8/7/2019 4:38:00 PM Council spars over walking quorum lawsuit bills Acting city attorney on open records requests: Community 'burdened beyond belief'
Heather Schaefer and Jamie Taylor of the River News
City taxpayers will have to wait for an answer as to whether they will have to cover any legal bills generated by the mayor and four alderpersons related to a lawsuit brought by the general manager of the Northwoods River News alleging the group engaged in an illegal walking quorum earlier this year.
Following a contentious debate, the common council agreed Monday to table the question of who should be responsible for the legal bills.
The move to table the matter came at the recommendation of acting city attorney Hector de la Mora of the Von Briesen law firm after a motion was made directing that any legal bills generated by aldermen Steve Sauer, David Holt, Andrew Larson and Ryan Rossing, as well as mayor Chris Frederickson, related to the walking quorum lawsuit filed by Heather Holmes July 31, be the responsibility of the mayor and the alderpersons and not city taxpayers.
"I don't feel there's any way the city's legally responsible to pay these bills," council president George Kirby said in making the motion. "First of all, you were acting inappropriately....you people should be responsible to pay these bills on your own."
In addition, alderperson Dawn Rog argued that attorneys with the Von Briesen firm should be precluded from representing the mayor or any of the four aldermen involved in the lawsuit.
"You represent the city of Rhinelander, the taxpayers and council, not individual council members," Rog noted, addressing de la Mora.
"That's a legal judgment that our firm would have to make," de la Mora responded. "I can understand your point of view, but at this point no one has asked us to be involved."
During the course of the debate, some of the accused aldermen noted that no legal bills have been generated to this point.
"Several comments made tonight on this issue presuppose that there is a legal bill existing and there is not," Holt said. "So I don't know what this motion does because it's a hypothetical at this point. So I'm curious as to the point of this exercise."
"Should any bills be brought forward, we want to go on record as a council stating that we don't want to accept responsibility," Kirby replied. "The taxpayers are not going to be responsible for any bills."
Alderman Lee Emmer requested that this topic be placed on Monday's agenda. He explained that inquiries from concerned constituents prompted the request.
"This is a question asked of me that I didn't know answer to," he said. "It was put to me almost exactly this way: Does the city pay the fees?"
During the course of the discussion, some of the accused aldermen, as well as the mayor, suggested it would be appropriate for the taxpayers to pick up their legal bills because they were "conducting city business" or "acting on behalf of the city" at the time. However, none of the defendants stated that they intend to submit any legal bills to be paid with city funds. At the same time, none of the defendants pledged to pay his own legal fees.
As the discussion continued, de la Mora was asked if a motion such as this one would create a dangerous precedent for the city, given that no bills have been submitted.
"At this point in time I don't know if it is a precedent or not," de la Mora responded. "I always caution my governmental clients that the public records law and the open meetings law is both a sword and a shield and depending what foot the shoe is on it could be one of those two things. My suggestion would be that you consider tabling this until such time as you have more information so you can truly make an informed decision that in the future, if it's cited as a precedent, you have some concrete facts to talk about. Because right now all you know is what the proponent of the lawsuit itself has published."
After hearing that, the group agreed to table the matter.
The case stems from a Jan. 30 letter written by Frederickson and council members Larson, Holt, Sauer, and Rossing and sent to Kirby after he refused to participate in the Jan. 28 council meeting to draw attention to $13,000 in office furnishings city administrator Daniel Guild bought for his city hall office without council approval. The mayor approved the purchases, both men have said.
In the letter, the officials questioned Kirby's leadership, suggesting that he resign "given recent events" and promising a forthcoming conversation that "may be uncomfortable."
Technically, the state is a plaintiff in the case, suing based on information provided by the private plaintiff Heather Holmes, general manager of the River News and The Lakeland Times. Holmes filed suit after Oneida County district attorney Michael Schiek declined to prosecute what he characterized as a "close" case.
"We firmly believe it was a mistaken decision - even Mr. Schiek called it a very close call - and that the council members and the mayor engaged in a walking quorum," Holmes said when she resubmitted the complaint to the district attorney. "The arguments are the same, but this time around we have explained them in greater depth. It's really not a close call."
According to the complaint, on or about Jan. 30, Larson, Holt, Sauer, Rossing and Frederickson conducted a series of personal communications, email messages, in-person meetings, and communications in their capacities as members of the city council.
Those discussions, the complaint alleges, amounted to a walking quorum concerning governmental business without public notice, and specifically regarding the effectiveness, possible and actual censure and/or written reprimand, and consideration of potential future further action against Kirby.
Taken together, the complaint continues, those actions culminated in the preparation and signature of a document that called Kirby's conduct as a council member into question and that effectively constituted a private reprimand.
There are two critical thresholds which must be crossed for a walking quorum to have occurred, according to Holmes' attorney April Rockstead Barker.
First, there must be a purpose to engage in governmental business, be it discussion, decision or information gathering. That threshold was met, Barker argued in the complaint.
"Defendants' discussions and letters concerned governmental business, including, but not limited to, the effectiveness, possible and actual censure and/or written reprimand, and consideration of potential future further action against a fellow city council member, George Kirby," the complaint states.
The second threshold is the number of officials involved in doing that governmental business must be sufficient to determine the governmental body's course of action.
In refusing to prosecute the officials for a violation, Schiek had cited that threshold as relevant to his decision-making. Specifically, Schiek reasoned, the four council members and the mayor did not constitute the three-quarters vote it would take to remove Kirby from his position as council president.
"In this case, there were only seven members at the time the letter was written, plus mayor Frederickson," Schiek wrote in his determination. "The letter contained five signatures, including mayor Frederickson's signature. As a result, said numbers would result in a four-sevenths vote because under (state statutes) mayor Frederickson would only vote in the event of a tie. Therefore, a four-seventh's vote does not satisfy the three-fourths vote required by (state statutes)."
The complaint filed July 31 contends the three-quarters vote requirement was not relevant because no one was acting to remove Kirby; indeed, the complaint states, the mayor stated just the opposite.
"Further, Mayor Chris Frederickson described a purpose of the letter as 'to ask Kirby questions and not to remove him,'" the complaint asserts.
But the private reprimand the officials did issue was a government action that needed only a majority, the complaint contends, and the majority signing the letter was sufficient to pursue a formal inquiry into Kirby's conduct, Barker wrote.
"The number of defendants involved constituted half or more of the city council, plus the mayor, whose vote is counted in the event of a tie," the complaint states. "Therefore, the four city council members plus the mayor have the ability to determine the council's course of action with respect to any decision to censure or reprimand Mr. Kirby and constitute a sufficient number to determine whether the council should formally evaluate or investigate Mr. Kirby's performance."
Accordingly, Barker wrote, the defendants' conduct violated the open-meetings law, which requires public notice prior to meetings of governmental and political bodies such as the city of Rhinelander. What's more, Barker continued, the defendants acknowledged in interviews with investigators that they were trying to hide the council's actions from the public.
"Defendants' subsequent comments to investigators demonstrate that respondents prepared the communication and engaged in the discussions described above specifically in order to keep council business and the matter from the public and in order to avoid 'a spectacle,'" the complaint states.
Monday's meeting was the council's first since the city announced one of its municipal wells is contaminated with PFAS, manmade chemicals public health experts say have been shown to have a detrimental effect on human health.
Well No. 7 was taken offline in late June but the city did not make the problem public until July 22.
Outside of a discussion prompted by Emmer as to whether a well located on or near the Northwood Golf Club property should be tested for PFAS, and some concerns regarding when and how the council was informed of the contamination of Well No. 7, the panel spent a relatively short amount of time discussing the water issue.
Some of the council members who had concerns about the well issue indicated that they have since received adequate information on the problem. The issue of the Northwood Golf Club well, or wells, is expected to be revisited in the near future as Frederickson indicated he would gather information and report back to the council.
Open records requests
As part of a discussion on an agenda item related to the city's handling of open records requests for personnel documents, de la Mora took an opportunity to share his opinion that the Rhinelander community has been unfairly strained by open records requests.
"Regrettably, this is a community that is burdened beyond belief in terms of the number of public records requests that are submitted to it," de la Mora said. "Not that they are inappropriate, but this community does not have the resources to process them in an instantaneous fashion as many of the requesters imply."
It should be noted that de la Mora provided no statistics as to the actual number of records requests received by the city. He also failed to offer any figures, or a legal opinion, as to the threshold where the number of records requests received by a community moves from acceptable to overly burdensome.
The attorney also offered no evidence to support his claim that local requesters expect, or imply they expect, "instantaneous" release of records.
According to state statutes, "each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor."
The attorney did note that his firm has designated an attorney to handle all Rhinelander public records requests. This would be in addition to other work the firm is doing for the city. According to previous discussion, Von Briesen charges the city a "blended fee" of $275 per hour for its legal work. This represents a notable increase from the $140 per hour charged by the last city attorney. At present, it's unclear how many Von Briesen attorneys are accumulating billable hours doing legal work for the city. Early in the meeting, alderperson Rog stated that the firm has not been submitting bills on a regular basis.
"Because of the fact that your firm costs so much more than what we used to pay in legal fees, and we do have a 2019 budget, I think this is concerning," she said before making a formal request for Von Briesen to provide a breakdown of its services.
She also asked that the firm update the council on its work related to the so-called Dark Store lawsuits involving the city.
Facebook comments and letter to Belliveau
Also Monday, Emmer disputed comments he said one of his council colleagues made about him on social media. Emmer took exception to a claim he said Holt made on Facebook that he and former alderperson Sherri Belliveau are in almost constant contact. Emmer said he reviewed all communications he has received over the 176 days he has been in office and found 18 emails from Belliveau. He also noted that some of the emails were related to questions he had about his new position. Emmer succeeded Belliveau in representing District 3.
Holt did not deny making the statement but claimed Emmer's summary of his comments lacked important context. He did not elaborate as to the context.
Emmer stated he wanted to clarify this issue for his constituents.
This was not the only exchange among the city officials related to Belliveau. Rog asked Frederickson if he reviewed a July 10 letter that Guild sent to Belliveau threatening legal action over her Facebook commentary.
Frederickson stated that he did not review the letter before it was sent to Belliveau but became aware of it later.
"At some point, yes, I read it," the mayor said.
"I am aware of the continued bullying and harassment of both Mayor Frederickson's and my work amongst others on your social media profiles," Guild wrote to Belliveau. "People from all over the community regularly screenshot us posts and send them, and I have been able to amass quite a collection. I am aware of the libel and slander which you routinely spew about my work history and my character."
(The letter does not include any specific examples of the alleged "libel and slander".)
Later in the letter, Guild asks Belliveau if she is prepared for a prolonged court battle.
"Your resignation from City Council showed me a lot about your character," he wrote. "You act as playground bully, but really truth be told you are a coward. Because you are so focused on being a bully, I don't think you recognize and appreciate the liability and legal jeopardy you are continuing to put yourself in by your behavior. I have a lot of patience, but I won't suffer from the antics of bullies forever. Yet, I find my patience wearing thin and my tolerance for your behavior towards other City elected officials is nearly spent. If I need to, I will defend myself and use all the legal tools which are available to me. I ask you, do you want to spend the rest of your retirement paying lawyers and fighting me and potentially others in court?"
In the letter, Guild also discusses the "resources" available to him, in terms of pursuing litigation, and questions Belliveau as to her resources.
"I have resources and motivation to invest in such an effort. Do you? Wouldn't you rather enjoy your golden years, have your Wednesday nights out on the town? Wouldn't it be preferable to be recognized in the community as someone who selflessly gave 14 years of public service to the City rather than being known for your chronic bitterness and bad attitude?" he asked.
On July 22, the River News sent the following questions to Guild in reference to the letter, including whether he intends to use public funds to bring lawsuits against those whose social media posts he finds objectionable.
To date, he has not responded.
Below is the list of questions:
1. Your letter to Ms. Belliveau contains the following statement: "I am aware of the continued bullying and harassment of both Mayor Frederickson's and my work amongst others on your social media profiles."
Please explain your choice of words in this sentence? How is a person's "work" harassed or bullied?
2. Your letter states that you have been able to "amass quite a collection" of items posted by Ms. Belliveau that you believe meet the legal definition of libel/slander.
Please provide examples of statements Ms. Belliveau has posted on social media that have libeled/slandered you?
3. Your letter indicates you harbor animosity toward Ms. Belliveau because she has posted about your work history in other communities. ("I am aware of the libel and slander which you routinely spew about my work history and my character.") A review of Ms. Belliveau's social media accounts shows she has posted articles from a downstate newspaper related to your work in Poynette. Is it your contention that it constitutes harassment/libel/slander for anyone in this community to post or share articles about your prior work history?
4. You wrote to Ms. Belliveau: "Because you are so focused on being a bully, I don't think you recognize and appreciate the liability and legal jeopardy you are continuing to put yourself in by your behavior."
Do you recognize and appreciate the potential liability and legal jeopardy you are creating for yourself and the city of Rhinelander in choosing to threaten a former city official with legal action because she has criticized your work? Do you intend to take legal action against anyone in this community who posts anything on social media about your work history in Weston or Poynette, or your current work in Rhinelander, that you deem to be negative or critical?
5. You wrote to Ms. Belliveau, "I ask you, do you want to spend the rest of your retirement paying lawyers and fighting me and potentially others in court? I have resources and motivation to invest in such an effort. Do you?"
Will you use taxpayer money to take legal action against Ms. Belliveau? Are the "resources" you refer to public funds or your own personal finances?
6. What is your response to those who would cite this letter as evidence that you do not have the comportment necessary to hold the position of chief administrative officer for the city of Rhinelander?
If Guild chooses to submit responses to these questions, the River News will publish his answers in a future edition.
Closed session and other business
Also Monday, Kirby questioned Frederickson and Guild regarding information he received indicating the county wants to revisit the police dispatch services agreement it has with the city. Guild explained that city and county officials have met to discuss the dispatch agreement but the two sides are still in the information-gathering stage. A full story on the dispatch services discussion will be published in a future edition of the River News.
The council meeting ended following a very brief closed session discussion. After less than 30 minutes, the alderpersons emerged to announce that they had approved a motion to adjourn.
According to the agenda, the panel was to discuss recent separations from city departments as well as a performance evaluation of Guild.
The next council meeting is scheduled for 7:15 p.m. today.
Editor's note: The city routinely posts to its City Hall Facebook page a link to audio files of City Council meetings.
We encourage the public to listen to the audio files for additional context.
Posted: Wednesday, August 7, 2019
Article comment by:
I think the four individuals are being harassed in the same manner Sheriff Hartman was prior to the last election. Did the four attempt to pass new regulations? No. Did they gavel in an unannounced meeting? No. A quorum ó walking or otherwise ó here in Rhinelander would have to be five persons: four council members plus the mayor.
As I recall, their coming together was, in effect, as four individuals systematically hated and vilified whenever possible by Ms. Rog, Mr. Kirby, et al. No public government business was discussed. The subject of their meeting was the animus of certain city council members. It was personal.
I hope the four ask for and receive legal fees for their trouble.
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