Latest WB Daily News Column
The West Bend Daily News hasn’t gotten to posting my latest column online. I’ll link to it when it goes up. Until then, here it is. I don’t know what they titled it.
A couple of weeks ago, the Gang of Five on West Bend’s Common Council got their way. With the Mayor’s seat vacant, they had a few choices to make regarding how to fill that seat, and they chose exclusivity and arrogance at every turn.
The state statute regarding the appointment of a mayor grants the Common Council a great deal of latitude. They can do whatever they choose. They could have allowed members of the public to submit applications, conduct interviews, and then make an appointment from the applicants. They didn’t do that. Aldermen Deiss, Krochalk, Riffle, Dobberstein, and Schlofedlt decided to limit the applicant pool to eight people – the members of the Common Council. They did this knowing full well that only one person would be nominated – Alderman and acting Mayor, Kristine Deiss. This fact was so apparent at the meeting that Deiss had to be reminded to ask if there were any other nominations before taking the vote.
There was nothing democratic or representative about this process. It was a coronation.
To be fair, Alderman Dobberstein did appear to waver when he supported a failed attempt to rescind the decision, but given that it was clear that the attempt would fail it’s difficult to ascertain if his reconsideration of the issue was genuine or simple posturing.
There may be an explanation for Dobberstein’s wavering, but it makes the decision by the Common Council all that more offensive. Through an open records request, I found that a whopping 83% of the emails and other written communication sent to the eight Aldermen from May 1st until after the vote opposed the decision of the Common Council to limit the applicant pool to themselves. Four out of Five folks in West Bend who contacted their Aldermen by email or snail mail wanted them to open up the process to include the citizens of West Bend. And yet the Gang of Five ignored them and chose their own path.
Unfortunately, there isn’t any record of people who called their Aldermen to know what that breakdown was, but given the overwhelming nature of the written communication, I’d venture to guess that the phone calls were equally overwhelming.
On a side note, it is ridiculous that the Aldermen use their personal email accounts for constituent contacts. Those are public records, yet they reside on personal computers. We don’t know if they are being archived or even just deleted by accident. For example, there were a few emails that were sent to all of the Aldermen. When responding to my open records request, not a single one of these batch emails was returned by all eight Aldermen. This indicates that public records are not being properly preserved. The City of West Bend should issue city email addresses to Aldermen for constituent communications where the city can control and preserve those public records.
Now that we have a new appointed mayor, what about the 1st Aldermanic District, which no longer has a representative on the council? The Common Council must appoint a replacement for that seat, too. Just like last time, they have a great deal of latitude in how to go about this process. Unlike the appointment process they chose for mayor, the Common Council has chosen a much better path. Citizens were given 21 days to submit applications. At the July 2nd meeting, the Common Council will decide on a timetable to interview the applicants and then make an appointment.
I hope that the members of the Common Council realize how much of the public’s trust they lost with the mayoral appointment and look outside their closed circle for the appointment.
At the time of this writing, there is only one person who has put his name up for the appointment: Tony Turner. I happen to know Tony Turner. He lives a mere block and a half from me and our families attend the same church. I know him to be a thoughtful, mature, honorable, intelligent man and I believe he would make a fine alderman.
Furthermore, Tony Turner is an outsider to the Common Council. He’s not a past member. He’s not an employee of the city. He’s not a family member of any of the Aldermen. He’s just a resident of the 1st District who wants to serve the community in which he’s raised his children for the past 18 years. Frankly, that’s the kind of alderman that West Bend needs and his appointment would help rebuild the Common Council’s reputation.
Many of the citizens of West Bend were tuned out when the Common Council first decided how to appoint the mayor. But after some light was shed on the process, the citizens are now watching intently to see how the council goes about appointing a new alderman. This is an opportunity for the Common Council to regain the public’s trust. Let’s hope that they don’t squander the opportunity.
“He’s not an employee of the city”.
Since city employees can’t be on the city council, I have no idea what that means. That’s like saying, “He’s not an illegal alien.”Posted by .(JavaScript must be enabled to view this email address) on June 27, 2007 at 1752 hrs
“It was a coronation.”
That’s great imagery!
Posted by Cindy on June 27, 2007 at 1823 hrs
It doesn’t make any difference whether someone uses a personal email or an ‘@cityhall.com’ email address. Records are records. If they’re talking official business, it’s a record. Yes, having an official email address and an adequate records-preserving system at city hall would be nice, but not all small-town city or town halls are willing to spend the money to do this.
Of course, good luck proving that they colluded illegally outside of a public meeting. The only sure way to establish that is to have an insider who’s willing to squeal, or someone else who has a copy of a record that might prove it.
Posted by John Foust on June 27, 2007 at 1925 hrs
So all constituent contacts should be part of the public record? That will certainly stifle communications between concerned citizens and their elected officials. No secrecy for whistle-blowers.
Just curious, Owen has referred to his “tentacles” at the state capitol. What type of records are being kept of those contacts to ensure public access to that information?
Posted by .(JavaScript must be enabled to view this email address) on June 27, 2007 at 2029 hrs
If you send a paper letter or an email to an elected or appointed public official regarding some business under their official view, then it’s a public record. They’re not supposed to shred or delete it. You’re free to send an anonymous letter, for what that’s worth. Depending on the phone system, it might even record your caller ID if you make a phone call. Someone could make an open records request to the Capitol to see if the phone system records incoming phone numbers. You can certainly make a request to see outgoing long-distance call records. It would be a lot of work to search, of course. You’d need to know which numbers Owen uses for tips.
Posted by John Foust on June 27, 2007 at 2106 hrs
One at a time…
wbman,
According to the Municipal code:
(d) The Council shall be the judge of the election and qualifications of its members, may compel their attendance, and may fine or expel for neglect of duty.
I see no restriction against a city employee being on the Common Council. http://www.ci.west-bend.wi.us/Municipal Code/Adobe Acrobat files/Municipal Code/Municipal Code - Chapter 2 Common Council.pdf
JF,
I am aware that official emails sent from personal email addresses are still public records. My point was that some guy with a POS PC shouldn’t be storing public records on the. The City should issue email addresses so that they can properly maintain those records. The City of West Bend has many city employees and many email addresses. It would cost virtually nothing to issue 8 more email addresses.
As for alleging that hey “colluded illegally outside of a public meeting,” I said no such thing. Nor have I suggested as much. In fact, they committed their perfectly legal but ethically bankrupt action in the light of day.
txmesomemore,
Any of my communications with public officials in their official capacities are public record. File the open records request and see for yourself.
Posted by Owen on June 27, 2007 at 2110 hrs
“I see no restriction against a city employee being on the Common Council [in the city code].”
The prohibition is known as incompatibility of offices. It’s not in the city code; it’s common law (Jed can explain that). The doctrine prohibits a city employee from being on the city council, a county employee from being on the county board, etc. Wisconsin has an exception that allows elected officials to serve as EMTs and firefighters, but there’s a cap on how much they can earn. Other than that, such employment is not allowed.
Posted by .(JavaScript must be enabled to view this email address) on June 27, 2007 at 2144 hrs
Show me the statute.
Posted by Owen on June 27, 2007 at 2148 hrs
Perhaps that is why Queen Deiss is able to be mayor and clerk of courts, but not mayor and alderman and clerk of courts. Maybe she could pick up a state job, too.
Posted by .(JavaScript must be enabled to view this email address) on June 27, 2007 at 2152 hrs
From the Wisconsin League of Municipalities.
IV. Incompatibility DoctrineA. Common Law Prohibition. The same person cannot hold two offices or an office and a position where one post is superior to the other or where, from a public policy perspective, it is improper for one person to discharge the duties of both posts. For example, in Otradovic v. City of Green Bay, 118 Wis.2d 393 (Ct. App. 1984), the court held that a council member could not work as assistant appraiser in the city assessor’s office.
1. Result. If a second office is taken that is incompatible with an existing office, the first office is vacated. In the case of office/position incompatibility, the outcome is unclear—person runs risk of losing first post, but court might allow choice.
2. General Rule of Thumb: Municipal governing body members may not hold other municipal offices or positions, unless specifically authorized by statute. This is because the governing body exercises control over such matters as the salaries, duties, and removal or discipline of most other municipal officers and employee.
3. Statutory Exception. Elected city, village and town officers can serve as volunteer firefighters or EMT’s when annual compensation as an EMT or firefighter, including fringe benefits, does not exceed $2,500. Sec. 66.11(4).
Posted by .(JavaScript must be enabled to view this email address) on June 27, 2007 at 2153 hrs
Last I checked, the Wisconsin League of municipalities was not a governing body. Sure, it’s a good idea for a city official to not be on the council to avoid conflicts of interest, but there is no specific legal prohibition. It’s a case by case basis.
Posted by Owen on June 27, 2007 at 2200 hrs
Law or not, don’t give the Common Council any more ideas. Kris Deiss hasn’t been appointed dog catcher or city assessor…yet.
Posted by .(JavaScript must be enabled to view this email address) on June 27, 2007 at 2236 hrs
I completely sympathize with your suggestion about giving elected officials a city email address. I’d extend it to appointed officials, too. I’ve been railing about that in Jefferson for years. For years they decried the cost and hassle. It’s not just an email address, though. Not to get too techie, but if the email is still stored on their home computer, it’s still easy to lose. To properly prevent this, you need archiving software on their mail server to preserve every in-and-out communication, keeping a searchable backup of every deletion. Many small government entities don’t even have central servers, much less control of their mail server. In my case, and probably in West Bend’s case, they do, but then you need a Council smart and motivated enough to ask their computer consultant to buy and install that archiving software. In this era of tight shared revenue from the State, with pitchfork-wielding citizens who chant “Lower my taxes” at the door, go see what happens when you tell them they need to spend a few grand to comply with the Open Records law.
It’s not just email, of course - there are many elected or appointed officials who are subject to the Open Records law who don’t maintain their electronic records properly.
As for implying that it was prior collusion, when I read “They did this knowing full well that only one person would be nominated – Alderman and acting Mayor, Kristine Deiss. This fact was so apparent at the meeting that Deiss had to be reminded to ask if there were any other nominations before taking the vote,” that’s what I thought you were saying. Again, if this was what you were saying, I wouldn’t disagree with that assessment. When I see no public discussion of critical and contentious issues, my pointy tin-foil hat assumes they were meeting illegally. With an eight-member Council, a quorum of five - any three of them sharing info outside a meeting even by round-robin communication is basically illegal - but try to prove they did it.
As for the League opinions - if your Council is doing something the League opposes from a legal standpoint, you have traction on firm ground to stand up and complain.
Posted by John Foust on June 28, 2007 at 0644 hrs
Actually Owen it is the same for a school board member being a teacher in the district in which they serve. I do not know the statute, but it was quoted to me when I became a board member in West Bend. Prior to that I had done some teaching of special needs kids in the district. I can no longer do that. What wbman is saying is correct.
Posted by .(JavaScript must be enabled to view this email address) on June 28, 2007 at 0819 hrs
“Show me the statute” - by definition common law rules are not statutory and Wisconsin has a statute that says unless abrogated by a statute all common law doctrines survive.
Posted by .(JavaScript must be enabled to view this email address) on June 28, 2007 at 0848 hrs
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