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December 8, 2019

11/12/2019 7:30:00 AM
Police and fire commission rejects sex offender appeal role
McEldowney: 'This is something that is not in our statutory parameters'
By Jamie Taylor and Heather Schaefer
Of the Northwoods River News

In August, the Rhinelander Common Council unanimously adopted an ordinance governing the residency and activities of convicted sex offenders. Later, the council decided the Rhinelander Police and Fire Commission (PFC) would be an appropriate panel to handle appeals under the ordinance.

Last Thursday, the commissioners weighed in and following a candid conversation about the potential pitfalls voted to decline the city's request to serve as the appeals board.

With the passage of the ordinance, the city is required to empanel a board to hear appeals, city administrator Daniel Guild told the council at the Aug. 12 meeting.

"Due to the fact that the sex offender ordinance was passed earlier this evening, one of the provisions within the ordinance that guarantees the due process rights of offenders is to create a residency restrictions appeals board, so folks who find the restrictions we've imposed to be unnecessarily harsh given their particular circumstances that they have recourse to go to and talk about their appeal," the administrator explained. 

Guild went on to explain that the city has at least three options for populating the appeal board. It could seek applications from private citizens to serve on the board, designate the police and fire commission to act as the appeal board or take on the responsibility themselves as a council.

Whatever direction the council were to choose, then acting city attorney Hector de la Mora of the von Briesen & Roper law firm urged the group to make a prompt decision.

"The federal courts, particularly in the southern part of the state, have intervened and have found liability on the part of the communities that have not had an appeal process, a form of due process, simply because many of these restrictions are somewhat geometric and mechanical and there are peculiar circumstances that may not have been anticipated, and this is a mechanism to deal with that," the attorney said. 

The PFC was created under state statute and has independent oversight over hiring, firing and discipline in the police and fire departments. This was done so that such decisions are free from political influences.

"The council debated several times who is going to fulfill this role, multiple things were talked about," Rhinelander Police Chief Lloyd Gauthier told the PFC Thursday. "City administrator Guild talked about the PFC, and that is how it landed on this table this morning for you guys. The ordinance is in place, we're just looking at finalizing who is going to be that appeals board for that process."

"I don't think that there is any question that it would undoubtedly be a thankless board and one where with that group there is bound to be some controversy," said PFC chair Todd McEldowney.

He also noted that an appeals board is important to make sure that there is an objective, unbiased final decision in the process.

"I guess from a personal perspective, I think that whatever we decide to do, it should be unanimous," McEldowney said. "This is something that is not in our statutory parameters, so it's up to each of you to determine what your thoughts are."

Each member of the commission was asked to offer input, starting with Sandy Bergman.

"I have informed the mayor on my thoughts on this," she said. "I thought about it long and hard. Certainly the victims' families have rights, and so does the incarcerated person that is trying to come back to the community. I'm not sure why this board was chosen or when it was chosen, but I was informed after it had already been posted on the agenda."

Bergman then reflected on something Gauthier had said earlier in the meeting about fostering a positive and upbeat image for the city.

She said that she "would not like to see this board focus on another duty' and noted that an appeals board would likely function best if it was made up of members who have had extensive experience dealing with sex offenders.

Michael Carlson asked how often the appeals board would meet.

Gauthier replied that, based on a webinar sponsored by CVMIC, the city's insurance carrier, such appeals are rare. He then discussed the only instance when a convicted sex offender had contacted him since the ordinance went into effect.

"So far, I have received one email request from someone wanting to move here from Eagle River," Gauthier said. "And we used the map overlays for the house he was looking at and it was not in an area that was restricted, so he was able to pursue purchasing that house."

Gauthier was then asked if other cities with such an ordinance had been consulted so Rhinelander could learn more about how other municipalities handle this duty.

"I'm not aware of another PFC that performs that function," Gauthier admitted.

Gauthier explained that the way the appeals board would work is that he would present the facts of a particular case and then the board would make a determination as to whether to grant the appeal or not.

As a fairly new appointee to the commission, Matt Whalen said he's still learning what the position entails.

"I don't know if there would be an independence issue there, or anything of that nature," Whalen said, adding that he can foresee that some decisions the appeal board would make could be controversial.

Another commissioner, Brandon Karaba, admitted to struggling with the decision.

"Armchair quarterbacking isn't exactly something that I'm comfortable with," Karaba said. "And this is exactly what this is going to be. I just have a tough time saying yes to this."

McEldowney respectfully disagreed with Bergman's assertion that the appeals board should be comprised of people with a background in dealing with sex offenders.

"In theory, that's absolutely true, but in practice whether there is the ability to put together a citizens board that would be more objective or could be any more successful than the police and fire commission (is unknown)," McEldowney said. "I think we have endeavored to serve our community to provide quality police officers and quality firefighters."

He said he is confident that the PFC could handle the extra responsibility.

"That being said, the concern that I would have is the overflow effect that an unpopular decision may have, and how it would affect future decisions that we would make in hiring, firing and disciplining our officers," McEldowney said. "A decision on sex offender residency would have that overflow effect. I would hate to have that cause some concern over the quality of the city that we would make in those other areas of hiring, firing and discipline."

Bergman said there are a number of people in the community that are retired from social services agencies who are "very well versed in how to make decisions" of this nature.

"I'm not saying go out and find a citizen, I'm saying it could be a selected board," Bergman said.

She also said she didn't want people who disagreed with a decision made by the appeals board to take to social media.

"It would be a spectacle and it would be a real threat to the board and our police and fire commission," Bergman said.

McEldowney then went around the table and the majority voted against accepting the additional responsibility.

"We will not foreclose the possibility of it coming back in the future, depending on if the City Council can put together a sex offender registry appeals board," McEldowney said.

The ordinance prohibits convicted sex offenders from being within 150 feet of a parcel of land "upon which there is a public, parochial, private, or tribal school and its grounds educating one or more grades between Kindergarten and grade 12, a licensed child care center, a playground, a public park, a licensed entertainment facility or a facility of the Rhinelander District Library located within the city."

Convicted sex offenders are also prohibited from handing out Halloween candy and dressing as Santa Claus or the Easter Bunny, "unless the designated offender is the parent or guardianship of the child/children involved, and no non-familial children are present," the ordinance states.

The ordinance also prohibits offenders from residing "within 500 feet of a parcel of land upon which there is a public, parochial, private, or charter school and its respective grounds educating one or more grades between kindergarten and grade 12, a licensed child care center, a playground, a public park, a licensed entertainment facility or a facility of the Rhinelander District Library located within the city."

Those found to have violated the new ordinance can be fined $500 to $1,000.

There are, however, "affirmative defenses" available to those whose behavior this ordinance regulates.

For the proximity ordinance, sex offenders cannot be fined if they can show that they were within 150 feet of the prohibited areas for one of the following reasons:

• To vote in a local, state, or national election or referendum;

• With the permission of the owner or occupant of the particular school, child care center, park, playground, or licensed entertainment facility;

• With the intent to travel to a location outside the restricted area;

• To travel to or remain on land lawfully owned or occupied by the offender on the effective date of the ordinance, or before the date the school, child care center, park, playground, or licensed entertainment facility was established;

• To obtain medical care, or alcohol or drug treatment;

• To travel to or remain at a transitional living program operated by an entity that is tax exempt under IRC § 501(c)(3) and under contract with the state department of corrections; or

• To travel to or remain at a care and service residential facility properly licensed, certified, or registered under Ch. 50, Wis. Stats.

For the residency ordinance, the follow defenses apply:

• The offender resided at the particular address at least 30 days continuously before the effective date of the ordinance;

• The offender resided at least 30 days at the particular address before and continuously since the date that the particular school, child care center, playground, park or entertainment facility opened for use;

• The residence is a facility which only temporarily houses individuals who have a medical, alcohol, or drug treatment need, and the offender is receiving such treatment;

• The residence is a facility operated by an entity designated a non-profit under IRC § 501(c)(3) which only temporarily houses individuals by contract with the department of corrections as a transitional living program;

• The sex offender residence board has granted an exemption for the offender.

A copy of the ordinance is available on the city website.

It is included in the council's Aug. 12 meeting packet which can be accessed through a link on the calendar page. An audio recording of the council meeting is also available by visiting the City Hall Facebook page.

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