The Legislative Reference Bureau, the non-partisan research agency for the state legislature, says the Evers Administration employee who recorded a phone call with legislative leaders may have committed a felony.

According to the memo from the agency, “…if another person in the governor’s office recorded the telephone call without the prior consent or authorization of the governor, Chief of Staff Gau, or Chief Legal Counsel Nilsestuen, then the person may well have violated Wis. Stat. § 968.31 (1) since the person was not a party to the communication.”

According to the Legislative Reference Bureau memo, Wis. Stat. § 968.31 (1) is “a Class H felony and is subject to a fine of not more than $10,000 or a term of imprisonment for not more than six years or both.”

The memo was released Monday by Senate Majority Leader Scott Fitzgerald (R-Juneau), who asked the agency’s opinion on the legality of a recording of a teleconference with Governor Tony Evers, Fitzgerald, Assembly Speaker Robin Vos (R-Rochester), Evers’ Chief of Staff Maggie Gau and Chief Legal Counsel Ryan Nilsestuen.

The recording was made without the knowledge of Vos or Fitzgerald, and has contributed to the distrust between the legislature and the governor.

The teleconference was about the state’s Covid-19 policy after the Wisconsin Supreme Court struck down Evers’ administration’s Safer at Home policy extension by the Department of Health Services.

The phone conversation recording was released to the Milwaukee Journal Sentinel after an open records request. Evers has declined to name the staff member who recorded the telephone call despite bipartisan criticism of the recording and calls for the responsible person to be fired. Evers has also denied knowing in advance that the call would be recorded.

The memo also said that if Evers, Gau or Nilsestuen made the recording, then under Wisconsin’s “one party consent” law the recording was legal.

Fitzgerald said in a statement Monday that in light of the Legislative Reference Bureau memo indicating a possible felony, Evers needs to reveal who made the recording.

“If the governor didn’t know that his staff was recording him, this is a bigger problem than he thinks,” Fitzgerald said. “The governor should be in control of his office – the buck stops with him. So if one of his staff committed a felony, he needs to hold that person accountable.”