Proposed process for hearing regarding Alder Paul Skidmore’s derogatory comment

October 6, 2020 10:03 am

Tonight’s council discussion on the “it rhymes with blunt” comment should be interesting to watch.

PROPOSED PROCESS FOR PUBLIC HEARING

This resolution was proposed by:Shiva Bidar, Max Prestigiacomo, Lindsay Lemmer, Keith Furman, Rebecca Kemble, Tag Evers, Grant Foster and Arvina Martin

It’s number 19 on the Council agenda tonight. The highlights of it are

The City of Madison shall hold a public hearing to accept testimony and evidence related to the Complaint filed by Shadayra Kilfoy-Fores against Alder Skidmore, and that the hearing shall include the following steps and processes:
- The hearing shall occur at 5:30 p.m. on October 22, 2020 and, if necessary, shall recess and continue at 5:30 p.m. on October 27, 2020.
- The presiding officer of the hearing shall be Council President Sherri Carter who may rely on the counsel of the City Attorney regarding any procedural questions which arise during the course of the hearing.
- The hearing shall be held via Zoom and shall be livestreamed and broadcast through the City’s customary outlets.
- The City Attorney and Common Council staff shall provide administrative support
- The City Attorney shall provide formal notice of the hearing to the parties.
- The City Attorney shall notify Alder Skidmore of the opportunity to file an Answer to the complaint no later than October 19, 2020, and the opportunity to present a defense at the hearing personally and by counsel.
- The City Attorney shall provide Ms. Kilfoy-Flores with any Answer filed by Alder Skidmore.
- The public hearing will proceed as a quasi-judicial hearing and ensure the rights of both parties to present sworn testimony and evidence, question witnesses, and present argument to the presiding officer and Council.
- The Council shall hear testimony from witnesses presented by the parties. The hearing shall not include hearing comments from members of the general public who are not the parties or relevant witnesses.
- The purpose of the hearing is for the Common Council to determine whether the allegations of the Complaint are true and, if so, for the Council to determine whether there is cause for removal of Alder Skidmore from office. Pursuant to Wis. Stat. § 17.001, “cause” is defined as “inefficiency, neglect of duty, official misconduct, or malfeasance in office.”
- The City Attorney and Finance Department shall be authorized to retain, at standard and customary compensation, a stenographer to transcribe the testimony and proceedings. The stenographer shall also be authorized to administer the oath to witnesses.
- Ms. Kilfoy-Flores, shall not be required to execute and deliver a bond in the amount of $1,000 as security for the payment of costs and expenses of the hearing.
- Each Council Member may exercise their right to issue subpoenas for the attendance of witnesses and the production of evidence. The City Attorney and Common Council staff shall assist in drafting any subpoenas requested by Alders.
- No person may be excused from testifying or providing evidence for the reason that doing so may tend to incriminate them, but no person so testifying may be prosecuted for or on account of testifying or producing any documentary evidence, except for perjury committed in giving the testimony.
- The hearing shall proceed as follows:
  - Witnesses/Testimony
  - The City Attorney shall instruct Ms. Kilfoy-Flores and Alder Skidmore that they may submit witness lists to the City Attorney no later than October 20, 2020.
  - The City Attorney shall ensure that witness lists are immediately shared with the opposing party.
  - No witness shall be permitted to testify whose name does not appear on a witness list without approval of the Common Council.
  - Ms. Kilfoy-Flores shall have the opportunity to present any sworn testimony of witnesses and evidence related to the Complaint.
  - Following testimony of each witness, Alder Skidmore or his counsel shall have the opportunity to ask questions of the witness.
  - Following any such questioning, Members of the Common Council shall have the opportunity to ask questions of each witness upon being recognized by the Council President.
  - Alder Skidmore shall have the opportunity to present any sworn testimony of witnesses and evidence related to the Complaint.
  - Following testimony of each witness, Ms. Kilfoy-Flores or her counsel shall have the opportunity to ask questions of the witness.
  - Following any such questioning, Members of the Common Council shall have the opportunity to ask questions of each witness upon being recognized by the Council President.
  - Ms. Kilfoy-Flores shall have the opportunity to present any sworn rebuttal testimony of witnesses and evidence related to the Complaint.
  - Following testimony of each witness, Alder Skidmore or his counsel shall have the opportunity to ask questions of the witness.
  - Following any such questioning, Members of the Common Council shall have the opportunity to ask questions of each witness upon being recognized by the Council President.
  - Closing Arguments
  - Following the close of testimony, Ms. Kilfoy-Flores or her counsel shall have the opportunity to present a closing argument.
  - Alder Skidmore or his counsel shall then have the opportunity to present a closing statement
  - Ms. Kilfoy-Flores shall then have the opportunity to present a response to Alder Skidmore’s closing statement.
  - Statements of the parties at the close of testimony is not considered evidence or “proof” either for or against any party and should not be considered as such by the Council in making their decision.
  - Decision
  - At the conclusion of the hearing, the Common Council shall determine whether the Complaint’s allegations are proven and, if so, whether the actions that are alleged constitute cause for removal or any other remedy or consequence.
  - Removal from office shall require the affirmative vote of 15 members of the Council.
  - Absent 15 affirmative votes, the Complaint shall be dismissed.
  - Costs
  - The City shall pay the costs and expenses related to the hearing.
  - If Decision is to Remove Skidmore
  - City Attorney shall prepare an order
  - The order and the complete transcript of the testimony and proceedings and a statement of the cause for removal shall be filed with the City Clerk.

WHAT WILL THIS COST?

From the resolution:

Fiscal Note

Costs for the hearing as outlined in the resolution are not currently included in the City’s operating budget. Any costs associated with the hearing will require a future budget amendment.

DID THE COUNCIL MEMBERS WHO SIGNED THE LETTER VIOLATE OPEN MEETINGS LAWS?

I don’t know, but I don’t think so. Here’s why:

They didn’t conduct council business because the letter has no effect. In the letter they
- Expressed concern about the framing of the Mayor and Common Council President Statement
- They agreed with condemning the use of “gender-based profanity” directed at a member of the community.
- Agree there was no place for they use of that language and that city residents should not be treated with disrespect.
- They apologized to Ms. Kilfoy-Flores, the community and those harmed by the statement.
- Disagreed that the “culture and civility of the Common Council meetings have drastically deteriorated.”
- Call for the person who said the word to come forward.
- Called for an investigation, including forensic analysis of the recording.
- Asked for a restorative justice justice based acknowledgement of the truth
- Condemn the regrettable incident.
- Call on Mayor and Council President to take additional steps to make sure the behavior is not repeated and the harm to the community is addressed.
The things they called for in the letter is not what the common council is acting on at this point. They simply expressed their opinions and desires that were ignored by the Mayor and Council President.
In short, this new action is quite different and not what was addressed in the letter. They did not come to a conclusion that will be reached through the public hearing.
The letter (below) refers to an investigation, but there is no investigation, the action before the council is a public hearing.

SKIDMORE THREATENING A LAW SUIT?

Here’s the letter from Skidmore’s attorney. The most relevant parts are

The written and verified Complaint by Ms. Kilfoy- Flores does not meet the technical language of the statute because it does not ask that a councilmember be removed under Sec. 17.16. Her verbal statement that she wants Mr. Skidmore removed is neither verified nor written as required by the statute.

Complaint itself does not provide a sufficient basis to show cause for removal under Sec. 17.12. The verified complaint does not outline any factual basis to show Mr. Skidmore was the speaker of the offensive remark during the September 1, 2020 council meeting other than the Complainant’s belief that the speaker sounded like Mr. Skidmore.

Finally, with regard to the Complaint, the proposed resolution places the cost and expenses of the hearing, including stenographer, solely on the City. Should any hearing result in non-removal, Mr. Skidmore would certainly be within his rights to seek compensation from the City for the expenses he incurred in defending this accusation.

Mr. Skidmore questions the validity of any vote to authorize such an investigation in light of the September 3, 2020 Open Letter to the Public jointly issued by fourteen Common Council members. That Open Letter requests “a thorough investigation, including a forensic analysis of the recording” of the meeting. That language is reiterated in the Complaint, where the Complainant demands “a thorough investigation, including a forensic and voice identification analysis”. In short, fourteen members of the Common Council have already collectively considered an investigation into the matter and collectively decided to approve such a measure in violation of the Open Meetings Law.

By requesting an investigation, the Open Letter was addressing an issue within the purview of the Common Council and one that, by the language of the Open Letter itself, was likely going to come before the Common Council. That the Complaint of Ms. Kilfoy-Flores requested the same action by the Common Council only re-iterates that the Open Letter concerned government business as the term is defined under the Open Meetings law.

As you further identify in your memo dated September 17, 2020, a negative quorum exists when enough members communicate regarding government business such that they have the potential of controlling the outcome of a matter that may come before the public body. Fourteen Common Council members signed onto the September 3, 2020 Open Letter requesting an investigation into the offensive remark made during the September 1, 2020 meeting. It is certainly reasonable to conclude that by signing onto a letter requesting an investigation, Common Council members are indicating their collective intent to approve such a resolution before the same body. Fourteen Common Council members serves as a majority of the Common Council and sufficient numbers to authorize such an investigation.
To be clear, Mr. Skidmore denies that he made the offensive statement identified in the Complaint during the September 1, 2020 meeting. Mr. Skidmore is hopeful that an investigation will result in his exoneration but believes that an investigation may ultimately be inconclusive, consistent with the result of the preliminary investigation performed so far since the software used during the meeting did not identify the speaker and the City Staff and IT department could not identify the speaker retroactively. It seems unlikely that further investigation will serve any purpose other than to continue to smear his name at substantial additional cost to the city.

WHAT A MESS

Here we are again, like we were with the Police and Fire Commission. Entitled white men with their lawyers again a resident without the resources to buy justice. Systemic failure.