For as long as I can remember, the council has been told that the power it has over the police department, is the power of the purse.
BACKGROUND
During this budget process, I started hearing all kinds of crazy things about how the council didn’t have power over the police department budget. The alders were limiting their power based on – well, I don’t know what. I heard that the police union contract means we can’t cut positions, that the council could only allocate funding in two large pots of money (Police Field = entire policing budget which is $76M or Police Support = civilian positions at $9M) and that any more detail wouldn’t be allowed. After hearing several alders repeat this several times, I pushed for clarification. Alder Patrick Heck who is on the police budget subcommittee talked with the city attorney and our committee asked for a memo clarifying council authority so we could include it in our budget report. The memo came out 25 minutes before our hearing, wasn’t sent to us and was addressed to the mayor. We will discuss on Tuesday morning when we have our meeting.
MEMO FROM CITY ATTORNEY
TO: Mayor Satya Rhodes-Conway and Alders
FROM: Michael Haas
DATE: September 24, 2020
RE: Police Department Budget
Summary
This memorandum addresses several inquiries our office has received regarding the extent to which the Common Council may affect the operating budget of the Madison Police Department. In light of the Public Safety Review Committee’s public hearing regarding the Police Department budget this evening, this summary may be helpful for the public as well as the Council. I have consulted with Finance Director Dave Schmiedicke regarding the description of the budget process.
In short, the Mayor proposes and the Council adopts a budget that makes appropriations by major expenditure line to each City Department. These appropriations fund positions, supplies, purchased services and other expenditures which support the services delivered by each Department. The budget makes appropriations related to delivering those services, the intent of which is expressed by narrative within the budget document. In considering any proposals to reduce the Police Department’s operating budget, the Council may wish to keep in mind both administrative procedures and potential legal issues.
Under state law and city ordinance, each year Departments are required to file with the Finance Director an estimate in detail of Departmental needs for the subsequent year. The Finance Director reviews those estimates and makes recommendations to the Mayor. The Mayor reviews the estimates and recommendations and submits a proposed budget to the Finance Committee for its consideration. The Finance Committee holds public hearings, reviews the Mayor’s proposed budget and makes any amendments to that proposed budget. The Council also holds public hearings, reviews the Mayor’s proposed budget and Finance Committee amendments, and considers other amendments.
This process concludes each year in November when the Council adopts a budget resolution which approves the budget for the subsequent year, authorizes a property tax levy, identifies other revenues, and makes appropriations to the Departments of City government. Expenditures within each Department at the major object level (e.g., salaries, benefits, supplies, purchased services) may not exceed amounts in the adopted budget filed with the City Clerk, with the exception of intra- and inter-department transfers of up to $5,000. Amendments to the adopted budget that change appropriation amounts or significantly change the purpose of an appropriation require a 15-vote majority of the Council.
The City’s budget system presents major object lines at the agency level and at a service level within each agency. The Police Department’s services are “Police Field” and “Police Support.” The category of Police Field refers to the personnel, equipment and programs related to the patrol, investigative and enforcement functions of the Department. The category of Police Support refers to the Department’s administrative, training and community support services.
Pursuant to Wis. Stat. § 65.02(8), the Council authorizes all positions and associated funding in the budget, including the number, title, compensation range, and associated appropriation for each position. When making appropriations, the Council approves both a dollar amount and a purpose for which that dollar amount is provided. In Formal Opinion 2013-001, City Attorney Michael May noted that any time the Council takes a certain sum of money and sets it aside for a certain purpose, the Council has made an appropriation and the appropriation may be for a very broad or very narrow purpose.
Therefore, the Council, through the highlights and changes included in the budget narrative, describes the purposes for which it intends the appropriations in the budget will be used. For example, in the Police Department’s 2020 operating budget request, the Police Chief identified a series of reallocations of staff and programs in the event additional funding was not authorized. The Council did not provide the requested funding and the Chief implemented the reallocations in response consistent with the reallocations described in the budget document. The budget document also described specific amounts of new funding for specific purposes (plowing of snow at district stations, wellness and mental health checks, training on interactions with individuals with mental health issues) which reflected the purpose for which the appropriations were made.
In general, then, the Council adopts the a mount and purpose of funding for the Police Department and absent circumstances that make it impractical or impossible to do so, can expect the Department to fulfill that intended purpose. Of course, the Police Chief, like other Department Heads, may have to balance that intent with practical realities and circumstances that prevent spending budgeted funds in the manner anticipated by the Council (e.g., insufficient number of Police Academy recruits to replace a higher than expected number of retirements or departures, or unexpected emergency events). In addition, while the Council’s budget resolution may reduce positions and associated funding compared with the current year’s budget, any staffing reductions or layoffs must be implemented consistent with applicable collective bargaining agreements.
With the Police Chief, there is the added factor that the Chief reports to both the Mayor and the Police and Fire Commission, and is responsible for both day-to-day operations and for ensuring that the Department fulfills it legal and statutory duties. In some cases, the Chief may need to determine whether the specific budget intent interferes with the Chief’s authority and responsibility to manage the Department’s day-to-day operations. For example, it is the responsibility of the Chief, not the Council, to determine the number of officers assigned to particular shifts, districts, units and functions. While there is no clear line establishing when a Council directive ceases to be a “lawful order” under Wis. Stat. §62.09(13), that statute and other provisions recognize the Chief’s specialized expertise, authority and responsibility to protect public safety and officer safety, to minimize liability of the City and to ensure that the Department fulfills its legal duties. In such cases, the Chief may need to make informed judgments about whether to implement budget directives in ways that are not consistent with the Council’s intent. Ideally, any reductions are implemented through a dialogue between the Police Chief, Mayor and Common Council.
Please feel free to contact me if you have any questions regarding this information.
