Nothing Adds Up

Attorney May has taken offense at my comments . . . and felt the need to defend a few things . . . and yet . . . it’s still not quite adding up . . .

I wrote this:

from: Brenda Konkel
to: All Alders
cc: Mayor Paul Soglin ,
“Koval, Mike” ,
“Schmiedicke, David” ,
“May, Michael” ,
sawilliams@cityofmadison.com
date: Tue, Mar 28, 2017 at 12:38 PM
subject: Alders – I think you were provided bad service

Dear Alders –

I am more than a little frustrated with the process to reimburse Chief Koval for his fees.

First, The resolution Board of Estimates voted on last night only talks about the Wisconsin Statute, in fact it mentions it 5 different times, and never mentions the resolution agreeing to pay for the chiefs’ legal fees or the language in the MPPOA (and AMPS?) agreements. However, Michael May seems to imply you are bound by the resolution you passed last September. And we all know, the council doesn’t have to follow its own resolutions. The state statute grants you discretion.

The second issue I find incredibly frustrating is that the current resolution doesn’t mention which legal fees you are paying. You are, in fact, based on the Board of Estimates bill (that wasn’t available until after the public testified) paying for charges in three different complaints, not “a complaint” as you read in the resolution. The first charges are clearly for the Stillman case (which was never mentioned in any of the supporting documents for the resolution) and then for the combined “complaint” from Sharon Irwin and Shadayra Kilfoy-Flores. Clearly, I think you need clarify what you are paying for in the resolution.

I feel as though in addition to the (intentionally?) unhelpful decision form the PFC attorney, you also have been handed a resolution that says one thing and you have a city attorney that is saying something completely different. As a member of the public, I feel entirely misled and confused by the conflicting resolution and city attorney interpretation about the previous resolution and MPPOA language that is not referenced in the resolution. It feels as tho that argument was conjured up in retrospect to justify the legal fees. According to the resolution, you appear to have all kinds of discretion ” 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 attorneys fees.” and to change the rules of the game without changing the resolution seems absurd and misleading.

Finally, I’m not sure what to say about the billing. Since you and the public were not afforded the ability to look at the bill in advance and the city attorney only refers to the combined cases and not the third one, again, I feel misled. This is not inspiring that “trust” that the police department speaks about, not just for the police, but the city attorney’s office and finance office as well. This seems bungled and mismanaged and I don’t know if its intentional or just poor work, but something has to change in order the public to have any faith in the PFC and council process.

Once again, I’m kinda embarrassed for the City. I hope this gets cleaned up before it hits the council floor.

Brenda

p.s. more details here: https://www.forwardlookout.com/2017/03/board-of-estimates-and-public-duped/25535

So that’s me, speaking truth to power, calling it like I see it.

This is Attorney May’s response:

from: May, Michael
to: Brenda Konkel ,
All Alders
cc: Mayor ,
“Koval, Michael” ,
“Schmiedicke, David” ,
“swilliams@cityofmadison.com” ,
“Soglin, Paul”
date: Wed, Mar 29, 2017 at 9:05 AM
subject: RE: Alders – I think you were provided bad service

NOTE: THIS IS INTENDED TO BE A ONE-WAY ELECTRONIC MEMORANDUM. DO NOT REPLY. This is an electronic memo, and is not to institute a discussion of any of the matters in the memo. Do not reply or reply to all. Any response should be by new email to the sender only. Do not forward this email.
—————————————————-
Dear Alders:

Because the information provided to you by Ms. Konkel in this email is erroneous in several respects, I wanted to correct the record. I disagree that city staff provided bad service.

1.The Stillman Case.
The Stillman complaint against the Chief was dismissed several months ago, in 2016. A final order dismissing it against the remaining officer was issued on March 14, 2017. We will put a copy of that order as an attachment in Legistar. Attorney Pines represented the Chief in that matter and his time obtaining the dismissal is reflected in the bill.

The resolution is effective to reimburse the Chief for the fees he paid for all the complaints attorney Pines had dismissed, and thus is complete in accomplishing its intended effect. If the Council feels it appropriate to identify a third complaint, it is certainly welcome to do so, but it is not necessary. I suspect the drafters of the resolution simply forgot about a matter disposed of several months ago, which represents something like 10% of the legal fees.

2. Putting the Pines bill on Legistar.
The City normally does not put bills on Legistar. This has not been done in the past for legal fee reimbursement (see, e.g., the McManners reimbursement, Legistar 45098), and there has been no issue about it. Since it was requested in this case, staff agreed to put it on Legistar. As I stated to the BOE, I did review the bill and in my opinion, the charges are proper and reasonable.

3. The 2016 Resolution.
The 2016 resolution is not mentioned in the reimbursement resolution for a simple reason: the reimbursement resolution was drafted and put into Legistar before I even began to look at the legal issues surrounding reimbursement. I believe it was modeled on previous resolutions for reimbursement. The record is clear as to the reason the 2016 resolution limits the Council’s discretion. The reimbursement resolution is effective for its purposes, to reimburse the Chief for the legal fees expended. My memo explains why. If the Council feels it appropriate to reference the 2016 resolution, it is certainly free to do so, but it is not necessary.

4. “[T]he council doesn’t have to follow its own resolutions….”
This is wrong. You are being advised to ignore a resolution duly adopted by the Council, stating how you are going to handle review of certain matters, a resolution relied upon by third parties in incurring significant expenses, and now you are told, “Ah, ignore it.” It is wrong, it is bad government, and it is probably illegal.

5. My legal opinion.
I stand by my opinion. Of course, anybody has the right to criticize my opinions. I accept that as part of the territory; that is part of my job. But to suggest that my legal analysis and opinion “was conjured up in retrospect to justify the legal fees” impugns my integrity. The allegation is false, and I reject it.

We were provided information that, contrary to my recollection and that of Assistant Chief Williams, the AMPS agreement has different language than the MPPOA agreement. I will be reviewing that and, if it changes my legal opinion, I will supplement it before the matter comes before the Council.

If individual members of the Council have any questions, please contact me directly.

Michael P. May
City Attorney
City of Madison
210 Martin Luther King Jr. Blvd, Room 401
Madison, WI 53703
608-266-4511
FAX: 608-267-8715
mmay@cityofmadison.com

PRIVILEGE AND CONFIDENTIALITY NOTICE
This electronic message is intended only for the designated recipient(s). It may contain privileged or confidential information and should not be disclosed to third parties without our express permission. If you are not the intended recipient, you have received this message in error and review, dissemination or copying of this message is prohibited. If you have received this message in error, please notify the sender immediately, delete the original message and destroy any electronic or printed copies of this message. Thank you.

So, lets break this down . . . i.e. let me count the (double speak) ways . . .
1. Misleading resolution, was this about “a complaint” or “three complaints”? Was it about “this matter” or “these matters”.

“The resolution is effective to reimburse the Chief for the fees he paid for all the complaints attorney Pines had dismissed, and thus is complete in accomplishing its intended effect. If the Council feels it appropriate to identify a third complaint, it is certainly welcome to do so, but it is not necessary. I suspect the drafters of the resolution simply forgot about a matter disposed of several months ago, which represents something like 10% of the legal fees.”

Like I said . . . misleading. This is what the resolution says:

WHEREAS, Madison Police Chief Koval was named in his official capacity, in a complaint filed with the Police and Fire Commission

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, 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.

Emphasis added. Not once was it even implied that this covered more than one matter or compalint or case before the PFC. It might be a minor detail, but I wonder how many alders had no clue?

2. Who decides if the bill is reasonable? Hell, who’s in charge around here?!?!

Putting the Pines bill on Legistar.
The City normally does not put bills on Legistar. This has not been done in the past for legal fee reimbursement (see, e.g., the McManners reimbursement, Legistar 45098), and there has been no issue about it. Since it was requested in this case, staff agreed to put it on Legistar. As I stated to the BOE, I did review the bill and in my opinion, the charges are proper and reasonable.

Again, emphasis added, but the state law, referred to 5 times in the resolution, and which the resolution says it is based on says the following:
“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.”

I don’t think its the staff’s choice to provide it to the alders in legistar or not, how can they possibly make a decision about if the fees are reasonable if they aren’t provided a copy of the bill? “Staff agreed to put it in Legistar” – did they really have a choice? Do they work for the council, or does the council work for them?

Also, the law doesn’t say the city attorney will review the bill to see if its reasonable, it says the council will. It says they may provide payment of “such a sum as it sees fit”, not as the city attorney sees fit.

3. The 2016 Resolution.

The 2016 resolution is not mentioned in the reimbursement resolution for a simple reason: the reimbursement resolution was drafted and put into Legistar before I even began to look at the legal issues surrounding reimbursement. I believe it was modeled on previous resolutions for reimbursement. The record is clear as to the reason the 2016 resolution limits the Council’s discretion. The reimbursement resolution is effective for its purposes, to reimburse the Chief for the legal fees expended. My memo explains why. If the Council feels it appropriate to reference the 2016 resolution, it is certainly free to do so, but it is not necessary.

I think the city attorney misses my point. The resolution is misleading to the public and the council. I’m glad he admits he didn’t review the legal issues in advance, cuz its painfully obvious.

4. “[T]he council doesn’t have to follow its own resolutions….”

This is wrong. You are being advised to ignore a resolution duly adopted by the Council, stating how you are going to handle review of certain matters, a resolution relied upon by third parties in incurring significant expenses, and now you are told, “Ah, ignore it.” It is wrong, it is bad government, and it is probably illegal.

As a former council member, this is most annoying. The council frequently ignores its previous decisions when its convenient and then it told they have to follow them when its convenient. Usually they trot out the whole – previously councils can’t bind future councils argument. And that will be true in this case. When they vote on this on April 18th, it will be a different council than voted on it in September. I can’t count the times that the council has ignored portions of TIF policies or neighborhood plans or even the comprehensive plan for developers.

Also, that resolution doesn’t make any promises, it says they will use 62.09(7)(e) to determine if they will pay the fees. And that law, as cited above, leaves the discretion up to the council members.

Finally . . . and probably most embarrassingly, there’s a Court of Appeals case from 2002 where a Milwaukee attorney got two officers reinstated and had a $300,000 bill and the Milwaukee didn’t pay it. The attorney used the third party reliance argument and said that becasue the council had a POLICY and PRACTICE of paying the bill, they had to. The court disagreed, the bill was not paid. “Probably illegal”? Probably not. You never know, but I wonder if he looked at that case or that as a legal issue?

5. My legal opinion.

I stand by my opinion. Of course, anybody has the right to criticize my opinions. I accept that as part of the territory; that is part of my job. But to suggest that my legal analysis and opinion “was conjured up in retrospect to justify the legal fees” impugns my integrity. The allegation is false, and I reject it.

We were provided information that, contrary to my recollection and that of Assistant Chief Williams, the AMPS agreement has different language than the MPPOA agreement. I will be reviewing that and, if it changes my legal opinion, I will supplement it before the matter comes before the Council.

He admits that he didn’t look at the legal issues in the resolution before it was drafted. He all but confirms that the legal arguments were made afterwards and the argument does justify the legal fees. I’m sure I hurt his feelings. Sorry. But sloppy is sloppy. I’m not sorry for pointing it out.

Can’t wait for the supplemental legal opinion after he reviews the contracts. Here’s the supplemental information if you are interested. Unless they have the wrong infromation on their website, I can’t see how he gets out of that one. Again, just sloppy. Relying on his recollection instead of doing his due diligence and homework to give the council good advice. Like I said, they were provided bad service.

As a former council member for 8 years, this is the kind of shit that drove me crazy. This will probably be one item on and agenda of nearly 200 items and council members don’t have time to dig into every single issue and have to rely on staff to do that work for them. When that work is sloppy and fully of “probably” and “I didn’t” then it is hard to “just trust me”. I think this reply just makes things worse. He could have looked at the AMPS contract and the Firefighters contracts before sending this memo – it took me all of 10 minutes to see the problem once it was pointed out to me. Again, thanks to Greg Gelembuik for not trusting their statements and digging into it. I should have done it myself. And so should the city attorney.

I really don’t want to waste any more time on this, and I feel bad for the council members who do . . . I can’t wait to see what justification the City Attorney comes up with next. Bottom line, I stand by my opinion – this was bad service to the council and they have discretion. Given the absolutely crappy PFC opinion . . . they should use that discretion and only pay a portion of the bill.

And then, try to figure out how normal citizens can file complaints about real issues without spending so much in legal fees themselves and creating a bill for the taxpayers to pay. There has to be a way you can file a complaint that has a public process that doesn’t require an 3 or four attorneys.

More to come, I’m sure.