.m.
750.539d Installation, placement, or use of device for observing, recording, transmitting, photographing or eavesdropping in private place. Sec. 539d. (1) Except as otherwise provided in this section, a person shall not do either of the following: (a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place. (b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section. (2) This section does not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose. (3) A person who violates or attempts to violate this section is guilty of a crime as follows: (a) For a violation or attempted violation of subsection (1)(a): (i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. (ii) If the person was previously convicted of violating or attempting to violate this section, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both. (b) For a violation or attempted violation of subsection (1)(b), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both. (4) This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed by that person while violating or attempting to violate subsection (1)(a) or (b).