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.