Group Calls on Mayor to not renew City Attorney Contract

Dear Mayor Rhodes-Conway,

We are writing to request that you consider terminating Michael May’s contract as Attorney for the City of Madison as a result of his oversight of and direct participation in a pattern of misinformation and inadequate legal service. We find the actions of certain individuals in the City Attorney’s Office to be unethical, extremely biased and in a certain case, damaging to the reputation of one of our members. We looked through the APMs to see if there are any obvious policy violations and have listed them. There may be more.

Over the past few years, Attorney May and his Assistant City Attorney Marci Paulsen and Deputy City Attorney Patricia Lauten have, prior to various Common Council and Ad Hoc Committee votes, misled these bodies by offering grossly incorrect guesses and opinions that favor MPD Chief Koval’s position over the truth. It is their job to present accurate information based on credible and defensible analysis. Whether this behavior is willful or out of ignorance, the fact that the City Attorney’s office has made a pattern of it damages the credibility of the office, the reputations of the individuals with whom they disagree, and the city as a whole.

The following examples are a sampling of what we are referring to but are by no means an exhaustive list:

1. ​On May 13, 2015​ a CRT member had engaged in a civil disobedience action protesting the killing of Tony Robinson. Those engaged in the protest blocked Doty Street in front of the Dane County Jail, and were arrested, member included. It was all very calm and deliberate. 28 people were arrested in this civil disobedience action. The CRT member complied fully (and politely) with officers when they came to arrest him.

Of the people arrested that day, the CRT member had been by far the strongest advocate for MPD reform. He was perceived by MPD administration as a thorn in their side. After being arrested, everyone else protesting beside him received a $124 citation for obstructing a roadway but he received a $439 citation for “obstructing or resisting police”, and was the last to be released from detainment. He was charged differently and more harshly than all other (26) similarly situated arrestees. This occurred even though he was entirely polite and more cooperative than many others who were arrested.

He knew MPD had filmed all the events, and that the film would show that in no way had he “obstructed or resisted police”. He filed an open records request for the video, which he knew would fully exonerate him of “obstructing or resisting police”.

In response, the MPD information officer then informed him that he’d spoken with the Madison City Attorney’s Office and, under instruction from the Madison City Attorney’s Office, he would not release to him the video of his own arrest. The stated reason was

that juvenile records are confidential, and of the 28 people arrested that day, 5 were juveniles.

The CRT member knew that video of his arrest would not include any juveniles – there were no juveniles anywhere close to his vicinity when he was arrested. People who had been arrested at the civil disobedience action had stood in rows, spaced far apart along the road, and were arrested sequentially, over a protracted span of time, and those who were juveniles were in a separate area far from him. When he again requested the video of his arrest, MPD replied that “it is not possible to identify and redact only those juveniles who were arrested from the video. Therefore, all portions of the video of the Doty Street demonstration depicting arrest of demonstrators is being withheld”. The claim that such redaction is not possible is demonstrably false. MPD had processed juvenile and adult arrestees separately and had the identity and age of each arrestee, and it was trivial to confirm that there were no juveniles anywhere in his vicinity as no juveniles captured in the video of his arrest.

Under Wisconsin open records statutes, if part of the record is disclosable, that part must be disclosed (Wis. Stat. § 19.36(6)). Moreover, an authority is not relieved of the duty to redact non-disclosable portions just because the authority believes that redacting confidential information is burdensome. Osborn, 2002 WI 83, ¶ 46, 254 Wis. 2d 266, ¶ 46, 647 N.W.2d 158, ¶ 46. . This is material to which he was entitled under Wisconsin statutes governing discovery. Yet the City Attorney’s Office backed MPD in its refusal to release video of his arrest. Additionally, when he made a records request of the City Attorney’s Office for documents he knew to be in their possession, which would also aid his defense, the City Attorney’s Office responded that they did not have the documents, which he knew to be false, since they’d released to other individuals copies of the exact same documents he was requesting.

In the end, this CRT member was able to obtain videos of his arrest from other private individuals, showing that in no way did he obstruct or resist police and confirming that his arrest was far removed both in space and time from that of any juveniles – there were no juveniles anywhere in the video of his arrest – only other adults who, after their arrest, were held and processed at the adult detainment facility. Long story short – the City Attorney’s Office was forced to drop the citation.

The behavior of the City Attorney’s Office in blindly backing MPD – particularly in backing MPD’s refusal to release unambiguously exculpatory video to which he was legally entitled – illustrates a real problem. The intensity of his police reform advocacy had apparently been “rewarded” with an expensive citation for something he clearly hadn’t done, then he was denied access to the video that MPD had showing that he didn’t do what they cited him for. And, effectively, the City Attorney’s Office made themselves complicit in that.

2. On ​May 21, 2015​, Attorney May demonstrated his deeply flawed understanding of case law, Graham v Connor (the SCOTUS case that sets a criminal standard for use of force by police), by ​telling local media​ that Madison couldn’t adopt more restrictive policies on use of deadly force, because that would violate Graham v Connor. He did this to back up Chief Koval, who adamantly stated that he would never allow changes to MPD deadly force policy.

Foremost national expert on regulation of policing, Attorney Seth Stoughton, ​says of May​: “Deep misunderstanding of the law; following Graham means not being more permissive. Obj reasonableness is a floor, not a ceiling.” As Stoughton correctly noted “​Of course policies can be more restrictive than constitutional rules; that’s very clear.” Attorney​ ​May was simply very wrong.

Even after the error was pointed out to Attorney May, he continued to make similar claims, including in 2017 to the President’s Work Group and, on ​January 31, 2018​, in the City Attorney’s ​response​ to the OIR report. In his response to the OIR report, Attorney May also asserted “The City attorney is aware of no police department in the United States who subjects its officers to a more stringent standard for using deadly force”, when, in reality, numerous police departments throughout the nation have policies that subject officers to more stringent standards (as Attorney Seth Stoughton pointed out​ in response).

In his response to the OIR report and in statements to the President’s Work Group, Attorney May claimed that more restrictive policy on use of deadly force would increase liability. That’s at odds with the assessment of most legal experts, including an article​ from the FBI.

3. ​On August 8th, 2016​, vendor Hillard Heintze responded to the RFP to conduct the MPD review. Hillard Heintze, who were favored by MPD-associated staff, presented serious problems as outlined by ACLU staff. The issues were very serious such as the person who would lead the review for Hillard Heintze had been directly implicated in a major Chicago Police Department cover up. Upon being made aware of these issues, Alder Shiva Bidar asked us to share the information with the Ad Hoc Committee. The CRT ​e-mailed this information​ to the Ad Hoc Committee and Attorney May attacked the member of the CRT who sent the emails.

The information we provided went beyond allegations. The person who would have led the review of MPD for Hillard Heintze was named Debra Kirby. In the email we sent to the committee, we included a mountain of evidence in both articles and court findings. The same is true for Terry Hillard who was complicit in serious, well-established police misconduct. Attorney May asserted that it was wrong of us to provide that information, and that committee members should keep that information out of their decision-making.

The statements from Attorney May frightened members of the Ad Hoc Committee, who were basically being warned against communication with us, and badly damaged our relationship with certain committee members. Attorney May took such action even though there were no legal issues raised by our communication with the committee (as Attorney May acknowledged, ​”From a purely legal perspective, the City is protected from claims by parties who are not awarded the contract.”).

The implication of this response is ​disturbing​. Attorney May was pushing for a closed process that did not consider key facts. Attorney May could have simply offered to give the vendor an opportunity to respond but instead argued against community input and implied that listening to input from the ACLU via community members could be, essentially, morally wrong. Attorney May appeared to advocate for ignoring critical information that in this case was disqualifying for a vendor.

4. ​On April 27, 2017​, Attorney Paulsen issued a ​legal memo​ claiming that the Council could not issue the Police Chief lawful orders containing any specific policy directives on use of force policy. The CRT refuted the misinformation in Attorney Paulsen’s memo with a ​Wisconsin Law Review article​, a ​letter​ from Attorney Matt Flynn, a ​letter from Legislative Council, a contradictory 2005 ​memo​ from Carolyn Hogg of the Madison CA’s Office, prior examples from ​Madison Common Council history​, various examples from other ​WI municipalities​, and other information as well. Attorney Paulsen’s memo was pure politics disguised as legal analysis.

Attorney May officially backed down by sending an e-mail to alders and asked that his e-mail not be forwarded. It seemed that he was embarrassed by the whole episode and proceeded to retaliate by ​personally attacking​ a CRT member at a subsequent PSRC meeting​. At that PSRC meeting, out of defensiveness/embarrassment, Attorney May incorrectly asserted that Attorney Paulsen’s memo was “entirely consistent” with Flynn’s conclusions in Flynn’s 1974 Wisconsin Law Review article. The ​letter​ Flynn sent us refuted that claim.

5. ​On May 2, 2017​, the Council ​deliberated over​ the reimbursement to Chief Koval for the legal fees he accrued while defending himself against a ​PFC complaint​. The complaint was made in response to him maligning Sharon Irwin with discriminatory slurs. Chief Koval had hired a notable high-powered Madison attorney, Lester Pines, to represent him.

During Attorney May’s performance to get reimbursement for Chief Koval, Attorney May advised the Council on a resolution that gave them the option to reimburse Chief Koval should he “prevail” before the PFC. This resolution came after Koval had already chosen and hired his expensive attorney. ​Attorney ​May advised that, as per contractual agreement, all firefighters and officers are reimbursed in such situations, which isn’t true. Some of the contracts ​Attorney ​May cited to support his assertion, such as Firefighters 311​, include no such language, but by the time we had exposed ​Attorney May’s ​misinformation​, it was too late, the Council had already ​passed a resolution predicated on bad information. In the end, Koval was found by the PFC to have engaged in misconduct at which they expressed their disappointment. ​Attorney ​May then redefined this loss as Koval “prevailing”, since no sanction had been imposed, and ​Attorney ​May advised the Common Council that they had no choice but to reimburse Koval his attorney’s fees.

Attorney May should have advised the council of their options, which according to relevant ​state statutes​ and ​case law​, council members in Wisconsin may reimburse at their discretion, even if city policy suggests otherwise.

All told, Attorney May ​failed to research the issue thoroughly​, failed to properly research the four Madison police and fire contracts including the Firefighters 311 contract, the ​AMFS​ contract, the ​MPPOA​ contract, and the ​AMPS​ contract, and he drew misleading conclusions from what he did review. He misinformed the Board of Estimates that the MPPOA contract provision on which he based his entire argument was present across all contracts. That was 100% false. He provided misinformation to the Board of Estimates and Council resulting in a resolution predicated on bad information. He effectively served as Chief Koval’s advocate rather than as a neutral source of credible analysis for elected City officials.

After the CRT ​pointed out​ ​the problems​ in his ​first memo​, Attorney May sent out a second memo​, acknowledging that the AMPS contract had different language from the MPPOA contract. But he still failed to review the Firefighters 311 and AMFS contracts. Attorney May ​did not even come close to thoroughly researching the question​ before arguing Koval’s preferred position and he neglected all the court decisions that contradicted his claims. His performance was, at best, unprofessional and at worst, unethical.

6. On ​June 28, 2018​ at the MPD Ad Hoc Committee on Police and Community Relations ​meeting​, Attorney Paulsen attempted to shut down public input with the Ad Hoc Committee. It started with Deputy Mayor Gloria Reyes interrupting the meeting by saying ​”I just want to, actually I just want to interrupt here. Point of order. Uh. I don’t know, I want to seek counsel from the attorney.”​ to which Attorney Paulsen responded:

Attorney Paulsen offered a legal opinion essentially stating that committee members could not ask members of the public questions during committee discussion. She then told the committee that committee discussion time was for “discussion among staff”, and that committee members could only ask staff questions but not members of the public. She also pronounced as improper that a member of the public would occasionally whisper information to a committee member during deliberations. She was clearly unhappy about the influence that public input was having, and was seeking to prevent communication with the public and to restrict the source of information flow to city staff consisting of MPD Assistant Chief Vic Wahl, Deputy Mayor Gloria Reyes, and herself – all of whom were arguing positions tightly aligned with MPD administration. Moreover, Paulsen and Reyes had been participating in the committee discussion as though they were committee members, entitled to speak whenever they wished.

The CRT posted Attorney Paulsen’s claims to multiple Parliamentarians asking if they were valid and ​all confirmed​ our suspicions that her claims were in fact, not valid and, that under Robert’s Rules of Order, staff who aren’t committee members aren’t supposed to speak unless asked a question (committee discussion time is not for “discussion among staff”). Moreover, Attorney Paulsen could have informed the Ad Hoc Committee that they had options such as suspending the rules to allow public participation as other Madison committees have done, but since her goal was to shut down any unwanted input and influence the public might have, she didn’t.

7. On​ May 8, 2019,​ at an Ad Hoc Committee meeting, Attorney Paulsen claimed that periodic mandatory psychological testing of police officers would be illegal. According to the Americans with Disabilities Act, such medical testing ​is allowed​ when the employees work in public safety and the testing is for something relevant to job performance and therefore, what Attorney Paulsen said is false. Various municipalities do it. Maryland and New York State are looking at mandating such testing for all police officers in the state. A court in New Jersey ​upheld​ that police departments could mandate such testing.

Attorney Paulsen’s claim that it would be illegal is 100% unsupportable. Attorney Paulsen could have said that she had uncertainty about it. She could have argued that there were caveats but instead she assert, unequivocally, that it was illegal. That’s not credible legal advice.

In this case, we believe Attorney Paulsen’s behavior is in violation of City of Madison Administrative Procedure Memorandum ​NO. 2-33​ under “Unacceptable Conduct”, rules A.4.

A.4. Failure to provide accurate and complete information whenever an authorized person requires such information.

8. On ​May 16, 2019​,​ ​Deputy City Attorney Patricia Lauten​ responded ​on social media to an ​article​ highlighting the appointment of Dr Greg Gelembiuk to the Ad Hoc Committee. The article included incorrect statements made by Alder McKinney about Dr Gelembiuk, opposing his appointment. Attorney Lauten’s social media comments were disparaging of Dr Gelembiuk and furthermore sought to delegitimize the work of the Ad Hoc Committee. Her response was also rife with unsupported statements.

In this case, we believe Attorney Lauten’s behavior is in violation of City of Madison Administrative Procedure Memorandum ​NO. 2-33 ​“Unacceptable Conduct”, rule A.1.

A.1. Discourteous or abusive behavior toward a client, co-worker, or member of the general public.

9. On ​May 21, 2019​, during the ​Common Council meeting​, Alder Skidmore prompted Attorney May to essentially gossip about the Mayoral appointment of Dr. Gelembiuk. Attorney May again, either negligently or willfully, mislead the Common Council, the Mayor and the public when, in reference to a ​May 9, 2017 PSRC meeting​ and Dr Gelembiuk’s public testimony regarding the memo made by Attorney Paulsen (explained under #4 in this letter), he stated this: “I can comment on one thing that I saw because I was at the meeting… Mr Gelembiuk referred to some work of my staff as being a piece of ‘four letter word for excrement’ and I challenged him and said ‘did you really mean to say that, about this work, and use that word?’ And he sort of doubled down and said ‘yes I meant that because I thought it was true.’”

This is yet another ​false statement​ coming from the City Attorney’s Office made in effort to malign an individual in ways that are unquestionably damaging to his reputation and his ability to do good work in this city. This conversation between Attorney May and Dr. Gelembiuk never happened. May was referring to ​a letter​ Dr. Gelembiuk had written that included a legal analysis from an attorney who is well studied on the topic of governmental structure. The legal analysis included the following passage:

“The sentence someone (you?) underlined in Wis. Stat. 62.09(13), “The chief shall obey….” a settles the matter, to my mind. 62.11(5), which grants powers to cities subject only to limitation by “express language,” further buttresses the point. It seems obvious to me that setting policy as you’re trying to do here falls well within the powers the city has under this section. If they can’t point to specific statutory language prohibiting what you’re trying to do, they’re full of shit.”

At the meeting, Attorney May never asked Dr Gelembiuk the follow up question he claimed to and Dr Gelembiuk did not refer to Attorney Paulsen’s work as a “piece of sh*t”. Facts matter and Attorney May’s job is to present them, accurately, before and on behalf of those he represents. When it comes to issues concerning MPD, the City Attorney’s Office has demonstrated that facts are whatever they need them to be at the time. This practice is against city policy, it is a dangerous pattern and untenable.

In this case, we believe Attorney Michael May’s behavior is in violation of City of Madison Administrative Procedure Memorandum ​NO. 2-33​ under “Unacceptable Conduct”, rules A.4. and A5:
A.4. Failure to provide accurate and complete information whenever an authorized person requires such information.

A.5. Giving false information or falsification of any record, including but not limited to, timesheets, payroll, or itineraries.

The City of Madison describes the ​mission​ of our City Attorney as the following:

“​provide professional legal representation to the City of Madison as an entity, including ordinance enforcement, legislative counsel services and general counsel services.”

One of the most important components of public safety is trust between the police and the public. Over the past 4 years, City Attorney Michael May, Deputy City Attorney Patricia Lauten and Assistant City Attorney Marci Paulsen have, on multiple occasions, failed to provide accurate information in their representation of the City of Madison as an entity. They have failed to honestly and effectively counsel the city on legal matters involving the powers of and over the police. They have, on occasion, failed to be courteous to members of the public with whom they might disagree.

It is for these reasons that we ask you to consider replacing City Attorney May with an attorney who maintains a standard for himself and others in the City Attorney’s Office of demonstrating the ability to handle all subject matter with courteous behavior, objective inquiry, and willingness to advise the city truthfully and based on credible analysis.

Sincerely,
The Community Response Team