Who’s unprofessional?

Posted May 11th, 2017 @ 8:35 AM by

What’s that quote, “First they ignore you, then they laugh at you, then they fight you, then you win” . . . we’re part way between the mocking and the fighting at the moment it seems. Alder Paul Skidmore and Attorney May had some less than stellar moments at the Public Safety Review Committee meeting during discussion of the Council’s report on changes to the police department, including giving the chief a “lawful order”.

Lately, legal opinions coming out of the city attorney’s office seem to be more personal opinion than legal opinion. There’s no balance or pros and cons – they’ve been kinda sloppy and un-researched. Or, maybe they are just so one sided that they failed to disclose research that favors an opinion they do not hold, I’m not sure.

And now, Alder Skidmore and the city attorney’s office seem to have taken a different tactic. To attack those who bring information to the attention of the council. Alder Skidmore did it at the council meeting about Chief Koval’s fees and then again at the meeting on Tuesday.

A little background. Attorney May was forced to issue several memos about Chief Koval’s legal fees as members of the public, particularly Greg Gelembuik continued to point out flaws and errors. Now, a more recent memo with little legal backing has been criticized and the city attorney’s office has modified their opinion about “lawful orders” as resident activists have pointed out city after city after city that issues lawful orders about policies of the police department. This apparently irked City Attorney Michael May, and he kinda lost it.

Enjoy. (Remember, Attorney May gets paid over $150,000 a year to be a professional.)

Paul Skidmore says that he has a question for legal staff. Typically staff are there to assist when asked, but not in this case. Skidmore asks “First off, are you licensed to practice law in the state of Wisconsin.” It was noisy, I assume May said yes. Then May says “I’d like to start off by making a statement” and he just does. He says the law is very tangled, the authority is divided between the Police and Fire Commission and the Common Council, the mayor and the police chief. Determining those boundaries is not always easy and alot of times it what is practical and not a legal answer. This is not one where we can give legal opinion with a lot of confidence. The Hogg memo (on the council’s authority to issue policies around Tasers, written when Alder Austin King and I were on the council) is a long memo with lost of back and forth and it came to the conclusion at that time that they weren’t very confident in, but they just did it. We just saw the final report Monday or yesterday for the first time, he reviewed it with Assistant Attorney Paulson and they do not have any significant problems with the final report, changes were made after the receipt of information from police chief Koval and assistant city attorney Paulson and they think that it addressed all their concerns. He doesn’t want to go too far because he thinks it hypothetical at this time, but generally speaking these are reasonable recommendations to the MPD and he is not in a position at this time to say that they are beyond the authority of the council to take them up. The committee did a good job at the end of making sure that the recommendation were within their authority in this area of the law.

I do want to defend Assistant City Attorney Marci Paulsen, she’s been attacked, in her work and her character. She’s a long time prosecutor and worked with the police department for a long time. The memo she drafted was an internal communication from her to another staff person in our office. We were simply asked can you comment on this and that’s all she did. She put together her comments, her best judgement at the time as to which side some of these things are on. It was not intended to be a full blown legal analysis and it is not a full blown legal analysis. (At this point, he voice is beginning to crack and he’s clearly irritated). So when people attack it for that, they are not recognizing it for what it was, we commented on a draft for a staff member. And it wasn’t meant to be more than that.

(If he’d have left it at this, throwing the council staffer under the bus for giving the memo to the council work group – which is what I think everyone knew was intended – it would have been shitty, but not worthy of a blog post . . . but he goes on . . .)

I do have problems with alot of the emails, especially those from Doctor Greg, he attacks attorney Poulsen by taking a single sentence out of context. Claiming she doesn’t know anything about the role of the police and fire commission, she knows alot about the role of the police and fire commission. Her comment wasn’t so much about the role of the PFC, but community control over the police which places a lot of hurdles with the law and the existance of the police and fire commission. I found it not a good argument to make, I found it a classic strawman argument where you ascribe a position to someone and then knock it down. I think he incorrectly cites to Matt Flynn’s article as in conflict with this position. (Oh dear . . . he’s going to blow a gasket when he seems the memo from Matt Flynn that I saw yesterday! Don’t have permission to post at the moment.) The article is very consistent, he talked alot about how there’s this tangled web of authority and its hard to figure out in a given instance and the point of his article is that existing law doesn’t give the council enough control over the police. It’s the same law we have today and he wants there to be more control. He incorrectly ascribes legal opinions to Herrick. I asked him if he issued such legal opinions and here’s his response “I recall expressing that view orally as an informal and rather mile hypothesis at a question and answer session after a presentation on the PFC disciplinary procedures, I have not researched the matter at all and I don’t recall claiming any authority on the point so on that rather shallow foundation, it is my view that I think the optional power statute shifts the power rather than creates them, this shifts from what or from whom.” May says that the end of the quote but there are a number of attorneys who think that alot of those powers reside not in the council, but with the mayor as the chief of the department. He says he won’t go much longer, but he says he thinks that (Greg) incorrectly reads Christie, he quotes from an attorney who’s major contribution is call something “full of shit”. I’m sorry, I don’t believe that is professional, I don’t think we should have our civic discourse stoop to that level, its a Trumpian comment and I don’t think in Madison we ought to be doing that sort of stuff. And his legal theory would give the common council everything including how many rubber bands the police department can have. In conclusion, we might have some small legal differences with the theories presented, but in the final status of the final report, they aren’t really important. We don’t have significant legal issues at this time and they are not suggesting any changes.

Skidmore says thank you and that he has answered just about all the questions he had. He is wondering about something they talked about earlier which is the number of cities cited where a police chief did this or was instructed to do this, is it possible that a police chief or a department head may agree to something that is not allowed in state law but as long as it is consensual it ok, no harm no foul. Skidmore says he’s curious about the law on that and if it were to be challenged what would happen.

May says that he doesn’t know enough about the individual cities to know what would happen if it were challenged. He does feel like it was very interesting information that there are a number of cities where these policies do go to the governing body, that’s never been the position here in Madison or in some other cities, so its clear its not required under state law. He doesn’t know the situation there in those cities, but it may be a tradition there that is how they do it and the chief goes along with it rather than making a legal argument that its something “he” should do. It would make a great academic study to look at those who have done it and those who have not and figure out the reason why they follow that procedure.

Skidmore asks about Community Control Over the Police, and he says that smacks of micromanaging and possibly holding different communities or classes to different standards. May says we don’t want to hold people to different standards, his concerns is that the models he has seen aren’t possible under the state law we have now. If you’re going to do this, you need some changes from the state to allow those things to go forward. He’s not going to ascribe what would happen if it were done.

I can’t tell what I find most offensive about May attacking “Dr. Greg”, but I think its his patronizing and possessive and protective way he felt the need to come and protect the poor helpless woman in his office who he feels is the victim here. I’m quite certain the long-time prosecutor Attorney Paulson could have done that herself if she felt the need. It just felt gross. I think it was all about his ego.

I think I prefer it when he sleeps through the meetings . . .

And, the ridiculous Skidmore part will have to wait for another day . . .

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