On Chief Koval legal fees . . . two things, first, the City Attorney’s argument doesn’t support what is actually written in the resolution the Board of Estimates was voting on AND there are attorney fees for a different case included in the bill they approved. The first one you will have to be a little patient with me on. The second one, well, wth?
DISCUSSION AT BOARD OF ESTIMATES
Public Testimony
Gregory Gelembuik testified and read his written testimony very fast, but this is what I got!
State Statute which supersedes the city ordinance any only allows reimbursement if the official prevails. Given the determination of guilt by the PFC, Koval did not prevail. Black’s Law dictionary defines the prevailing party as “the party in whose favor the judgement is rendered regardless of the amount of damages awarded.” And many court rulings use such a definition – for example Brown vs. Richards, the determination of culpability, not the award of damages that determines the prevailing party. U.S. Supreme Court case Farrar v. Hobby, (1992) in which they analyzed who was a “prevailing party” in a civil rights claim, ruling that a party who obtained a finding of wrongdoing, but was awarded no damages, was a prevailing party. There are many such examples of being found guilty or being found culpable is not prevailing. Prevailing equates with exoneration or no determination where charges were dismissed or withdrawn before determination was made. Where there is a determination of guilt it doesn’t fit the concept of having prevailed unless prevailed is to mean having been successfully disciplined. May noted that MPPOA contract provides for reimbursement of employee if exonerated of all charges or the charges are otherwise dismissed or withdrawn. I believe the general intent of otherwise dismissed or withdrawn are for complaints that don’t conclude with a determination or a decision on whether or not to sustain a charge. Many PFC charges conclude without a final verdict because a complainant is found to lack standing because of a defect in a complaint, etc. In Koval’s case we are talking about something entirely different. A case in which the officer was found guilty of misconduct and contains a clear reprimand, but further punishment specifically suspension or discharge was not proposed. The confusion in this case is a decision that sustains the charge of misconduct and then orders to dismiss the matter because the PFC did not have discourse to have a penalty because they didn’t want to suspend. The combination of both sustaining a charge and dismissing is irregular and should not be treated equivalently to dismissal prior to a verdict. Other aspects of how the PFC handled this case also appear irregular in that the determination should be in writing within 3 days, but the PFC did not issue a determination in that time frame. Furthermore, Koval is not a party to the MPPOA contract. Moreover, was the intent of the council when they passed the ordinance language to reimburse if the chief is found guilty but no formal penalty is imposed. Or was the intent instead just to reimburse the exonerated or if charges are withdrawn or dismissed prior to a verdict being reached. I believe the council’s intent was the later. Couper’s case has been cited as a precedent, he was exonerated in 1982 of 22 charged and found guilty of 4 minor charges but was not suspended demoted or discharged. In Koval’s case there were two incidents that are the basis of the complaint, his behavior in the stairwell and his behavior in the council chambers. He was found guilty of the former not the later. The City Attorney concluded that he could be reimbursed because he was exonerated on “substantially all charges”, that’s not true with Koval. Moreover, the 4 charges in which he was found guilty they city attorney said he can’t disregard these findings and recommended that Couper not be reimbursed for legal representation on those charges. Time is up, Greg says he’ll quickly finish up. Verveer notes that they all received emails from him as well. Greg says there is no legitimate case for reimbursement here, it would be perverse, it defies common sense to say that being found guilty but not receiving punishment is a proper definition of prevailing. You undermine the legitimacy of the system if you define it that way. It would be confirming Bernie Sanders contention that the game is rigged. We all know the gam e is rigged, but it doesn’t have to be fully rigged in Madison. Here a plantiff on fixed income who couldn’t afford an attorney was represented by a volunteer who isn’t a practicing attorney and went up against one of the best attorneys in the city and won a finding of guilt. In that context, reimbursing the chief’s attorney charges would be unjust.
I also spoke noting that it feels like we’re in the middle of a really bad law school exam because if you look at alot of what is written here, it leaves alot up to interpretation and I don’t envy them being in the position of trying to decipher what it all means. You have to remember this is up you, the state statute says you may reimburse the funds, it doesn’t say you have to. You passed a resolution but in that resolution it says another resolution has to come before you, presumably because you have to make a decision about something. It seems as though you left some discretion on the table to determine if these funds should be paid. I know alot of this will revolve around if he “prevailed” or not, and I think you were done a great disservice by the PFC attorney because the way this was written you can read it in two different ways. I think if you look at the lanugage in your resolution and the Attorney May opinion, he wasn’t exactly “exonerated”. So I believe that leaves you some wiggle room as to if you are going to pay these fees or not. I also believe that the Supreme Court language pointed out in Attorney May’s opinion is good language to look at where someone might prevail technically, but in those cases, attorney fees should not be paid. That is a general legal concept that is followed quite often. The last question I have is were these fees reasonable? We don’t know, we haven’t seen the bill. How will you know if it was reasonable? Should it have been $22,000 or $15,000 or $12,000? How will you know if it was reasonable if you don’t have that information in front of you? The bigger problem here is what kind of a message will this send to the community. It’s hard enough to file any kind of complaint with the police department. It goes into into some internal review process and it comes out and you’re not allowed to know alot of information about even sometimes you aren’t allowed to know who the officers are, like with the whiteboard incident and the only way to bring things out into daylight is spend money to to in front of the PFC and pay legal fees to get some sort of justice. And if you reimburse his legal fees in this instance, that sends a very strong message to the community that the chief can do whatever he wants, the rules don’t apply to him and there will be no consequences. I think that the real danger here. He paid alot of money to that attorney, but it was his choice to do that and if he had acted differently along the way, some other type of resolution could have been had before people had to get an attorney to go before the commission. I think you have the discretion, I hope you use it wisely and that you send a strong message that complaints against the police department and the chief in the future will be taken seriously and that its worth the time and effort to bring the complaints forward and try to receive some justice.
Mike Verveer is chairing the meeting and says that to my point about not having the billing, they have one or two copies and he asks if they want copies. They say yes, and that they should make copies for the public, they also email them and say that it will be included in legistar.
It should be noted that as they were wrapping up, Shadayra Kilfoy-Flores and Sharon Irwin showed up, but they had already made their decision.
Questions of the city attorney
Verveer asks May if he wants to make some comments before questions and attorney May says that he sees this much differently than what has been presented to you in terms of discretion because he reads the resolution they passed last year as clearly adopting a policy that you want to have the chief’s treated just as other members of the department are treated. He says that it uses the words prevail there is no question that if this was another officer, under the language in the MPPOA contract, which is specifically referenced in the resolution you passed last year, that you would be paying the fees for that officer. The charges were, as the language in the contract says, “otherwise dismissed”. That is what happened here, the PFC otherwise dismissed them. They decided not to use that discretion. He didn’t look back at the Couper case, but if Mr. Gelembuik is correct, it sounds like he received a letter of reprimand in that case which is quite different, than what happened here. The question to him is if they are going to live up to their resolution which says that rather than trying to fight about this every time, they are going to treat them like any other officer and if that is what they are going to do, then he reads it as they have to follow the language in that contract that you referenced in that resolution then if the charges are dismissed in any way then they should be covered. So that is why he thinks the discussion of prevailing party gets us off track that we don’t need to go down. A couple other issues. He did look at the bill and as someone who was formerly in private practice he thought it was reasonable. Tho the rates are higher than they were when I quit practicing 15 years ago. Tho that is not surprising and you are talking about one of the best lawyers in the city in terms of the defense of the chief. (I think my brain started bleeding when he said that . . . he couldn’t have seriously looked at that bill . . . within 3 seconds of looking at the bill I could see a really big problem in that it had charges for a case that is not before them – not mentioned or referenced by anyone and its not clear if it has concluded or if the chief prevailed. Of course, the PFC process is about as clear as mud, so maybe there are things that have happened that we don’t know about, but you’d think that we would be discussing if the chief prevailed in that case as well.)The mayor wanted me to note one thing in that historically reimbursement is based on the merits. It’s not about if you like the PFC decision or if you agree with it, or if you like with the officer did or agree with that. You need to try to be very objective about it.
Mike Verveer points out that Mary Anglim also registered against the payment.
Barbara McKinney says that she pulled this off because nothing was in legistar and that should have been included since it is not private. She wants to know why it wasn’t included. May says it was turned in to the finance department but no one asked for it to be and he can’t answer why its not in there. Mike Verveer suggests that the have Assistant Chief Sue Williams or Terry Genin to come forward because they drafted the resolution and put it in legistar. Williams joins them at the table. McKinney says that she is looking at transparency and they received a lot of emails on this and her question is pretty basic. She says they are asked to answer a question about reimbursement without seeing what they are reimbursing and she wanted to see the bill to see if it was reasonable. The expectation that it should have been included, can you speak to that. Sue Williams says that she had not been faced with this situation before and she asked what she should do with the invoice and she was told to provide it to Dave Schmiedicke. McKinney asks if there is any reason it cannot be in legistar? Dave Schmiedicke says that it will be in legistar tomorrow and they pass out the copies.
Marsha Rummel asks about the merits of the case. She says typically there would be several findings, two were dismissed and one they found misconduct but that their remedies were “extraordinary” compared to the incident. She is stuck there. May says that you have to look at who is the prevailing party, if you were just acting under the statute, you could say that the fees are too high or that its this amount or that amount, but when I look at the resolution adopted last year, which says in its title and several times within it, it says the intent is to treat the chiefs just like any other officers when they go in front of the Police and Fire Commission. Then its not just a question of what you mean by prevailing or another way to look at it and the was he looks at is that they have defined in that contract what we mean when an officer has prevailed. If they are exonerated, if the charges are otherwise dismissed or if they are withdrawn. If they meet one of those standards, then we consider them to have prevailed. I think the chief met that middle standard. Part of the problem with the alternative view is that you only prevail if you are exonerated. And if there are other reasons if the charges get dismissed or otherwise, we are not going to say you prevailed. If they never got to the charges, how are they going to say you prevailed? I don’t think that’s right, I think its those three standards that you have to apply if you are going to live up to the intent of the resolution. He recognizes that there is that dilemma if you are still under the statute, they found misconduct, but they dismissed the charges then what do you do with that? He mentioned at least one case where they could look at the prevailing party and whether a technical victory is a victory or not. There probably are others, but he thought when he looked at the resolution and the language in the MPPOA contract that if the charges are otherwise dismissed they didn’t need to go down that road and that is his analysis. The question you have that would be very, very relevant if we were just operating under the statute the question of prevailing and the council may reimburse, then you have alot of discretion in terms of what you do. But because of the resolution last year and because of what you promised to the other police officers in the contracts. EXCEPT THAT IS NOT WHAT THE RESOLUTION SAYS, IT ONLY REFERS TO THE STATUTORY LANGUAGE!! (See below)
Rummel asks about page 3 where he talks about if the person acted within the scope of his employment AND is exonerated. It sounds like in this case he didn’t act within the scope of his employment. He says there is some if/and construction. It doesn’t see like he acted within the scope of his employment on this one charge. Attorney May says he did, its a very broad term as it is applied. He has some question about why that language is even there, it may refer to another statute. He looked at all kinds of decisions and they never refer to it and he asked Scott Herrick about it and he said its like a foreign concept to him and they are essentially asking whether or not the charges fall under the Code of Conduct. He says all kinds of things fall under the scope of employment and it is interpreted by the courts very broadly.
Mark Clear asks about the ambiguous nature of the decision and he is wondering if this is typically the way they operate. When they talk about the three different charges (essentially, they don’t use that word), they find misconduct, but they don’t say guilty or exonerated, but then they dismiss. It seems as if they left it ambiguous and it wants to know if this is typical, intentional or careless. That they left us with that conundrum. May says he would have preferred them to go through the Code of Conduct and the counts and which they found validity to and which they did not, then we would know how substantial the violation was. He didn’t try to parse that out, that is what he would have preferred. Clear says that would be much more clear. May says “I’m not sure exactly what they are saying, all I know is that the last line is that the charges are dismissed.” And the standard he sees applied to other officers, and with the resolution last year, the chief. They could have said they dismiss 17 of the charges and 2 are sustained and we would be in a different world. Clear says that they say that the misconduct doesn’t warrant any of the remedies available to us, its almost as if thye are saying that if there were other options available to us, we might have imposed them, a letter of reprimand, for example. Which wasn’t available to them, but they didn’t say that, I’m reading into it. May says they also didn’t say that they should suspend him for one day, so were left to try to read through it and he saw the standard now applicable to the chiefs that wasn’t available a year ago.
McKinney asks if they need to firm up the language to remove the ambiguity in the resolution. May says they could revisit that and try to make it more clear or state something different than what he is saying now, he is just interpreting what was passed last fall.
Maurice Cheeks appreciates the explanation of the state statute and what they passed. He is frustrated that the PFC put them in this situation and he asks how they avoid scenarios like this in the future. May says it would be no problem if they wanted to direct him to have a discussion with the council for PFC and make suggestions about what would help them, they could also make some changes in the resolution. They can’t force them to do anything, but they might accommodate us. He would have liked to seen a point by point discussion of the charges. Maurice Cheeks says he would appreciate that, and that he presumes that the PFC will see the discussion unfolding here and in the public and see what a mess they allowed for and surely they didn’t do that intentionally.
Marsha Rummel asks if they can refer it back to the PFC. Attorney May chuckles, and says we’re not a party to the case, the chief could, but he got all the charges dismissed so he wouldn’t do that. He says they should talk to the PFC attorney and make the request. He’d want to think about it more, normally in a court decision they say what is dismissed, these are beyond the statute, these go to trial. He says they don’t have standing to ask them to reconsider. Rummel asks of the three standards, exonerated, dismissed or upheld, do they have any other standards. Are they limited by state statute to those remedies? May says no, they created the ordinance. Rummel clarifies that the city gave those powers. May says not, this was negotiated with the unions about reimbursement. It’s in the collective bargaining agreement. Rummel points out that the Chief isn’t a part of those unions. May says that is why he reads the resolution they way he did. May says they either have to change the reference to the chiefs or renegotiate with the unions. Rummel says that if she ruled the world she would say “Chief, please go get some anger management training. There is no way we can make that recommendation as a part of this authorization?” BEST LINE OF THE NIGHT. Again, Attorney May is almost giggling, but he says you can’t do that with this resolution but you might suggest that to the chief formally or informally or have the mayor suggest it. He’d have to think about if there is any other way to suggest that to him.
Clear asks if former Chief Richard Williams well publicized incident with the gun, did he write himself a citation for that, was it taken to the PFC? May says that he thought he had something but he’s not finding it right now. Williams recalls that he might have served a self imposed suspension. Verveer agrees that it was a self-imposed sanction and the PFC wasn’t involved.
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.
Discussion
Rummel says this is troubling, she understands the argument that was made by attorney May, but here we have an example of behavior that should not just be totally dismissed and cleared and she doesn’t know how, given the parameters we are stuck in, to address it. She initially thought maybe he pays 1/3 of the bill, but she doesn’t know if they can do that or if it is reasonable given the way the ordinance is. There was something inappropriate in his actions and it doesn’t feel right to her to reimburse all the money. That is her personal point of view.
No other discussion.
Rummel votes no. McKinney, Wood and Cheeks vote aye. Verveer doesn’t vote.
LOOKING AT THE DETAILS
Forchrissakes . . . this is what the resolution says:
NOW THEREFORE BE IT RESOLVED, that pursuant to sec. 62.09(7)(e), Wis. Stats., the Common Council authorizes the Mayor and Finance Director to reimburse Chief Michael C. Koval in the amount of $21,953, for his costs and attorney fees in this matter.
BE IT NOW FURTHER RESOLVED, that $21,953 is appropriated from the Contingent Reserve to Direct Appropriations-Legal Services.
The title of the resolution says:
Authorizing the City to reimburse legal fees to Chief Michael C. Koval, as allowed under Sec 62.09(7)(e), Wis. Stats., and, amending the 2017 Adopted Operating Budget to appropriate $21,953 from the Contingent Reserve to Direct Appropriations.
It even quotes the damn statute. It says they have “discretion”. It doesn’t say anything about the other resolution, the MPPOA contract. It cites and quotes the statute as their authority 5 different times! It also says these fees are for “a complaint”, not two complaints, or three. Note, the resolution never mentions which “matter” they are referring to, but it doesn’t talk about the three complaints (two of which were merged, one of which isn’t mentioned by anyone anywhere.)
This is frustrating. It’s not above board by any means, it looks like the city attorney is trying to justify things after the fact. Read the resolution . . .
Fiscal Note – The proposed resolution provides authorization to reimburse Chief Michael C. Koval for legal fees associated with a complaint before the Police and Fire commission. The cost of Chief Koval’s legal fees was $21,953. The funds will be appropriated from the 2017 Contingent Reserve. If adopted, the remaining balance in the 2017 Contingent Reserve will be $1,387,428.
Title – Authorizing the City to reimburse legal fees to Chief Michael C. Koval, as allowed under Sec 62.09(7)(e), Wis. Stats., and, amending the 2017 Adopted Operating Budget to appropriate $21,953 from the Contingent Reserve to Direct Appropriations.
Body
WHEREAS, Madison Police Chief Koval was named in his official capacity, in a complaint filed with the Police and Fire Commission; and,
WHEREAS, the City Attorney cannot represent Chief Koval before the Police and Fire Commission; and,
WHEREAS, 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.
WHEREAS, pursuant to sec. 62.09(7)(e), Wis. Stats., Chief Koval chose to retain his own attorney, and the Common Council was given the discretion to reimburse the reasonable costs of the defense of Chief Koval, if Chief Koval prevailed in the proceedings; and,
WHEREAS, Chief Koval engaged Pines Bach LLP to represent him in this matter; and,
WHEREAS, on March 14, 2017 the Police and Fire Commission dismissed the complaint with no discipline imposed; and,
WHEREAS, because Chief Koval prevailed in the proceedings before the Police and Fire Commission, he is now seeking reimbursement of his costs and fees for the legal representation; and,
WHEREAS, Chief Koval has paid $21,953 to Pines Bach LLP for costs and attorney fees related to this matter.
NOW THEREFORE BE IT RESOLVED, that pursuant to sec. 62.09(7)(e), Wis. Stats., the Common Council authorizes the Mayor and Finance Director to reimburse Chief Michael C. Koval in the amount of $21,953, for his costs and attorney fees in this matter.
BE IT NOW FURTHER RESOLVED, that $21,953 is appropriated from the Contingent Reserve to Direct Appropriations-Legal Service
Seriously, that is what the resolution says . . . not of what Michael May talked about was discussed and never was a second complaint mentioned in the billing alluded to. I don’t know if this is sloppy or intentional or what, but its embarrassing to see this level of incompetence or shenanigans.
UM, WHAT ARE THESE ATTORNEY FEES FOR?
So, the attorney’s fees were not attached to the legistar file. Alder Barbara McKinney had emailed a few hours earlier asking for them, but didn’t get them. Then, Mike Verveer shows up and only has two copies. They had staff go make copies and emailed it to the alders with their laptops. They said they would attach it to the legistar file. I think I’m beginning to see why . . .
There are the fees that I could clearly attribute to the Roxanne Stillman case (Roxane V. Stillman against Chief Koval and Det. Tom Helgren). I can’t find any evidence that it was settled and it was still on the March 13th agenda of the PFC. (But then again, finding information about the PFC on-line is near impossible.) The Stillman case wasn’t mentioned in the city attorney brief. And while the brief attached the Irwin/Flores-Kilfoy decision, it didn’t include the Stillman decision, if there is one. And the resolution they passed doesn’t say which cases the resolution is covering. And I have no idea if Chief Koval prevailed in the Stillman case or if the case is settled. Again, it wasn’t mentioned anywhere . . .
The charges that should be clearly attributed to the Stillman case are:
09/09/16 Review Stillman complaint; Review motion to dismiss shared by Atty Schauer; Telephone conference with Atty Schauer; Review PFC rules and potential discipline issues to determine if Stillman complaint is actionable – $1000.00
09/14/16 Email to Atty Schauer re: motion to dismiss – 40.00
09/25/16 Draft and revise motion to dismiss – 200.00
09/28/16 Telephone conference with Roxanne Stillman; Telephone conference with client; Draft stipulation for dismissal – 280.00
10/4/16 Telephone conference with Roxanne Stillman; Telephone conference with Atty Schquer; Telephone call to Stan Davis; Telephone conference with client – 280.00
10/04/16 Telephone conference with client re: Stillman and potential mediation – 80.00
10/05/16 Telephone conference with Stan Davis re: mediation process – 120.00
TOTAL = $2,000
One’s that aren’t clear (i.e. one charge for 9/12 activities that included all three cases), or are likely attributable to all three cases are:
09/06/16 Draft notices of appearance; Email to client; Review complaints – 480.00
09/12/16 Scheduling conference before Police & Fire Commission – 280.00
09/12/16 PFC Scheduling Hearing; Interviews with media – 680.00
10/14/16 Telephone conference with LAP; draft motion and letter to Herrick; deliver letter to Herrick – $100.00
TOTAL = $1540 + the second two pages of billings where it doesn’t say which case the activities are for and its hard to tell
NOTE: I found out this morning that the Stillman case was resolved . . . and “paraded” apparently! 🙂 If you don’t have the secret key to find it, I’ve posted it here.
