Should the community pay nearly $22,000 because the City of Madison Police Chief can’t control his temper? I think not. And there is plenty of reason to back that opinion up. Board of Estimates (soon to be Finance Committee) will consider this today, let them know what you think!
BACKGROUND
Just last fall the city council passed a resolution saying that they would reimburse the police (and fire) chief for their legal fees if they “prevail” before the Police and Fire Commission (PFC). The action part of that resolution reads:
NOW, THEREFORE, BE IT RESOLVED, that the Common Council commits to providing the police chief and the fire chief the same protections provided to other police officers and firefighters facing complaints at the PFC, and to exercise its discretion under sec. 62.09(7)(e), Wis. Stats., to reimburse the chiefs for the reasonable costs and fees incurred, if the chief prevails in the proceedings; and
BE IT FURTHER RESOLVED, that upon conclusion of any such proceedings, an additional resolution will be presented to the Council with the chief’s request for reimbursement and proposing payment of such reasonable costs and fees, if the chief prevails in the proceedings.
Emphasis added.
Did the chief “prevail”?
There are two issues here. First, did the chief “prevail”? The PFC decision was written very poorly and says two conflicting things.
First they say, in two different parts of the decision:
Following hearing, legal argument, and deliberations, the PFC found that Chief Koval engaged in misconduct by violating applicable standards of conduct with respect to one incident, but also found that there was no misconduct with respect to the two other incidents averred by Complainants.
In our role of hiring the City of Madison Police Chief, we expected our Police Chief, as the leader of the Department to serve as an example for the entire Department, and always be beyond reproach no matter how frustrated or how harassed he or she may feel. Respondent failed in this instance.
But then they say, in two different parts of the decision:
The PFC has only three options for discipline when it finds misconduct by a sworn officer: suspension, demotion, or discharge. The PFC has determined that the Chief’s misconduct in the one incident was not of such a nature to warrant any of those extraordinary disciplinary actions.
On the entire record in these proceedings, including the foregoing the Statements of Charges in these matters are each dismissed, with prejudice.
Weak sauce. Guilty, but we don’t want to punish you with the tools that we have available? What is that? See CA May Memo on Reimbursement of Chief Koval’s PFC fees memo below for the “legal conundrum” that creates.
Second, is the bill “reasonable”?
We don’t know, we haven’t seen the bill. It’s not in legistar with the item requesting payment. At least it is not as of this morning.
City Attorney opinion only adds confusion.
Relevant parts of his memo on Reimbursement of Chief Koval’s PFC fees state the following . . .
In its decision (attached), the PFC found that the Chief violated certain standards of the Madison Police Department. However, the PFC then went on to find that the violations were not of such a nature that it would impose the limited available discipline that it could impose.
and
If this is all we had, determining if the Chief prevailed would present a legal conundrum, since he was found to have violated standards, but no discipline was imposed and the complaints were dismissed. We might have been attempting to argue by analogy from cases like Farrar v. Hobby, 506 U.S. 103 (1992), in which the U.S. Supreme Court analyzed who was a “prevailing party” under a fee reimbursement statute associated with civil rights claims. In that case, the court made the Solomon-like ruling that a party who obtained a finding of wrongdoing, but was awarded no damages, was a prevailing party – but was not entitled to reimbursement of fees since it was only a “technical” victory. Another source would have been to try to dredge up the 40 year old cases involving Chief David Couper, where my understanding is that something like 37 of 40 counts were found in the Chief’s favor. Chief Couper informed me had did not pay any of his legal fees, but that doesn’t tell us if the City paid them all, or on a pro-rata basis, with the Chief’s attorney reducing his fees to match the City’s payment. For reasons noted below, I did not search for a 40 year old resolution on the matter.
Gee, don’t work too hard, eh?
And finally:
The resolution makes a specific reference to the treatment afforded other police officers and firefighters pursuant to collective bargaining agreements, and a specific reference to Sec. XVII A. 2. of the MPPOA agreement. That agreement may be found here:
http://www.cityofmadison.com/HR/documents/contracts/MPPOA-2016.pdf
and the referenced section provides as follows:In the event an action or special proceeding is prosecuted by a third party before the Police and Fire Commission, the City agrees to pay reasonable attorneys’ fees provided the employee is found by the Police and Fire Commission to have acted within the scope of his/her employment and the employee is exonerated by the Police and Fire Commission of all charges or the charges are otherwise dismissed or withdrawn. (Italics added)
Again, emphasis (bold) added by me.
The city attorney ends by concluding they should pay his fees. But remember, the resolution says “MAY” pay the fees. It leaves discretion for the council. And, was the chief really “exonerated by the Police and Fire Commission” since the “or” there seems to indicate that “exonerated” is different than the charges being dismissed.
MY OPINION
1. First and foremost, the council MAY reimburse the chief’s fees, they are not obligated to.
2. Did he prevail? Clearly not 100%. The decision was poorly written, but clearly they found he violated policy and the chief clearly admits it. And because the council “may” reimburse his fees, they are not obligated to. I’m not even sure this should be a big deal here.
3. Were his fees reasonable? There’s no way to know without seeing the bill.
4. We have an even bigger problem. You can’t file a complaint against the chief internally with the department, either the chief decides, or the internal investigation unit nearly always exonerates the officers and what subordinate is going to find against their chief in a para-military organization. If you file a complaint at the PFC is will cost you attorney fees and then the city is going to pay fees of the chief as well and people will be mad at you for costing the city money? This doesn’t seem like a path to justice.
5. If anything, we should pay Shady and Sharon’s bills. The system is rigged in favor of the chief, who is going to have the funds to keep filing complaints and paying attorneys for this, or how long will attorneys keep volunteering for this type of activity?
6. Let’s not forget, this all started at that disastrous common council meeting (here’s the 3rd part too and the video clips from the cap times.) on June 6th, after that horrendous “pre-emptive first strike” blog post by the chief. This is part of the complaint. The PFC decided there wasn’t enough evidence to find the chief acted inappropriately, but anyone who was there knows otherwise. The chief should not be rewarded for that kind of behavior by getting his fees reimbursed.
7. Partial Payment? State law and the council resolution both say the council can exercise their discretion and “may” pay the bill. It’s been suggested that they pay a portion of the bill. I guess that’s a compromise, but at this point, its not one I’d agree to. I think they should follow the supreme court case Attorney May points out and not pay the fees. There is a Supreme Court precedent for that.
…a party who obtained a finding of wrongdoing, but was awarded no damages, was a prevailing party – but was not entitled to reimbursement of fees since it was only a “technical” victory.
YOUR OPINION?
Let allalders@cityofmadison.com know . . . or email the Board of Estimates (soon to be Finance Committee)
Barbara Harrington-McKinney district1@cityofmadison.com
Marsha A. Rummel district6@cityofmadison.com
Maurice S. Cheeks district10@cityofmadison.com
Michael E. Verveer district4@cityofmadison.com
Paul R. Soglin Mayor mayor@cityofmadison.com
Sara Eskrich district13@cityofmadison.com
Zach Wood district8@cityofmadison.com
Make sure to include your address so they know you are from the City of Madison and personalized emails usually are most persuasive. The mayor won’t be there tonight to break the tie, so if it ends 3-3, it fails.
