Well, we in Whitewater, Wisconsin are not given to introspection. We lead by cheerleading. That’s not my view; I am happy in dissent from, and against, cheerleading. I would be ashamed to be so callow.

The federal constitutional lawsuit against former investigator Meyer and the Whitewater Police Department is now settled. The world did not stop when the lawsuit in this matter ended. What can be learned from that lawsuit, its allegations, and the responses from city and press to it?

(1) Why settle?

Larry Meyer’s career has been bad for the city, and all the king’s horses and all the king’s men can’t put Larry back together again. For every empty but strident defense from Chief Jim Coan, to all the support in the world from his friends in Elkhorn, one truth remains: Meyer is offering settlement on a federal lawsuit about a citizen’s Fourth Amendment rights. That’s no simple mistake — he’s settling on a constitutional claim. He will contend that he’s admitted no wrong-doing, but that’s whistling past the graveyard. Meyer would not likely have settled — not Meyer, nor any other excuse-making, self-justifying member of the Whitewater Police Department — if he’d been more confident of his conduct.

(2) Why pay more than the reputed original settlement proposal?

The extra, unusual effort to enforce the reputed original settlement only cost more. Lost time, lost money, on a long-shot effort. There’s no point in pouncing on what one cannot hold.

(3) Why no trial?

Because it saves the insurance company from the cost of a trial? Well, only in part — the cost from the risk of losing at trial. No one should ever answer that avoiding the cost of a trial is why a municipality acted. It only seems clever until one considers what it means – the savings is not the cost of lawyers’ time, it’s the avoidance of a jury’s judgment against the city.

(4) Why seek confidentiality in the settlement?

I have argued against confidentiality. (See, Against Confidentiality in Municipal Litigation and Cat Has Your Tongue?)

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? ….

The same men who loudly boast of every accomplishment when it serves them want to hide this matter now.

(5) Why imagine that confidentiality could trump a public records request under Wisconsin law? Why even bother?

Consider my seventh point, made nearly a year ago: “Seventh, a confidentiality agreement in this matter would be contrary Wisconsin’s public policy commitment to open records.” Confidential here is a fool’s provision.

(6) Only one settlement, or more?

You tell me.

(7) Why insist on the false notion that taxpayers of the city paid nothing in settlement?

The City Manager trotted out the same contention in the fall.

I responded months ago that a it was false to contend that a

settlement that may amount to tens of thousands will cost the city nothing. He [City Fiance Director] justified his statement by telling a local paper that our city is insured, and that the policy has a zero deductible…I know that there cannot be a resolution to the case without cost to the city, as Larry Meyer has cost us too much already.

Literally, too, one would have to believe that services were rendered to the city at no cost of any kind, either through the carrier by premiums, or through the cost of time and effort spent within the city on this defense. One would have to believe that it was free of cost.

To say so is an insult, but a silly one.

(8) Why take a police investigator under a federal lawsuit, and place him on Star Packaging investigation?

(9) Why honor Meyer with profuse praise in 2007, in May, while a lawsuit was still pending?

(10) Did Meyer ever disclose that he had a personal, close relationship amounting to a conflict with someone close to the plaintiff during Meyer’s investigation of the lawsuit plaintiff?

See, “Expert Witness: Investigator Led Crusade Against Businessman.”

“Meyer “obviously had more than an objective, professional law enforcement interest in the activities of Steve Cvicker,” wrote Dennis Waller, a police expert hired by Cvicker.

In his opinion, Waller said Meyer failed to objectively investigate Cvicker’s now ex-wife because he allegedly had a personal interest in her and mounted “what appeared to be a personal crusade against Mr. Cvicker.

“This crusade, which can be likened to a personal vendetta, negatively impacted Mr. Cvicker’s marriage, business and personal freedom,” Waller wrote in a May 14 opinion.

(11) Did anyone bother to ask if Meyer ever disclosed that he had a personal, close relationship amounting to a conflict with someone close to the plaintiff during Meyer’s investigation of the lawsuit plaintiff during the assignment of an investigator?

(12) After learning that Meyer had a personal, close relationship amounting to a conflict with someone close to the plaintiff during Meyer’s investigation of the lawsuit plaintiff, what disciplinary action, if any, was taken?

(13) Did our Police and Fire Commission take any substantive review of the Meyer lawsuit or Star packaging raid?

That’s a rhetorical question — the minutes of that shallow group show no thoughtfulness whatever.

(14) If you’re a member of the Police and Fire Commission, what possible, worthy use have you been to the city?

(15) If it should be true that the City Manager has an oversight role in all this — what oversight has there been?

That’s why one writes — there is no personal matter here — and yet, there is no trivial public one. I would not compromise in this city, or any other, in the asking of these questions. Nor would I think that any personal connection, small circle, etc., could ever matter more. I would never place acquaintance or society ahead of these questions and their answers, and I would readily discard any personal connection that fell on the opposing divide of these issues.

I would prefer there were no other issues in Whitewater, even again. That’s a preference in vain; I will take the same position again when conscience requires.

Well, if settlement in this case represented anything good for the city, would it not have been writ large on the front page of the Whitewater Register?

Settlement was a disgrace for the city, as I once wrote when it seemed possible:

Larry Meyer’s career has been bad for the city, and all the king’s horses and all the king’s men can’t put Larry back together again. For every empty but strident defense from Chief Jim Coan, to all the support in the world from his friends in Elkhorn, one truth remains: Meyer is offering settlement on a federal lawsuit about a citizen’s Fourth Amendment rights. That’s no simple mistake — he’s settling on a constitutional claim. He will contend that he’s admitted no wrong-doing, but that’s whistling past the graveyard. Meyer would not likely have settled — not Meyer, nor any other excuse-making, self-justifying member of the Whitewater Police Department — if he’d been more confident of his conduct.

Wait — I thought that this was a completely, entirely, wholly, unquestionably professional force, etc., etc? That’s only a smattering of what Coan likely tells his officers — and insists to the world — about his department. He speaks about them the way a righteous man speaks about a saint. We’re a city of ordinary men and women, doing the best that we can in challenging times. Citizens are neither saints nor prophets; nor do I expect that ordinary people will turn water into wine. It’s shameful, risible, galling, and impious how Coan elevates his staff. Small wonder that they perform poorly: they’re unaccountable.

The former editor of the Regsiter once contended that she would cover a story when charges were file in Elkhorn, to which I replied about the constitutional lawsuit against Meyer and the Whitewater Police Department:

…if litigation were the standard, then the Register should be covering in great detail the federal constitutional suit against former Whitewater police investigator Larry Meyer. I’ve not noticed that coverage; no one else has either.

A few scraps in out-of-town papers; nothing valuable locally. If you’re Whitewater’s hometown paper, then you should cover the case in detail, and its implications for the city; a real news site would investigate.

We have no real press within the city; we are so far from one, one wonders what would happen if we did.

No matter. I will ask those questions in my next post.

Next: Pending Questions.

The constitutional lawsuit against Larry Meyer and the police department he served in our small town was filed in May 2005. It was settled, and the case closed, in September 2008.

One might imagine that, during the pendency of the suit, investigator Meyer (now retired from the force), might have had a different profile. Not because one must assume that the allegations of the complaint to be meritorious, but because a community with a respect for the federal judicial process might wish to avoid disregarding a pending constitutional action.

Propriety expects more than right conduct, but even the appearance of conduct unbecoming. Now I know that our officials in the city do not like to be lectured this way. I will offer two replies.

First, one has a right to comment this way, and neither your office nor your delicate, tender sensibilities shall trump this right.

Second, if one wishes not to be lectured, then at least I would suggest that one stop lecturing. Inapt, pedantic quotations from Confucius, or on enlightenment, leave me unimpressed. This ersatz philosophizing is lawful, but almost a self-parody to my ears. It is enough to govern the city justly; the rest is best left to others. The city hires for a desk, and not a sham pulpit.

After the Fourth Amendment violations were alleged against Meyer in 2005, what else happened, that one can recall? Oh, now, you fine historians of the city, why this lacuna, this odd gap of events in 2006?

You know very well that Meyer acted in a significant, vital way in the Star Packaging raid, in which
I once wrote that “The Whitewater police tell us, repeatedly, that the Star Packaging raid, and their former requests of motorists for Social Security numbers, were efforts to prevent identity theft.”

Now, I have written before that I think the idea of significant identity theft in this matter was an excuse. (See, The Identity Theft Excuse.)

But who was a lead local investigator on the Star Packaging raid? You know very well that it was Meyer. Why Meyer, though? No one had the sense to see – no, the true professionalism to see — that someone else should play this role until the resolution of a federal lawsuit in which Meyer was named defendant?

Re-accreditation, fancy patrol car lights and decals, foot patrols — they are as light as tissue paper when compared to a mistake of this kind.

No laminated plaque will rehabilitate a departmental leadership so dense as this. Dense, and dense enough to think that it might be rehabilitated through trinkets. You have as much likelihood of rehabilitating with magic rocks and a chicken wishbone.

What was that raid, by the way?

Immigration attorney Erich Straub said the 10 employees he represents in their deportation battles are ones who were able to post bail and get out of jail. He thinks at least one other worker, represented by another attorney, remains in the country, fighting to stay here. Most of the other 14 employees, Straub thinks, were deported back to Mexico. “You can challenge (a deportation) order, but if you’re not able to post bond, you’re challenging it from jail,” Straub said. “The process is not fast. You could end up in jail from six to 24 months. A lot of people decide it’s not worth it and they decide it’s best to go home (to their native country)….”

The 10 people Straub represents are seven women and three men, most of whom are in their 20s and 30s, with a few in their 40s, Straub said. “As far as I’ve seen, I don’t think one of my clients has a criminal record,” Straub said. “They are mothers and fathers. They have children. They have families. They are hard working. They’re hard-working families that are trying to make a living here in the United States of America and they’re law abiding. But for the immigration allegations against them, they are not criminals. They’re not out there creating havoc and preying on society.”

Next: Our Silent Press

On May 24th, 2005, Whitewater resident Steve Cvicker filed a federal lawsuit against Whitewater Police Department investigator Larry Meyer, individually and as a member of that department, among other parties. The case closed on September 15, 2008, with a signed stipulation for dismissal, following settlement.

Four years is not a long time for litigation, although more so in the federal system than in many state cases. It is enough time, during the pendency of the action, for a municipality and its employees to consider carefully their actions, and conduct, regarding a citizen’s claims.

Here I refer not to a legal response, but to a broader reflection that may be conducted even during litigation. A case like this will have many docket entries, stretching over years; the Meyer case, 05-cv-00576, is no exception (with over 100 entries).

If there is anyone, in the City of Whitewater, who pompously tells you that reflection and reform during a case is impossible, you may be certain that he is either ignorant, stupid, or a self-interested liar.

(We have all three groups in Whitewater, as every town does; there is much lay certainty in Whitewater among those who are unknowing. It’s as credible as if you heard someone at a bus stop who causally mentioned his latest effort to perfect a working fusion reactor using a ‘Brussard,’ design. Possible, but highly unlikely.)

I will offer three posts on the Meyer case: this brief overview, intervening events, how the press has managed to cover the case, and a collection of questions arising from it.

First, a recap as I have previously posted, with newer developments added. These are principal, but not all, developments in this constitutional lawsuit.

May 25, 2005, Whitewater resident Steve Cvicker filed a lawsuit in federal court against Whitewater investigator Larry Meyer, among others, alleging constitutional and civil rights violations. The case was assigned to federal Magistrate Judge William Callahan. Defendants subsequently answered, later amending their answer, to Cvicker’s complaint.

June 29, 2006, Defendant, Larry Meyer filed a motion for Summary Judgment (that is, that there was no genuine issue as to any material fact and that the moving party was entitled to judgment as a matter of law).

March 20, 2007, Judge Callahan denied Defendant, Larry Meyer’s motion for summary judgment regarding alleged constitutional violations of the Fourth Amendment. Cvicker’s lawsuit on those weighty grounds would continue; only his statutory claims were set aside.

May 14, 2007, Plaintiff, Cvicker submitted reports from his expert witnesses. Those expert reports included a well-experienced expert’s assessment of (1) the evasive, incomplete answers that Meyer gave under sworn deposition regarding his ‘investigation’ of Cvicker, and (2) Meyer’s unprofessional conduct and conduct in significant excess of his search warrant, involving seizure of personal items that led to the basis of Cvicker’s constitutional Fourth Amendment claim against Cvicker.

November 15, 2007, Defendant, Meyer submitted a motion to enforce a supposed settlement agreement between the parties and to dismiss the lawsuit with prejudice.

December 20, 2007, Plaintiff, Cvicker filed his brief in opposition to Meyer’s motion to dismiss.

January 22, 2008, Magistrate Judge William E Callahan Jr denied Defendant’s Motion to Enforce Settlement.

September 15, 2008, Magistrate Judge William E Callahan, Jr signs stipulation and dismissal on 9/15/08.

These suits are rare, especially so for a city so small as Whitewater, Wisconsin. One might expect that it might be met with some self-reflection.

Of course not — the failure that leads to this a lawsuit like this shuns introspection and self-reflection. There is nothing more predictable and commonplace than saying nothing, changing nothing.

You may save slogans, quotations, and an insistence on politeness as though it were a virtue from God Himself — it is enough to govern well.

Next: The Intervening Event.

Here is Part 2 of my post on the 8/20 PFC meeting.

Freedom of Expression Resolution. In the spring, the Common Council, on a 5-2 vote, passed a resolution re-affirming rights of free expression.

The resolution was reviewed, but not adopted at the August PFC meeting. The reception – but not adoption – offers insight into authority of the Council, PFC, and leadership of the police department.

It is true that the PFC, and neither Council nor City Manager, oversees the Whitewater Police Department. If you ever read on a city website or elsewhere that the City Manager oversees the police department, that’s misleading and incomplete. Authority does not run from the City Manager, around the PFC, on major matters of promotions, etc. Approval authority runs from the PFC to the department.

(Quick question: when the City Manager recently celebrated a promotion within the department, did the PFC approve it first? If it did not, then why did it do so in other cases? If the PFC has approved validly in some cases but not others, then why not explain – in the City Manager’s Weekly Report, the distinction? That would be good and common policy elsewhere, but it’s ignored here. To defer to others is to fail the city.)

I’ll ask another question: What does it mean when a member of the PFC, when asked to adopt the resolution, remarks that a member of Council said it (freedom of speech, presumably) was “already stated in the Constitution.” One can re-affirm what appears already.

More to the point, what value is a member of the PFC who cannot read the Constitution for himself, rather than rely on the opinion of someone on Council? There must be more than one copy of the Constitution in the city, and as it is already clear, the PFC has independent authority to consider the matter.

A man, presumably literate, having talked, preached, and chatted up residents of the city for years, might have the occasion to read and decide for himself. No need to look elsewhere: one who can open a great Book can read a slender Constitution. A member of a commission like this should be able to exercise his own research and review, of a document that, after all, should be familiar to him in his voluntarily assumed role.

If I applied to a board on geometry, one might expect that I knew a bit of Euclid. Relying on other residents, politicians, CliffsNotes, etc. just lacks respectable diligence.

It hardly matters how one receives a resolution, or often if one adopts it at all; it is enough to see that receiving with ‘appreciation,’ without independent reflection, is part laughable, part shame.

Next PFC meeting, according to the notes: November 19th. How many even know?

I will finish the week (my posting week ending on Saturday), with a series on the constitutional lawsuit against Meyer and the City of Whitewater.

No one who has followed this suit would be surprised that we have a PFC that’s ineffectual. If we had better oversight, we would have fewer embarrassments. Instead, we have more embarrassments than we can handle, and if the city could sell them to other communities, we would have a fine side business in these troubled times.