FREE WHITEWATER

Monthly Archives: November 2007

City, Police, Press

Against Confidentiality in Municipal Litigation

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Longtime readers know that I have covered the federal lawsuit against Larry Meyer, a now-retired detective of the Whitewater Police Department. Plaintiff, Steve Cvicker sued Meyer federal court alleging violations of his civil and constitutional rights. In March, Cvicker’s Fourth Amendment claims survived a motion for summary judgment. In October, newspaper accounts reported that the case was close to settlement.

When the final settlement was not soon forthcoming, I speculated that the delay was the result of some sort of problem in negotiations between the two sides. (The public records in the case revealed that a possible settlement was brought to the court’s attention in September.) As it turns out, there is a challenge in reaching a settlement, and counsel for Larry Meyer has filed a motion to enforce a settlement agreement that the defense claims was reached, but with which the plaintiff allegedly will not comply. The Janesville Gazette this week ran a brief story on the motion to compel settlement. The Gazette story misses a fundamental public policy aspect of the case.

My interest — like all citizens — is in honest, responsible government and policing in this town. My interest is not, and cannot be, that of the plaintiff in this case. I have never met the plaintiff in this federal lawsuit, Steve Cvicker, and in fact, I have no idea what he even looks like.

When I speculated on the delay in this case, I wondered if the defendant in this case might want a confidentiality agreement as a condition of settlement. I was right: public records in the case reveal that a confidentiality agreement imposed on the plaintiff is one of the conditions of settlement. This is a critical detail that the Gazette did not report, but is the heart of public concern.

My position is against any confidentiality agreement as a condition of settlement in this case, a case about public duties of public officials and officers of the City of Whitewater. Asking a court to impose a confidentiality agreement in this matter is against public policy and good government.

Here is an excerpt from Defendant’s brief in support of the motion to compel settlement that refers to a confidentiality agreement (defendant’s counsel cites from a letter between the parties dated September 27, 2007):

“In exchange for a payment of Eighty-two Thousand Five Hundred Dollars ($82,500.00), Mr. Cvicker will dismiss his claims in Case No. 05-C-576, on their merits and with prejudice, and without costs or fees to any party. Mr. Cvicker will execute a full and final release of any and all claims against Investigator Larry Meyer, the City of Whitewater Police Department, the City of Whitewater, and their officers, employees, attorneys, insurers, successors, assigns, etc. The release will contain a confidentiality provision. ”

Emphasis added.

I will offer seven reasons that a confidentiality agreement in this case — involving a public issue — is a bad idea, and contrary to good government.

First, this federal lawsuit against Larry Meyer involves a federal constitutional claim against public officials, and a municipality, in the course of public duties. The entire matter involves a claim about the legality and propriety of public action. This is the very definition of a matter of public interest. It should not be hushed up through a confidentiality agreement.

Second, citizens should know and understand how paid municipal employees, in the discharge of their official duties, actually conduct themselves. This allows citizens to (1) know the truth of employee’s actual conduct, (2) advocate for reforms when needed, and (3) be aware of the risks of misconduct where it has occurred, (4) or be confident in cases where it has not occurred.

Third, those public employees who claim that their conduct is upstanding should be willing to allow an open judicial process, available to the review of fellow citizens, journalists, and lawyers.

Fourth, defendants can, and do, settle cases — without an admission of wrongdoing — and also without confidentiality agreements. A public employee’s insurance carrier, or a municipality’s insurance carrier, need not admit the employee’s wrongdoing to settle. That insurance carrier should not hide the mere facts of a public matter from the very public that authorizes, pays, and relies on the public employee’s conduct.

Fifth, settlements in public maters, involving public officials, paid with public money that are hidden through confidentiality agreements constitute attempts by those officials to afford themselves the condition of private parties while simultaneously exercising public duties. It’s unfair to have both: a man may choose a private vocation, but he should not assume and benefit from a public one, only to ask that his public actions be hidden through a means more suitable in private endeavors.

Sixth, even in private matters, confidentiality agreements may be used, all too often, to allow corporations to hide the truth of their dangerous products from consumers, leaving consumers unable to evaluate the risk and rewards of purchasing goods at a give price. Markets work best when consumers receive information about the true functioning of a product.

Seventh, a confidentiality agreement in this matter would be contrary Wisconsin’s public policy commitment to open records. My point is not that it cannot be done, but that it should not be done.

Here is the clear test, the question of principle: Why should this public lawsuit, involving public officials, involved in the public exercise of their duties, be made confidential?

To each of the gentlemen involved on behalf of the City of Whitewater and its police department, this is the question that I pose to you. The defendants need not admit wrongdoing in connection with payment of settlement money. I am stunned, however, at the arrogance and audacity that causes the defendant to request that this public matter be hidden from view. It’s disgraceful that public employees and the City of Whitewater would request this unnecessary step.

Officials proclaim — at each and every opportunity — that their actions are beyond reproach. If that should be true, then why ask a court to make these public actions confidential and private? It does not matter what one thinks of the plaintiff, defendant, or their actions to see that this public matter should remain public, in all respects. Requesting that this public case be hidden from view is wrong, clearly and simply.

Inbox Reader Mail

Inbox: Reader Mail (On the Budget)

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I received the following email from a member of the Common Council. I have altered the letter to preserve the anonymity of the author. The email is in black, my reply appears in blue.

Mr. Adams,

I understand that you, like a fair number of others, do not like some of the provisions in the 2008 budget. However, I do not think that it is fair for you to completely blame Kevin [Brunner] for the Common Council’s actions. We voted 4-3 to hire an additional police officer, which obviously means a majority of the council. You cannot expect Kevin to question his boss’ decisions publicly in his weekly report, whether he agrees with us or not (which you should probably look into before claiming that he was in support of our action). It is true that he did not mention the contingency fund contribution loss, but he also did not mention several funding sources of the many of our projects, items, and services. If you want someone to blame for the the budget, blame me. I was one of the seven voting members and Kevin was not. I stand by my vote 100%, but I think that you should give criticism where it’s due, even if it means more heat on me…I can handle it.

Again, thank you for sharing your opinions with our community; it really does help me do a better job.

Adams:

Thanks very much for your email, and thanks for reading. You are correct that I do not favor some of the last-minute changes to the budget, and I think that the overall direction is misguided: more spending, a larger levy in absolute and relative terms. It’s a recipe for a less competitive city. I also believe the addition of another officer will achieve little except the perception of achieving something. As I wrote, I expected the vote to be 5-2 in favor of an additional sworn officer, elimination of other proposed positions, and spending of tens of thousands from the contingency fund.

My analysis about the odd process was, however, independent of the items in the amendment. In that regard, as an organizational matter, the process (in the weeks leading up to the vote) suggests something lacking. That’s the cardinal point of my criticism of City Manager Brunner in the post to which you refer.

The city manager oversaw the presentation to Council of the entire proposed budget. This process lasted for weeks, over several Council sessions. It is a process that in form and substance is a key part of a city manager’s job. Preparation and shepherding the budget proposal before Council is a core function of the city manager. This is true both in understanding and practice. The entire set of 2008 presentations of the budget shows how this is, in fact, the intended process – that the city manager (and through him his department heads) present the budget to Council.

If there were a great – long-standing — need for an additional sworn officer, then there is no real excuse for not having identified it sooner, prioritized it, and included it initially in the 2008 proposal. Here’s what this suggests to me:

(1) The need for another officer was not prioritized properly. That could be because Coan did not express the need clearly at the preparation stage, or Brunner did not accurately perceive the need as communicated.

(2) If the need arose after the initial preparation, then either Coan did not communicate it to Brunner, Coan communicated it to Brunner and Brunner rejected it, or Coan communicated it, and Brunner left Coan to go searching for votes on his, Coan’s, own.

(3) If Coan ignored Brunner, or went around him after objection, then it shows the challenge Brunner has managing the budget process when the police want something. I cannot imagine any other department head trying something similar.

In any event, the orderly process was upended in two weeks’ time, and that reveals a lack of managerial influence. You’re right that Brunner did not, and could not, vote for the amendment authorizing another officer. His challenge is different – how did Coan come to dominate this last-minute matter, and how is it that the city manager stood by, so to speak? Calculated only as a matter of strength, it would have been better for Brunner to take a stand – clearly – one way or the other than to give an equivocal answer (‘you don’t have to do this now.’) I was surprised that there was not, from our city manager, a firm recommendation one way or the other.

In any organization, one of the most telling developments is when someone’s management of one of his core tasks is circumvented, or ignored. Worse, by far, is when the manager allows that to happen with excessive deference.

I am, indisputably, a critic of Coan’s leadership. Nonetheless, I expected his favored amendment to pass. I did not expect – at all – that the city manager wouldn’t take a clear stand one way or the other. (Your implication that the city manager was opposed, I think, strengthens my argument. My point was not that he agreed inwardly; it was that he was too deferential outwardly.) Even if deference were his default position, so to speak, I would have expected that the need for clarity (win or lose) would have guided his actions. It didn’t, and that’s an odd turn. It would have been more advantageous to lose after a clear statement of principle. In his weekly report, I think it was foolish for the city manager to sugarcoat the result. It might have been better to say nothing than to describe it as was described in the weekly report.

There are worse things than taking a position on principle and losing; I was on the losing side of this issue, after all. I don’t feel bad about not being on the majority side. I feel that I make my views clear, even if I may not prevail on an issue.

Best regards,

Adams

Uncategorized

Coming Attractions for the Week of November 26th

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I hope that everyone had a great Thanksgiving weekend. Last week’s posts included discussion of Jim Coan’s Big Night, suggestions for Kim Hixson, the view of a consultant and schemer, and the disappointing direction of the 2008 city budget.

This week’s coming attractions include —

• Planning/Architectural Review Board Meeting for November 26th

• Beautiful Whitewater: Video (holdover from last week)

• Beautiful Whitewater: Photos (holdover from last week)

• Against Confidentiality in Municipal Litigation

• Friday Cartoon Feature

City

2008 City Budget’s Disappointing Metrics

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The latest City Manager’s Weekly Report shows that, on principal fiscal metrics of the 2008 city budget, Whitewater is heading in the wrong direction:

Total city spending under the approved budget will increase 3.28% to $9,23,640 from 2007 and the city property levy will increase 4.27% to $2,718,958 up from this year’s $2,607,619. The city tax rate will increase a total of 4 cents per $1000 assessed valuation from $4.80 to $4.84 for the Walworth County portion of the City while it will rise 7 cents per $1000 for the Jefferson County portion (from $4.71 to $4.78).

By the way, how does City Manager Brunner describe Police Chief Jim Coan’s upending of his budget process, in which Coan grabbed a proposed contribution for a contingency fund, and forced elimination of other proposed positions, for another full-time police officer? Here’s how:

The Common Council at its meeting this week unanimously approved the City’s 2008 Budget but not without adding a new police officer while cutting a few items to accommodate this new position. The proposed additional community service officer position, part-time administrative assistant position for the CDA and Neighborhood Services and a classification/compensation study of city positions were all deleted from the Budget in deference to creating the new police officer position.

There’s no mention of the lost contingency fund contribution, amounting to tens of thousands of dollars….

If Wile E. Coyote dropped an anvil on Kevin Brunner’s head, would Brunner apologize for getting in the way of the falling object?

City

The (Nearly) Secret Career of Pierre St. Menteur

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You are doubtless familiar with many people in town, but it is those you do not know who may be the most interesting. Perhaps a few of us, here and there, have made the acquaintance of Pierre St. Menteur, a shadowy French national, reputed to be a planner, consultant, and schemer. Nothing of certainty can be said about him, and even his existence seems improbable. I can only relate, to the best of my imperfect recollection, occasional conversations with him.

I mentioned once, previously, that most people in my family spent time in Europe, and they all made good and lasting friends among people there. Europe for us always meant France. The French are hardly of a single type. Some might be inclined to an over-reaching state, but there are many liberals (that is, favoring a free market) there, and my family and I always looked fondly on the friends made from among that group. There’s much fuss and pretentiousness said about the French, but the truth is that the closer one gets to them, the more erroneous notions fall away in favor of admirable truths. I have always had happy times among the French, as others in my family have.

As for St. Menteur, one would find the formidable, but not the admirable. He is apparently middle-aged, educated, superficially charming, being committed to a world of managed economies, and cultural preservation through government regulation of speech and behavior. Many of the French reject these commitments, but they are the foundation of St. Menteur’s world view.

I cannot say what professional role he plays, if any, in Whitewater. A consultant of his echelon travels widely, but discretely, to many parts of the world. To my knowledge, he has never stayed overnight in our town; this is a man who would find Marcus’s Pfister barely tolerable.

I’ll relate part of a recent conversation, so well as memory serves. St. Menteur’s accent may seem odd, but then whole story’s odd. In any event, I would not tease through a caricature of the French if I did not love the real people so much.

Adams: What brings you back to our part of the world? I cannot say that it’s a pleasure, but it is a curiosity.

St. M: I love, just love, the people of Wisconsin. It is the adorable town, Whitewater, that says so much about America. All the happy little pilgrims, eating the turkey and watching football, it is super. I adore the unspoiled frontier. Wisconsin – it was ours once, non?

Adams: That was then, and this is now. Perhaps you’re working to get it back. You must have more on your mind than American holidays.

St. M: True, all true, Adams. I arrive to see the state of progress on regulation, on enforcement, eh…on propriety, in the small city. It goes well, does it not?

Adams: I doubt that you’re the behind of all this, but I believe that you’re mistaken about it all going well.

St. M: A budget municipal to the limits of the levy, a property owners’ group that defeats sales of the downtown property, a true vigor for the regulation and enforcement of the undesirable behaviors — all a direction positive and favorable.

Adams: There’s a limit to these directions, directions that I consider neither positive nor favorable. The City of Whitewater cannot spend our town out of above-average poverty, it cannot draw sufficient retail to overcome a lack of light industrial employment, it cannot persuade retail to locate through cosmetic or marketing efforts, and it cannot offer good governance without budgetary and law enforcement reform.

St. M: You would like the pigs to fly too, non? What you want will not happen.

Adams: What you favor will not last. These efforts you cite are inadequate to uplift more than a few. They’ll prove inadequate, and what seems promising through spending now will prove disappointing three years from now. A managed economy is typically mismanaged; smart growth is typically slow-going and slow-witted; our educational technology plan will prove ignorant.

St. M: What you call prove is the wish of the minority viewpoint, that’s all. These little few, they are not the city. The city it is for the decent, the proper, the citizens upstanding, with their police guardians. The student, the foreigner, the destitute – these are the blight of the city. The marketing, it does not mention these people.

Adams: Interesting that you’ve mentioned marketing. I know that our city will soon announce a new marketing effort. Is that your doing?

St. M: The credit, the honor, comes only after the success, Adams. This you must know. For now, I am merely the visitor and spectator to these developments.

Adams: Sound fundamentals would be of better use to us than publicity. If our taxes are low, and spending constrained, and our regulatory approval rapid, we will have something fantastic to market to Wisconsin and the region. We can employ more, more productively, through expansion of light industry and grey collar services than though a push for retail that will prove cosmetic.

St. M: The marketing is the perception, and the perception, it is the reality. Is this the foreign interloper, the scrounger, the looker for work? Non, I do not see this man; he is not here. Is this the student, the maker of trouble and trash? Non, he is not free in the streets; he is inside the school only. Is this the neighborhood pig-sty, the dirty dwelling? Non, this is the Services of the Community that defends against the little pigs.

It is clean and beautiful in the video and the pamphlet. This is the little city.

Adams: Anyone will see that there’s more than that to the city. No one will build on marketing alone — visits will be more important than promotional efforts and chaperoned stops to specific areas of the city.

St. M: This you say, but I do not believe. It is the marketing that I believe …. à la prochaine.

City

Common Council Meeting for November 20, 2007, Part 2

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This is Part 2 of my review of the latest Common Council meeting, on November 20th. Part 1 was posted previously.

On Tax Rates.

City Manager Brunner mentioned that tax rates in Whitewater have been declining year over year. That sounds impressive, but it’s not meaningful by itself. A reduction of tax rates in the city would be meaningful to spur growth among existing city residents only if (1) other fees and fines were stationary or falling too, and (2) the reductions benefited entrepreneurs or potential entrepreneurs in the city, and (3) no one could leave the city.

Our municipal economy is not an island. One key part of assessing the value of tax reduction is comparatively, one location to another. If taxes, fees, and other burdens decline more elsewhere, that relative advantage to another town means more than our absolute, but smaller, reduction. People will stay there, and others will flock there.

Our problem is more than absolute; it’s relative.

On Kim Hixson.

How many people are truly persuaded when Kim Hixson bloviates talks on an issue? Hixson doesn’t even speak to his fellow council members; he’s always mugging for the camera, with a louder-than normal, odd tone. Does he practice in front of a mirror? Hixson was the Council member who proposed that Whitewater purchase a super-duper leaf vacuum, at the cost of, I don’t know, about a gazillion dollars.

I’m here to help, Dr. Hixson. Instead of spending all that money on leaf vacuums, I can get you – yes, you — what you need to help the city. Over at the FREE WHITEWATER Department of Engineering for Better Everyday Living™, the design team’s built a device for leaf vacuuming. They estimate the cost per unit at only $76.94.

They have created a technical schematic. (If this should seem too complex, feel free to write me at adams@freewhitewater.com and a member of the staff will reply to guide through all the technicalities.)

Here’s the detailed schematic:

Amazing, isn’t it?

Hixson could play a role here, though – this device requires a human operator. The heavy duty Shop Vac attaches to an operator through the use of highly durable duct tape. Afterward, just plug in the extension cord, and vacuum away any loose foliage you find. Problem solved!

(This astonishing device even incorporates a Moisture-Alert feature. When the vacuum comes into contact with damp leaves or water, the operator immediately receives an unmistakable electric signal, alerting him to the presence of excessive moisture. Trials with monkey test-subjects confirm that the signal is, in fact, unmistakable. It’s just another fine innovation from FREE WHITEWATER.)

Dr. Hixson mentioned that some of his constituents would willingly have their taxes raised to give Jim Coan another police officer. Not everyone in the city shares that view. I am sure though, that if Hixson speaks for those who would pay more in taxes, he must be willing to volunteer his services without charge for leaf removal.

The rest of us would be grateful for each moment he spends outside, picking up leaves.

Congeniality out the Window!

I wrote before about the on-boarding session that the Common Council conducted earlier this year to improve congeniality. Here’s part of what I wrote, as harmony seemed to have improved:

The interesting question is whether this harmony will hold when the sessions are not fixed on budget presentations, department by department. If idle hands are the devil’s workshop, then an open agenda is a grandstander’s opportunity.

Well, it only takes one skunk to spoil a garden party. It’s funny about our politician-dentist: he’s his own worst enemy. Apparent anger and hostility overcomes him so easily that he undermines his own case and image, almost every time. He’s not alone in what he wants, but he is nearly alone in how he conveys it. The more exposure he gets, the worse he’ll do. I am convinced he could not run and win city-wide this way.

Socialists in the Dairyland.

Every time you don’t like a commercial development, does it make sense to ask the city’s taxpayers to purchase the property, to prevent the development from happening? No, because it shows that (1) you’re ignorant of economics, and (2) worse, your ignorance will wreck our economy. There’s considerable imbecility in an approach that favors municipal purchases of anything a cranky politician dislikes simply because he dislikes it. (Note to UWW students: Relax. The Thirteenth Amendment will keep you safe from an approach based on purchasing whatever a local politician dislikes.)