City Attorney as Policy Maker Council Recap

Seems funny when the council and now the mayor end up arguing the law with the city attorney on the council floor. That shouldn’t happen, they should trust that he is giving good legal advice, but when the City Attorney acts like a policy maker and tells them he doesn’t need to answer their questions, what’s an elected official to do.  With bk comments.

There wasn’t much on the agenda. Really the development process report was tinkered with, but in the end, none of the big proposals to “streamline” the process were adopted. No presumptive approval, no changes to committees, no elimination of the 2/3 override needed for the council, etc. Instead, I think the critics got educated about the process and it started to make sense. There are some good things in the report and a lot of the bad rhetoric is now gone. As people noted, the tone of the discussion changed dramatically from an attack on citizens by the business community to respect for the staff and the current process.

GETTING STARTED
6:32 the meeting gets started when expected instead of waiting for the mayor as we did with the previous one.

Roll call, all here except Cnare

Mayor Paul Soglin announces that if there are no objections they will waive the reading of the minutes waived and they will be accepted. (Three point here, first, its not on the agenda despite my efforts over the years. Second, where are the minutes? Where would someone find them as they are not attached to the agenda? Third, think anyone read them? I seriously doubt it. I know where to find them, but most people would not and often they were not completed by the next council meeting. )

Shiva Bidar-Sielaff asks the council to have patience with here since this is the first time she is acting in role of President at meeting. (She did as good or better than Tim Bruer ever did after 2 years of being council president and the council staff didn’t have to do anything for her.)

Bidar-Sielaff thanks Dean Brasser, the Finance Director for years of service, this is his last meeting.

Brasser says thanks and he’ll come back for the honoring resolution. Only one regret in his retirement, his face is hurting, because he is not used to smiling so much.

She moves suspension of the rules to take items out of order and introduce items. Passes on a voice vote.

HONORING RESOLUTIONS
# 1 – Declaring July Parks and Recreation Month
Mark Clear reads the resolution.

Kevin Briski, Superintendent of Parks, introduces local 60 stewards and he calls them “partners” and says they are a team to get things done. Points out the parks 2011-2012 parks magazine. They made money on it this year with the help of the Mayor, suggests that the alders pass it out to their constituents at neighborhood meetings.

Mayor Paul Soglin says that they used to do parks mowing and field maintenance in Parks, now they do Ride the Drive and Geese and he won’t go beyond that.

Motion passes.

Capitol City Hues Day declared
Bidar-Sielaff reads the motion.

John Gramling speaks, introduces staff and says their goal 5 years ago was to have more positive images of people of color in Madison, thanks the council and invites them to their event on Sunday.

Tim Bruer asks for the entire council to be added as sponsors and motion passes.

Honoring Blackhawk/Gompers Garden
Anita Weier reads the resolution.

Rebecca Kemble says that this was started as a way to save the Limbergh School. The thanks the principal, CAC and Fiskars and their project Orange Thumb. This was a model private public private community partnership, everyone gave what they had without strings. Fiskars really respected wishes of community. 27 families are gardening and they 20 more that want to.

The principal of Blackhawk invites them to come watch their garden grow.

Janelle Schwartz with Fiskars says in addition to fresh food and learning opportunities, it also brings businesses and the community together.

Nicole Craig from CAC, they are used to working with a lot of partners, but never like this in one day. Fiskars has video on their site of the day and people should check it out. They have gardens throughout the city in all districts, they work with food pantry gardens, they have doubled their gardens in the last 8 years, they work with a lot of low income communities and have dwindling resources. Looking forward to growing more.

Honoring Chief Amesqua for nomination for Chief of the Year

Paul Skidmore reads the resolution.

Susan Philips from the Wisconsin Fire Inspectors Organization giving the award speaks about their mission and their annual award. Gives her a plaque.

Chief Amesqua says that the effort like they presented to the city of Madison doesn’t happen with one person but 371 personnel and partners. She says the year Peter Talon died 5 others died they looked at what was going on. She says they need right number of stations, numbers of people, training, prevention programs and public education. They tried to figure out why there were 5 deaths in 2007. They decided they needed to connect firefighters with the community, they had all firefighters involved in installing the smoke detectors. They have only had 1 death since 2007. A city of our size would have 2 or 3 per year. She accepts the award for the city.

Mayor asks all in uniform, or not in uniform, from the department to stand up and be recognized. About 15 people stand and get a standing ovation. (without bagpipes or shouting thank you!)

Bidar-Sielaff asks to add all members to the council as sponsors to the resolutions. No objection. Motion passes.

CONSENT AGENDA
No early public comment.

Items 5 – 10 are public hearing items, 88 is part of consent agenda with additional referral to CDBG, Housing and CDA (accessible housing resolution), 29 and 32 extra majority items and will be included with unanimous consent recorded, 16 (B-cycle) is placed on exclusion list cuz of a registrant and item 12 (Appointments), 75 (Development Review Process) and 105 (who alders represent once wards are adopted and go into effect Jan 1) are items alders want to discuss.

No other items, they adopt all the other items as noted on the agenda.

PUBLIC HEARINGS
Item 5 – no registrations, item placed on file without prejudice as recommendation of the Plan Commission.
Item 6 – no registrations, recessed public hearing and refer back to plan commission with no date set for a public hearing.
Item 7 – no registrations, hearing closed, moved adoption and it passes on a voice vote.
Item 8- 10 – No registrations, public hearings closed, motions are adoption of recommendations, passes on a voice vote.

ITEM 12 – APPOINTMENTS
Maniaci moves to separate Curt Brink and refer Housing Committee appointment back to Mayor’s office. Motion passes.

ITEM 16 – B-CYCLE
One registrant available to answer questions, no questions. Passes on a voice vote.

ITEM 75 – DEVELOPMENT REVIEW PROCESS REPORT
Motion
Motion to accept all the amendments unless there are separations. They separate item 1 for clarification (Clear), amendments 3 and 10 (Schmidt) and Rummel wants to speak on the substitute resolution.

Public Testimony
Al Zimmerman from the Economic Development Commission says he led the subcommittee. He thanks them, he says there was extensive discussions over the year, this process was good for Madison. It did a good job of creating transparency where there wasn’t and built good relationships. It keeps in place UDC and other things that make Madison unique. He tells them to dig deeply into it and hopes they understand that implementation is critical.

Peter Ostlind is representing Capitol Neighborhoods Development Review Committee. Says there was a change in tone and tenure of discussion. At first it was an attack on neighborhoods and there was an underlying premise that process was not working. Report recommendations will make process better. EDC strayed from former mayor’s mission, the shift in direction was laid out in the “case for improvement” section. That is not germane to the report. 3rd amendment sets expectations for the neighborhoods. #7 improves wording to recognize neighborhood differences but establishes a template, predictable but flexible. #13 keeps the UDC role in façade grants important. #18 has important language about economic feasibility balanced with a neighborhoods ability to dream. #19 has a feedback loop for neighborhoods that is the same as others involved in the process. He says we can all improve the process with our language. He says “proposal” and “projects” are different. Proposal is what developer wants approved. A project is something that is going to be built. The language is used interchangeably in the report.

Process
Mayor asks Rummel if she has issues with 1 3 or 10 and if they can take her motion on the substitute resolution after those amendments. She says that would be ok. The mayor asks for motion for amendment 1 to be added.

Discussion on Amendment 1
Mark Clear says unclear about what the change was that her amendment was trying to make.

Rummel says Ostlind put his finger on it, the case for improvement was out of context and she wants to move it to appendix A. It’s a separate document that is different than mayor instructions. She says that to highlight one of the issues over the others is not right, it should not be highlighted differently.

Mayor says that if no objection, accept that as the substitute that it be placed as appendix a, that is the motion.

Clear says that removes his request for separation.

The Mayor asks him not to do that.

They approve that amendment.

Amendment 3
Chris Schmidt moves adoption of amendment three with second paragraph change form “are” to “should be” for grammar purposes. Motion passes.

Amendment 10
Schmidt moves adoption of amendment ten, insert budget after the word printing. Also passes.

Amended main motion
Rummel asks to delete final be it finally resolved. If you read the last two phases, they take you in two directions. One asks staff to report to CCOC and the other asks staff to just start working on things. She thinks it clarifies the intent.

Clear asks to clarify that it is the substitute motion.

Schmidt asks for the motion to be re-read because he was out of his seat.

Rummel does and re-explains.

Motion passes.

Motion as amended
Clear says thank you to people involved in drafting of report EDC members and staff and citizens form Capitol Neighborhoods, Smart Growth Madison and DMI, and others. Says it was a Long and somewhat torturous path, the final report bears little resemblance from where we started, it is a product of all our hard work.

Motion passes.

ITEM 105 – REDISTRICTING
The mayor announces the item and says “no avoiding it”.

Solomon jokiningly says “move adjournment”.

Mayor says there is no comments and calls for a vote, but alders want to speak.

Substitute
Brian Solomon moves a substitute, he has a handout, says some have it electronically, doesn’t give it to the press. He waits for everyone to get a copy. He reads it but I couldn’t catch it all. Verveer finally seconds for discussion purposes after there is a pause for a second.

Solomon says he worked it out with Attorney May, but this language is contrary to his opinion, he says it it would use Jan 1 2012 as the effective date, which they all agree on but for purposes of election it is not in effect until April 2013, they all retain their existing districts they were elected to represent until April 2013. He says that the attorney’s opinion quotes the statutory language about the elections and he says the language says it governs local elections, but there is nothing about effective date. He agrees with the interpretation that any election after Jan 1 2012 would be with the new districts. Second, he agrees that wards are in effect. He says the only date in there applies to implementation. He says some make case for equality of representation, there is no such thing, we have a target goal, but it is not exact. Even if could get it exact a new building would be built or someone moves and it would all change the next day. We’re still applying this goal, it’s just in 2013 and not 2011. This does nothing with the 60 day requirements. Agrees with city attorney and statutory language, but that language does not have an effective date. 10 years ago WI lost a congressional seat, did we lose a house of representatives person in the middle of their term. No, it was in effect at the next election. In 1991 we did the same thing. In 2001 we did something different. He says they would not step down or stay in office and not represent anyone. No reason we shouldn’t do the same here. He also agrees with one person, one vote, if we went to 18 alders, would we have 2 alders that represent no one. Either we would have to leave early or represent no one. Doesn’t know if people asked their constituents, but his can’t fathom how this would work. Some of them worked to get us elected, some might have run, he does see some arguments on the other side, but they are outweighed by common sense arguments that we would continue to represent people we were elected by. He says most people are locked into this, this has no impact on Palm and his issue 2 years from now, doesn’t impact the maps, it is an issue for all of them. If we pass it we continue to represent districts we were elected to represent until 2013.

Questions of Attorney May
Schmidt asks May about if he disagrees with the language.

May says the language does what the city did in 2001 and when we got the opinion from the election board, they said once districts in effect they are in effect for everybody, he still thinks his opinion is the same. He helped draft it but has a different opinion. At this point, I”m not sure if that opinion is legal or policy. However, at no point does he come out and say that what Brian is proposing is illegal.

Schmidt asks about congressional districts, are they governed by state or federal law.

May says a bit of both, timing is set by state law. He says whole issue of if they lose their seat or not, do you represent new districts or the old districts that were disproportionate?

Clear asks May to address hypotheticals. If we were changing size of council, how would the ordinance affect that circumstance and if we were doing something like the county was doing where moving the numbers of districts all over, 3 is now in the City of Madison but is moving to Sun Prairie, you have strange circumstance but it is legal and proper where the people they represent is changed and they were elected by none of the residents.

May says we are not reducing size of council, don’t need to worry about it. Oh really. Why won’t he answer this question that a council member asked? He says even if they did reduce it, they would continue to serve, they would have to decide who they represent or serve nobody. With respect to moving districts around, you want to try to avoid that, but he did find several states where they allowed this, they called it “hold over incumbents” where they represented people and there were places where people had no one to represent them. Those situations create anomalies which will happen when do redistricting. He says as proposed the only anomaly is you represent somewhere you are not residing, if you do anything other than that, the first thing you do is have two sets of districts for different purposes and clerk will have to keep track. Who would get notices for ALRC? He thinks alders would want ones for the district they will run in. He says you want to keep the anomalies as few as possible and that was the intent.

Clear asks what other municipalities do.

May says only got one response and they said wards are effective after 60 days, the only other was League of Municipalities that is in report. So even tho the council requested he do that, he just blew them off? He sure didn’t try very hard, did he?

Satya Rhodes-Conway asks City Attorney, she wants to clarify that underlying language, not the substitute is before them, if they adopt it and it stays in force and next time council wants to reduce council to half, which alder Maniaci would like, are you saying then that under the original motion that those 10 alders continue to serve not representing a geography, or is that what happens under Solomon’s language.

May says under both they continue to serve, in the underlying one they don’t have an area to represent, under Solomon they still represent the old district.

Rhodes-Conway says the language doesn’t address what happens if a district goes away.

May says that he hadn’t concentrated on that. Ok, didn’t do his job again?

Rhodes-Conway asks about Solomon motion, would they continue to have two sets of wards, one for current districts and polling places and another set for county and higher jurisdictions so they could conduct their elections.

May says correct, also if there was a vacancy on the council, the new district would govern. Then there would be a further anomaly, 19 people represent old district and one person the new.

Rhodes-Conway says we have two people representing one area and some areas unrepresented.

Mayor weighs in
Mayor Soglin says that after the last debate he did some research on it, he was very extensively involved in 1970 in redistricting on council and worked with Fred Kessler in the legislature, along with being involved in the 1980 redistricting. He says there are 3 scenarios. First one, the census takes place, a year later data distributed to governmental body, they redistrict with same number of districts and the members of legislative body continue to serve the district they were elected to til next election and candidates in new election run in new distorts. Second is the same, except body is expanded and theird is the size is reduced. He doesn’t have the time and hasn’t done as extensive research on the matter as he would like. However, he is having a hard time finding a decision that says that is incorrect. Not in federal or state court. The courts have repeatedly ruled since 1960s that so long as the standards are met of following natural and boundaries made by people, as long as there are no gerrymandering, based on race, color, and as long as there is a reasonable effort to come within a margin of error, there is no reason to change the district boundaries before the next regularly scheduled election. That is universal, you can go to the federal courts and the state courts. The reason he is concerned about it, until the next election there is going to be a question about who is notified on liquor licenses and rezoning, this is not case law that he authorized, this is what the state and federal courts have ruled consistently. We had an unusual circumstance in 2001 where between receipt of data and next election we had a vacancy that had to be filled by election. Baltimore had the same problem, they first came to conclusion city attorney came to and then reversed it. He would ask that since there is no urgency in this, consider referring it to give more time for research to be done.

More questions of the city attorney
Maniaci asks May about last sentence, that there will be no vacancy in any office of alderperson.

May says that they could move forward in the case that the number of alders are reduced, nothing stopping us from having at-large seats.

May says doesn’t want to get into he issues. ????? isn’t that his job ?????? but in the alternative language, they just said people get to serve out term, you would have to figure out who gets the notices. May says they are not reducing size of council so don’t need to face those issues. ????? Yeah, the the council is asking you to.

Maniaci says that she has looked at many city councils and they have at-large seats or mix of at-large and district seats, anything to preclude us from doing that?

May says he’d have to look at it. You do draw wards and districts, you could elect people district wide, could create issues but school board does it.At least he didn’t do an off-the-cuff answer like he usually does, guessing at what he thinks the law should be.

Rhodes-Conway asks city clerk about implementation and having two sets of wards, one for city and one for county, can you tell us the implications for elections or not overlap so doesn’t matter.

Maribeth Witzel-Behl says that all data for voters has to reflect new wards, confusion would be voter public access information, that would be new districts they would need to do that to get info required by state in on time but for other purposes we would have to save what we have in place, printed out and look it up manually to figure out who represents the area. She is not sure about new addresses and how that would be handled.

Tim Bruer ask what changed form 20 years ago til more recent. Knows predecessor shared the same view – can you restate.

May says two things, in 80s state changed how does redistricting which applied first time in 90s, at that time they did that same thing, they had a double set of districts and no one noticed, there was no election, he doesn’t know how clerk did it. 2001 there was an election, Elections board gave us an opinion, state law didn’t contemplate two sets of districts and thought it would be incongruous to have two sets. That was advice of election board, council members were not happy with that. He says the purpose of the ordinance is to not re-figure it out.

Tim Bruer asks if Solomon actions would result in anyone filing a complaint with the elections board.

May says not elections board, but he outlined possible areas of litigation, he did not figure out the likelihood of success but not doing it would avoid it.

Larry Palm asks if person who voted for him in an election not long ago could sue the city cuz someone they elected no longer represents them.

May says anyone could sue the city.

Palm says neither option is lawsuit free.

May says nothing is lawsuit free.

Bruer says that his understanding from the opinion is that your language is the fewest risks.

May say yes

Solomon says that there is no perfect answer, we have come to grips with that, somebody asks how it is impacted if we go to 18 seats, we heard that is not happening so we won’t deal with it, but we’re passing an ordinance. Either they lose their seat or represent no one. The notices to the new districts is not that complicated, we will all know what our districts are and that is the person that should get the notice. Alder A might want to get a leg up on incumbency, they can do that and attend neighborhood meetings and they can get involved but that is not a reason to make a decision now. If we pass this it is clear. He says if a special election happened we would have to deal with it, we would have to implement the new districts at that point, because there is a new election. He cannot find anything clear except 60 days requirements and elections after Jan 1 2012 are in new districts. If special election they would need to use new districts. There is no perfect answer, there are different levels of risk and anomalies, his take is that his proposal reduces anomalies just as much as original motion, it reduces some and creates new ones with his language. It comes down to common sense, most people on a plain pure flat level think it makes sense to keep representing those who elected us instead of those who didn’t.

Subeck says at the last meeting she was worried about if they reduced the council size, she thought about it, May gave us a good option if we could take the last statement of new language with the original motion. She thinks that can be addressed without Solomon’s motion in place. She came to conclusion this is about elections not representation, the law is written about elections and while we have regularly scheduled elected, we could have a special election and other levels have elections. That hit the nail on the head, the drafters of the statute cared more about elections then who they represent. Makes perfect sense. Except, this should be about representation.

I missed something here, didn’t understand my notes or who said it.

Bidar-Sielaff calls on Palm, struggles with the equipment.

Clear uses former Mayor Dave’s old joke and says its a county facility.

Palm says that the county equipment on the third floor in their remodeled rooms seem to work just fine.

Palm asks at what point the election takes place if there is a vacant position, because his recollection is that they just appoint someone.

May says that state statute that deals with the timing, appointed people serve until the next election, or they call a special election, its somewhere in chapter 17, he has to pull it out. He says it is the same as when county exec resigned, it had to be a certain date otherwise they couldn’t have the election.

Palm asks if how far away from original election, he’s like to know cuz it might be moot since Jan 1, 2012 is 9 months after an election, please get back to me. We don’t want to sit here and watch you do it.

Schmidt says that this is like tax exemption where there are interesting things about state statute that leaves us spinning our wheels, he says that we have to follow elections board and city attorney I have to double check, but I think this is the direct opposite of what he argued on the tax exemption issue, the idea of the practice is a legislative/judicial pass that keeps peace in the kingdom. The lack of clarity in statute and court decisions, we can only look at state unless there is federal law, then we have the equality of constitution, he can’t support substitute, not sure about other one either.

It’s a real bummer that I missed what King said here, but he essentially threatened to sue the city himself if this motion passed.

May says the position is filled by council, we have an ordinance that says how, but then next sentences get confuisng, they hold office until successor is elected and qualified, unless otherwise instructed, they will do it – reads confusing election language– reads what council may do with special election – there are various times and ways that an election might be called and he tried to figure it out.

Palm says it is the option of the council.

May says some cases yes and others not. He continues to be very helpful, eh?

Subeck says that they need a law degree to understand that, but if she is understanding it if someone leave office if 1st Tuesday not an election then they could force a special election, not up to the council.

May says depends upon if after June 1, June 1 – Dec 1 or after Dec 1, most instance fill out the term and others may fill out the term, he needs to read it again, council will call a special election if time, so there is not an appointee serving 18 months.

Subeck asks if they pass Solomon language and have to appoint someone, if they serve in original district would that be in violation of state law.

May says would have to be new district.

Palm says the irony is that we would call a special election if longer than a few months is because we want the people to be connected to and represent their constituents, that is why we would call it. The seat if vacant, they should have a voice, therefore the alternative is to go through to a system whrere we change who people represent because that is the new system and new district, so we are already doing what they would not do with a special election. We could appoint people or call election, and we call special election so they represent those who vote for them, on flip side not have other elected official represent the people they didn’t elect.

Vote on Substitute
Only Solomon votes aye. I really don’t understand this council, Solomon’s amendment made sense, but I think they were voting against it for a combination of personal reasons, frustration over not having had the amendment and loyalty to former Mayor Dave. In short, shitty policy making.

Main Motion
Subeck adds language from Solomon’s language that the redistricting shall not cause a vacancy – that is not friendly. She makes the motion.

Maniaci seconds for purposes of discussion. Just like Verveers second, this is code for, no one is going to vote for it, but we’ll let you make your argument.

Subeck says the original motion achieves what we want but when have to address what happens if we shrink the council, she thinks that legally we wouldn’t push someone out of the council, but feels more responsible to address it than not.

SRC agrees with Subeck that they should address it and we should be clear and she would prefer to not have future council revisit this, but comes to opposite conclusion, they should not move to the new district but keep incumbents that don’t have districts, that doesn’t make sense to her, she feels like a hard liner, but we adopt new wards, wards build districts and we would represent districts and if people are without districts, they are not on council and if add districts, we hold a special election. She urges them not to support adding the sentence and prefers if add language, she prefers it clarified that way. She won’t make the amendment, but doesn’t think should go in the other direction.

Maniaci says May was smiling, could you respond to that, are we under obligation to retain alders.

May says he was smiling cuz he likes Alder Rhodes-Conway.

Bidar-Sielaff says beware if May is not when you speak.

May says he disagrees with her, may not be logically consistent, but it doesn’t matter if they address it since no vacancies at this time and we can go forward from there. Clearly that was not a legal answer, why is he participating in policy debates? And again, why is he refuIt sing to help make a policy that addresses all the issues?

Maniaci asks if he is fine with Subeck motion/

May says he is.

It fails on a voice vote, with only two audible ayes. Subeck and Maniaci.

Main Motion
No discussion

Solomon only voice no, passes on a voice vote.

INTRODUCTIONS FROM THE FLOOR
Palm has a resolution to apply for DNR brownfield loan for remediation of Royster Clark – referred to board of estimates

ADJOURN
8:21