Turns out . . . City Attorney Michael May has a little more explaining to do . . . there are more holes in his justification for having to pay Police Chief Michael Koval’s legal fees than I realized when I posted yesterday! Two major pieces of info to add . . . h/t to Greg Gelembiuk!
You’ll want to read yesterday’s post if you didn’t, otherwise this will be jumping into the middle of things.
MPPOA and AMPS Contracts DO NOT have the same language
Yesterday I blogged this exchange between Mike Verveer and Attorney May.
Verveer asks if the AMPS agreement also has the same language as MPPOA? May says yes, but he’d have to triple check. Williams agrees the same language is in there.
I didn’t ask, but I’m quite certain Mike was asking because the MPPOA (Madison Professional Police Officers Association) contract is for the non-supervisory police. The AMPS (Association of Madison Police Supervisors) organization is for the managers. For the record, the chief belongs to neither. I think Mike was wanting to know that we were comparing oranges to oranges, or at least tangerines or lemons . . .
When I blogged it, I wondered if someone should check it out. Gregory Gelembuik did and lo and behold, what did he find? I don’t know why I’m surprised but . . . the AMPS contract (pabe 24) only says this:
ARTICLE XXIII
LEGAL PROTECTION
In the event an employee is proceeded against or is the Defendant in an action or special proceeding in his official capacity, or arising out of his employment by the City, the City agrees to pay all reasonable attorney’s fees required by the provisions of Sections 62.ll5, 895.46 and/or 895.35 of the Wisconsin Statutes governing the obligations by the City to such employee, except in the event the action or special proceedings is brought by the City against the employee, and provided however, in any event, the City Attorney shall determine whether legal counsel shall be furnished to such employee by the City Attorney or his designee.
And that’s it for the whole section.
The MPPOA contract (page 48) the city attorney was insisting we had to look at says this:
ARTICLE XVII
LEGAL PROTECTION
A. Attorney Fees:
1. In the event an employee is proceeded against or is the defendant in an action or special proceeding in his/her official capacity, or arising out of his/her employment by the City, the City agrees to pay all reasonable attorney’s fees required by the provisions of Sec. 62.115, 895.46 and/or 895.35 of the Wisconsin Statutes governing the obligations by the City to such employee, except in the event the action or special proceeding is brought by the City against the employee, and provided, however, in any event, the City Attorney shall determine whether legal counsel shall be furnished to such employee by the City Attorney or his/her designee.
2. In the event an action or special proceeding is prosecuted by a third party before the Police and Fire Commission, the City agrees to pay reasonable attorneys’ fees provided the employee is found by the Police and Fire Commission to have acted within the scope of his/her employment and the employee is exonerated by the Police and Fire Commission of all charges or the charges are otherwise dismissed or withdrawn.
It also goes on to talk about compensatory damages.
Seems like oranges and tomatoes. I having a hard time believing the City Attorney didn’t realize the language was different.
Check out this Court of Appeals case from Milwaukee. Sound familiar?
Murray v City of Milwaukee
Summary:
Murray has served as legal counsel for the Milwaukee Police Association for more than twenty years, and in that capacity he represented police officers in numerous legal proceedings. He successfully defended Officers John Balcerzak and Joseph Gabrish when a citizen complaint was filed against them in 1991, and the conclusion of that proceeding was reinstatement of both officers. It is the practice and policy of the City of Milwaukee, when a citizen complaint is brought against an MPD officer, to reimburse attorney fees and costs incurred by the officer in connection with the defense of the complaint, and, in Murray’s experience, the City has always paid officers’ attorney fees in these proceedings. In representing the two officers, Murray relied on this practice and policy.
According to the amended complaint, in 1995 Murray filed a claim with the City for reimbursement of attorney fees and costs incurred in representing the two officers in the amount of $318,448. At a meeting of the City of Milwaukee’s Special Judiciary and Legislative Committee held approximately a month later, the city attorney proposed paying the claim, although in a lower amount. There was concern among some committee members about the public’s perception that the officers would be “profiting,” and they wanted to determine whether the check could be made payable to the officers’ attorney only. Although the committee tabled the matter for a future meeting, Murray relied on the discussion at the meeting as an indication that he would eventually receive payment. However, he has not been paid by the City.
The most relevant part is probably this because it talks about the statute the MPPOA contract refers to the statute cited 5 times in the resolution approving the fees:
. . . Murray appears to be arguing that because Wis. Stat. § 895.35 uses the word “may,” the City’s exercise of its authority under this statute is subject to judicial review based on a standard of reasonableness and equity. However, nothing in the statute suggests that this is the case. We conclude that “may” in the statute simply means that a municipality has the authority to pay the attorney fees described in this section, if it so elects. Bablitch & Bablitch, 82 Wis.2d at 584, 263 N.W.2d 218. In considering very similar language in Wis. Stat. § 62.09(7)(f) (1925) (now Wis. Stat. § 62.09(7)(e)),7 the supreme court observed:
To the point that the law does not guarantee that all public officers shall be treated alike, and that the common council may reimburse some and withhold such reimbursement from others, it is only necessary to say that the law does not confer a right to such reimbursement upon any public officer. The law simply confers upon common councils the same discretion which the legislature has always exercised. The law confers a discretionary power upon the council and does not grant a right to the officer. If such a power be misused, it calls for political and not legal remedies.
Curry v. City of Portage, 195 Wis. 35, 41, 217 N.W. 705 (1928).
This is messy, but Attorney May’s opinion is that the first resolution says they should provide the “same treatment for expenses incurred by the Police and Fire Chiefs in defending complaints before the Police and Fire Commission as the City provides to other Police Officers and Firefighters” Doesn’t say MPPOA or AMPS and since they are treated differently, that’s a problem.
It also cites the following
Sec. 62.09(7)(e), Wis. Stats., provides as follows:
Whenever a city official in that official’s official capacity is proceeded against or obliged to proceed before any court, board or commission, to defend or maintain his or her official position, or because of some act arising out of the performance of that official’s official duties, and that official has prevailed in such proceeding, or the council has ordered the proceeding discontinued, the council may provide for payment to such official such sum as it sees fit, to reimburse the official for the expenses reasonably incurred for costs and attorney fees.
And for the record, no matter what Attorney May says the previous resolution says . . .
This is what it actually says:
NOW, THEREFORE, BE IT RESOLVED, that the Common Council commits to providing the police chief and the fire chief the same protections provided to other police officers and firefighters facing complaints at the PFC, and to exercise its discretion under sec. 62.09(7)(e), Wis. Stats., to reimburse the chiefs for the reasonable costs and fees incurred, if the chief prevails in the proceedings; and
BE IT FURTHER RESOLVED, that upon conclusion of any such proceedings, an additional resolution will be presented to the Council with the chief’s request for reimbursement and proposing payment of such reasonable costs and fees, if the chief prevails in the proceedings.
It doesn’t refer to any MPPOA or AMPS contract, it refers to the same law that the latest resolution does . . . and I believe the fact that they require another resolution to be passed, with a “proposed payment” it means they intended to provide themselves some discretion.
This still feels like a law school examine nightmare.
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And for the record, I couldn’t find anything in Firefighers 311 contract on this. I may have missed something skimming the 49 pages, but nothing was obvious.
AMFS (Fire Supervisors) has this:
ARTICLE XXII
LEGAL PROTECTION
In the event an employee is proceeded against or is the defendant in an action or special proceeding in his/her official capacity, or arising out of his/her employment by the City, the City agrees to pay all reasonable attorney’s fees required by the provisions of Sections 62.ll5, 270.58 and/or 895.35 of the Wisconsin Statutes governing the obligations by the City to such employee, except in the event the action or special proceedings are brought by the City against the employee. In any event, the City Attorney shall determine whether legal counsel shall be furnished to such employee by the City Attorney or his/her designee.
