Okay.
Hello, it is Monday, June 8th, 6:00. I'd like to welcome everyone to the City of
Juneau Joint Common Council Utility Commission agenda.
Um Would you like to take roll call,
please? Chapman?
» Here. >> Seyfried?
» Here. >> Justin?
» Here. >> Lee?
» Here. >> Schoenauer?
Wagner? >> Here.
» Uh Utility Commission members, Apple? >> Here.
» Coons? >> Here.
» And Cannon?
Okay. So, with roll call being taken, training presentation by Brian Goodman,
attorney with Boardman Clark. And I think I will just let you Does
everyone have one of these? >> Yes.
» Okay. >> I have some extras on that chair in case
people come late. >> I'll let you take it away.
» All right. Well, hello everyone. It's It's nice to meet you in person. I've
been uh over the phone and emailing with with
other people in in the in the city. Uh and it's my pleasure to be here
tonight to kind of talk proactively about some issues. Um I'm kind of
calling this governance training, sort of how the city needs to operate. Um
those of you who um have been in uh leadership positions or elected
officials um in the last uh few years, you may know
my uh former colleague Steve Zaugg. Steve Zaugg has retired. He officially
has. As far as I know, he is actually retiring and not and not hanging on. Um
so, it was my pleasure to to do uh transition and and help out the city uh
once he has retired. So, I've been doing this for
a couple years and uh this is just I guess it's an opportunity
for me to come out, meet everyone, talk about some things before I'm coming out
for like a whole thing, right? So, it's good It's good to do that. Um you know,
as was putting together the materials I was um
you know, just kind of think through the kinds of stuff that come up on a
day-to-day basis so we can set a good foundation. Um, I know some of you are
are newer members and obviously we just had an election and so it's just a
perfect time to to kind of start start with some education. I also think this
is the first of a two-part series I'll be doing. So, this one is broadly
governance and then I think I'm coming back to do it a very specific employment
one because that's just a topic in and of itself. So, if you're like, "How come
we're not talking about employment?" That's next.
Um, I'm happy to take questions as we go. Feel free to raise your hand or just
shout them out. You're not going to throw me. I used to be a middle school
teacher. I get it. All right.
So, I like to start with with the oath of office because it's it's the thing
that that we all do and sometimes we do it without thinking about it, right? We
just say the words. Um also a little twist.
The word I'm quoting is actually the oral version of the oath. The written
oath that you sign actually has different words in it. I don't know why
the legislature has two different versions of the oath, but they do. Uh,
and the oral version includes that you will faithfully and
impartially discharge the duties of your office. Uh, that impartiality is only
referenced in the oral oath, >> [clears throat]
» uh, but I think it's important to highlight that because impartiality is
one of the most important concepts for any elected or appointed official. Uh,
you have to see the problem from the lens of the community as a whole and not
as your personal um objectives. And that's that's hard to
do, uh, especially if it's something that is personal to you, something that
you're passionate about. Uh, it's hard to set to create some space and think of
the big picture. And that's one of the things I'm going to be talking about
today is how do we remain impartial? How do we avoid having a conflict of
interest or a bias in a way that would affect our ability to do our jobs. And
at at the most extreme, you there's certain situations where you cannot have
bias. And if you have bias, you would have to recuse yourself from the
discussion and the vote. Um an example might be let's say
there was a termination hearing. Well, start termination recommendation was
that the personnel committee, they would have to be impartial to make that
decision. Then let's say there was a grievance filed and it went through the
process, then the council would have to be the final decision-maker on the
termination grievance. And you would have to be impartial in order to hear
that grievance and decide what the outcome's going to be. If you do not
recuse yourself, the risk is high because the the remedy is that the
employee that that was terminated could potentially raise a due process this
claim. And said that I had the right to an impartial hearing on this matter and
I that wasn't the case. They knew you know, they were heavily involved
with the situation from the inception. Uh and that can then lead to, aside from
monetary damages, the decision being overturned. So, the more important the
decision, the more important it is that you remain free from bias so you can
make those high-stakes, really important decisions. And and hopefully you're
going oh, well, that never that's never going to happen. I don't have to worry
about that. I hope that's true. But one of the challenges is you don't
get to know which which situation might escalate to the
point of an appeal before the council or an appeal before a committee. And that's
why I start the conversation right here and right now because you you frame it
the way that's way from the beginning and it
doesn't matter how high-stakes or how far the matter goes, you will remain
impartial. One of the things to keep in mind about
elected officials, especially but also um appointed officials, is that you're a
trustee of taxpayer money, right? With that comes what we call a fiduciary
responsibility. A fiduciary duty is like the highest duty you can have under the
law. It's the same kind of duty that your stockbroker might have over what
investments you make, right? And they can't just
take any of your money, right? That's not legal. Sim- Similarly here, you're
in charge of the city's money and you have to make sure that you're always
ensuring that it is spent in the way that is best for the community. Now, you
get to bring your personal beliefs in how that money should be spent, right?
That's part of the democratic process, but there's a difference between I have
um uh
if you want to call it a a platform, right? That you might have
run on a certain issues that I was told to raise. That's okay.
What's not okay is when you have a bias of oh, I was involved in that, or oh,
that was my kid that uh you know, got hit by the snowplow. I'm just making
things up, right? But you have to know those those potential areas. And then in
a small community like this, where I know there's a lot of family members, a
lot of relatives, a lot of people that go back a lot of years, the potential
for bias is just higher and you have to be more careful about that. Um I love uh
some of my smaller municipal clients. I I think that they have something really
special. But when it comes to bias, it's really hard cuz they're like, oh yep,
that was my great uncle and we've been at it ever since they put a fence over
our yard and took an extra 500 ft of our territory.
That's that's a thing that I've actually had someone have a
complete bias over and they're like, okay, well, maybe I shouldn't be voting
on their termination. Um when we talk about your obligations
to the community, it's important to also talk about your authority. What power do
you have? And when it comes to
the commissioners or it comes to the council members, you don't have any
power as an individual. So one of you can't do anything. There's
slight nuances if you might happen to be a
committee chair or something like that, but in your role as a as a council
member, you don't have the authority to do anything. You're just a person who
has ideas. When you come together in a full council
meeting, that is where the authority comes
together. You can come together and vote on certain
actions, and those actions carry the force of of law. They are what will be
done. And that is powerful.
Uh similarly, the utility commission works the same way. We come together and
when we vote, we can do things. As individuals, we can't really do things.
Um and that's just really important to know. And and
when we talk about council members and and commission members, obviously the
mayor has slightly different powers. The mayor does have the authority to do
certain things on her own. Um but that does not apply to to just
aldermen, right? Similarly, the the the chair of the commission has some
authorities that that rest just with the chair.
So, what does that mean, right? It means
that you have to come together in a properly noticed meeting. And a properly
noticed meeting means it's going to say what you're talking about, right? Not
just new business, old business, but rather what are we talking about
tonight? And then you act on that, right? You talk about it, you act on it.
Your actions become the voice of the council.
And that's how the council speaks. Otherwise, there's seven different
people saying slightly different things. You can't actually really speak on
behalf of the council. Now, the mayor can speak on behalf of of the city as a
whole. Even the in the clerk sometimes has the opportunity to speak and
from the city as a whole, but not as on behalf of the council.
That no one has that authority individually to do that.
Unless you give them that power, right? You decide, "Okay, we're going to do
this and we're going to designate this person to talk about it." You can do
that. Um so,
what happens if you as an individual commissioner, an individual councilor,
gets a complaint from the public, right? Could be about anything. They forgot to
plow my street. Um I
you know, they my my garbage is is picked up late or they forgot. Uh
they get these all the time. As a council member,
you don't solve that problem. You direct You either call the person
who has the authority to fix the problem or you connect the citizen to the person
who can solve the problem. Um rather than
jumping in and just doing it yourself. And you might be going, "Well, it's
simple. It's one phone call, right?" I don't have any problem with any
individual phone call. The the problem that sometimes happens though is there
are thousands of phone calls throughout the course of your term of office. And
if you are addressing each one, all of a sudden,
it's like you're administering the functions of the city rather than
governing. And and that temptation is all the
greater in a small community. You know what I mean? Of course they came to me.
I was their neighbor. Why would I call someone else?
But that's how the government is designed to work is that
Yeah, I mean you are the voice of the community and you should hear their
concerns and then direct them to the person who can help. And you can follow
up, too. "Hey, did that did you ever get up to fix the garbage issue?" If they
did, great. If they didn't, then go right back to the person who's supposed
to fix it and say they didn't fix it. And if they still didn't fix it, well,
now we've got a performance problem, right? And and that would get referred,
most likely, to personnel or the next supervisor if there's a couple layers of
employment in there. But that's a rare situation. Most of the
time, they will they will handle the issue.
Um the other problem that can happen with
even these smaller issues, smaller issues can become big issues, right? If
If one day it's my my road didn't get plowed, the next day it could be road
didn't get plowed and I swerved out on the ice that formed underneath the snow,
and now I've got a claim, right? And I'm going to seek liability. All of a
sudden, you are now in the mix of something that
is turned high-stakes.
And if you get too involved on the front end, you may be biased at the end of the
process, and that's where things can get sticky. So, let's say that turned into a
suit against the city, and they the council had a vote on whether or not to
pay a settlement based on that. You have to be able to look at that
impartially on behalf of the city as a whole, not I'm going to look really bad
if if we if we don't pay this, or we can't pay this. I don't want to look bad
cuz I handled it to start. That all ties into that idea of your
fiduciary responsibility to the community as a whole. And I'm trying to
put it in terms of of hands-on things that could create that bias. I can give
you all sorts of crazy hypotheticals, but I I want to ground it in what you're
likely to get, which isn't going to be a lot of really heavy stuff. It's going to
be occasional concern, and that's we want to follow this process for the
lowest possible stakes, so that when we do the highest possible stakes, we can
credibly say, "We followed our process." And if you don't do that in something
high-stakes, that's a problem, right? We have to follow the process. And so, part
of what I'm doing today is talking about the process.
Um I want to talk about other forms of of
complaints that you may get. At the beginning of council meetings, you have
a public comment period. You guys call it public appearances, right?
Great opportunity to hear from community members who have concerns.
But they're just that. They're listening sessions. They're not designed for you
to then immediately take on that cause. There's a couple reasons you don't
immediately take on that cause. One, you didn't notice it on the meeting. So, the
open meetings law won't let you address it that night.
And two, that person may be going around the
chain of command. The person might say, "Ah, that department head doesn't like
me." Or that um um committee
chair doesn't like me. So, I'm going straight to the to the council.
If the word gets out in the community that the way to get things done is to
come to the public appearances and tell the council
your problem, you guys will be running this town one meeting at a time and all
of a sudden you'll have 4-hour meetings three times a week, right? And that's
not an exaggeration, that's what happens. The meetings get longer or they
get more frequent because all these problems are coming to you.
One of the most important things that the council does is set up a system so
that they get the right people to solve these problems for you. And if they
don't do it right, that's where you have a performance improvement system and
evaluation system to hold those people that you've in charged with that
authority accountable. Again, this is so much easier to say in
theory than in practice. Cuz in practice, when someone doesn't do what
you think they should do, it's going to feel a certain way. And you're going to
want to um
make sure it gets done. And you have to commit to the process or again,
you're going to be involved in every minor decision within the city, and
that's going to be tedious and inefficient. Not to mention, very much
just not your job. So,
let's talk about how you approach
issues, right? Starts with with a council agenda or commission agenda,
right? And that agenda has to outline what you're going to talk about and act
on at that meeting. So, usually it is set up between the
clerk and the mayor, with input from others as appropriate,
but once that the agenda is set or 24 hours before the meeting hits, and you
can't change it anymore. And so, it's important that we recognize
that one of the biggest process points we have is the agenda itself. The agenda
needs to represent the things that we need to deal with. If this issue you're
passionate about is not on the agenda, you can't talk about it. Not at a
meeting. You The only thing you could talk about is, "I want to get this on
the meeting." Right? As opposed to getting into what that actual substance
is. It's really important that you keep that in mind cuz again, that's that's
the process, and and it's not only is it an orderly process designed for good
governance, it's the law. The open meetings law requires you to post public
meeting notices with enough specificity that a member of the public can come in,
look at the agenda, and go, "Oh, I know what you guys are going to be talking
about." What I sometimes see is
template agendas that have certain things that are just kind of always
there. If you have certain things that are just
kind of always there, you got to question yourself. Because
what is it that we're talking about? Things like,
"Committee report." Right? Well, what does that mean? You have an ordinance
that tells you what it means, and I'm going to talk about it.
If you have other standing items like new business,
well, that doesn't tell me anything, right? New business, what is that new
business? Put it on the agenda. If not, it can't Only new business that's going
to come before you is, "Hey, I want to put this on the next meeting."
And I think that's just important to keep in mind. That's That's the process
by which this works. Members of the public who um may have
items that they want addressed, again, they don't have the authority to demand
that it be on a council agenda. Um they can talk about their issue to
the council during public appearances. But other than that, they have no
authority to make you do anything. There'll be times where you'll want to
take what they say very seriously and and address it. There'll be times where
you've already done that three times and they're just not getting it. You aren't
obligated to continue to engage in a in a dialogue over that. You've done what
is going to be done. The answer is resolved. There's nothing further to
discuss. Thank you for your time. You can't actually stop them from coming
and talking, but you can don't have to do anything more than that.
Um so And when they're speaking uh and members of the public at uh public
appearances, they can only um address the body as a whole.
So if if someone uh is coming to personal appearances or public
appearances and they just start trashing an individual person,
they're out they're out of order and they have to direct it to the council.
Council members, I wish to lodge this concern. If instead they go, "Mayor,
you're doing everything wrong." That's incorrect. Or they turn and face someone
in the audience, right? You know, like department head, this is you. That's
wrong. That's not the process. Public
appearances is a public appearance before the council. And And that again,
it's easy to kind of let that slip over time, but it's important because it's a
way to kind of diffuse some of the tension that comes from a public
scorning of an individual. And so, enforcing that requirement of
attention attention, you know, I need you to address the body as a whole, is
is just one of several subtle things you can do to kind of lower the temperature
on on passionate members of the public speaking public appearances.
So, one of the other questions I often get
about setting the agenda and setting the stuff that wants to be done, is there
people who are like, "Hey, put put basketball on the agenda."
What basketball? Wreck it in? Okay, so you were saying restrooms of wreck it
in. What about it? You have to, in order to get something on the agenda, have
enough specifics that we can write it on the agenda sufficiently under the law.
The public meetings law, the open meetings law, requires you to state the
agenda items with sufficient specificity. You might be going, "Well,
what is that?" Well, there's various factors
that establish it. There was a Supreme Court case that that really helped
establish them. But the basic elements of it are, the more important the issue,
the more detail you need to have in the notice. So, if you were just talking
about the need for volunteers for a basketball tournament on Friday, you
probably don't have to say all that in the agenda. If it's, "We're going to
eliminate the basketball program, and this is one of our most beloved
programs," probably need to notice it not just basketball program, but
action and possible discussion about the elimination of the basketball team.
Which you're going to be like, "But then
they're going to lose their minds." And my answer to that is, that's the point
of the open meetings law, right? So that they can see it, and if
they feel a certain way about the topics, they can come to public
appearances, or they can just come and watch and hear what you have to say.
And that's why you need to have those those specifics. So, it's one of those
issues that can get over time a little bit watered down. And some of you might
be like, "Well, I don't It's not my job to write the agendas, right? That's
Megan's job, you know, with consultation the mayor. But you have to get the
information to her that it gets drafted correctly. And again,
sometimes that means you have to provide more detail.
Um [clears throat] I noticed that you guys have a in your
ordinances kind of a standard layout for for meeting structure. One of those is
new business, old business. Uh that's a traditional way of holding a
meeting that that goes back many years. It's the way it's always been done.
But the open meetings law doesn't require that at all. The only thing open
meetings law requires is that you say what we're going to be doing, whether
that's old business or new business, it's what you're doing. And that's all
that it needs to clarify. If there isn't something specifically noticed as old
business or specifically noticed as new business, you can't talk about it
anyway. So it's a way of organizing your agenda, but you may find
that actually it's more complicated than than it would appear. Um you could
still, for example, eliminate old business, new business
just to have a standard agenda. And things that are follow-ups, old business
if you will, they can go first. There's nothing wrong with that. But you don't
under law have to separate it into old business and new business. That's just a
tradition. Some traditions are good. Some other traditions are, you know
what? Let's think about why we're doing that anymore. And maybe that's just
something we can we could eliminate when we change our potential ordinances.
Um some of the other things that are in your ordinances is you do have an
ordinance on public appearances. Um one of the things I I have seen over the
past few years, uh frankly it's been since COVID where there's been a lot of
passion about um of various parts of government reopening, um that people
realized, "Hey, we might need a framework for this public appearances so
that we're not just listening to public appearances all night." Um you cannot
discriminate based on what the viewpoint is of the speaker. But you can establish
ground rules like every speaker gets no more than two minutes, and they can't
give their time to someone else. Right? And you could say each speaker gets two
minutes, but under no circumstances will the public appearances last longer than
30 minutes. Which will give you about 15 speakers. That's a good amount of
speakers. Uh but if
uh you actually count it out, you're probably not going to get people turning
right on two minutes, and so 30 minutes might not get you the full 15. Um but
that's a neutral way of regulating. It's a balance. We want to hear from you, but
we have other business to do as well. And I've I've heard from enough
municipal clients that are like, "We just had a two-hour public comment
period. That was not fun." Um and and again, it's just get repetitive after a
time, too. It's like, "Okay, I get it. Let's talk about it, right? Let's Let's
actually get into it." But I do recommend, even if the public is
speaking on an issue that's on the agenda, that you wait until you get to
that part of the agenda to discuss it. Here's why.
The council discusses matters with the council. It
doesn't get into a debate with a member of the public, whether they're public
appearances, whether they're just people who are attending the meeting. There's
There's no debate. You You can listen to it. You can acknowledge their concerns.
But But you can't get into a discussion if it's not on the agenda. And if it is
on the agenda, when it gets there, you're supposed to be talking about it
to the council. In in this little That's why there's a tables are the way they
are, right? Cuz we can look at each other and have these discussions. Again,
so much easier to say in theory than in practice, which is why I encourage you
to do it now when there isn't something really heated uh
coming up. Establishing new norms would be a good thing.
Um Another thing about complaints uh and
agenda language and all of that. The reality is not everything is a
council-level decision. Not everything is a committee level
decision. Not everything is even a supervisor
level decision. Some decisions are just from the person whose job that is,
subject to the person above them keeping an eye to make sure they're doing it
correctly. Right? Every employee, every appointed official has a certain role to
play, and they all have a certain amount of authority. Whether that's a roads
crew who's going to decide, "Okay, which side of the street do I want to plow
first?" Right? They might have that authority. Um to really big things like,
"Hey, we need to buy a new plow." Right? That is going to be a council member
from the council. This is going to be expensive, right? It's probably going to
go through the public works committee and then up to
a council level decision. So, you've got to recognize that the goal of a
governance framework is to resolve problems as low on the totem pole as
possible. That's a good thing. If it's
resolved at the lowest possible level, then great. Everyone's happy, we can
move on. We have to be careful that there isn't this unspoken appeal. That
is, if I talk to this person and I like their answer, I can go to their boss. If
I don't like that, I'll go to their boss. If I don't like that, I'll go to
the committee. If I don't like that, I'll go to the council.
If you do that, uh
decisions will get dragged on and on. Some things won't even get resolved for
a month or more. Uh not to mention, it defeats the purpose of why you've
hired and appointed people to address those matters. Their job is to solve
that. And if you don't like the way they solved it, that's your ability to have a
performance session with that individual, right? All right, we got to
talk about this. Maybe it starts with the the the committee, right? This is
the person who's in charge of of running the city. That's my committee. And then
we're going to have that conversation, right? If if it's
let's take police for example, like that's going to go through the chief. It
just is. And there's are things you're not going to intercede on as a council
until you're allowed to do it. But it I I had I intentionally picked police
because there's a very specific amount of authority for that and we generally
understand that like that's a police thing. It should sort of be like that
for every uh part of the city's operations, which
is okay, who's in charge of that? Who's supervises that? And then who oversees
that person? Notice I used the word oversee,
not supervise, cuz that's what a governing body would do, again,
committee, council. We oversee, we make sure that that the big picture is
getting met and that um they're doing the job that that we asked them to do
when we hired them. Uh and it and to kind of build off of
what I'm saying about bias, you have to address these issues
uh eventually if they turn into something like an employment grievance,
right? This is just an example where there is defined ordinance and state law
that requires you to do certain things. In the employment grievance, it has to
be related to discipline, termination, or workplace safety. But let's say that
a a supervisor, you know, suspended someone for a day.
Hey, if you're going to um if you're going to recklessly drive the plow like
that, we're going to need you to um to take a day off, unpaid suspension.
All right? That's a discipline. So, they could then grieve that discipline starts
by saying to the supervisor that, "Hey, I don't agree with your decision. I'm
grieving that." Then it goes to the the committee head.
And then it's going to go to an impartial hearing officer, which is
another attorney, can't be me. Um an independent uh attorney is hired to hear
that grievance and decide, "Hey, was that a valid uh discipline?" And then
ultimately, the final decision is at the council level.
That's how it works. And so sometimes you guys don't even get to get involved
until the very end. And that's intentionally. So that when it gets to
you, you've got you've got um clean hands, right? And you're looking at it
objectively still. Now, you're going to hear rumors, right? Small town. But you
need to remember that you might have to distance yourself, right? And the same
thing can happen at at various, you know, department level matters where
you're like, "Yeah, I'm the front line. I'm the first person who's going to get
that complaint." And we want to have those department heads feel empowered to
address those issues when they come up. >> [clears throat]
» It's really easy for the council to tiptoe across that line. And it can have
the the effect of those department heads
going, "I don't know if I can do this cuz I don't know if the council's going
to approve." And then they get it just starts to spin. It's like paranoid. They
don't know how to run the city. It's their job to know how to run the
city, and you need to give them the tools to do it. And then if they don't
do it right, we hold them accountable, right? I'm an employment lawyer lawyer
first and foremost. I I'm very comfortable with we need to address this
person's performance, right? Um but I think that's just important because it's
easy to jump skip steps. And statutorily, you're at the end of the
process. So you don't want to get ahead of yourself.
Questions about kind of structure of governance and kind of structure of how
we put those agendas together?
I'm either boring you or you're perfectly understanding this.
» [clears throat] >> Well, you talked about old business and
new business, and you shouldn't really have it on unless you have a specific
item that you want to list for old business or new business. Otherwise, it
should probably be taken off. >> Yeah, cuz there's nothing you can talk
about because there's nothing noticed to talk about. The only thing you could do
is propose topics for future, but that's not new business, that's future
business. >> And then the other thing is our
ordinance reads right now for all public appearances 15 minutes. What's your
recommendation? >> 15 Somewhere between 15 and 30 generally
makes sense. Usually I if I recall, your policy is 15 unless approval is given.
So, if there's a hot topic and you want to let people uh talk more, you can set
it higher or lower. So, if you know going in, "Mhm, this is going to get
some people." You might say right before the public appearances, "Let's go with
30." You can also do it after 15 minutes is
up on the clock. The risk there though is am I stopping it because 15 minutes
are up or am I stopping it because I don't like what they're saying? Right?
You don't want it to be based on viewpoint. So, that's why I usually
recommend deciding on the front end how long we're going to let this go.
Um there is some gray area there. So, if
it's been 15 minutes and and you thought everyone would be done, but they're not,
um you you might consider extending it at
that point. One of the things I don't believe you have though is an individual
speaker time limit. Is that right? >> That's what I was going to ask you is if
you recommend all or having an individual time.
» I recommend having both because you don't want any one person to eat up
all the time. So, if you have 30 minutes and as many people as have time to
speak, speak. You could get someone who comes in and speaks for 30 minutes
straight just to eat up the whole time. Filibuster, if you will.
So, I would recommend having for both. Two to three minutes is common.
Uh you'd be surprised how much you can get said in two minutes. Uh but three is
fine, too. And that would be if you keep 15 minutes, it'd be five five speakers
taking the entire time. It's a good amount of speakers because they aren't
going to take all day. >> Would public appearances would be this
dedicated towards the posted agenda items or cart blanche?
» You can Yes, good question. So, should public appearances be only on agenda
items or should it be about anything? That is uh a council-level decision.
The I I find that things tend to work better
when it is based on the agenda so that people don't just bring in extraneous
things that maybe have nothing to do with the city at all, right? And I
certainly seen those individuals um they might not even be community members. Um
so I I've seen people that say, you know, yes, we're only going to talk with
the agenda items. We're not going to talk with this other theoretical thing,
this other rumor that may be going on. Let's stick to the agenda. That that has
worked well for some some municipal clients. The other one I have seen is is
we're all limiting public appearances only to
residents of the city. Um because we don't necessarily care
what someone outside of the city thinks about what we're doing. Again,
uh which one of those things where you know, yeah, but is it really a big deal?
Ultimately, I'd say it's a big deal because the first time it happens,
you're going to want to know the answer to it. It's better to set the rules in
play first rather than uh quickly realize that hey, this is a coalition of
people from across this the city border that are objecting to something we're
doing and we want to focus on on what our community members want to say on an
issue. So those are the three I see most commonly put in place as as regulations.
Um again, it's a balancing act. There's there's not a right or wrong way to do
it. >> The other question that was brought up
is on how should you at the beginning of the agenda when you approve your
minutes, and it should it be review and approve or should it be
» Good question. And I think I have a comment on that. I do I do have a I I'm
going to get there. Um but I yeah. Let's let's hold it cuz I've got to go in my
head. And I that way we're on the same page. Good question.
So I'll keep going cuz I know I want to get to that topic. Um
one of the things that I want I think it's really important for elected
officials and and appointed officials to understand is is yes, the open meetings
law which I've kind of alluded to, but also the public records law. These are
tools that Wisconsin state law has given citizens to hold their
um elected officials and appointed officials accountable.
So it's called sunshine laws, right? Because the sunshine is the best
disinfectant. It's the everyone's above board. Um these are these laws
are very helpful. But I'll be honest, for administrative
leaders, like yourselves, it can be really frustrating at times.
So, one of the things I want to talk about is open meetings law.
Open meetings law applies anytime there are enough people in a room to decide an
action that is for the city. Obvious example would be well, if you
get the four of the seven council members in a room together, that's a
quorum that can do business. So, if they're in a room together, we
have we know we have to take a pause on talking about anything related to the
city. Um
gets squishier from there though, right? What if it's a committee? Well,
committee, there's only two of us on there from the council, so that's okay.
But then, how many other members are there in your committee?
Do the math. If you have a quorum of a committee, you also are subject to the
open meetings law. And if you're going to conduct official business, you have
to do it on a noticed agenda, just like the council.
It it's hard sometimes to do that because it's like, well, well, yeah, but
we're the people that are at all the things, right? We we just sort of talk
to each other. That's okay as long as you're not
talking about it together. So, an example,
let's say right now, there is a a quorum of the commission here. Right?
And this quorum of the council here. What does that mean? That means we had
noticed it as a joint meeting. Then we're fine, right? It's not that you
can't do certain things, it's that you have to give notice of those certain
things. Another wrinkle that can come in is what
we call a negative quorum. A negative quorum means I can't have enough as many
people in a room together talking about city business as could stop something
from happening. So, think about something that needs two-thirds of of
the the council, eight start looking at how many votes is that? Is that only
three votes to vote against something? If it is, then three of you are all of a
sudden triggering a potential negative quorum.
And you better not be talking about anything that requires two-thirds.
Um so yes, there is math and I'm sorry for that, but you got to keep track of
it, um the negative quorum. This one involves no math, but it's also
the one I see broken the most often, and that's a walking quorum.
A walking quorum is when you talk to one other person in your governing body, in
your commission, in your council, in your committee. What does that mean?
That means one member talks to another member,
totally fine. That member then talks to another
member, still probably fine, who talks to another member. Oh, you've just
gotten four. You've hit a quorum and you shouldn't be doing that, because if you
guys all align yourselves outside of a meeting on what to do, you've broken the
open meetings So, be careful of straw polls or hit you
know, send it shooting out a text chain to a
group or a subgroup of the council, because that can be a walking quorum. If
you just kind of figure out what do you Where do you lay on this? Where do you
lay on this? Where do you lay on this? Before you know it, you've got a walking
quorum. Um a lot of times there's not a record
of it. Maybe you did it, you know, um in person over a series of meetings. That
doesn't change the fact that it's not legal, and people have been caught um
doing walking quorums even without paper.
Um the most common one though is the
classic reply all to an email chain, which is someone shares something with
the whole council and one of you
is is um wants to express your point about it.
Well intended, you hit reply all and you share your feelings about that issue.
Well, we've got a problem because you just
shared your feelings about that issue with the quorum of the board, cuz they
weren't copied on that email. Right? Got to be careful about that. We
don't want to be hitting reply all discussing city business outside of
these meetings. That can be a form of walking quorum. And technology has done
wonderful things. It's allowing us to record and broadcast today's
meeting, but it also means that you've got a world full of of
evidence on your personal electronic devices in the form of texts, the form
of emails, all there and at a moment's notice. So, that means it's your
obligation to maintain public records that are on your personal
devices. Right? If you get a city provided device, fantastic. Make sure
you keep your city provided device solely dedicated to city business.
Because it can very easily become that you have to disclose everything that's
on that phone. And I will never forget this.
Um I was a new associate, Steve Zack asked me to
for help on a public records request. What was the issue? A municipality had
got a public records request for the contents of everyone's phones on the
line crew. And I was like, "Okay. Hey, wait a
minute. How are we going to get all their text messages?"
And Steve's like, "That's why I asked you to do it. Figure it out." And what
did I have to do? I had to go down to uh to city hall and collect a baggy full of
cell phones. And then I talked to the IT department of my firm and said, "We've
got to get the text messages out of this." And then they loaded them all up
onto a a sheet. They ended up doing it as a spreadsheet. And then I had to go
through every single text message to determine if it was disclosable to this
public records request. Spoiler alert. A lot Spoiler alert. It
It You didn't want me to see it, let alone someone else to see it, right?
They had concerns that there were inappropriate images on there, and they
were right. There were inappropriate images on there. Fortunately, that
public records request got pushed through before I had to disclose any of
those um potential issues. But, I use this as an
extreme example of a thing that actually happens, right? If you use your personal
device to talk about city business, your personal device has public records on it
that can be requested, and you would have to turn them over. Does that mean
the only way is a baggy full of cell phones? Not necessarily, but you would
have to turn those over to the clerk who's processing the public records
request. If you don't, the city could get sued for violating the um
public records law, and that's bad. But, it's even worse. You could be sued
individually because you're the the um official and the records custodian for
your own records that hasn't done it. And what that court process is called
when someone files it and says, "You need to give me those records." It's
actually called a writ of mandamus, and it is essentially an order by the court
that the government do something. And if you then don't listen to that order, and
then we should go, "No, it's my personal phone. I'm not giving you anything
that's on it." Well, that's contempt. And that can be jail time and serious
fines. So, we don't play around with it, right?
We want to keep our personal devices personal. And our work devices work. If
people are using your personal devices to talk about city business, redirect
them to your official email accounts. That way you have a record of it. Um if
you are you can use your phone if it syncs with the city's official um
communication channels, right? And so, if you have like um [clears throat]
Do you guys have email that you guys can log in separately? Uh you could have an
app for that on your phone, that'd be fine. Use the app. That way there's a
record of it, it's being retained, and it can easily be found by
um by city hall without having to ask you to screenshot a bunch of text
messages, right? So, it's really important to keep that in mind. It will
make everyone's life easier. Fortunately, there is an exception in
the public records law that records that are purely personal
are not discloseable under the public records law.
But, in order to determine that they're purely personal, an attorney like me is
going to have to look at them all. And you don't want to share all of your
deepest private secrets with me, either. Um
it's just important to recognize that. That is where the line is, and it's not
always clear what personal and private is. So, to do separate them, so you have
clear um separation in your own mind, right?
Your personal Facebook account is not the account I use for city business.
Um I don't use Facebook Messenger to talk about city business because there's
no record of it, and I don't have a good way to preserve it. And I don't want my
friends exchanging official emails right before we talk about the football game
on Sunday and how much we're going to have to drink, right? Cuz again, then
that all comes to an attorney to decide if it's discloseable if you should get
that request. So, again, not trying to scare you. I think the public records
law is great, but we just don't want to be ambushed by it. We need to be aware
of it so that we can avoid uh avoid trouble in that. And one of the things
that that that is that I really want to highlight is is that walking quorum
issue where you hit reply all and talk about thing that that uh the mayor
shared with you. Uh that creates a public record showing you violated the
open records law. Right? I said the open meetings law. So, it's a record that
shows you that you broke another law. That's double problematic, right? It's
just that easy. So, do be careful. There are specific statutory consequences for
violating the open meetings law. Biggest scariest one is it can void the action.
So, let's say we didn't post tonight's meeting. You would not be able to take
any action whatsoever tonight if it wasn't properly posted. Um and if you
did, it would be void upon someone correctly calling out that you didn't
pop properly post it. Good news, you did properly posted it. I checked.
Um but again, that's like the highest um example. And if someone's like if it's a
controversial decision and someone doesn't like it, it's really low-hanging
fruit to uh challenge it under the Open Meetings Law. Cuz then I just undid the
thing that you didn't like. So be careful about that. There's also
individual fines. Um, it's three three between $25 and $30
for each violation that is your fine individually as a person.
The city by law cannot reimburse you for that. No way it's covered by insurance.
Do you have a fine? So you it's like yeah, it's standard bucks. It's bad, but
that's like a bad parking ticket, right? Um, there's also potential for
attorney's fees in there which all of a sudden it's like oh, that's going to
equal a thousand times, right? That's like an hour of talking to an attorney.
Um, so be careful about that. Um, it is uh a pretty significant penalty. Also,
when I find that someone breaks one aspect of the public record, I find that
they do it more than once, right? Let's say you never turned over your phone.
Each text that is a public record that you didn't turn over is a separate
violation. So there's a hundred messages, times that by 300, that's your
fine. So it's not it's not as toothless as it might sound at first glance.
Um, when we're talking about public records, we are talking about the
subject matter of the record, not just um where you store it. So the fact that
it's on your official city email doesn't mean it's a public record. If it's an
email to your wife saying you're going to be home late, that's not a public
record. It's purely personal. Similarly, if it's your personal email
and you're talking about how you're going to vote tonight's meeting, it's
absolutely a public record regardless of where um it's stored. So that's again
really important. And you each as elected officials, appointed officials,
uh and and public servants in general have a duty to retain those those
records. And if you alter, falsify, destroy, or conceal those public
records, uh there's it's class H felony.
So, do not the old adage uh the cover-up is worse than the crime. Please do not
shred your public records. Um that's that's bad. Um you do also
have a records retention um or obligation under uh state law and under
your ordinances. Um
your emails, your blogs, your Facebook groups, if you get I know everyone's got
them, right? These community groups that you're in, the informal, you just talk
about things. If you're in those groups and you're talking about public
business, that means that the contents of that Facebook group are at least in
part public records. And all of a sudden this private community group is now a
public community group. So, be careful about that. And that there's a um
Attorney General opinion right on that on that point. So, be cautious.
All right, that's what I wanted to say about open government uh and whether
we're talking about public records or open meetings. Aside from scaring you a
little bit, any thoughts, questions? >> Well, it sounds like on your email you
should have a disclaimer so do not reply all and maybe informational only.
» I I I like that. You either you One of the things I've done is yes, I've
seen just don't hit reply all. Do not hit reply all. Or reminder do not hit
reply all. Another thing I've seen is people put the council members in at the
BCC, then you can't hit reply all. It won't let you or it will just go back to
the sender because you're BCC. That also works. It kind of just forces someone to
then go in and add everyone individually, which will usually mean,
"Oh wait, I shouldn't do that. Public meeting right violation." But yeah, I do
like that disclaimer, especially if someone's like, "Hey,
let's let's say you wanted to pass out this agenda, right? My packet cuz I gave
it to you on Friday. You could have sent it to the council and said, "Here's the
packet for Monday so So, can look at it in advance. Do not hit reply all the
comments about it, right? And
that's how we could do it. One-way receipt of information rather than a
discussion. You can do that, yeah.
Other questions? All right, let's dive into some of your
ordinances, right? I'm going to start with committees.
Um and I I just pulled your ordinances straight up, 2.08.040,
right? At the organizational meeting, the mayor
shall appoint three aldermen to each of the following committees. There they
are. So, now there's three of you on each one of these committees, which
means any two of you can decide the business of those committees. That's a
really small walking uh walk um sorry um negative quorum.
So, just be careful about that. It also is the mayor shall appoint, which means
the mayor gets to pick um whether you like it or not, the ordinances say
that's who it is. And there's no appeal process, no challenge, you just
it's just how it works. Um
then there are specific duties for each of those committees.
It's important that each committee understands its scope and doesn't step
over the scope of their committee. Um one of the committees I work with the
most often is is the personnel committee, right? Cuz they're
making employment decisions. And they also are hiring new new
candidates, and sometimes they are terminating candidates. But they are not
replacing the administration of the city, right? We have employees and
specific elected officials that do the boots-on-the-ground work. The personnel
committee is in oversight of that work. So, for instance, the personnel
committee would review um an employment handbook. And then if there were changes
made, made recommendations to the council, and then the council would
approve it, right? Big-picture governance stuff in terms of the
personnel committee. Then in certain cases, yeah, the
personnel committee is going to be the hiring committee for that position or be
part of the hiring process. And by according to that handbook, there are
certain times when the personnel committee is the
the committee that votes on whether or not someone's going to keep your job
their job. And that's tough. It's a hard place to
be. But that's that's a specific job.
One of the things that can get blurry quick
is let's say you're on the public works committee and someone in the public
works department isn't doing their job. Is that public works problem or is that
a personnel committee problem?
See, it's gray. The answer to that is it starts with the the top employee in
public works. And if that person is the subject of the
complaint, then it could rightfully go either to
the chair of the public works committee or the personnel committee.
But the public works committee chair, when
they get that complaint, should turn it over to personnel.
Cuz personnel has to be the one to implement. There may be opportunities
for the to get information from members of the public works cuz maybe there's a
you know, a whole thing that's going on that's really you know, about
how public works operates. That can be appropriate. But at the end of the day,
it is personnel that's going to do the employment aspects of that.
Similarly, the personnel committee doesn't just
take up every single complaint that involves an employee because everything
involves an employee, right? That's just how it works. Someone is hired to do
everything. Um
then you the you similarly and the personnel committee have to recognize,
well, wait. Has this gotten to us yet? Or or should this be handled at a lower
level? Or is this not really a personnel complaint, it's a structural complaint
about how we organize part of our city. Structural complaint
goes right back to that committee, right? The proper committee, finance,
public safety, public works. So that the they can deal with the
systemic problem. Uh it's it is your obligation to keep
them straight. Sometimes you may have to have a a meeting to simply decide that
this is not our meeting, right? It's like we meet we met, this isn't us. Um
and it it moves on. But that's part of why I was really emphasizing the need to
get the complaint to the employee overseeing that work as soon as possible
so that they can funnel it to the correct person. A lot of times what will
happen if if the system's working properly is the the head of that of that
department will um decide yes, this is going to be high stakes and I'm going to
need to make a recommendation of of termination to the personnel committee.
They contact the chair of the personnel committee and they copy
the chair of their department so that they know what's going on.
The um the
specific committee isn't getting involved, but they now know that this is
going to have a ripple effect on your committee, right? That's the ideal way
to resolve it. In practice, what happens is the chair uh or anyone else on the on
the specific committee is going to get really excited about it. Oh, wow, this
is happening in the department I oversee, my committee, I need to get
involved in that. That's a perfect example where bias can
creep in, right? It needs to go to personnel because personnel has that
general oversight over employment matters. If it goes through a public
works debate first, all of a sudden those three council members that are in
that committee have probably predetermined their answer by the time
it gets up to the council. Not to mention, it's now two meetings instead
of one, which slows everything down. Um so again, that's important to
understand. The structure is still a governance structure, right? It's the
business of the council that's is done by committees so that you can really get
down and dirty in specific areas. But, out That still doesn't mean that
you are the factor running that department. And again, lines get blurred
very quickly. But, I like to think of it as you're overseeing the head of your
department. And if that person isn't doing their job, then you hold them
accountable with a performance evaluation. That you don't you might do
the initial performance evaluation of the head of but you're not going to do
the final or any decision, right? That arises from
that. That's going to personnel. So, you also have a recreation
committee, which is different than all your other committees. And so, it's
important to note that that is a thing that exists. And you have chosen to
allow it to be four members of the committee. First of all, why four,
right? You're begging for a tie. And they shall be appointed by the mayor
and approved by the common council. They have to be residents, but they don't
have to all be council members, right? One alder shall be on the committee.
Everyone else can be community members. Notice that this is very different than
every other structure I just set up. Do the people from the public who have
signed on to that committee know that they are signing on to a public
committee that subjects them to public records requests, open meetings laws?
Has someone invited them to a meeting like this, right? It's easier
to say yes than to really recognize what you're saying yes to. So, I I put that
as a caution. I know that there's some discussion about where where things are
going to go with respective rep. But, ultimately, I just wanted to
identify it as as an outlier. It's different than everything else. Doesn't
necessarily mean that's bad, but it does mean you have to be aware of it.
In the policy, it says that committee or say in the ordinance, it says that
you must make a committee report at each regularly scheduled council meeting.
That's what the ordinance is saying. So, yes, at every meeting, you'll chair of
this committee, all right, is there is there a report?
But, if you read it, I put it in italics, so you can all see it on page
five here. Submit an oral or written report. Which means you do not have to
submit the report um verbally. You don't have to read everything that was done,
you don't have to say everything that was said. You just can say
the written report says and all, just drawing your attention to, "Hey, we just
had a vote on this and the basketball team will be playing on May 15th."
Right? Real short and simple. What is the thing they need to know? Because the
report is the the real document that says what the committee
was doing. And the report probably looks a lot like the minutes of that committee
meeting um
it meetings will start and will continue to
be long if every committee person reads out everything that was discussed
at the committee. Here's why. You set up a committee to do all of that.
And if you have that then report to the entire body in detail, you haven't
benefited from the efficiency that the committee system can bring to you. You
intentionally, by forming committees, said, "We're going to delegate that to
them." Now, we want oversight as a body, that's why we have a
written report. But, if no alder has a question on the
written report, it doesn't have to be a discussion item at the meeting. You can
just say Any questions? No questions? Okay, we'll
move on. And again, that's just a way of running
an efficient meeting. And if people are are hesitant to say, "Well, people want
to know what's going on." I would say they can know, right? We've got the
committee report and they could have been at the committee meeting.
There were plenty of opportunities for people to hear.
Um you have to balance that with the efficiency that would come from um the
meetings being longer uh if you do that. Um
and then you'll notice that the the ordinance on the agenda does say
uh will always be reports of committees and officials." Yeah, reports. That
could be oral or written. You would satisfy your ordinances with written
reports and not talking about it at all. In the balance is probably the ideal way
way to do it. So, I do not think that they have to be read aloud.
Questions about committees cuz I I know how important committees can be to
running.
» Well, I remember that I knew it was an annual
meeting where the appointments I had were questioned and switched around
because >> Appointments for committees?
» Yeah, okay. Because the council as a whole has to approve them.
So, that is you know, just as because I appoint people or any mayor appoints
people, that isn't necessarily where people end up if they want to move
around. >> Where in the ordinances does it say it's
approved by the council? It says it for record.
» I'm pretty sure that it's part of the law.
I don't have the ordinance with >> I I copied it right out of the
ordinance. So,
it could be that that is a long-standing practice, but it might not actually be
what your ordinance is requiring. Just something to kind of flag as a,
"Hey, are we doing this cuz we have to or because that's the way we've
historically done it and we've tried to reach consensus?"
Sometimes disagreement might be okay. >> And maybe that's the way the resolution
was written. >> It could be, yeah. I would I would look
at the ordinance and I'd look at the resolution and I'd I'd decide what we
have to do versus what we are choosing to do.
» Okay. >> One of the big things I hate as a lawyer
is when people say, "That's the way we've always done it." It's a terrible
reason to do anything, right? If it's this is tradition, okay, tradition for
what? Like, what why is this a tradition? Ask yourself the why and the
answer to the why is then probably a much better reason than just because
it's what we do. Um it's just very difficult to govern
based on unspoken tradition, right? We want to rely on the structure given to
us by our ordinances, by our policy manuals, etc.
A question. Are there questions about committees?
» So, what you're saying with two of our committee reports is basically the
minutes are the committee reports. So, you can just say, are there any
questions regarding the minutes? And then, if there's action,
that's what the committee chairperson can present with
the action taken from >> Yes, you don't have to
you can I would say you base the report on the minutes. You may add a little
extra commentary just so that people understand what's going on a little bit
more cuz the minutes are really just, you know, there was this action taken,
there was a vote, yay, yes, it passed. That's all that a minute has to be. It's
minutes, right? Minute. Um but
you could add a little more information as background to the to the report.
Then, when you come to the council, yeah, it don't have to be, "Hey, my
report says it all, but I need action from the council on this agenda item."
And then, advance that. And then, discuss that that agenda item,
right? That's it's the fully appropriate thing to do.
Are there questions about committees? >> Just comment about minutes, they're only
as good as the person taking them. >> That's absolutely true, and I have seen
some terrible minutes in my day. Which, by the way, I've seen them
terrible in both directions. I've seen people say, "Wait, did this pass? How
many people were there? How many people voted?" Hey, it's too too little. I've
also seen the bad minutes that are too much, and it's like a transcription of a
court reporter. I was like, "How did you type that fast?" So, really minutes are
who's there, what actions did we take, right? And cuz
if the the agenda item says discussion on whatever the topic is, well, then
then we know that that was discussed. We don't need to know what every person
thinks about it. We need to go, "Okay, the the was or the consensus was
this is and and again putting too much in just actually confuses the issue is
then people are like okay so what what happened?
Trying to keep the the difference between the minutes and the
transcription and frankly that's why a lot of people are recording everything
now. Makes it a lot easier to have simple minutes.
Yeah. >> Um with our question
um meetings we have the department heads give their project updates
» [clears throat] >> and how much of that information needs
to be detailed?
» It's a good question and I would say I would function a lot like the committees
that we were just discussing. I think what needs to be reported out verbally
maybe less than what is is provided perhaps in in a documentation.
Um and it part of it is is everyone have
something you know a project going on at the same time.
Uh sometimes there often is like someone's doing something right? But is
it important enough that the commission needs to know about?
Uh I find that a lot of time when you just kind of a standing agenda item of
report people tend [laughter] to use that to cram in a lot of stuff that is
not really a report it's more of a discussion at that point in which case
it should have been a separate agenda item. So um I do think that that I would
say there should be some level of reporting out or certain actions that
might need to be taken but it doesn't have to be a comprehensive summary of of
what they're doing. If it's a minute or two that's not so bad but I have seen
reports that get really long and I have open meeting law questions about long
reports like that. If it was important enough that we're talking about it for
20 minutes why isn't it an agenda item? >> Question could they like the department
head submit their report in advance?
Like when they get their packet for the meeting like you could read it all and
then at the meeting the department head could give their
summary. >> Absolutely which is
pretty much what the what the committees are asked to do.
» Yeah. >> I think that's efficient. Um certainly
something for the commission to consider because again,
we've got a lot of things going on. Let's get to the items we need to know
what's at council level for us to discuss, what's the background that we
might need for future decisions. Keep it efficient and I think reports are a good
way to do that.
Excellent question. I'm hoping that that you're already getting Oh, let's get
let's get efficient in here cuz that's that's what it's about, right? Um to
let's talk about parliamentary procedures and running an efficient and
effective meeting. I set that up intentionally as my transition. Um
Robert's Rules of Order are what you've adopted to generally govern
how meetings are run. I usually pull out my Robert's Rules and
set it on the table rather dramatically. It's about this thick. Um
it it there's a lot in there, a lot in there. And half of it is just for like
giant bodies like Congress kind of level. But there's still a good amount,
3 400 pages of how to run a meeting with parliamentary procedure.
I don't think you need to be an expert on that book, but I do think you need to
understand the basic principles. So, without Robert's Rules in front of me,
and at a very high level, what is parliamentary procedure? It's simply the
the way in which you call for discussion, debate, vote, and move on.
But it's also how you might challenge that discussion. So, I'm going to give
you an example. In order for anyone to to to do anything, right? To have the
body do anything, you have to make a motion.
There is an infinite amount of motions. You can motion for anything.
But certain things are are certain kinds of actions. Um so, for instance, let's
say I I mo- motion to approve the minutes as presented. Excellent. You've
just asked for something to be done. You need to have a second.
If you don't have a second, goes away. It fails for want of a
second. That's the formal term for it, which means and you might be going,
"Well, if we just uh fail to to approve minutes,
how those minutes ever going to get approved?" Well, they're going to stay
on the agenda for next month. It it went away, but you still have to approve
them. So, we're going to have to deal with it in the future. Um
Most of the time there'll be a motion, there'll be a second, then it'll be any
discussion. You can discuss about the item. If there's already a motion on the
table, sometimes I've seen um
the governmental bodies that literally will say, "Here's the motion we're
looking for because this is the thing we need the council to do."
And if the then someone makes that motion, right?
Traditionally, the chair is uh the mayor, and the chair doesn't make the
motions. It's traditional, it's not necessarily the law. So, if everyone
just stares at the mayor that call for the motion, that might that is not the
way it should be done. So, someone else makes the motion, second, discussion.
Let's say that this is a divisive issue and we got a we've got a 3-3 tie, and
the mayor's staying out of it because the mayor knows the mayor has to break
this tie, right? Um how do we how do we break tie? Well, eventually, it's going
to be a motion to close debate, call the vote, right?
Um and a motion to close debate requires um 2/3
vote. So, it allows for someone to talk uh about and if they're in the the
minority position, but at some point, the majority can say, "I'm I'm calling
the question." Or moving to close debate. They all mean kind of the same
thing. It basically means, "Can we vote on this?"
Um and if that motion passes, then you proceed to the vote.
Otherwise, you kind of let them the conversation die down naturally, and
then you would call for the vote. Um it is important that you recognize that um
once you're discussing a motion, you cannot go outside the scope of that
motion. You can't start talking about something else and coming back to it.
You got to stay on the action item in front of us. If the consensus is that
the motion is going to fail, right? There's going to be a
vote and it's not going to pass. Then that motion fails. There could be a
motion that is made after that that's something different.
And related to it, right? Then you can make the motion and maybe
that one passes, right? So then you voted down one action and voted up the
other action. That's kind of how it works. But the big reason I talk about
parliamentary procedures is because it provides structure to the meeting so
that when things get potentially heated, they don't get to the point where
everyone's just screaming and talking and no one's um
uh getting to the message, right? Getting
to the point. Because there is a point at which there's no reason for
additional debate, right? At this point, everyone knows that person doesn't agree
with us. So let's call the vote and move on.
Once the action item is approved, it should be done.
And even if you voted against the motion,
you should stand behind the motion. Now, what does that mean? That's not to
say that you have to say that you agree with it, but it does mean you have to
say the council's decided that issue, right? I wasn't in favor of it, but now
that is the rule of the city. It's really important because I've seen
a lot of governing bodies that I'll call it um holding onto a grudge, right? That
agenda item that didn't pass that was really important to you and it just it
just sticks with you. And it sticks with you as a as a potential
uh hostility. You can't move on to govern the city if
you're still holding onto old business. For one thing, it's done with. You don't
even have the votes to bring it back up if you wanted to. But then secondly, it
goes against the principle of governance governing that we're talking about here,
which is we debate, we discuss, we come to an answer, and then that's what the
council says. You can say I disagree with it, but it's it's the official
stance of the council. In very rare situations, there is the
opportunity to reopen the discussion, but they are very very slim. Um one of
them, for example, is if there was a mistake in the You can before the end of
the meeting, you could call it again to change the vote. Every so often I get
that question. But you can't reconsider the vote the
next meeting. You just can't unless you have uh a specific basis for doing so as
outlined in Robert's Rules. Because Robert's Rules is designed to be
efficient way of coming to a resolution. Not to bind you forever. There are ways
to get through it. But it does bring finality. And I think finality is a
really important concept in in democratic governance, because you
you have to agree to disagree sometimes and move on.
The end move on, I think, is missing a lot for
the history of political politics, right? People have a hard time with that
one forever. But it is necessary in order for the
machine to work, the machine that is our our system of governance here in the
city. Um so let's talk about the procedures in
your own ordinances about running your meetings.
As we've got
um the we've got a whole bunch of things on pages five and six that are straight
out of your ordinances, right? The first bullet point is all about
public appearances, but it also is
um discussion of the council itself, right?
When two or more members simultaneously seek recognition, the presiding officer
shall name the member who is to speak first. It's common sense, but that's
actually the ordinance, right? If two people chime in, you don't the mayor
gets to say first, second, right? And then they get to talk, and then they get
to talk. A lot of times we're like, "Hey, we
don't do that, right? We just talk to each other." That's fine. Until it's not
fine, right? And so what this is is giving you the tools to when it's not
working for the mayor or the presiding officer, cuz if the mayor's gone,
there's a different person who'd step in, and they would just say, "Okay.
That's how this is going to go, right?" Um same thing with the commission, by
the way, it's not council exclusive. Um there is a presiding officer for the
commission as well. When the member is called to order, he
shall take his seat and shall not proceed until the question of order is
decided. That's a hint for if you don't get the message, you need to sit down
and be quiet now, right? It's fancy lawyer words, and that's what it means.
Then when it's made seconded, it shall be stated by the mayor or read by the
clerk treasurer, right? That's again, motion second, what is the question?
Then any discussion? But that's fine. So what I just said was basic Robert's
Rules, but it's actually what your ordinance has adopted, and that's not a
coincidence, right? They they've adopted traditional Robert's Rules parliamentary
procedure. Five. Okay, so now we're under
discussion. It says, "No action shall be in order except This is basically
whittling the field of possible Robert's Rules motions from infinite to A through
G. Those are the only motions you can make during the discussion, and some of
them um are more extreme than others. One of the
things I like to say uh is clarifying what a motion to lay on the table is.
Everyone thinks to table something is to put it on the next agenda for the next
meeting. That's not what it means. That's what D, to postpone to a certain
date, is. So the motion to put it on the table is
a totally different thing. It requires you to take it up in a certain amount of
time and with a certain amount of thing. Laying on the table is not the motion
you want. You want postpone to a certain day. That's just one of my little
Robert's Rules pet peeves. Um but notice postpone to certain day is
different than postpone indefinitely. Right? If you If it's I want to talk
about it at the next meeting, I propose I recommend postponing this motion until
the next meeting on name of the day. Or you can make the motion of a postpone
this indefinitely. I don't want to see it again until, right? Something
happens. Which could be in a week, could be in a
month, or it could be never. And they even have established which
motions take precedence over the other in case you get motions on motions on
motions. You go in order top down. We're getting a little in the weeds on that
now.
If you want debate to end, but it says right there, "A move the previous
question." It's calling the question, moving the previous question, also the
same thing as close debate. There's like three different words for the same
thing. I would say you have the most old-fashioned one with move.
Uh remove the previous question. But anyway, it says
"Then the presiding officer announces the question. And then if a majority
members vote in the affirmative, the main question shall be taken without
further debate." The effect is such end to the debate,
bring it to a vote. You first deal with the amendments, blah blah blah, and then
you get it done. So, there is a process to bring the
debate to a close. Um debates should not be ongoing and
frankly sometimes it can't be until it reaches its logical starting stopping
point. Cuz I can see it, right? Two aldermen or two commission members that
are just passionately disagreeing and they will take all night to express
their passionate disagreement. That's the motion. Call the previous
question, call the question, motion to close debate, whatever it is. And then
if that motion passes, we go to the final vote. Don't forget
though that motion to close debate is its own motion. So, it needs a motion,
it needs a second, it needs a vote. You cannot debate a motion to close
debate. One fact, right? Cuz then you'd have a motion to close the debate of
motion to close the debate. So, you can't do that infinitely.
You can just call it, no discussion, does it pass or does it fail? If it
fails, back to the discussion. If it passes, on to the vote. And those votes
can change, right? As as the night grows long and the sun sets, we want I can
easily see someone flipping their vote to move on.
Including, by the way, the people that are still debating. They might be like,
all right, I'm done, you too. All right.
» What's your >> Yes.
» So, you can't make a motion to make the big debate or end the
the discussion and the debate and proceed to vote.
» You can't. Yeah, that's called move the previous question. Yeah.
So, that's number six. What you can't do, so you get a motion to close the
debate, all right? That's on the table, get a second.
You can't discuss it. Can't debate the motion to close the
debate. >> What if the action is taken to close the
discussion and proceed to vote? >> Yeah, you're good.
» You don't have to put that extra step. >> No, you don't have to. I'm saying you
can't. So, we're saying the same thing. A motion to close the debate, you can't
debate whether or not we're going to talk about about closing it. Which I
absolutely have seen happen. We can't stop talking about this. This is too
important, right? >> I was hearing an extra vote at the end
of the debate. >> Yeah.
» Another motion has to be made to proceed to vote.
» See the picture of this taking its own tail? That's what it is, right? We can't
just keep debating whether we should still be debating this. It's a It's
designed to be a quick motion to bring it to a resolution. And if the if the
debate isn't done, then the motion fails, onward you go. But that's a
motion I think is probably one of the most useful motions, cuz we've all been
at that meeting where you're like, are we
still talking about this, right? And it's not representing a majority of the
commission of the council. Notice you have a um
a requirement that a roll call vote be taken on every question. Robert's Rules
does not require roll call vote for every question, but your ordinance does,
which means every time you vote, you got to go name the person and name the way
they vote. Nothing wrong with that. It's just a formality that that you've made
you've chosen. Um in other um if it weren't for this
ordinance, you could do certain things by consensus. Um you can One example of
you have to have a roll call vote by law would be going into closed session.
You're going to go into closed session, you must do a roll call vote because if
you go into an improper closed session and you voted for it, you can be sued.
So, they need to know who you are. Um most of the time though it's not it's
not necessary. It's just a formality that you know, people like so that if
there's controversy, they know what people stand on the issues.
» But what about the question? >> Yeah.
» Does that go for all committees, resolutions, and so on?
» That's a good question. I do believe technically this is just about the
council, but I do think there is a It wouldn't be the worst framework to
use for for committees as well. But if you normally don't collect the eyes and
nays, right, the votes, you don't necessarily have to. But the rule about
if you're going to go into closed session,
uh that always has to be a roll call by law.
Good question. >> Our best practice is all the time it's a
roll call vote for a resolution. >> Mhm.
» Or for something finance. >> Yeah. Or and you should add to go into
closed session, too, because the law would require that.
» Right. That would but in the day and day committee any votes that
are at the level we don't do a roll call vote.
» I I think at the committee level that's okay, but the council
should per this ordinance >> Council level, too.
» Well, >> we don't when we approve minutes of
previous meetings, we don't take a roll call vote. We
the mayor calls for for the eye and everybody
» Then I would recommend changing your ordinance because I don't think there's
a problem with doing that. That's the way most people do it. But this says a
roll call shall be taken on every question. So, if you're like, "Well, we
don't want to need to do that." Right? You could say, "Well, just strike it." I
mean, just take it out entirely. Then, the law and Robert's Rules would take an
effect. Cuz you're right, financing, you need to know votes, resolutions. That's
why they're more formal and and close sessions. So, like I said, the the law
doesn't require you to Your own ordinances require you to, and you
control the ordinances. So, if you don't like it, you vote to change it. Just
make sure you change it with a roll call vote cuz it said you had to. One last
time. Um and then, a motion to adjourn is
always in order, which means that if this is you just always do it, right? Um
and once you have a motion to adjourn, uh you if it passes, you all get to go
home. So, it's an extreme version of a motion to close debate. Um but notice it
is the first thing on the order of priorities, which means it controls over
everything. That avoids the filibuster of, "Oh, no, we're going to stay here
all night until you do what I want." Nope, we adjourn. See you.
And then, it's going to be another 24 hours before you can meet cuz you have
to post the meeting. >> So, you're saying no roll call for
adjourn. >> You don't You don't have to roll call
for adjourn. >> say roll call for every question.
» Oh, sorry. Your ordinance says yes, you would technically have to do so. But if
you got rid of that, the law doesn't require you to. Yeah.
So, again, it's it's a formality, right? And I'm sure when these were written,
there was a perfectly good reason why they wanted that, right? There's no
video, they wanted a little more documentation, but the law doesn't
require that. So, you can get some efficiency there if you'd like.
Um all right. Notice I talked about reconsideration.
There's a reason for that. It's called council. That's basically um where you
want a more formal vote. I want to talk a little bit about the
sergeants-at-arms and disorderly conduct, right? Um
if you're debating something passionately and there's a bunch of
people in the office that in the audience, which
uh not to pick on you guys, but but they have a a and you know, they really don't
want you to pass this thing, right? And they just start interrupting you while
you're while you're trying to to Um
the chair usually knocks their theoretical gavel. We don't have gavels,
right? Order, right? I'm calling for order.
Um if that doesn't work, you can name the offender, which is
order, I instruct you to sit down and stop interrupting the meeting.
They don't stop. You're out of order. What does it say?
You can do in extreme, the mayor can cause the room room to be cleared, which
is you need to leave now. If they don't,
the mayor or presiding officer may order the chief of police to come and take
them into custody. So, Chief Field, that's you. You're going to have to do
it all personally. Uh-huh. >> [laughter]
» But in seriousness, you that's the level of authority you have in controlling
your meetings, right? 99.9% of the time you're not going to have to
haul someone out, but sometimes you might have to explain to someone that
you could in order for them to realize I better sit down.
Um I I It's It's been since COVID since
I've actually seen anyone arrested. Uh it's a good way to make the front page
for your city, by the way, if you haul someone out of it. So, be careful about
it. But then is it's important to know what what the
framework is so that we can resolve the dispute well before it reaches that
level. What you can't do, by the way, is throw
an alder out of your meeting. So, no matter how frustrating you get, you
can't throw out an alder and you can't throw out a commission member, either.
They, by law, have the right to be at the meeting. Um if they're being unruly,
there's a lot of other things you can do to them. Let's go to the back of this
outline. But you can't kick them out. All right. Questions about how to run
official meetings, some of that basic parliamentary stuff?
Yeah. >> So, explain to me stuff like I take
table something and put it table in a second and pass it. Who can bring it
back off the table? >> That's why I would recommend not tabling
it. I would recommend making it a motion.
» Who's going to bring it back live? >> Right.
» People that made the motion >> If you table it, only the people that
made the motion. If you postpone it, then it can be on the regular agenda for
the next meeting. And that's where I find people use them
interchangeably. And so, if you're going to lay it on the table, you're going to
say, "Until this person brings it back up." And you may not actually have
intended it to give them that level of authority over the issue. That's where I
think motion to postpone is what most people intend when they make that
motion, which is let's talk about it next meeting when so-and-so is here.
That's what I see most common. Good question.
All right. Let's talk about confidentiality briefly. It's a very
important thing of what we do, and it's the little opposite of everything we
were talking about before this, right? Everything else is about how do we do
this openly without any secrets, right? The people have a right to know.
There are times where you have a right to do things privately.
And it is really important that if you're going to go into a closed
session, that you have a specific reason for doing so, and
that specific reason is noted on the agenda.
And that there's a motion to go into closed session, and there's a second,
and there's a roll call vote, then you go in to the closed session.
Once you're in the closed session, you need to stay within the discussion noted
on the agenda. You can't just say, "Ooh, we have a closed session at the next
meeting. I'm going to throw this in there so that they know." That is a
violation of the open meetings law. You might be now thinking to yourself,
"Well, if I turn the camera off, and it's just us, how is anyone going to
find out that we exceeded the the scope of that closed session?" There is
two ways. One would be a deposition, right? There's a lawsuit, and a lawyer's
going to sit you down and under oath say, "Did you talk about this?" And if
you lie under oath, that comes with the penalty of contempt.
Um, but the other um way in which this resolves itself is perhaps even a little
bit snarkier, which is you can sue yourselves.
I have seen a very big public records case. It was a year and a half ago. Went
all the way up to the Wisconsin Supreme Court and it was an alder suing the
council for exceeding the limits of closed session and that council member
won. Why you would sue yourself is a totally
other question. There was obviously much bigger concerns
there. But I say that to say your obligation is to regulate
as a team and you would say if someone's getting outside of scope you'd say
that's outside the scope. You can also do a motion to close debate to save
yourself from discussing something that's outside the meeting because again
each one of you has a separate obligation to comply with that with the
scope of this closed session. Most of the time a simple reminder gets it done.
We're not noticed for that. Save it for the next meeting or
I'll consider for future closed session meeting.
I people skirt that closed sessions and there's a reason for it, right? The
public has a right to know. Except in the limited cases when they don't have a
right to know. And you know, one of the
obvious examples is this 19.85 sub one sub C to discuss employment matters.
Closed session. But you have to say which employees you're talking about.
Not names, but like categories, right? If you're going to talk about
um uh your department head, right? You
probably have to say to discuss a department head because it's important
as opposed to just an employee, right? It shouldn't even necessarily be an
employee. Maybe the most appropriate thing to do would be to say an hourly
employee or um
an employee from this department or a member of the police department,
something like that. Um but you have to then stay within that
framework because if you've noticed it's talk about let's use um, a fire
official, right? Okay, we can talk about that fire official. And sometimes that
means talking about another employee because maybe they're, you know, having
a disagreement. But once you start talking about the
other person and not talking about the first person, you can see that the scope
of your closed session. It is so much harder in in practice. And I just urge
you to find that line and stay on the safe side of it because it's not a
problem until it is, right? And then you call me and you're like, do we have a
problem here? And I'm like, yeah, we have a problem here. And I can't fix it
because you already did it, right? So, be cautious on that. Um,
along the same lines, anything that happens in closed session should stay in
closed session, period. Don't tell your wife, don't tell your department heads,
don't tell the committee that you're on, don't tell the citizens that elected
you. Closed session means no one talks about it except for the people in that
meeting. The body that's meeting in closed
session decides if anyone else gets to come to that, right? So, you may have a
closed session discussion on an employment matter, maybe the department
head does come to that meeting in order to explain what's going on with their
employee. That's fine. The governing body decides
that though. And if the governing body says, "Nope, we're going to need you to
leave." then they have to leave. And you can discuss it among yourselves. So,
it's really is important to know that you have that authority over who can be
here. The only thing you can't do is is kick each other out, as I said. You have
the the right to be here if you're on that governmental body.
Um, as a general rule, the public has a
right to record. They probably wouldn't cuz you're recording automatically, but
they can record. Uh, they can't record closed session.
Um, so sometimes when there's a closed session, we encourage people to take all
their things with them so there isn't, uh, a cell phone in a bag that's still
recording. I've had that happen, right? Just keep in mind they that
just like uh, the the default is everything is open. When things are
closed, they are closed tightly. But there's a difference in closed
tightly and it's never going to come out.
Because something that happens in a closed session can come out. How what's
the most common way? Well, maybe there's a public record that was created that
discussed what what happened. And that public record might end up being
published at some point. Another thing that could happen is it could be a
lawsuit where what you discussed in confident in closed session needs to
come out. Let's say if you there was closed session you all talked about how
you didn't want to hire this individual because they were were a man and you
wanted to have a female input, right? That that statement is discriminatory
and will get you sued. And they can ask you that in a deposition. Did you say
that? And you would have to say yes and therefore it's coming out. So, I I want
to say that that there's a big difference between I can't I can't talk
about it and it's never going to come out. No one is going to let it out, but
there are certain mechanisms to force it out. So, don't be too confident in
closed sessions, right? It's not privileged. You can't say you I don't
have to talk about that it was closed session. That's not always how it's
going to work if you get a subpoena. So, just again
you want to be thoughtful, stay within the confines of closed session, and um
make sure you recognize that still whatever I say may come back and be read
in court one day. So, just uh just a good caution.
This is where I um I I emphasize on under B here. The contents of closed
session remain confidential until the council determines that they're no
longer confidential, right? Here's an example, you're going to um
vote to approve a development, right? It's very very um closed session while
you're debating and negotiating the terms. Because if it comes out what
you're doing, then they'll know exactly how much you're willing to pay and you
lose your ability to negotiate, right? But once the deal is signed, who cares,
right? Then the need for confidentiality would end.
Um so, that's just an example of when it may no longer be necessary to keep it
confidential. There's a a lot of problems with with
leaking closed session business.
One, if you the moment someone leaks closed session business, no one else is
going to trust closed sessions anymore. You might as well do it all in open
because they're all going to be too afraid to talk openly with each other
and voice your opinions. It was nothing will erode the trust of the of the board
and itself than people leaking closed session
things. Right?
It also can lead to legal liability, right? There's a catch-all statute for
misconduct in public office. And if you engage in misconduct in public office,
that can be a potential felony and that can include publicly disclosing
sensitive information from a closed session. I'm not saying it's
automatically a felony, I'm saying it could be. And you don't want to be the
person that was like, "I didn't think that one was going to be a felony."
Um it's just it's it is essential. And and
the other thing about leaking is it can just it can prevent you from doing what
you're trying to do, right? Well, now that everyone knows that we're
negotiating with Biggly Wiggly, now it doesn't even matter. We're going to
have to cancel the deal because it's, you know, our negotiating language has
been has been blown or the developer didn't want to
this to come out. Now that it is, they pulled the deal, right? And that's
that's bad in its own way. Closed sessions are the most common form
of confidential information that you're going to run into, but it's not the only
one. Any employment records and information, any medical records of
employees, those are protected by law from
disclosure. Most of the time, you as aldermen shouldn't even know it, right?
It should never even come to you. In the rarest situation where someone's medical
status is rightfully before yours, you cannot share that information onward.
Example when it might come into issue is perhaps someone needs to take an
extended leave of absence for a medical condition and you want to inform the
board um that that's going to happen, right? That this person's going to be
out. Okay. >> [clears throat]
» But now you don't get to share why that person is out, right? That needs to stay
confidential. And I still think to some extent you might not even need to know
why they're out. A medical condition might be enough or a family member's
medical condition may be enough. Um there's also Wisconsin privacy
statute which basically just says you can't make someone's private business
public without their permission, you could be sued for that. And that's an
individual cause of action they have against you. So, uh be careful about
that, too. If you breach confidentiality, I've
scared you about class I felony for misconduct in public office, 3 and 1/2
years, $10,000 fine. Not They're not kidding around with that. The other
thing to keep in mind about criminal statutes is that the council has no
legal obligation to defend you from criminal charges. So, you'd be paying
for your own attorney and you'd be paying your own fines. Um not only would
the council not do it, but your insurance carrier won't do it if you're
outside the scope of your official duties, which you probably are if you're
leaking confidential information, right? Cuz you were not supposed to do that.
And this this applies to commissions as well and it and it does
um apply to employees to the extent that they're getting um
this information and maybe being part of the dissemination of the information. Be
careful with that. So, the last topics I'm going to go over
pretty quickly. This is the scary stuff, right? That I don't like to emphasize in
things like this, but what happens, right? What happens if we just blow this
all off? >> Yeah. I have a quick question before we
go into closed session. It's not I guess in regards to
the Robert's Rules of the Meeting itself, but we tape film our
meetings when we go into closed session obviously recording them.
When you come back and reconvene to open session, are you required to then
start recording again? >> Really good question.
I believe that the law does require you to go back into open session and turn
the camera back on for live streaming purposes. And so that
there's a record of what happened at the end of the meeting. Because otherwise,
in theory, right, you could have a long closed session, everyone's left city
hall because they don't want to stick around for it, and then you do something
surprising in the at the end of the meeting there's
no record of it, right? >> still be sufficient in the minutes to
solve that. >> Yes, but I will say it's sufficient
until someone says, "Well, why didn't you turn the camera back on?"
And so, I general practice is that is the safer course of action. I'm not
saying that the law absolutely requires it, but I I I do recommend it. It's it's
the more transparent approach.
Um, cuz you're right, as long as the minutes reflect that all we did was
adjourn, it's fine. But that isn't always what happens, right? If this was
a Let's use an extreme example. This was a termination here, right? And the board
is deliberating on whether or not to terminate someone. They're probably not
terminating them in closed session. They probably have to come out into open to
terminate them. Which is the only thing the public wants to know, right? They
want to hear that motion. I find that or not that that employee is terminated.
Um, certainly if it's something like that, you got to get that camera back
on. If it's just we're we're just adjourning right afterwards,
less of a concern. That makes sense.
Good question. Really good question. Um, so I just want to kind of talk to
you about the bad stuff that can happen, right? So there are some ethics rules
you need to keep in mind, right? You can't accept anything because of your
official city position. In other words, no bribes,
right? You also can't ask for a bribe, right? That's one. You can't ask for a
bribe. Two, you can't accept a bribe. Um, but three is one that sometimes
people miss, which is you can't accept items that could influence your vote on
official actions or reasonably be considered a reward for any official
action. This is the Maybe it wasn't technically a bribe, right? Maybe that
city developer just wanted to take you out to a steak and lobster dinner,
right? That would catch you. It would violate the code of ethics if the only
reason the developer is taking you out because he wants your wants your
favorable vote. So, it's something to be cautious of and it can slip in
accidentally. I find that the public or the private sector just doesn't
understand these laws and they're like, "Well, yeah, of course I'm buying you
dinner. I'm a vendor for the for the city. We're we're buds." I'm a vendor
for the city. I can't take you out to lunch because of this rule.
So, it's just something you got to be careful of, right? And one of the things
I say is, "It doesn't matter if you actually did it because of influence,
it's going to look like it." So, you want don't do anything that carries the
appearance of of of impropriety. Public private interest in public
contracts is a criminal statute. If you have a business that does
business for the city, contract with the city.
If that contract totals more than $15,000
in in a rolling calendar year, that is a class I felony.
$10,000, 3 and 1/2 years in jail.
Don't get anywhere near that $15,000 limit, right? I sometimes see people
that are like, "Well, we'll just write down this invoice and now it's $14,999."
Um that's a real harsh line. It's a strict liability
statute. The moment you do it, boom, you could be uh criminally prosecuted. I'm
not saying that the first time you do it, they're going to throw the absolute
book at you, but it's going to potentially get district attorneys
interested. Um so, you want to be real careful about that.
The other thing to keep in mind is it it's a prohibition in your official
capacity and in your private capacity. So, not only can you not vote on your
own contract, I think people understand that one. You can't negotiate as a
private citizen the contract with the city. The moment you do that, you are
breaking the statute as well. And I get it. You're like, "Well, I'm
the only business in town." Strict liability. Law does not care.
They don't create an exception for that. So, you've got to make sure it's under
15,000 if you're going to do something like that. Very tricky. I have had um
school board members and and older persons that have had to resign once the
statute was pointed out to them. Most common one I've seen is the IT vendor.
Um the IT vendor is like, "Yeah, I love working with the schools, right? I mean,
we do all the software. Um I want to be on the board.
Fantastic." But, you can't negotiate that contract
anymore, right? You're going to have to give it to someone else uh in your
organization. You have to wall yourself out. And by the time they're done with
that, they're like, "No, I want to bid on the work, right? I want to get that
work." Well, you can't have it both ways. So, it's definitely something to
keep in mind. It is a very strict law. Um
So, let's talk broadly about consequences. If you don't listen to
anything I said tonight, what's the worst thing that's going to happen?
Well, the first thing that's going to happen is I'm going to have to come out
and talk to you. So, that's punishment one.
Punishment two, right? Misconduct in public office, it could be a crime,
right? If you're breaking the rules, it could be misconduct. And the the law has
said that your ordinances and conduct procedures
can be the basis for a misconduct violation. In other words, you didn't
break the law, but you broke what the the rules of the body itself has
established for itself. Could be potential criminal charges.
Uh censure is basically a written document that a majority of the of the
body would put together, and it basically says, "I'm saying that this
person broke the rules, and they did bad." And then you can add the finger
shaking. But, that's what a censure is. It's a formal record calling the person
out for for being for breaking the rules.
It is not enforceable beyond that. It's not like they have to leave, but it can
be a really helpful political tool, right? And then the community is like,
"Yeah, that guy keeps getting in trouble and keeps getting censured. That's a
problem." Um it does have um persuasive value. And it By the way, it does not
violate the First Amendment for um people to get censured based on what
they say. It is was a Supreme Court case, the US Supreme Court case, where
they said, "They censured me because of what I said." And the Supreme Court
said, "They're allowed to censure you. It's their speech. The censure itself is
a form of the council speaking, and you are allowed to speak on behalf of the
council through this formal action. So, it's not a First Amendment issue."
Um I had long thought that to be the case, but when this case came down a
couple years ago, I was like, "Yes, I was right." Um so, it's now very clear.
It's not a First Amendment issue. Common Council can remove Can remove
holders with 3/4 of the vote for cause, defined as inefficiency, neglect of
duty, official misconduct, or malfeasance. Uh I found that in
practice, before that vote ever occurs, the person will likely resign by the
time they found out that the votes are going to realize they're going to lose.
Um hopefully that doesn't happen. Um the removal process can be instigated by
anyone. Um so, uh sorry, any resident taxpayer. So, it doesn't have to be the
council bringing the charges. Resident taxpayer uh can can bring the charges
against a public official. They would be before the board could terminate, there
would have to be a chance for that person to defend themselves.
» [cough] >> Notice, though, that is before you
terminate. If you get a complaint and you just dismiss it, you you don't have
to go through all these steps. Certain complaints don't rise to the level of a
general board member or council agenda. That happens, you just let it die. But
if you're going to keep and make this an issue, then there is a process there,
and it's all established by act. It's also um
a process for a judge uh to uh re- remove someone, but that doesn't
happen. I mean, that actually never happened. And then, recall, right?
Recall got a lot harder about Oh, I used to say a few years ago, and
now I'm realizing it's like 20. Um it was back when Governor Walker faced a
recall election. They then changed the number of signatures, increased them. Um
so, you now need 25% of the vote cast for governor within the city.
Um so, whoever voted in the office for governor, figure that out. 25% of them
need to sign your petition in order to even get a recall election scheduled.
And then, you have to pass the recall election. It's a very complicated
process, but it is one of those things that usually is combined with a censure
in order to get someone to resign rather than go out kicking and screaming.
The most obvious consequence is if you break all these rules, you run the risk
of the community not wanting to vote for you anymore because you're
you're considered a disruption and not part of the team.
Um cuz you can't get anything done if all you're doing is screaming, right?
You need to work within the system to achieve your objectives.
Other issues that can happen is liability. You can get sued as an
individual. One of the things you can be sued for is defamation. You're in a
public meeting and you say some horrible thing about someone, and it's not an
opinion, right? You're just You're just saying that they did this,
and you know that's wrong, you could be sued for that. That could
be liable for defamation. However, it is not defamation to give someone your
opinion or to tell the truth.
Those are Those are absolute defenses to defamation.
But, it is definitely something to be concerned of. I see it most often during
public appearances where someone is going to call out someone, and you're
worried that they might be engaging in defamation in public comment. I usually
say when that happens is after the person's done speaking, uh the mayor can
say, or whoever is the presiding officer can say,
"This represents the the views of an individual and do not represent the
council as a whole. Moving on. Right, if you just want to just claim that it's
not us engaging in potential defamation. I sometimes that that write a little
blurb that they read to the public before and it says you get the 2
minutes, 15 minutes total, and you're not protected from from liability for
what you say. Just FYI. And sometimes it helps diffuse tension.
Talk about invasion of privacy. Um
Where does this all go? Well, if you get sued, you have insurance, which is good.
This that means you're only out your deductible.
But, the insurance policy isn't unlimited. There's always exclusions to
an insurance policy. And it is an exclusion if you're acting outside of
the scope of your job. If you're doing things that you're not supposed to be
doing, this they you their insurance company's
not going to cover you. And I just spent all this time telling you what it is
you're allowed to do and not do. So, you don't want to fall outside of that
coverage cuz then you're paying for your own attorney and you're paying for your
own damages. Um if you're not cooperating with the
insurance company when they're trying to defend you, they can deny the claim and
deny your coverage of it. So, if they're like, "Hey, I you're getting sued for
public records. I need your phone. I need those records." and you refuse to
do it, insurance company may say,
"No, we no longer have to defend you because you're not cooperating."
Um Similarly, the city has an obligation to
defend as long as you're in your official capacity. There's also an
immunity statute that covers you from your official actions if they're
discretionary. But,
notice there are exceptions to it, right? And and at the end of the day,
the standard is don't do anything stupid, right? Don't invade someone's
rights. Don't exceed your authority. Cuz if you do, a lawyer's going to find five
or six ways to bring claims against you, right? They're not just going to put all
their eggs in one basket. They're going to put a couple different causes of
action in there. So, try to stay on the up and up, and hopefully you won't ever
have to deal with that. So, I was able to get through what I
wanted to, uh but I'd love to answer any last-minute questions you have.
» We were going to cover the title [clears throat] list on the
agenda, the approval of the minutes.
You may have covered it, but >> Oh, yeah. We we we we talked about that
being an agenda item. So, your ordinance says that you have to read the minutes,
and then approve them. Because that's what your ordinance says,
that's what you're supposed to do. Please stop doing that, right? You don't
need to read the minutes out loud. So, you could change your ordinance to
simply say minutes will will be approved, um and
you can say that they will be submitted in writing or something like that.
Because, again, you can just read them. They shouldn't be all that complicated,
because really they're just a record of votes. Um and then, you can just approve
them and move on. It can be a simple motion. And if, by the way, simple
motion, but you have a question about it, then ask the question during the
discussion. Hey, I noticed it says this, or I didn't vote that way. Let's make a
correction. That can all happen, even though you're not actually reading the
the minutes out loud. I I I get the spirit of it, but again, now
that you're recording and archiving this, you don't need to recap the last
meeting. Someone can go find the minutes online. They can find the recordings.
Just just a fish. >> Yep. Just approve them. That's what most
people do. >> So, the item on the agenda should be
approved minutes as presented. >> It should just say approve minutes. It
doesn't It shouldn't say as read, but it should say approve minutes.
» Ours have never said as read. >> Right, but your ordinance says it.
» And all our ordinances >> That's why you're doing it. So, so
don't, you know, just just change your ordinance. And my guess is after this
presentation, there'll be a few things you're like, why are we doing it this
way? And you might go, okay, just tweak some of your ordinances to be a little
more efficient. Cuz I I was trying to give you the the balance between what
the law requires and what your past practices require. And that's just one I
think you can definitely change without a lot of public scrutiny. You're not
hiding anything. There's a camera now. >> So in other words, our ordinances are
maybe a little outdated. >> Yeah, I think that's true.
And I I I think what I was saying when calling the question was was
worded as previous previous question. I was like, "Ooh, haven't seen that one in
quite a bit." So, yeah. They all need a refresh from time to
time. >> [snorts]
» And I primarily work with the city on on labor and employment matters, but I do
have other counsel that helps you on general matters that can help you with
the getting your muni code updates in place.
» I have a question about having a meeting about potential hiring of new
candidates. >> Mhm.
» Um when you're discussing candidates, are we allowed or
I guess up to this point we've always did candidate one, two, three, give it a
number because we want to protect that person. They're obviously seeking a
job from a different employer, possibly. Are we allowed to do that? Or are we
supposed to be disclosing names with >> Good good good question. Um
if you're talking about a committee level and they're considering a
candidate for hire, on the agenda you can just say discuss candidates for
exposition. Then in the closed session you you can use the names.
Um they're not supposed to leave that room, right? That's what part of that
the emphasis on closed session is. So, if the everyone is following the rules,
you can use the names. If you're nervous someone isn't going to
follow the rules, then candidate A, you know, A, B, C, and D, and E could be an
option. But,
um that may not be the best answer because
you sometimes just know the person, right? You might know something
some context. Or frankly, you might not know that it's someone that you
shouldn't be talking about, right? That's really close to you. So, I think
that I get the point of it, but I think it's going to be a little bit more of a
hindrance than a help. Um the other thing is there is a law under the public
records law that they have to you have to
um disclose the names of final candidates.
» Yeah. >> Um and so you always have to balance the
well, is this the final candidates? All right, the statute says it's less than
five, but it can be fewer than that if you know, you depending on how you start
it. I think in practice most people are talking about they're having like one
meeting that talks about everyone like A, B, and C. Those are probably your
final candidates. So, you're not even going to be able to keep them
confidential if there's a public records request. Um so again, a little bit of a
balance. I think ultimately the thing to do is respect them and go, "Hey,
we are going to have to disclose your name, but it's confidential in closed
session and and hopefully that's the end of it."
Yeah, that's always a tough balance. Good question.
» But we don't make any decisions in closed session. We wait till we come out
of the closed session and then post the findings, which would [clears throat] be
open to the public. >> But you wouldn't then give up everyone's
name, just the person you offered. >> The final candidate.
» Just the final candidate. >> Yeah. At that point, here are the names
that we've discussed. Here's the person who got the job. They're going to all
focus on the who who got the job. That's what you talk about in open. In open you
won't talk about the candidates you didn't hire.
» I think he is referring to the the point the guy might not accept it.
» It it was both, right? Both there's potential multiple candidates, but in
the end you're making an offer to someone that could turn around and say
no. >> You you can in closed session do a
motion to negotiate with a specific candidate.
» Okay. >> And you would designate like motion have
the chair or the department head negotiate for the hiring of this
candidate. Um and kind of give them authority, right? Up to $75,000, right?
And then they go in and they negotiate it. That would then stay in closed up
until the point of of the hiring. Once they're hired, then that's no longer
confidential. But that can happen, especially if it's a particularly
sensitive hire. >> So, after you left closed session, how
would you record your findings then? >> You You wouldn't. Uh that would be a
motion you could take in closed session and approve in closed session.
» It's like your findings would be no action.
» No, cuz that would be a lie. It You would have You would have closed session
You'd have minutes for the closed session. Cuz you'd have to record that
agenda. So, then you leave closed session, what do you put for findings?
You would have to reconvene in the closed session the next meeting,
correct? Well, if you're going to
If you're going to discuss it further, yes. Otherwise, you can just have those
minutes be approved in open session and no one talks about them. Right? It's
just routine. But yeah, you wouldn't have to have You
don't have to have findings in closed session. You just come out of closed
session. Yeah. It was It was What happened in
closed session, you don't get to know. It was closed session.
Yeah. Well, and it's cuz it's rare, right? I mean, I can only think of like
one example of an employment matter you do in closed. Um negotiating it It's
under sub E of the closed. >> It would be the same thing like you
said, negotiation with a developer. Something
like that would be the same thing. You're kind of, yeah, leaving it out
there for the >> the rule is not no action in closed
session. The rule is um
if you're going to take action in closed session, it has to be because if you
didn't, it would undermine the purpose of everything.
And that's where negotiation is is the best example. So, in practice, it's
almost all the time. But there's an important exception that that we were
just discussing. Yeah.
» So, just to reiterate, when we are in closed
session it's just a discussion
to decide to hire an employee or give away something or whatever it
is. And when we come out of closed session,
we've always had on our agendas to school staff or something.
» I Yes, I absolutely would as a routine action, I would. I would do the open
session. But if it's someone that you're not sure
is going to take the job and you're not sure you can meet their offer and their
expectation, this is a motion to have that discussion. That's not going to be
the end of it then. Yeah, once that person is hired then it will be it will
become public. So, routine you don't have to do it.
» So then should the
commission council keep records of closed session minutes?
» Yes. >> If so
» Yes. >> I assume you got to keep them but then
the findings will come out. >> Yeah, you would keep the closed session
minutes and they would be approved like any other minutes.
Um there may be a time at which they become a public record subject to
disclosure because once you hired the person there's no reason to keep it
secret. Um so it it's kind of one of those things
where it's confidential until all of a sudden it's not.
Yeah, [snorts] good question.
Yeah. >> So when you go into closed session in a
committee meeting >> Mhm.
» [clears throat] >> does that require roll call?
» Yes. Everybody has to do a roll call vote in
to close. >> And out?
» Yeah, um technically not out but a lot of people
do it. >> Yeah, where do we get all this wrong
wrong information? >> It's the way it's always done in the
past. >> that for
well before I got here. >> This is something that we've just been
doing in the last couple of years. >> From roll call vote out?
» Do you recommend in and out? >> No, I in I definitely I mean that you
have to. Out doesn't really matter. I I've never actually heard of someone
fighting out of open out of closed so it's usually always unanimous anyway.
So, that makes it easier. It's a roll call vote by default.
It's a great question. Anything else?
Tired of me and want to move on to the other agenda item that has something to
do with something that isn't me?
» [laughter] >> So I think it's wages.
» [clears throat]
» Thank you guys so much for having me. You want me to stick around for the this
vote or Yeah, I'm going to marry wine. All right. I will take off and I will
leave you with the extra copies if someone couldn't be here.
Thank you guys so much. I'll be back at some point.
» Go ahead, Jane. So, we are on number three,
resolution 35 2025 to approve city wage scale.
Uh we have those attached here. And [clears throat]
we have a motion to approve the city wage scale
as amended.
I. Troy.
I'll second. Who second by Lee?
Any discussion on approving the city wage scale?
It is amended. It's amended. Well, we have to amend the existing wage scale.
There was a previous wage increase for an employee
and that wage was not on the wage scale. So, the wage scale had to be amended to
» accommodate that. >> accommodate
uh the wage increase that was received.
» This one is utility.
» So, since the city wage scale is approved by council every year,
um it was mandatory that this happened.
Um typically it's you know, for once for
the coming year, but since she or there was a wage that was increased mid-year,
um that has had to be addressed. >> And for those members that are not on
Utility Commission, it's specifically the Utility Billing
Clerk. >> Correct.
» So, if you want to look at that line, that's
as there's an amount recommended by the by the Utility Commissioner.
» Mhm.
» Does anybody have have any more discussion on this?
Any questions?
Okay. Then we'll take a roll call vote.
» Justin? >> Aye.
» Lee? >> Aye.
» Chapman? >> Aye.
» Seibert? >> Aye.
» Uh Wagner? >> Aye.
» Okay, so motion has carried to approve the
wage scale. And then we're to number four to adjourn
the meeting. Is there a motion? So, Chapman?
» Second. >> Who was the second?
Okay. Seibert?
Okay, roll call vote.
Uh Chapman? >> Aye.
» Seibert? >> Aye.
» Justin? >> Aye.
» Lee? >> Aye.
» Wagner? Okay, this meeting is adjourned at 7:59.
Roll call vote.