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June 25, 2019

5/16/2019 7:29:00 AM
City Council approves expanded agreement with outside law firm, RFP for new city attorney
Employee group presents declaration of confidence in Guild
Heather Schaefer and Jamie Taylor
of the River News

The Rhinelander Common Council took steps Monday toward solidifying its future legal representation after the current city attorney, Carrie Miljevich, departs at the end of the month.

In a wide-ranging three-hour meeting, the council approved an expanded agreement with an outside law firm, received a signed statement from a group of employees supporting city administrator Daniel Guild, created an ad hoc committee to provide an extra layer of supervision related to 2019 public works projects and approved an agreement with the organizers of the Hodag Country Festival (HCF) related to wastewater treatment services.

(More information about the agreement with HCF will be published in a future edition of the River News.)

Expanded agreement with outside law firm

After a number of failed attempts over the course of the last few weeks, the council voted 6-2 Monday to expand its relationship with the law firm of von Briesen and Roper.

The firm has a history of representing the city on human resources and real estates issues, however the expanded agreement will allow the firm to represent the city on all legal matters on a temporary basis, from June 1 until the council decides how to fill the upcoming city attorney vacancy.

New representation is necessary as Miljevich's employment with the city will end May 31. Following a brief closed session discussion last month, in which a von Briesen attorney participated, the council voted to terminate its employment relationship with Miljevich.

Also, earlier this spring, mayor Chris Frederickson, acting on his own, hired von Briesen to investigate a spate of workplace culture complaints lodged by city employees. Five employees presented the council with a declaration of no confidence in Guild March 11 and the following month a group of public works employees brought forth complaints about long-standing issues in their department.

However, questions remain regarding the credibility of the mayor's investigation as Guild has thus far refused to explain why he referred to Rick Hermus, a former Village of Kimberly administrator who is said to be assisting in the investigation, as a "valued colleague of mine" in a March 5 email sent from his city account.

Similarly, Frederickson has been vague in explaining how the city will pay for von Briesen's services which come at a fee of $275 per hour, substantially higher than the $140 per hour fee Miljevich is paid.

(As in the past, when the subject of paying von Briesen and, potentially, other local lawyers to handle municipal court matters came up Monday evening, the mayor's response was "the budget." He has yet to clarify which specific line item the funds will be drawn from and whether funds will have to be transferred from another area of the budget to cover the legal fees).

Monday's vote came after von Briesen attorneys James Macy and Hector de la Mora offered a short presentation highlighting their experience with municipal matters and lack of a connection to the parties involved in the workplace disputes.

"What I do have is, like I said, a little over 35 years of experience looking at difficult problems, trying to get to the bottom of those things and make sensible, practical solutions for you," Macy said. "We love doing what we do and we love solving problems. We'd love to help you if you'd like us to."

Attorney de la Mora told the council he has 48 years of legal experience with a specific focus on municipal work.

"There's very few things in municipal law that I have not done," he explained.

Questions were raised as to whether the city and von Briesen might "outsource" some legal duties, such as representing the city in traffic court and on municipal prosecutions, to a local attorney or attorneys, due to the distance von Briesen attorneys would have to travel in order to represent the city in Oneida County Circuit Court.

"I'm a little bit more specifically concerned with the local duties they're going to perform. By local duties, I mean things like prosecute ordinance violations and the day-to-day things that come up in traffic court ... I doubt they're (the von Briesen attorneys) going to come to Rhinelander, for instance, for traffic court, and if they do (come up) for traffic court, I certainly don't want to pay them this huge amount of money to do things like that," alderman Lee Emmer said. "This is a question I've had right from the beginning that I have not gotten a satisfactory answer to. Who is going to do those things in the city of Rhinelander?"

Macy and de la Mora indicated their firm has sent attorneys to represent other clients in municipal court but did not confirm whether they will do so for Rhinelander. That's a decision to be made at a later date following further dialogue between the city and the firm, Macy said.

"We're going to leave that to you after we meet with you and audit what you do, what you want done and how that works best for the city of Rhinelander," he said. "If it's not effective for us to do it and somebody else can, of course we're going to work with you."

Alderpersons George Kirby and Tom Kelly cast the nay votes on the resolution to expand the city's agreement with von Briesen.

Finally, toward the end of the meeting, at Emmer's suggestion, the council voted to post an advertisement for a new city attorney to serve as a permanent replacement for Miljevich.

"It's certainly time or past time that we look for a new city attorney," Emmer said, before explaining that he asked the city clerk for information as to the request for proposals (RFP) for city attorney the council used in 2013 when Miljevich was hired.

"We want to be sure we hire someone with past history with this type of role," alderperson Dawn Rog noted, adding that "rumors" are circulating that Frederickson is already talking to local lawyers about the position.

Frederickson did not offer a clear response to the allegation. He began speaking at the same time as Rog, making it very difficult to clearly understand his words, and banged his gavel.

The vote to send out an RFP for a new city attorney was unanimous.

Declaration of Confidence

The public comment portion of Monday's meeting featured the presentation of a signed statement from public works employee Kris Arneson and others declaring their "full confidence" in Guild.

The signatories state their declaration was drafted in response to the March 11 statement presented by City clerk Val Foley, public works director Tim Kingman, assistant clerk Mary Stoll, utility clerk Beth Mannikko and former administrative assistant Stephanie Rajnicek declaring their lack of confidence in Guild.

In the new statement, this group of signatories indicate they have appreciated Guild's willingness to sit down and talk with employees as well his efforts to keep them informed about city issues.

"As employees we feel Mr. Guild is moving forward on checking into why the Rhinelander city seemed to be a hostile work environment..." the statement reads.

The signatories then go on to complain about so-called "negative press" Guild has received and accuse unnamed persons of trying to destroy his reputation.

Ad hoc committee to be formed

The council also moved forward Monday on alderman Emmer's suggestion that an ad hoc committee be created so that council members can keep a closer eye on the city's $18.2 million Stevens Street reconstruction project as well as other related 2019 public works projects.

Alderman Steve Sauer spoke against the idea.

He argued an ad hoc committee is unnecessary as the alderpersons receive regular email updates on the projects. He also appeared to imply that other alderpersons are not as thorough as he is and that his colleagues need to do their homework.

Also Monday, Sauer interrupted and talked over his colleagues on several occasions.

Emmer offered a rebuttal, explaining that Sauer had misunderstood the purpose of the proposed committee.

"The conception that this replaces the public works committee is wrong," Emmer insisted. "It's only formed for one project. Second of all, it's not to address problems. What it is, what it's function is, is to monitor the day-to-day activities and to assist in decisions. That's it and it's only for one project. So, to say that it replaces the committee that we had before is not right."

The motion passed on a 5-3 vote. In a rare move, alderman Ryan Rossing joined Emmer, Kirby, Kelly and Rog in voting to create the committee.

Other business

In other business, the council:

• Agreed to move forward with the city administrator's six-month performance review. The mayor pushed to put off the evaluation until after the "investigation" of the workplace complaints is resolved. However, Emmer pointed out that Guild is to be evaluated on his transition to the position, the criteria set forth in the city code and pursuant to the administrator's annual work plan which the council has already approved and there's no reason the council can't move forward and do exactly that.

"All three of those items are in place. I don't think there's anything there about any investigation of anybody or anything," Emmer said. "I don't think that's a part of it or it needs to be part of it. If you have forms I think you can simply pass them out to us. You are the mayor, you can give us a date to complete them. We turn them in and we discuss them. I think it's actually that easy."

Later in the meeting, the council voted 5-4, with the mayor casting the deciding vote, not to go into closed session to discuss Guild's job performance. The vote took place after alderperson David Holt loudly announced that he will no longer participate in closed session discussions with alderperson Rog without outside legal representation present.

• Approved two separate engagement letters for appraisals of the Rhinelander Walmart Supercenter related to the ongoing Dark Store litigation. The agenda for Monday's meeting also included a possible closed session on the Dark Store litigation however, after alderperson Holt's statement that he will not participate in closed sessions with Rog, a majority of the council voted not to enter closed session. The term "Dark Store" lawsuit refers to the practice of big box retailers filing lawsuits against municipalities challenging their tax assessments. Using the so-called Dark Store loophole, the retailers argue that their properties should be assessed at the same rate as similar vacant buildings. This "loophole' stems from a 2008 state Supreme Court ruling that Madison city assessors had overvalued a Walgreens store, and therefore had to refund the difference. The city of Rhinelander is currently defending two such lawsuits. Before the vote, Rog indicated new information related to the Dark Store issue was learned during a Board of Review session held earlier that day. However, following Holt's outburst, the council chose not to hear the information. It's unclear what information Rog wanted to convey to the rest of the council.

• Rejected a proposal to have the full council participate in collective bargaining with the police and fire departments.

• Approved an IT audit in response to concerns about the city's email system.

The Common Council's next meeting is set for 6 p.m. Wednesday, May 29.

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