By Kim McDarison

The Whitewater Common Council Tuesday authorized its president to independently solicit up to three quotes for an attorney to represent it, while opting against the use of a public request for proposals or bidding process. 

In a related action, council voted against amending the city’s existing 2022-23 budget to include a $10,000 expenditure to pay for an attorney. The amendment was advisable, according to Finance Director Rachelle Blitch, because the expenditure was not included within the city’s original budget.

She noted that the city’s “past practice” under such circumstances was to approve a budget amendment.

The council, during a meeting held earlier this month, approved an expenditure not to exceed $10,000 to hire an attorney to represent it in employee discipline and personnel matters.

An earlier story about the decision to hire the attorney at a cost not to exceed $10,000 is here: https://whitewaterwise.com/council-approves-10000-expenditure-to-hire-attorney-to-advise-it-on-personnel-matters/.

During Tuesday’s meeting, council approved action allowing Council President Jim Allen to seek out quotes from attorneys and bring them before council for discussion during its next meeting.

Council approved the action by a vote of 4-3, with council members Neil Hicks, Jill Gerber, David Stone and Allen voting in favor of the measure and Lisa Dawsey Smith, Brienne Brown and Lukas Schreiber voting in opposition.

Also on Tuesday, council, by a vote of 5-2, opted against amending the city’s budget on a “year-after-year” basis, which, Blitch said, would have allowed the $10,000 expenditure to be built into future budgets would future councils decide they needed representation.

The resolution to amend the budget, as initially described by Blitch, proposed the approval of a one-time budget amendment to allow for a one-time $10,000 expenditure.

The resolution was in keeping with the city’s procurement policy and transparency, she said. 

In a memo to council, she wrote: “It is advisable that the city earmark these funds in a contingency reserve, as they are intended for unforeseen, one-time expenses. However, should the council anticipate a recurring annual allocation for this purpose, it is recommended to reassign the expenditure to the Legal Services account within the General Fund in such a scenario. Given that the current fiscal year has not yet concluded, and in a commitment to uphold transparency, it is advisable to utilize the fund balance to cover the additional expenditure.”

Hicks, offering an amendment to the resolution, proposing that the expenditure remain ongoing.

Stone and Hicks voted in favor of the amended resolution.

Both measures — an amendment to the 2022-23 budget and the creation of an RFP — were placed on the agenda by Brown, who, during discussions on Tuesday, said she proposed each item to ensure that the council would follow its policies with regard to allocation of funds and provide an opportunity to allow service providers to bid for the work.

Resolution to amend the city’s budget

Attending the meeting remotely and referencing the decision made by council to hire an attorney, Brown said: “I just decided that though I disagreed with the last vote (to hire an attorney), that we needed to make sure that we follow the process, so I put this on the agenda to make sure that we followed all the processes for procurement, etc.” 

Responding to her comments, Allen said: “I don’t believe a resolution adopting the budget is necessary.”

Dawsey Smith asked Blitch to expound upon the process, saying: “Could you speak to the process that’s required by budgeting everything for why it would need to be a resolution to amend the budget for spending that was not originally included?”

Blitch stated that city staff was recommending that the expenditure be “put into contingencies, unless this is something that council thinks that they want to do more than this year.”   

She added: “I looked at past practice and that was, if anything in addition that was not included in the original budget came about, then we needed to, then a resolution was done to amend it.”

Allen said he could think of “like six things” the council had recently approved that had not undergone the suggested process. 

He asked City  Attorney Jonathan McDonell to render an opinion.

In response, McDonell said that he believed much of the discussion could wait until council moved more deeply into its agenda at which point it could discuss the creation of an RFP, but, he added: “certainly a resolution would be one way to go with it. And if the finance, if Rachelle, says that’s what the status-quo or past practice is, then that would be one direction.

“Based on the procurement policy, I think there is — it’s not super clear because under the purchase of goods, council agreed that they’d spend up to $10,000 on retaining an attorney, so that would be up to the department head and city manager approval, or I think this also could fall under purchase of professional services, where it basically says that all legal, planning and engineering services require common council approval. So if you read it from that direction, I think that the common council, it does fall within their powers to determine whether or not you want to go in this director or if you just want to bring back some sort of retainer agreement from whichever law firm you decide you might want to go for, and then bring it before common council for approval.”

Allen asked if he could “get two proposals and bring them back to the next meeting.” 

“That could be one option, yes,” McDonell responded. 

Gerber asked if the resolution process became applicable after a “certain dollar amount.”

“Because,” she said, “there’s lots of things under the procurement policy that have been purchased this year for different price ranges, above and below the 10 grand, but we didn’t do a resolution.” 

“Because they were budgeted. This is an un-budgeted expense,” City Manager John Weidl said.

Gerber asked about stipends, which, she said, were considered under the procurement policy. 

Said Weidl: “I hear you, staff is not going to get involved. What staff is saying is purchases outside of the approved budget typically require this resolution. If the council chooses not to follow the established process for budget amendments, that’s up to the council. Staff is not going to change their opinion, that we should be following the process. That’s where we land.” 

Said Gerber: “I just find it a little strange that this came out with this particular item and we didn’t address it with all the other prior items, and maybe it just clicked now, but I guess if this is what you’re saying we are going to do going forward then I would expect all the purchases you’re making with the procurement policy are going to be coming to council if they are not in the budget.”

Allen noted that the proposed process “would extend things out to December.”

Brown said that using the process as she proposed it was “historically” how the council had handled such matters. 

“If it’s not in the budget then we approve it and then we put out an RFP if the number is high enough. I’d like to stick with what we’ve done since I’ve been on council, which has been six years. I mean this would be a definite change from what we’ve been doing historically if we do not approve something outside of the budget and if we don’t put an RFP out, because it’s a high enough number. And, again, this is taxpayer money that was not budgeted for. And we need to make sure that if there are plenty of attorneys out there who are interested in doing this job, we need to put it out there and make sure that they are given the opportunity to give us a quote,” she said. 

Referencing Blitch’s memo, Hicks said: “So the amendment, I know it says in here is it a one-time thing or reoccurring, I guess when I said $10,000, I would assume that maybe this would be an ongoing? Not just for us, but for next year or five years, but I would assume the council always should have some sort of representation through an attorney for whatever matters they need in that way.”

He asked: “Would approving this amendment, saying it’s a yearly thing, that’s just to add the $10,000 into the budget every year?”

Blitch shook her head in affirmation.

“So we could approve this $10,000, and then if we decide to do an RFP for future items, if we think that council should obtain an attorney regularly, do that,” Allen said. 

“That sounds like the  best way to go for me, anyway,” he said.

Hicks asked and Blitch affirmed that if the money would not be used, it would be returned to the city’s general fund. 

Hicks advanced a motion allowing for an amendment to a resolution allowing council to potentially hire an attorney “year after year.”

Allen asked McDonell: “If we do that, we can still go forward tonight with getting two quotes for the next meeting?”

“That would be addressed in the next item,” McDonell said.

Dawsey Smith questioned the viability of the motion made by Hicks, asking: “Is that motion even applicable before the agenda item as resolution adopting a one-time amendment in 2022-23 budget? Or would that need to be brought back as a different discussion because that would be potentially amending many years of municipal budgets?” 

Said McDonell: “I think that it can be amended. So councilperson Hicks has amended it to make it year after year as I understand correctly, and then, if that’s not what the council wants, certainly they can vote in that manner.” 

The motion was seconded by Stone.

In advance of the vote, two members of the public offered comments.

Andrew Crone asked council to consider allowing the public an opportunity to weigh in on the matter, citing the longterm nature of the year-after-year component. He suggested the council give “public notice” before making a decision after a discussion taking place in a single meeting.

Jeff Knight, who serves on the city’s CDA, said that the city retained a consultant, Kristin Fish-Peterson, at a cost of $22,000, he recalled, and with “no competition,” he said. Citing the city’s procurement policy, he said: “I’ve read it pretty carefully, and I think when we looked at brokers we (the CDA) were following that, but I do think that you are given the ability as a city council — you could (do) all sorts — but I think at that price level … but I do know that when we retained Kristin Fish, there was no competition.” 

Following a vote, the measure advanced by Hicks failed.

Discussion regarding an RFP for legal services

Blitch, during council discussion, directed council members to an RFP developed and presented within their meeting packet. She said some areas within the document were highlighted, awaiting “recommendations” from the body.

“There needs to be interview dates,” she said. 

“I don’t want to be weird about it, but we don’t have any money in the budget yet,” Weidl said.

Gerber cited a typo within the RFP document which said “lawn” instead of ‘law.”

Hicks made a motion “to move forward without the RFP and just bring quotes,” to the next council meeting.

The motion received a second from Stone.

Said Dawsey Smith: “I have no intention of voting for that. That is not responsible, fiscal responsibility to our taxpayers. That’s just ‘nope.’”

Brown said she agreed with Dawsey Smith’s statement.

From the podium, Whitewater resident Brian Schanen, who recently announced his intention to run in April for a seat on the city council held by Gerber, said: “As I mentioned in my statement the other week — well, personally, I feel that this is an irresponsible use of taxpayer funds; I’ve heard the same from other people, however, we were just hearing earlier this evening about the importance of transparency and taking on such a — an issue that has many different opinions, having that additional transparency, I think, would be crucial, rather than just rushing forward as fast as possible and allowing the public to see how that goes. Additionally, having more potential applicant vendors can always be beneficial.”

At the podium, Whitewater resident Ryan Oezer asked: “Why do we need a third law firm? If we have a city attorney, and then a backup attorney to the city attorney, why do we need a third law firm to specifically do what?”

Said Allen: “Well it’s personnel, so we can’t discuss what, but it was determined at the previous meeting that the city attorney works for the city, and, therefore, Mr. Weidl, not specifically the common council. So in matters like this, it was recommended that we seek an attorney just for the common council.”

Asked Oezer: “What would the backup attorney, then — I’m just trying to — I’m not trying to be  anxious about things, I’m just trying to figure out, like if we already have the city attorney — I get, like technically he works for John (Weidl), what your position is — what is that second attorney for on retainer?”

“They advise us on our union contracts,” Allen said. 

Dawsey Smith said she believed that the attorney described by Allen had “a more expansive role.”

Oezer continued: “So a firm that we have on retainer can’t take on additional responsibility? Or — I’m just trying to figure out why we need to waste $10,000.”

“I don’t believe it’s a waste,” Allen said. “That attorney also has a relationship with Mr. Weidl,” he added.

Oezer asked: “How so?”

Allen said they work together on city matters.

Council members revisited the motion, which included allowing the council to spend up to $10,000 to hire an attorney for the purpose of advising the council on employee discipline and personnel matters, further allowing the council president to return with at least two proposals from attorneys by the next meeting.

Hicks said that he could see the president returning with at least two or three proposals. He suggested the motion include the word “multiple.”

Clarifying the motion, finance department employee, Jeremiah Thomas, filling in as city clerk for the evening, read: “to not exceed $10,000, to include council member Allen bringing two or three proposals for approval?”

Hicks said he thought the motion should say three.

Said Dawsey Smith: “To be clear, you’re not following an RFP whereby it would be publicly noticed for anyone who has the expertise to potentially apply?” But specifically, you would be soliciting directly proposals from someone that the public has no prior ability to even shape what that proposal could look like.”

Said Allen: “I think Mr. Knight explained that.”

Returning to the podium, Oezer said: “Ms. Smith brings up a wildly great question there. If city council is soliciting directly, how is that not a prior relationship, much as the second law firm is deemed to have a prior relationship?”

Said Allen: “I will be researching three firms with municipal experience.”

Said Oezer: “But you could not be making comments to them, going what you want, I’m assuming, done, and simply finding one that is sympathetic to whatever position you may be bringing, is that not the same thing as having a prior relationship? It’s the equivalency of doctor shopping.”

Oezer said he was looking to figure out a way to make use of resources the city already had.

He advocated for a bid process.

Former city councilman Greg Majkrzak, who recently announced his intention to run in April for a seat on the city council held by Allen, said: “I can’t follow the reasoning between not going for the proposals, but yet, someone individually bringing back two to maybe three proposals. It doesn’t make any sense to me. I can’t follow that logic. I also think, with the second lawyer firm on retainer, that they should be more than adequate in covering what our needs are rather than spending up to $10,000 more of our taxpayers’ money.”

Whitewater resident Chuck Mills, from the podium, asked: “Is there something going on around here that we don’t know about? Why another attorney to go up against an attorney we already have? Is there an inter-personnel problem here? Is something going on here that we should know about?”

Motioning toward McDonell, Mills said: “I’m sure that this gentleman’s competent to handle our issues, or am I missing something here? If nothing else, I urge you to be careful how you vote on this, because something isn’t jiving here, and we’re going to waste $10,000 because we’re having an argument in here, an inter-personnel argument in amongst yourselves.”

Brown motioned to the council that she wanted to make further comment.

Said Allen: “We’re not going to continue debating this.”

He recognized Schanen, asking him if he had “one more comment.”

Schanen asked: “Is the second law firm the same one that represents council during alcohol licensing reviews? Because I know I’ve been in the room when those hearings have been held, and there’s two lawyers in there, one kind of representing council, and one representing the city.”

Allen said, “no, that’s another attorney.” 

Several members in the room reminded Allen that Brown wanted to comment.

Said Brown: “I would strongly urge, for the argument of transparency, that if we are going to do an RFP at all, that that RFP is public, it’s in the newspaper, and that we solicit publicly in the newspaper. Otherwise it seems less transparent, and it seems like people are — that there’s some shenanigans happening.”

Following discussion, the motion allowing the council president to solicit proposals was approved.