By Kim McDarison

The Whitewater Common Council Tuesday voted against a proposal to hire a separate outside attorney to provide it with representation in matters of employment specifically regarding the position of city manager.

Council member David Stone asked council to consider hiring an attorney to represent the council 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.

Weidl, who has recently been on paternity leave, was in attendance during Tuesday’s council meeting.

Council voted against hiring an outside attorney by a vote of 4-2, with council members Stone and Jill Gerber voting in favor of the measure. Councilman Lukas Schreiber was not in attendance.

Additionally, on Tuesday, the council discussed several employment-related issues, including those of exit and stay interviews, and competitive wages and salaries for city staff members.

A story about council’s discussions regarding employment-related topics, is here: https://whitewaterwise.com/council-discusses-range-of-topics-concerning-employee-relations/.

Following the three-hour open session meeting, the council adjourned into closed session to discuss ongoing Whitewater Aquatic and Fitness Center negotiations with the Whitewater Unified School District and a performance evaluation of the city manager.

Confusion regarding agenda items

Council members and some staff members expressed confusion during the open session meeting, citing information on the agenda which was presented as both an open and closed session item. 

Initially an item labeled “Discussion on attorney to represent Common Council on personnel matters” appeared on the closed session meeting agenda, and an item labeled “Discussion and possible action regarding retaining an attorney to represent Common Council on personnel matters” was presented at the bottom of the open session agenda following the full three-item closed session agenda.

Council members opted to remove the item from the closed session agenda, leaving two closed session agenda items, including a discussion about the negotiation of an Aquatic and Fitness Center agreement with the school district, and a discussion regarding the performance evaluation of the city manager.

The discussion and possible action of hiring an attorney to represent the council remained on the agenda as an open session item and advanced in its placement to a position above the noticed adjournment into closed session. 

A closed session meeting, which lasted nearly an hour, followed the open session. Upon its completion, council briefly resumed discussion in open session, with Council President Pro Tem Lisa Dawsey Smith announcing that no action was taken during the closed session meeting.

In a followup interview, Council President Jim Allen said he left the closed session meeting near its conclusion, citing ill health, leaving Dawsey Smith, as pro tem, to step in.

Motion to hire an attorney

Discussion regarding the agenda item to consider the hiring of an outside attorney to represent the council began with a motion made by Stone to authorize the council to retain an attorney for common council use with regard to personnel matters for employees for whom council has direct oversight. 

During discussion, and in a memo to council, Director of Human Resources Sara Marquardt noted that the city has on retainer two legal firms, 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.” Within the memo, Marquardt listed contract negotiations and complex labor-related issues as among those that would likely be handled by the second firm’s lead attorney Kyle Gulya.

Would council opt to approve the motion made by Stone, she advised, the city would then be paying for three attorneys.

“Staff does not recommend moving forward with retaining an additional attorney for personnel matters. The city of Whitewater currently retains two competent and professional attorneys to handle city matters,” Marquardt wrote. 

During discussion, Allen noted that he was aware that the city did already work with two firms.

Allen told his fellow council members 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 kind of in a pickle.”

“Maybe it would be beneficial for you to explain how Kyle doesn’t actually report to the city manager,” Weidl suggested to Marquardt.

Stone said he had spoken with Gulya, relating to him that he was “looking for possibly an attorney that would represent the council on employees that the council oversees.” 

Councilwoman Brienne Brown, expressed confusion, saying: “I have no idea what’s going on.”

Referencing earlier statements made by Allen, Dawsey Smith asked that he “please be cautious in using the ‘we want to do.’ It’s not something we have discussed as a body, so we have yet to form what ‘we want to do.’” 

Stone pointed to his motion.

Dawsey Smith agreed that he had a motion on the table, but, she said, Allen had indicated that the body was behind an action, using the words, she said, “what we want to do,” which, she argued, was not transparent.

“This is the discussion of the public body, and in front of the pubic, as to whether or not the body is going to vote to do this. I, for one, am not supportive. We retain the counsel of two professional attorneys, one of whom specializes in labor relations. I do not feel that it is in the taxpayers’ best interest to hire another person because any one of us, or us as a body, feel that we are putting someone in an uncomfortable situation. They have taken their oath as an attorney; this is their job,” Dawsey Smith said. 

“This is your opinion, and you are welcome to it; we — I knew exactly that you would say that,” Allen said in response to Dawsey Smith.

Gerber said she needed clarification. 

“I’m confused. So if I understand it all, We retain, I know we retain von Briesen (and Roper) for employment issues, contracts, things like that,” Gerber said. She asked: “So are what you saying is they can’t answer questions in regards, if the council would have one on the city manager?” 

“We need separate representation when doing a jobs performance evaluation,” Allen said. 

Asked Gerber: “I guess my question is why?

“I just want to know, is there a confidential issue? Are they required to relay this to the city manager? Is this just a comfort thing?

“And I’m assuming Jonathan kind of answered last time, you aren’t going to do employment-related issues. Is that correct?”

City Attorney Jonathan McDonell said Gerber was correct.

Gerber asked why council could not then turn to von Briesen and Roper for legal advice regarding the city manager position.

Stone said he learned through email that the firm did not represent the council specifically. He had not brought the email to the council meeting for reference, he said.

“So if the council wanted an attorney to advise it on city manager-related issues, then we need to have our own attorney, would be my takeaway from that. So this is why I put the motion out there,” Stone said.

Stone said he believed the council’s need for such representation would be a “once in a while type of thing.” He suggested the council appoint one of its members, perhaps the council president, to gather cost estimates from attorneys and bring that information back to the council.

Gerber asked if the intention of his motion was to gain approval from council to gather quotes.

Weidl asked Marquardt to share information with the council from its procurement policy.

“There are guidelines for procuring services such as this,” he said.

Councilman Neil Hicks asked about retaining fees and other costs that might come along with hiring another attorney.

Allen said the council could hire the attorney using an hourly rate and a “not to exceed” clause.

He said the attorney would be used “only as needed,” adding: “we don’t have a use for it for now.”

Weidl asked: “Then with all respect, why are you guys hiring an attorney?

“We don’t have a lot of money, and we don’t have a lot of discretionary money either. No offense.”

“It’s just discretion,” Allen said. 

Gerber said she believed Stone only was looking for quotes, however, after the motion made by Stone was reread, she stated that she was confused by the motion.

Gerber cited the city’s procurement policy as a reason for concern. She asked Marquardt to help her revisit the policy.

Reading from the policy, Marquardt said: “All legal, planning, engineering services require common council approval prior to retaining. The city attorney, by approval of the city manager, may retain outside legal counsel to serve in an advisory role to the city attorney not to exceed $5,000. For all other services, identified in the approved budget, the department head and/or city manager is delegated the authority to retain the professional.”

Hicks, offering an amendment to Stone’s motion, said: “just simply amend to ask the city to get pricing and return to the council with that.”

Stone said he believed the council would need to seek out pricing on its own. 

Dawsey Smith questioned whether state statutes would allow the “framework” for which Stone was advocating.

Stone said he had read the statute and it did.

Weidl asked Stone to provide any information regarding the topic to the city clerk for inclusion as part of the public record.

“It’s just a pretty big decision to be making with information we don’t have in front of us right now,” Weidl said. 

Said Brown: “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.

“Why would we need an attorney in the first place?” she asked.

She continued: “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.” 

Said Stone: “Well this is an agenda item that I requested.” 

Brown responded, saying: “I know, but I don’t understand why. It has not been explained why we need this. This is an expense and there has been nothing explained to me as to why we would come up with this kind of an expense.”

A vote commenced, ending the discussion.