| Scott A. Berg, 5th District Alderman, Brookfield, Wisconsin |
Overview
Ald. Berg has suggested a change to Brookfield's Ethics Code to discourage the unauthorized release of confidential information.
The ethics code change was approved by a 10-4 vote at the Common Council meeting of December 7, 2004.
Ald. Kilkenny's opposition to the change is well known.
Ald. Wentz made the novel argument that people are ethical or they aren't, so passing legislation is irrelevant. She also noted that she was the sole dissenting vote opposing the ethic code during her first tour as an alderman 15 years ago. Try applying this argument to every other law and see what happens. e.g. Some people like to drive fast, so why bother passing a speed limit?
Ald. Blackburn said that he went into the meeting mildly supportive of the change, the switch to opposing based on Ald. Wentz' argument.
Ald. Franz flip-flopped his approval vote at the Legislative Committee meeting of October 27, 2004 where the minutes record, "Alderman Franz stated that the ordinance as written is acceptable." Ald. Franz made no statement at the Council meeting, so his reason for the flip-flop is unknown.
For a copy of the City Attorney's supporting information, check the official city web site at http://www.ci.brookfield.wi.us/ and click on the link on the home page entitled "Ethics Code Amendments". This is the only official source for this document which has been copied to various web sites, including this one.
For your convenience, an identical copy of this 4 page PDF file is also available from this site by clicking on the link below:
The topics considered to be confidential and allowed for discussion in closed session are defined in state law. The proposed change to the ethics code will not change that list. Closed sessions will discuss the things they have always discussed. The Council does not have the legal authority to expand that list.
The following is a summary adapted from the previously cited City Attorney's presentation at the December 7, 2004 Council meeting outlining the procedure the City uses for holding a closed session.
First, before a closed session is placed on an agenda the substance and wording is to be reviewed by legal staff to verify that the subject is proper under the exceptions to the open meeting law, and to verity that the language for the agenda properly identifies the subject and the applicable statutory exception.
Second, the public receives notice of the items on the agenda, which notice complies with the requirements of the Wisconsin Statutes. [The Council agenda includes the closed session notice. It is emailed to the aldermen and the press on the Friday afternoon before the Tuesday night Council meeting. It is also posted near the main entrance to City Hall and at the Public Library.]
Third, the aldermen vote to go into closed session. The Council has the discretion, not the obligation to go into closed session on a given subject. For example, if the Council were to discuss an offer to purchase property owned by the City, the Council could choose to hold those discussions in open session, going into closed session only if, for bargaining reasons, they decide that they need to discuss negotiation parameters. If they decided that a sale was not acceptable at any price, they might not go into closed session. The Common Council acted in this fashion recently when the law would have allowed a closed session on a matter involving the Shire development, but the Council decided to forego a closed session in order to hold its discussion in front of the public. An alderman always has the right to vote against going into closed session.
Fourth, if an alderman believes that the discussion in closed session has been completed, or if the discussion has strayed too far off subject, he/she can move to end the closed session. [Such a motion and following vote in a closed session would be noted in the official minutes of the meeting, even though the discussion itself would still be confidential. Talk about a red flag!]
Lastly, if an alderman, member of the public or the media believes that there has been a violation of the open meeting law they have the right to file a complaint with the district attorney or the attorney general. [This has happened with the Elmbrook School Board in regard to the negotiations on Swanson School. District Attorney Bucher takes these complaints very seriously. In general, if the District Attorney determines that there is no merit to the complaint the matter is settled within a few weeks. If there are some legitimate questions, the process may take much longer. No news is bad news!]
What this change will do is discourage people with access to confidential information from releasing it prematurely. After all, Martha Stewart is in prison due to her use of inside information that was leaked.
The novel part of this ordinance is Part I which defines what is meant by confidential. The wording is designed to hold up in court and is based on a relevant court case, BARNHILL V. BOARD OF REGENTS OF THE UW SYSTEM, 166 WIS. 2D 395, 1992.
Click here for a PDF file of the ordinance.
ORDINANCE NO. ________
By the Legislative and Licensing Committee
AN ORDINANCE AMENDING THE CODE OF ETHICS OF THE MUNICIPAL CODE OF THE CITY OF BROOKFIELD RELATING TO THE DISCLOSURE OF CONFIDENTIAL INFORMATION
The Common Council of the City of Brookfield do ordain as follows:
PART I. Section 2.16.060 A. of the Municipal Code of the City of Brookfield is hereby amended to include the following:
“Confidential information” is, at the time of a proposed disclosure, information where the City’s interests in its confidentiality or in the City’s effective functioning outweigh an interest in free speech to disclose same. Confidential information includes but is not limited to information where the disclosure is prohibited by common law, or state or federal law or statute unless the release of same is ordered pursuant to a lawful order of a court or the informed consent of the subject, as applicable; and, information that is subject to the exemptions of a governmental body to meet in open session under Wisconsin Statute Section 19.85 unless release is authorized by the legal custodian or other proper legal authorization is given. For purposes of this section information shall include knowledge imparted orally, recordings, and written documents or records.
PART II. Section 2.16.060 C.2. of the Municipal Code of the City of Brookfield is hereby repealed and recreated to read as follows:
2. No official or employee may use or disclose confidential information concerning the property, government or affairs of the City gained in the course of or by reason of his official position or activities, nor shall such official or employee use such information to advance the financial or other private interest of such official or employee or others.
PART III. Section 2.16.090 A is hereby repealed and recreated to read as follows:
A. A determination that an elected official’s actions constitutes improper conduct under the provisions of this chapter may constitute a cause for sanctioning, censuring or removing the official, or other disciplinary action by the council, as permitted by law. Removals may be made only by an affirmative vote of three-fourths of all the members. Sanctions and censures may be made only by an affirmative vote of two-thirds of the members present. A determination that an employee’s actions constitutes improper conduct under the provisions of this chapter may constitute a cause for disciplining or discharging the employee, or other disciplinary action by the council, as permitted by law. A determination that an appointed member of a board, committee or commission’s actions constitutes improper conduct under the provisions of this chapter may constitute a cause for the Mayor or other appointing authority to consider removing the member from the board, committee or commission.
PART IV. Section 2.16.090 C. is hereby created to read as follows:
C. As an alternative or in addition to the sanctions imposed herein, any person violating the provisions of this section shall be subject to a municipal forfeiture of not less than $100 nor more than $1,000 for each violation.
PART V. All ordinances and parts of ordinances contravening the provisions of this ordinance are hereby repealed.
ADOPTED AND APPROVED , 2004
Kristine A. Schmidt, City Clerk Jeff R. Speaker, Mayor
Published:
This is the text of a memo that Ald. Berg sent to various city officials explaining his stance on the proposed change to the city ethics ordinance. Please pay special attention to the first section in red, which describes a reasonable scenario requiring this change. It is easy to see how the same concern could arise when purchasing new land for a park or defining a legal strategy for defending against a lawsuit. The second section in red was added for this page to link to the source web page.
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To: |
Mayor Speaker All Alderman Vince Moschella – City Attorney Karen Flaherty – Asst. City Attorney |
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Date: |
November 12, 2004 |
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From: |
Scott A. Berg - Alderman, 5th District |
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Re: |
Ethics Code Revision regarding Confidential Information |
I want to provide some background information on the proposed modification to the city's Code of Ethics which is scheduled for consideration on November 16, 2004. I formally proposed this change on August 17, 2004 but its history goes back much further.
Before I launch into a long winded history lesson, let me make a few points very clear:
Since I was first elected in April of 2000, I have attempted to be as open to the public as possible, including:
My primary motivation for this proposed change is to allow the closed session provisions of state law to achieve their goal of allowing privacy during those narrowly defined cases where privacy is to the public advantage.
Consider this example:
Employee contract X is up for renewal. The employee's are willing to settle for 3%, but decide to start negotiations at 4%. Their union meeting is secret.
The Common Council (more likely the personnel committee) meets in closed session and decides that the city can afford 5%, but will start by offering 3%. Alderman Jones, who is very sympathetic to employees, leaks the limits to a union leader buddy of his.
Negotiations start. The city opens at 3% but the union holds out for 5%. The union gets 2% more than it would have settled for because of the inside information. Alderman Jones is discovered because the union official has an even bigger mouth. The press that always protests closed sessions now criticizes an alderman for talking. There was no bribery, so no state law applies. With a four year term, Ald. Jones' re-election is far away. Besides, he just bought the votes of every employee covered under the contract. Recall proves to be harder than an enraged public thinks it is. The taxpayers foot the bill every year they pay that extra 2% salary.
I first started thinking about this change in late 2003 when I received a phone call from a reporter asking me to comment on what is now called the Swanson - Mary Knoll School Swap. He told me that two days earlier the Elmbrook School Board held its first closed session meeting to discuss the offer. When I said that I knew nothing about it, the reporter recited the details. Since the only people in that closed session were the developer, school administrators and School Board, there was an obvious possibility of an elected official giving the closed session information to the press.
The next time I thought about this change was on January 28, 2004 when I attended a seminar on the open records law and closed sessions sponsored by the Waukesha District Attorney's office. The speaker was John Macy, a prominent municipal law attorney. I asked him if there was a penalty for leaking information and he stated there was no such state law, but that some municipalities included it in their local code. The next day I sent an email asking about this to then Brookfield City Attorney Sue Schalig. Counselor Schalig retired soon after that and took no action on the matter. When Vince Moschella was sworn in as City Attorney I asked him to review the idea and it eventually became the proposal before you now. Note that this was before the Swanson School swap predominated the news, before The Shire, before TID #3, etc. I would have presented this idea whether those things had happened or not.
There was another relevant incident. A locally produced web site blog page of July 16, 2004 referred to this gap, completely without context or prior related discussion. Since my request was literally sitting on the City Attorney's desk with no action having been taken, the blog entry could not possibly have been in reaction to my request. I don't know what the author of that comment intended, but I interpreted it as bragging about having discovered a loophole in state law. That same web site stated opposition to this proposal on September 8, 2004 after it was formally submitted for Council consideration.
These are links to the pages referred to in the memo.
"P.S. Did you know that confidentiality from closed session discussion is not required by law?"
"I'm not impressed by this attempted modification of the Ethics Code."
This link is to a page published after the Ethics Code change was approved. Is this a type of "thumbing your nose" or just an observation?
"Unless, of course, someone is accused of violating the new law..."
By the way, the web site with these comments, www.brookfieldcitynews.com, has had its contents, including these messages, deleted. Communications is now by e-mail, which provides a free mailing list for the next campaign, whatever office it's for.
In researching the idea, I also checked the web site for the League of Municipalities. I found their discussion on divulging the contents of a closed meeting, dated November, 2002, which is included. Clearly other municipalities have dealt with this issue long before I brought it up.
Please review this proposal carefully. I welcome any debate on it during the Council meeting.
Back on January 29, 2004, Ald. Berg sent this email (typos and all) to then City Attorney Sue Schalig. Counselor Schalig was busy with the plans for TIF #3, The Shire development and some other tasks and was not able to respond prior to her leaving office.
From: Scott Berg [mailto:scott@scottberg.com]
Sent: Thursday, January 29, 2004 10:03 PM
To: Sue Schalig
Cc: Mayor Jeff Speaker; Kris Schmidt
Subject: Cty Ethics Code
Sue -
Last night I attended the seminar on the open meetings / records law led by John Macy. I didn't realize that his brother is labor lawyer Jim Macy, who was a college friend of mine. Anyway...
I asked whether an alderman revealing information disclosed in a closed session was a violation of law. Mr. Macy stated that it was not a crime. He went to state that it may be a violation of a city ethics code governing the behavior of elected officials. Which leads me to ask: Does Brookfield's ethics code specifically prohibit an elected official from disclosing information and decisions revealed in a closed council meeting until after the information had been released by other means (became a moot point)? If not, I would like to consider adding that clause.
Thank you.
Scott Berg
Alderman, 5th District
When Vince Moschella was appointed City Attorney, Ald. Berg asked again about the issue and the official work started on July 17, 2004. The Council's new system of legislative referrals at the end of each Council meeting has resulted in much better tracking and timely consideration of requests.