By Kim McDarison

The Whitewater Common Council Tuesday voted in favor of spending up to $10,000 to hire an attorney to advise it on personnel matters.

Following a brief discussion, which included a comment from a member of the public, and a statement read into the record by Councilwoman Jill Gerber, the council approved the measure by a vote of 4-3, with council members Jim Allen, David Stone, Gerber and Neil Hicks casting ‘yes’ votes. Three members, Lisa Dawsey Smith, Brienne Brown and Lukas Schreiber, voted in opposition.

An earlier measure, with some differences in language, failed in August by a vote of 4-2, with Stone and Gerber casting affirmative votes. Schreiber was not in attendance during the August meeting. 

During the August meeting, Stone, who brought the measure before council for its consideration, said he was asking council to hire an attorney to represent it in matters concerning employees for which it has direct oversight, which, City Manager John Weidl noted during the meeting, would apply exclusively to the position of city manager.

During discussion in August, council members expressed confusion about why the council would need to hire a third attorney to represent it, with several members pointing to the two firms which already work with the city, including those of Harrison, Williams and McDonell, LLP, which provides services to the city through its lead attorney Jonathan McDonell, and von Briesen and Roper SC, which has served the city as “special legal counsel on matters the city attorney does not wish to address,” as described in August by the city’s Director of Human Resources Sara Marquardt.

Also in August, Brown said she was concerned that some members of the council might have been engaging in discussions about certain topics away from public meetings, which, she said, was not in keeping with a desire on the part of the city to engage in transparency.

In August, Brown said: “There is no reason why we need an attorney. Why would we want to retain one? And nobody so far has explained to me why we would want one. And that concerns me. If it’s not coming up why we would want one, then that means there have been conversations happening that should have been happening in a transparent and open way.” 

A story about the earlier discussion in August is here: https://whitewaterwise.com/council-votes-against-hiring-an-attorney-to-advise-on-city-manager-related-personnel-matters/.

During a meeting held in September, five members of the city’s staff, including Whitewater Police Chief Dan Meyer, Whitewater Fire and EMS Chief Kelly Freeman, Whitewater Human Resources Director Sara Marquardt, Whitewater City Clerk Karri Anderberg, and Whitewater Administrative Assistant for Economic Development Bonnie Miller came forward to offer support of and praise for Weidl, with each describing positive steps made at city hall since the city manager’s arrival to further projects and promote personal growth among staff members.

A story, including comments made by the five staff members is here: https://whitewaterwise.com/city-staff-members-speak-in-support-of-weidl-council-members-continue-to-consider-management-goals/.

During the council’s most recent meeting, held Tuesday, Whitewater resident Brian Schanen, addressing council, said that he urged the council to vote against a consideration to retain an outside law firm to advise it on “employee discipline and termination matters.”

The language mirrored that which appeared on Tuesday’s agenda.

Allen, who was listed on the agenda as having requested the item, said new language on Tuesday’s agenda, including “termination matters,” was not part of his request.

Both Weidl and Anderberg said they had received an email from Allen specifying the words as they appeared on the agenda.

In a followup email, Weidl cited language from Allen received for agenda placement.

In his email to Weidl and Anderberg, Allen wrote: “I believe that this request meets the requirements for closed session, but since you disagree, please add it to the end of the agenda in open session.”

Allen next submitted the following item: “CLOSED SESSION. Adjourn to closed session, TO RECONVENE, pursuant to Chapter 19.85(1)(c) “Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility” and 19.85(1)(e) “Deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.” Item to be discussed: (1) Discussion of an authorize retainer amount and hourly rate for the common council to retain an outside law firm to advise the common council on employee discipline and termination matters.”

Within his statement, Schanen cited three reasons for which he was urging the council to vote against Tuesday’s measure. First, he said, “such consideration was voted down on August 15,” second, he noted, “this would be a waste of taxpayer dollars,” and third, he stated, “as an outside viewer of this body over the last nine months, the city is moving forward in a strategic direction like never before.”

Weidl was hired to serve the city as an interim city manager through a leasing agreement with GovTemps USA, a public-sector staffing firm, in August of 2022. he was hired as the city’s full-time permanent city manager last October.

A story about Weidl’s placement as city manager, as published on WhitewaterWise’s sister site, Fort Atkinson Online, is here: https://fortatkinsononline.com/whitewater-weidl-named-city-manager/. 

Said Schanen: “I have been a part of organizations working well with clarity and strategic direction, and I have been a part of organizations that lack that vision and do not take direct action. From the outside, I see that city hall is a member of the former rather than the latter. The work of city hall should be commended, rather than bringing in a third lawyer to disrupt the progress made.”

He added: “I am still confused why this resolution is being brought up again, and how this is in the best interest of the city and its taxpayers.”

Within her statement made in advance of Tuesday’s vote, Gerber said: “I am honored to serve as the Aldermanic 4 representative for the city of Whitewater. With this privilege comes a profound responsibility to prioritize our city’s welfare and adhere to the highest standards of governance.”

She noted her desire to make “well-informed decisions by asking questions, conducting research, seeking expert counsel, and maintaining respect, honesty, and transparency, while safeguarding confidentiality.”

She continued: “I wish to express my support for retaining an external law firm to advise the common council and, by extension, my endorsement of the Good Governance Manual.”

She enumerated four reasons, including “privacy and confidentiality,” further noting that “personnel matters inherently involve sensitive and confidential details about individual employees”; “open meeting laws,” further noting: “our government is subject to open meeting laws, but exceptions exist for personnel matters to balance public information rights and employee privacy”; “lack of comprehensive understanding,” noting: “I lack a comprehensive understanding of fellow council members’ experiences and information they have received, as open discussions have been elusive. Commenting on personnel matters without legal counsel’s guidance regarding due process, legal compliance, and transition planning would be irresponsible.”

She closed with citing a “need for legal advice,” stating that such advice was “essential for navigating complex personnel matters.

“After comprehensive discussions with legal counsel, I believe we can provide the public with a more informed perspective. Until then, I implore you to refrain from forming opinions based solely on one side of the issue, making generalized assumptions or engaging in rumormongering.”

During Tuesday’s discussion, Allen said he wanted to discuss with the council members the possibility of hiring an attorney to discuss “employee discipline and employee matters that they can’t normally speak about with each other,” adding that the city’s attorney, Jonathan McDonell, had said, as recalled by Allen, that his firm was “not the attorney for the council, but for the city and the city manager’s office, and though they are for the council as well, there’s a, what would you call it Jon — it’s difficult for them to go between and to do both jobs.” 

Allen said hiring an attorney would give the council the opportunity to talk with someone on a “professional basis.”

Hicks asked Allen to include within his motion a cap of $10,000 as an expenditure for an attorney.

Allen said: “I will stipulate that the money either come from the Legislative Support, General Administration (within the Administration fund of the city’s operating budget) or money left over that has not been declared for a while, we can move some things around in there, and … not to exceed $10,000.” 

Stone asked that the motion carry an amendment removing the word “termination,” and replacing it with “personnel,” such that the language within the motion would read: “personnel matters.”

Brown said she was aware that some members on the council seemed to have concerns, still, she said, from her perspective, “the point is that concerns about your city manager, you should trust your city manager for at least two years. That’s what the contract is. I have talked to city managers from other cities, I have talked to city council members from other cities, and they all have said … you have to give every city manager two years.

“Not only do you have to give your city manager two years because they are going through a process learning what their job is, but, if we decide to not give that two years, and discipline or terminate, that creates a Siberia.”

She said that given such conditions, future job applicants for the position of city manager could be affected.

Brown said she believed talking about personnel issues in closed session was “ok.”

She added: “We have enough effective attorneys that we can work with that work for us that deal with personnel issues. We can do that. There is no reason to get a third attorney and to spend extra taxpayer money for a third attorney, especially since we are, right now, I feel, not acting responsibly according to our contract with our city manager.”

“We haven’t been able to discuss this in closed session,” Allen said. 

Weidl disagreed, saying: “You have been in closed session to evaluate the performance of the city manager twice in the last 90 days.”