DOJ agent who blew the whistle in 2012 says experience ruined him

Dan Bethards lost his career, his house and many of his friends in law enforcement after he reported his boss for selling and making guns without a license

Coburn Dukehart/Wisconsin Center for Investigative Journalism

Dan Bethards was an undercover drug agent who brought allegations against former Division of Criminal Investigation Special Agent in Charge Jay Smith to state and federal authorities. He was fired in October 2013 for allegedly violating several Department of Justice rules. Bethards claims he was the victim of whistleblower retaliation.

Broken Whistle explores Gov. Scott Walker’s attack on waste, fraud and abuse and the dwindling protections and incentives for whistleblowers in Wisconsin.

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Managing editor Dee J. Hall talks about this series on Wisconsin Public Television’s Here and Now, and Wisconsin Public Radio’s Central Time and on WORT.

In 2012, Dan Bethards had been a special agent in the Wisconsin Department of Justice for 14 years. But his career and life were upended after he reported his direct 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 says 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 says 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 become a fully automatic machine gun. Bethards says this was “the straw that broke the camel’s back.”

Courtesy of Dan Bethards

Dan Bethards had a long career in law enforcement and the military, including serving in the Iraq War, before he became a Department of Justice whistleblower in 2012.

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

Bethards says 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 that the way Bethards reported his allegations — by notifying both his superiors and the head of DOJ’s human resources department — nullified his whistleblower protection.

The agency had argued Bethards notified the wrong people at DOJ of his allegations, that only members of his chain of command should have been informed. The appeals court found that Bethards’ “interpretation of that (whistleblower) statute is not more reasonable” than the state’s.

DOJ spokesman Johnny Koremenos declined comment on the litigation.

Bethards says 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. They can do whatever they want, whenever they want, and nobody is strong enough or rich enough to stop them.”

Strife in DOJ’s Superior office

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

M.P. King / Wisconsin State Journal

Wisconsin Attorney General J.B. Van Hollen's agency fired Dan Bethards in 2013 after he reported his supervisor at the Division of Criminal Investigation was making and selling guns without a federal license. Among the purchasers: Van Hollen, head of the Department of Justice. The supervisor was investigated by federal authorities but never charged.

Ohm says 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, the division administrator, 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 then investigated him. Bethards was fired Oct. 10, 2013.

No charges, no internal investigation

Courtesy of Dan Bethards

Former undercover narcotics agent Dan Bethards says his decision to report suspected illegal activity within the state Department of Justice caused him to lose his job, his home and his reputation. He lost a lawsuit alleging illegal whistleblower retaliation.

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  — says 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.

(This March, ATF warned about an emerging program in several police departments in California of officers selling firearms without a license.)

The decision not to prosecute Smith is puzzling to Kyle Torvinen, the attorney representing Bethards in his whistleblower lawsuit. Torvinen says 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 says 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.

Rosario Dominguez / Wisconsin Center for Investigative Journalism

Dan Bethards visits friend John Steiner, left, in April at his gun shop in Fort Atkinson, Wis. Bethards says he has been unable to continue his career in law enforcement after reporting his former boss at the state Department of Justice for suspected illegal gun manufacturing and sales.

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

“Everybody turned their back on me,” Bethards said.

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

He briefly worked for Lac Courte Oreilles Tribal Police in Hayward, Wisconsin. 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.”

Courtesy of Dan Bethards

Dan Bethards was a special agent with the state Department of Justice, receiving various recognitions and awards throughout his career. He says everything changed when he blew the whistle on his supervisor.

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 to the state court of appeals, 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 says 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.

Courtesy of Dan Bethards

Dan Bethards was much happier before he blew the whistle on his boss at the state Department of Justice, his family says. From left to right are Bethards' sister Cindy Scolaro; his mother Nella Aiello; sister-in-law Julia Bethards; brother Jeff Bethards and Dan Bethards.

Those children are now working in a factory to save up money for college; Bethards says he is not able to support them financially anymore. He says 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.

Jeff Bethards, Dan’s brother,  a detective with the Douglas County Sheriff’s Office, 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 says he stopped coaching basketball and baseball out of embarrassment. Jeff Bethards says it has been “heartbreaking” to watch the impact on his brother, who was 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 he 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.”

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