By Kim McDarison

Whitewater Common Councilwoman Jill Gerber will be vacating her seat next month following the April 2 election. Gerber failed to submit paperwork to declare her candidacy in January, leaving her seat open. Brian Schanen is the single challenger whose name will appear on the ballot seeking the open seat. 

An earlier story about an absence of nomination papers filed by Gerber is here: https://whitewaterwise.com/councilwoman-jill-gerber-has-opted-not-to-run-in-april-city-officials-say/.

With, at times, audible emotion and expressing some urgency, the councilwoman lobbied Tuesday, March 19, to include a closed session, which she had previously placed on the council’s regularly scheduled agenda, to review and evaluate the employment performance of City Manager John Weidl.

Council, in December, 2023, reviewed the city manager, giving him an overall score of 3.70 on a five-point scale.

During the March 19 meeting, recently appointed councilman Patrick Singer, who joined the meeting remotely, said he wanted to postpone the closed session review until a time when he could attend the meeting in person.

Following a protracted discussion, the body voted 4-3 to postpone the meeting until Monday, April 1. Those voting against postponement included Gerber, Council President Neil Hicks, and newly appointed at-large councilwoman Carol McCormick.   

Postponement discussion

At the top of the meeting, as Hicks called for the council to approve its agenda, Singer said he wanted to make a motion to postpone the closed session meeting and its associated consideration.

He offered Monday, April 1, as an alternative special meeting date.

“So a couple of issues I just wanted to raise. You know we had some discussion about having a special meeting last week to cover this very topic, and had actually gotten a memo from one of the attorneys that is representing the council on that, about a number of issues around that particular meeting in terms of some logistics and procedural things that we, as a council, would have work out,” Singer said.

He added that he was on vacation, and wanted to be present for the special closed meeting discussion.

“This is gonna take a while,” he said, noting that while he realized there was information that required a closed session, he thought the subject would be better considered if the meeting was held at a time when it was the single agenda item. He said council then would not have to feel rushed because of an accompanying longer open session agenda. 

“I just thought it was prudent to move it to the 1st, then we can dedicate the whole meeting to that. We’re not putting it at the front of an agenda. I mean, I know the school district likes to do that. It is just kind of inconsiderate to the public, you know, with all the other items on our agenda this evening,” he said. 

Gerber disagreed, saying: “I would not vote to move this closed session. I think I have waited. I think the public has waited. Many people have waited for this closed session, and I think if it’s time you’re worried about, I did try to have a special meeting. It’s not going to happen. If I’m the one with the information, then I think this needs to be done as soon as possible, and I’m willing to share this with the council so we can move forward, which we’ll most likely have other meetings to follow. We can limit the time, as long as I can get some of it out today, if that’s your concern. We could limit it to a little bit less time, and I can speed up the process if necessary. But, I do think it’s important, people are here today, and that we should have the opportunity to speak, and you should, the council should want to hear me. The public has been waiting for this closed session. There’s no reason to delay it.” 

Councilwoman Brienne Brown questioned the concern for urgency, saying: “So if you would like to have some information shared in closed session, it sounds like we still can’t make a decision as closed session, so I don’t see how that has anything to do with people waiting for a decision after closed session.” 

Said Gerber: “People may wanna speak at the open forum tonight that are here, following the closed session. So people have come. They may choose, they may not to choose. I think what happens in closed session is up to the council, but I can guarantee you there’ll be more meetings than one.”   

McCormick asked about a special session.

Gerber said she did not receive a response when she tried to schedule a special meeting the week prior to the March 19 meeting.

“I’m assuming nobody came through with the date. So that gave us this original date, which was planned weeks ahead of time. We can do another special meeting on the 1st if you’d like to have a second followup meeting,” she said.

Brown said she was in agreement with Singer that a single meeting would better serve the topic. 

Said Gerber: “I think we have our attorney here for the council, who’s come quite a distance. So I think we should go ahead …”

Singer interjected, saying: “We also have an attorney for the council as our city attorney who deals with our open meeting and process issues. You know, the attorney that sent us this memo is dealing on personnel matters, and I know, as a body, we didn’t ask him to come.”

Gerber said that “everything has gone through (city attorney) Jonathan McDonell.”

She added: “He is fully aware from the beginning of when the meetings were going to happen, and everything has been cleared and everything has been posted properly.”

Singer said he was not arguing the point that the meeting had not been posted.

“I’m just saying, from a process perspective, I would defer to our city attorney in terms of, you know, meeting him here. The other, you know, Brian, you know, we appreciate his service, but I don’t, you know, to me the city attorney is our attorney.” 

Gerber pointed to Singer’s newly appointed status, saying: “Your city attorney, I know you weren’t on the council, but Jonathan clearly stated he would not handle personnel matters involving the city manager. So he’s clearly stepped away from that, and that’s what led us to have a separate attorney. It was Jonathan’s choice. He was our first choice and he chose to have this contracted out.”

Councilwoman Lisa Dawsey Smith said she was in agreement with Singer that a delay was appropriate, to allow the “full council to be here in person.”

Following the vote, the special meeting was set for April 1. Since the March 19 meeting, a second item for a closed session meeting regarding the topic of the city manager’s employment performance has been added to the council’s next regularly scheduled meeting on Thursday, April 4. 

The council’s regularly scheduled meetings are typically held on Tuesdays. With the spring general election falling on Tuesday, April 2, the council’s meeting has been moved to Thursday.

Writ of mandamus

Last month, attorney Ward D. Phillips, with the Elkhorn-based firm of Leese and Phillips, on Gerber’s behalf, filed a writ of mandamus, a lawsuit, with the Walworth County Circuit Court, which names the city of Whitewater, care of the city’s clerk, Heather Boehm, who serves as the city’s records custodian, as a defendant.

Documents filed with the court on Feb. 22 allege that Gerber filed an open records request with the city “on or about” Dec. 13, 2023, seeking: “all background checks completed on John Weidl prior to being hired with the city of Whitewater as the city manager or interim city manager; the GovHR contract that was used to fill the city manager position by John Weidl; all recommendations from John Weidl’s previous employers; John Weidl’s resume on file, (and a) copy of any scoring system used to provide a rank of the candidates for the city of Whitewater position by GovHR or the city of Whitewater.”

The document further states that “on or about” Jan. 24, the city of Whitewater, through its attorney, Jonathan McDonell, provided a response to the records request, which notes that some of the requested information would not be provided.

In his response McDonell wrote: “please be advised the police department is not releasing all of the records pertaining to your request.”

He next outlined four reasons why some records were being denied, including:

• Some portions of the records are not being released in order to protect the privacy of individuals. The public policy basis for the refusal is that the public policy protecting the individual’s privacy outweighs the public’s right to receive this information.

• Some records are not being released because they include drivers license numbers, phone numbers or addresses that are confidential based (on) the Driver’s Privacy Protection Act and Wis. Stat. 19.36(a).

• Some records are not being released because they refer to a performance improvement plan of an employee and/or other evaluation reports which are confidential due to (state statutes cited) and the public policy encouraging frank evaluations and criticisms of employees which might be compromised if the evaluator knows that the records may be released to the public. This policy outweighs the public’s right to receive records.

• Some records are not being released because they include information relating to one or more employees that is used by the department for staff management planning, performance evaluations, judgements or recommendations concerning future salary adjustments or other wage treatments, promotions, job assignments or letters of reference. Also refusing to release performance evaluations and critical comments concerning employee performance supports the public policy of encouraging the candid and frank review of job performances of employee and therefore encourages accurate evaluations. If the reviewer or person offering criticism knows the evaluations may be released to the public, critical and candid evaluations are much less likely. This policy outweighs the public’s right to receive the redacted portions of the records.

In response to the records received, the court document notes that the “documents provided by the respondent were not a complete disclosure of all records requested by the petitioner.”

The document lists information requested that the petitioner did not receive, including:

• The respondent provided pages 3, 4, and 15 of its contract with GovHR, but did not provide the remaining pages. The respondent did not provide any letters of recommendation submitted on behalf of Mr. Weidl.

• On or about January 4, 2024, the petitioner requested audio records from the respondent’s Finance Committee meetings for September 26, 2023, October 10, 2023, October 12, 2023, October 16, 2023, and October 24, 2023. The petitioner also requested videotape footage from November 7, 2023, and December 19, 2023.

• On January 16, 2024, the respondent’s city clerk (made an initial response) … that the respondent had the audio for the Finance Committee meetings that were requested by the petitioner.

• On January 17, 2024, (the city clerk responded, saying) that the responder had the audio recording for the October 12, 2023 Finance Committee and the audio for the November 28, 2023 Finance Committee meetings.

• On or about January 17, 2024, petitioner again requested Finance Committee meeting audio for September 26, 2023, October 10, 2023, October 16, 2023, and October 24, 2023, as well as questions regarding surveillance video cameras.

• On or about January 18, 2024, (the clerk responded again, stating in part) … I have sent you all of the information that is available.

• The court document notes its inclusion of a “string of emails” between the two parties which documents the communication between them between Jan. 4 and 18, 2024.

• The court document further points to emails between the two parties, which it notes, documents communications regarding the petitioners attempts to “get copies of the audio for the Finance Committee meetings that had not been provided by the city.”

• The court document offers a claim by the “respondent’s employee,” that the “respondent does not have the Finance Committee meeting audio tapes requested by the petitioner.”

• The court document asserts that the city’s code of ordinances requires the city to “maintain audio recordings of governmental body meetings for one year after the minutes from such meeting have been approved and published.”

The court document next asserts that the respondent has a “positive and plain duty” to provide the petitioner with requested information between Dec. 13, 2023, and Jan. 4, 2024.

By failing to provide requested documents, the court filing asserts, the city “has violated its plain and positive duty pursuant to the Wisconsin Open Records law.”

A writ of mandamus is the “remedy” to the violation, the court document asserts, further noting that there is “no adequate alternative remedy available to the petitioner.”

Therefore, the court document continues, the plaintiff “demands judgement” that would include a writ of mandamus requiring the city to provide the requested records; damages, awarded in the form of attorney’s fees and disbursements; “punitive damages pursuant to 19.37(4) Wis. Stats., and “an order for such other and further relief as the court deems just and necessary.”

A link to the full filing is here: http://whitewaterwise.com/wp-content/uploads/2024/03/0208_001.pdf. 

Since its filing, according to the Wisconsin Circuit Court Website, the case has come before Judge Kristine Drettwan, who, on March 20, scheduled a telephone status conference to be held in June.

City manager’s performance evaluation summary

Additionally, WhitewaterWise has obtained a “City Manager Performance Evaluation Summary — Common Council,” outlining the city manager’s performance between Nov. 7, 2022 and Dec. 7 2023. The 16-page document offers scoring in various categories with 5 denoting an achievement of ‘excellent,’ and 1 denoting a ‘poor’ performance.

Across 10 scored categories, ranging from “individual characteristics,” to “fiscal management,” the city manager received scores between 3.45 and 3.89.

Earlier this month, the city manager provided the city council with an addendum to his review, carrying the title: “City Manager Performance Improvement Plan and Reflections on Evaluations.”

Within the six-page document, the city manager noted that staff, offering its evaluation, gave him an overall score on the five-point scale of 4.02, while the city council gave him an overall score of 3.70.

The score, he said, “suggests an above-average performance, but with identifiable areas for growth.”

Within his document, the city manager outlined objectives and goals, which, he wrote,  “not only addresses areas for improvement, but also builds upon the strengths and effective practices that have been acknowledged in my current role.”

The full addendum from the city manager is here: http://whitewaterwise.com/wp-content/uploads/2024/03/Addendum-to-City-Manager-Performance-Improvement-Plan-and-Reflections-on-Evaluations.pdf. 

Evaluation: an ongoing agenda item

The performance and evaluation of the city manager has been a topic of consideration on several meeting agendas.

Weidl was hired as the city’s part-time interim city manager Aug. 16, 2022, following the departure of former City Manager Cameron Clapper, who accepted a position as administrator in Dodge County on Aug. 12.

An earlier story about the council’s decision to hire Weidl in an interim capacity is here: https://fortatkinsononline.com/whitewater-council-hires-john-weidl-as-interim-city-manager/.

Also in August of 2022, Weidl announced his desire to be considered for the city’s full-time city manager position.

An earlier story about Weidl, including his achievements and goals, as described in 2022, is here: https://fortatkinsononline.com/whitewater-interim-city-manager-says-he-plans-to-apply-for-permanent-position/.

Some tension developed as early as August, 2023, between Weidl and several council members, including the late councilman Jim Allen, who died last December, Gerber, and council member David Stone, who resigned from his position shortly after Allen’s death.

During a council meeting held last August, Stone asked council members to consider hiring an attorney to represent it in matters concerning employees for which it had direct oversight.

Weidl noted during the meeting that he was the only employee that would fit Stone’s description.

When brought to a vote, council members decided against the measure, with two members, Stone and Gerber voting in favor.

Prior to the vote, Allen lobbied strongly in favor of hiring the aforementioned attorney, saying that he had spoken to a representative with the League of Municipalities.

According to Allen, the representative “suggested that we seek an outside attorney for this.” Allen said he believed circumstances placed “our attorneys,” he referenced the city’s two other contracted attorneys, Jonathon McDonell, who serves at the city attorney, and Kyle Gulya, of von Briesen and Roper, who guides the city in complex labor-related issues, as “kind of in a pickle.”

Other council members expressed confusion about the discussion in general, with councilwoman Brienne Brown, addressing Allen, Gerber and Stone, saying: “I’m concerned why this is even coming up, because you’re not explaining why we would want to retain one (attorney) in the first place. And I’m starting to get concerned there has been a violation of open meetings, that people have been talking together in some way, because it seems like — I feel like there’s been a separate conversation happening.”

Allen told council members: “We need separate representation when doing a jobs performance evaluation.”

An earlier story about the council’s discussion about the need for a third attorney is here: https://whitewaterwise.com/council-votes-against-hiring-an-attorney-to-advise-on-city-manager-related-personnel-matters/.

In October of 2023, the question about hiring a third attorney, at a cost up to $10,000, to advise the council regarding “discipline and termination matters,” and to authorize the then-council president, Jim Allen, to solicit quotes from up to three attorneys, was back on the agenda. The measure carried, with Allen, Stone, Gerber, and council member Neil Hicks voting in favor.

The October decision was reconsidered in November, with council voting 5-2 in favor of extending von Briesen and Roper’s contract to cover the “discipline and personnel matters” concern, rather than soliciting from a broader pool proposals from up to three firms. Council members Lisa Dawsey Smith and Brienne Brown opposed the measure. 

An earlier story about the council’s decision to extend the von Briesen contract is here: https://whitewaterwise.com/council-reconsiders-soliciting-third-legal-firm-approves-von-briesen-to-advise-it-regarding-discipline-personnel-matters/.

During the council’s November 7 and 23, 2023 meetings, a performance review tool and a survey questionnaire for the city manager position were discussed, with the items approved during the Nov. 23 meeting.

In December, 2023, council members discussed which of the von Briesen attorneys would best suit their needs regarding discipline and personnel matters. No action was taken.

Dec. 7, 2023, marked the end of the most recent one-year review period for the city manager’s evaluation. The manager received an overall score of 3.70 on a five-point scale, with 5 serving as the highest score. 

On Dec. 13, Gerber filed an open records request with then-city clerk Karri Anderberg. The request sought documents regarding the city manager’s employment records and contracts with the city of Whitewater, along with his resume and letters of recommendation from previous employers, among other items. 

On Dec. 23, 2023, Allen, who had been experiencing some health issues, was found deceased in his home. An earlier story, noting a call made by a family member requesting police to conduct a welfare check, is here: https://whitewaterwise.com/whitewater-common-council-president-jim-allen-found-deceased-in-his-home/.

On Dec. 27, 2023, Stone resigned. An earlier story about Stone’s resignation is here: https://whitewaterwise.com/councilman-david-stone-resigns/.

On January 16, the city manager’s evaluation was discussed in closed session, with no action taken. A discussion about which von Briesen attorney might assist the city council with personnel matters was additionally held with no action taken.

On February 6, and again on February 20, the city manager’s evaluation was discussed as a closed session item, with no action taken.

Also on Feb. 6, Singer was appointed by the common council to fill the Aldermanic District 1 seat vacated by Stone, and McCormick was appointed to fill an at-large seat left open following Allen’s death.

On February 22, aided by an attorney, Gerber filed a writ of mandamus with the Walworth County Circuit Court, naming the city, in care of its current clerk, Heather Boehm, as a defendant, alleging violations of the state’s open records law when filling Gerber’s December 13 open records request. 

On March 5, the city manager provided council members with a written addendum to his review, titled: City Manager Performance Improvement Plan and Reflections on Evaluations. 

On March 19, council postponed its scheduled discussion in closed session regarding the city manager’s employment performance, opting instead to hold a special meeting on April 1.

An agenda for Monday’s special meeting notes that following a roll call, an opportunity for members of the public to offer citizen comments will be provided in open session. Next, the council will move to closed session to discuss “employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility, in particular … to discuss the city manager’s employment and performance.”

The agenda notes that the council, following its closed session, will reconvene in open session to consider, discuss, and take possible action regarding the city manager’s employment performance.

The meeting will be held in the council chambers in the Whitewater Municipal Building, 312 W. Whitewater St., Whitewater, at 6:30 p.m. A virtual option also will be made available. A link to the meeting agenda is here: https://mccmeetings.blob.core.usgovcloudapi.net/whitewatwi-pubu/MEET-Agenda-a6cb9ee31830407da1d9af5c1869736f.pdf.

Additionally, on Thursday, April 4, in the city’s municipal building, at 6:30 p.m., the council’s regularly scheduled meeting will take place. Among items on the agenda is a closed session, with two components, one of which is a discussion about the city manager’s employment and performance, with the body reconvening into open session to consider, discuss and take possible action regarding the closed session topic.

An agenda for Thursday’s meeting is here: https://mccmeetings.blob.core.usgovcloudapi.net/whitewatwi-pubu/MEET-Agenda-86a08f133c5d4c488f63dc8866384191.pdf.