Alderman Berg's personal commentary on the item, if any, appears in this typeface. Alderman Berg takes sole responsibility for the comments and they might not represent the official policy of the City of Brookfield or the opinions of other individual alderman.

THESE ARE THE MINUTES OF A REGULAR COMMON COUNCIL MEETING HELD AT 7:45 P.M., TUESDAY, NOVEMBER 19, 2002, IN THE COUNCIL CHAMBERS OF BROOKFIELD CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD, WISCONSIN

MAYOR JEFF SPEAKER Presiding

ALDERMEN PRESENT: Thomas Schellinger, Steven Ponto, Kari Clappier, Gary Mahkorn, Jack Shaw, Scott Berg, Richard Brunner, Jim Heinrich, Cindy Kilkenny, Karl Schulz, Jerome Wolff, James Garvens, Brad Steinke, Michael Franz

ALDERMEN ABSENT & EXCUSED: None

ALSO PRESENT: City Attorney Sue Schalig, City Clerk Kris Schmidt, Director of Public Works Tom Grisa, Director of Community Development Dan Ertl, Director of Finance Robert Scott, Chief of Staff Dan Waffenschmidt, Fire Chief John Dahms, Police Chief Dan Tushaus, Director of Information Technology Fred Miller, Economic Development Coordinator Pat Drinan, Director of Human Resources Jim Zwerlein, Director of Library Services Edell Schaefer, Director of Parks & Recreation Bill Kolstad, Director of Facilities & Inspection Services Dean Marquardt, Deputy Finance Director Therese Hrica

Mayor Jeff Speaker called the meeting of the Common Council to order at approximately 8:07 p.m. (A public hearing was heard previously - 2003 City of Brookfield Budget. See separate minutes.) No one spoke during the segment set aside for the public to address the Council.

The next Common Council meeting will be held December 3rd.

Alderman Scott Berg led the Common Council in the Pledge of Allegiance to the American Flag.

Alderman Schulz moved approval of the Regular Common Council minutes of October 15, 2002. The motion was seconded by Alderman Shaw and carried unanimously.

ACTIONS OF THE COMMON COUNCIL

PLAN COMMISSION

The City Clerk referred to the Plan Commission's actions and recommendations as represented in the November 11, 2002, Regular Plan Commission meeting minutes, including the Plan Review Board minutes of October 24, 2002.

The first item was the request of John W. Dickerson, 16480 Burleigh Place, to approve a special exception permitting a 289 sq. ft. addition to a 575 detached garage at said address. Pursuant to Ordinance No. 1666, the maximum size of a detached garage in a single-family zoning district is limited to 550 sq. feet. The applicant's residence is a two-family structure in a single-family "R-2" zoning district. The ordinance was not written to address non-conforming uses in residential districts. (SW 1/4 of Sec. 10)

The Plan Commission/Plan Review Board recommended approval of the special exception permitting the 289 sq. ft. addition to the existing 575 sq. ft. detached garage as recommended by staff.

Alderman Schulz moved adoption of the Plan Commission recommendation. The motion was seconded by Alderman Shaw and carried unanimously.

Alderman Schulz moved adoption of the Ordinance granting a special exception permitting an addition to a detached garage at 16480 Burleigh Place (John Dickerson). The motion was seconded by Alderman Shaw. A roll call vote was taken and carried unanimously. Ordinance No. 1892*

In regards to Item #7, the Resolution from the Plan Commission on the proposed rezoning of lands located on the north side of Gumina Road in the Town of Brookfield from A1 Agriculture to M1 Manufacturing, Alderman Berg moved approval of the Resolution opposing the proposed rezoning of a parcel of land along Gumina Road in the Town of Brookfield, amending the resolution to indicate that the Common Council was opposed to the rezoning as well as the Plan Commission. The motion was seconded by Alderman Schellinger and carried unanimously. Resolution No. 6979*

The Town of Brookfield is considering changing the zoning of a large parcel surrounded on three sides by the City of Brookfield, allowing development of that parcel. The parcel does not have sewer or water service. There is no coherent plan to upgrade access (Gumina Road) to handle the increase in traffic. In the opinion of the city staff, the Plan Commission and the Common Council, this rezoning is premature and will create substantial problems for both the city and town. When the utility services have been installed, the roads designed and a plausible concept for development have been completed, the city will have no objection to the development.

Alderman Berg attended the public hearing on this rezoning in the Town of Brookfield and stated his opinion. The Town Plan Commission members claimed they had not received the letter written by the city staff and sent over a week earlier outlining the objections to this rezoning. Further, they claimed that the utility issue was a trivial problem.

Alderman Berg took a leadership role in this meeting in getting the Common Council to vote unanimously to support resolution..

Alderman Schulz moved approval of the remaining Plan Commission's actions and recommendations as represented in the November 11, 2002, Plan Commission minutes, including the Plan Review Board minutes of October 24, 2002. The motion was seconded by Alderman Shaw and carried unanimously.

FINANCE COMMITTEE - Alderman Garvens, Chairman

Alderman Garvens moved approval of the Vouchers exceeding $50,000 requiring immediate action. The motion was seconded by Alderman Schulz and carried unanimously.

Alderman Garvens moved adoption of the Ordinance appropriating the necessary funds and adopting the budgets for the operation of the government and administration of the City of Brookfield for the year 2003. The motion was seconded by Alderman Schellinger.

Alderman Heinrich moved to remove $50,000 in funding from the Capitol Improvements budget for the interchange. The motion was seconded by Alderman Clappier. A roll call vote was taken and failed, Ayes 4, No's 10 with Aldermen Kilkenny, Wolff, Heinrich and Clappier voting Aye.

The proposed I-94 interchange lies entirely in the 6th District, represented by Alderman Heinrich and Clappier.

At a Finance Committee meeting earlier that evening, 2nd District Alderman and retired Police Chief Wolff and 2nd District Alderman Kilkenny proposed to reallocate the $50,000 to pay for an additional police officer. Since the item is in the capitol budget, this transfer would be illegal, as was explained by staff at that Finance Committee meeting to both Alderman and Finance Committee member Wolff, and Alderman Kilkenny. Also, even if the reallocation were legal, a first year officer's salary and benefits is almost $70,000 and it seems reasonable to believe that the officer would get paid in future years as well, when the money would have to be provided by a tax increase as well as paying off the principal and interest from this $50,000 bond.

A roll call vote was taken on the original motion and carried unanimously. Ordinance No. 1893*

Alderman Garvens moved adoption of the Ordinance approving the authorized positions for departments of the City of Brookfield for the year 2003. The motion was seconded by Alderman Brunner. A roll call vote was taken and carried Ayes 12, No's 2 with Aldermen Kilkenny and Berg voting no. Ordinance No. 1894*

The "Position Ordinance" authorizes the maximum staffing level for each city department. It does not finance those posiitons or appoint individuals to fill them. Included in this ordinance is a 13th emergency dispatcher position. There is no money in the 2003 budget to fund this position, yet this Ordinance empowers the Police Chief to hire the person. The claim is that there will be enough money in the Police Department budget due to funded officer positions not being filled to fund this salary. For more details, see the original discussion at: August 20, 2002 Council Meeting

Alderman Berg believes you don't hire a person until you know you can pay his or her salary. This Ordinance subverts the budget planning process. Sometime during 2003, there will probably be a request for an emergency allocation from some other budget item to cover this salary, which is just a way of admitting that some other budget item was padded to begin with.

Alderman Garvens moved adoption of the Ordinance levying property taxes for the General, Wastewater Utility, Special Revenue and Debt Service Funds of the City of Brookfield for the year 2003. The motion was seconded by Alderman Schellinger. A roll call vote was taken and carried unanimously. Ordinance No. 1895*

Alderman Garvens moved approval of the Resolution approving the appointment of M&I Investment Management Corporation and Dana Investment Advisors, Inc. as investment advisors for the City of Brookfield. The motion was seconded by Alderman Brunner and carried Ayes 13 with Alderman Kilkenny abstaining. Resolution No. 6980*

Alderman Kilkenny's husband has a substantial business relationship with M&I Bank and she wanted to avoid any hint of conflict of interest.

Alderman Garvens moved approval of the Resolution approving the amended City investment policy. The motion was seconded by Alderman Schulz and carried unanimously. Resolution No. 6981*

Alderman Garvens moved approval of the Resolution approving the 2002 budget transfer requested by the City Attorney and Director of Finance: $31,000 from Contingency account #101-910-590 to Attorney Outside Legal Services account #101-103-560-003 ($19,000), and Police/Fire Commission account #101-852-550-901 ($12,000), for the purpose of funding contracted legal services costs. The motion was seconded by Alderman Schellinger and carried Ayes 13, No's 1 with Alderman Berg voting no. Resolution No. 6982*

This special allocation is to pay for the "Gehrke Report" which investigated Brookfield Police Chief Tushaus on charges of wrongdoing. Alderman Berg believes the investigation was significantly flawed and the report's recommendation specious. The whole mess was complicated by the total lack of expense monitoring by the city legal staff due to the intense secrecy of the investigation and the lack of requesting help from the finance department.. The city shouldn't hand a blank check to a lawyer who gets told to keep digging until he thinks he finds something.

Even more disturbing is the fact that the Police and Fire Commision authorized the investigation, then failed to monitor it or even to hold a meeting to review the findings.

Alderman Garvens moved approval of the Request from the Police Department to purchase seven replacement vehicles for $171,000 (estimate cost subject to bid), V.A.L.U.E. bid - yet to be determined (2003 budget). The motion was seconded by Alderman Wolff and carried unanimously.

The police department puts about 75,000 miles per year on a squad car. They are replaced every year. Since the Ford Crown Victoria accounts for about 80% of all squad cars sold in the US, and since those cars are built in a single production run, the order had to be confirmed now.

Alderman Garvens moved to deny the Notice of Claim: Barrock. The motion was seconded by Alderman Schellinger and carried unanimously.

Alderman Garvens moved to deny the Notice of Claim: Jansen. The motion was seconded by Alderman Berg and carried unanimously.

Alderman Garvens moved approval of the Resolution amending Resolution No. 6894, designating public depositories and authorizing withdrawal of city monies, to add Equitable Bank. The motion was seconded by Alderman Schellinger and carried unanimously. Resolution No. 6983*

LEGISLATIVE AND LICENSING COMMITTEE - Alderman Clappier, Chairman

Alderman Clappier moved approval of 13 Original Bartender Licenses and denial of 1 bartender license. The motion was seconded by Alderman Shaw and carried unanimously.

Alderman Clappier moved approval of the Resolution raising the annual Cigarette and Tobacco retailer's license fee from $25 to $50. The motion was seconded by Alderman Shaw.

Alderman Berg moved to amend the fee to $75. The motion was seconded by Alderman Mahkorn and failed 6 ayes and 8 nays.

Alderman Schellinger moved to amend the fee to $100. The motion was seconded by Alderman Kilkenny and failed 6 ayes and 8 nays.

The original motion carried unanimously. Resolution No. 6984*

This was a very odd portion of the meeting. State law allows cities to grant licenses to sell cigarettes and to charge up to $100 per license. That money goes into the city's general fund. In 2002, Brookfield charged $45 for the license.

The staff recommended raising it to $55. The staff report stated that in a survey conducted by the City of Fitchburg, 38 communities charged the maximum of $100, 2 cities charge $75, 2 charge $50 and 16 other cities charge less.

Let's do the math. There are now 48 cigarette sale license holders in Brookfield. At the curent $45/license, that brings in $2,160. At $55 it would bring in $2,640. At $75 it would bring in $3,600. At $100 it would bring in $4,800. The city is "leaving $2,640 on the table" ($100 minus $45 times 48 licenses) that would have been paid exclusively by smokers, many of them from out of town.

Mayor Speaker and Alderman Ponto noted that the tobacco industry is a legal business and that this fee increase could be seen as unfairly singling out the tobacco industry to bear higher costs.

Alderman Clappier and Shaw are members of the Legislative committee and stated the committee debated the fees "a sufficient time". Alderman Steinke and Mahkorn are also members of the Legislative Committee, yet they voted for the amendment. When asked later, all Legislative Committee members admitted the committee debate was less than four minutes and that only Alderman Shaw suggested a higher amount.

The official minutes fail to report how the individual alderman voted, but Alderman berg's recollection is that voting for the higher amended amounts ($100 then $75) were Alderman Steinke, Kilkenny, Wolff, Berg, Mahkorn and Schellinger. Voting against the higher amounts were Alderman Brunner, Garvens, Shaw, Ponto, Schulz, Heinrich, Clappier and Franz. Mayor Speaker did not vote, but his comment about the tobacco industry implies how he would have voted.. In effect, a narrow majority felt that raising a license fee passed on to people, many from out of town, who bought cigarettes in Brookfield and used to fund Brookfield residents exclusively was unreasonable.

The same eight alderman who just a few minutes before had raised your property tax levy by $1,192,000 now think that raising cigarette license fees by $2,640 is an unreasonable burden on the tobacco industry.

Alderman Berg and Alderman Schellinger took a leadership role in trying to raise a fee charged only to people selling cigarettes and paid for by smokers but were defeated by alderman more sympathetic to big tobacco.

Alderman Clappier moved adoption of the Ordinance amending Section 5.24.040(h) of the Municipal Code raising Operator (Bartender) License fees from $45 to $55. The motion was seconded by Alderman Shaw. A roll call vote was taken and carried unanimously. Ordinance No. 1896*

After a defeat with raising cigarette license fees, what chance would changing the cost of the 433 bartender's licenses stand? No one even tried.

PERSONNEL COMMITTEE - Alderman Ponto, Chairman

Alderman Ponto moved approval of the Resolution approving the City's Health Insurance program for calendar year 2003. The motion was seconded by Alderman Garvens and carried Ayes 13, No's 1 with Alderman Berg voting no. Resolution No. 6985*

This allows the city to move from a traditional insurance plan to a self insured plan. The city pays all the health care claims it gets directly. A third party administrator handles the paperwork. If the claims are less than the premiums the city is paying to itself, the city pockets the difference. If the claims are more, the difference is made up out of the city's general funds. In a private plan, the difference is the insurance company's profit or loss.

In the worst case, compared to the current traditional health care insurance plan, the city will lose up to $140,000 on this self insured plan. That was too much of a gamble for Alderman Berg's tastes, so he voted no.

Check back in a year. One side or the other gets to say "I told you so!"

In addition, the plan places few restrictions on which provider can be used, e.g. no Preferred Provider Option (PPO), so a city employee can go anywhere. For an independent opinion on what this can lead to, see:

MJS - Dec 2, 2002 - Health care costs in state rose 14.8% this year

Alderman Ponto moved approval of the Resolution approving an increase in the limit for flexible spending accounts for City employees (medical component) from $3,000 to $5,000. The motion was seconded by Alderman Clappier and carried unanimously. Resolution No. 6986*

Alderman Ponto moved approval of the Resolution approving the City's Workers' Compensation Insurance provider for calendar year 2003 (Wausau Insurance renewal). The motion was seconded by Alderman Garvens and carried unanimously. Resolution No. 6987*

Alderman Ponto moved approval of the Resolution approving the City's Dental Insurance carrier for calendar year 2003 (Delta Dental Insurance renewal). The motion was seconded by Alderman Garvens and carried unanimously. Resolution No. 6988*

Alderman Ponto moved adoption of the Ordinance establishing salaries of non-union administrative personnel for the year 2003. The motion was seconded by Alderman Garvens.

Alderman Heinrich moved to amend the Ordinance to add "after a minimum of three years tenure" to section 8 of the ordinance after "...subject to market adjustments". The motion was seconded by Alderman Clappier. A roll call vote was taken and failed Ayes 1, No's 13 with Alderman Heinrich voting Aye.

A roll call vote was taken on the original motion and carried Ayes 13, No's 1 with Alderman Heinrich voting no. Ordinance No. 1897*

Alderman Ponto moved approval of the Resolution establishing a retirement health insurance savings program for non-represented employees, beginning in January 2004. The motion was seconded by Alderman Brunner and carried unanimously. Resolution No. 6989*

Alderman Ponto moved approval of the Resolution establishing vacation benefits for certain part-time employees. The motion was seconded by Alderman Kilkenny and carried unanimously. Resolution No. 6990*

BOARD OF PUBLIC WORKS - Alderman Schulz, Chairman

Alderman Schulz moved approval of the Resolution approving a Snow and Ice Control and Median Landscaping Maintenance Agreement for N. 124th Street between North Avenue and Capitol Drive with the City of Wauwatosa. The motion was seconded by Alderman Shaw and carried unanimously. Resolution No. 6991*

Alderman Schulz moved to defer Item #27 to the end of the meeting, the Discussion and possible action relating to offer to purchase made by Kings Way Land Development, LLC relative to property located on the west side of Brookfield Road at Carol Drive (Fire House parcel). The motion was seconded by Alderman Shaw and carried unanimously. (Marked for closed session.)

Alderman Schulz moved approval of the Resolution approving two Storm Sewer & Drainage Easements for the Hillsdale Storm Sewer Project #2002-SW-02: (a) Brian and D. Stapel, 16660 Hillsdale Drive and (b) Babette J. Lester, 16640 Hillsdale Drive. The motion was seconded by Alderman Garvens and carried unanimously. Resolution No. 6992*

SEWER AND WATER BOARD - Alderman Brunner, Chairman

Alderman Brunner moved approval of the Final Resolution levying special assessments against: 14545 Woodland Place, Lot 17, Maple Heights Subdivision, Woodland Place Water Main, TKN BRC 1016-116, $2,695.00. The motion was seconded by Alderman Kilkenny and carried unanimously. Final Resolution No. 6993*

Alderman Brunner moved approval of the Final Resolution levying special assessments against: 13760 Kinsey Park Drive, Lot 7, Block 1, Sunny Side Park Subdivision, Sunnyslope Road-Kinsey Park Drive Water Main, TKN BRC 1151-121, $1,950.20. The motion was seconded by Alderman Garvens and carried unanimously. Final Resolution No. 6994*

Alderman Brunner moved approval of the Resolution approving the revisions to the Water Main Extension Policy related to notification of affected property owners. The motion was seconded by Alderman Shaw and carried unanimously. Resolution No. 6995*

COUNCIL AS A WHOLE

Alderman Ponto moved approval of the Mayor's Reappointments. The motion was seconded by Alderman Heinrich and carried unanimously.

Community Development Authority

David Raysich - Four year term expiring November 20, 2006.

Mike Arneson - Four year term expiring November 20, 2006.

In continuing actions of the Council, pursuant to 19.85(1) of the Wisconsin Statutes, after first convening in open session, the Mayor will explain the nature of the business proposed to be considered in closed session, and upon a motion duly made, seconded and adopted, meeting in Closed Session for the following purpose:

a. Under 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. (Discussion and possible action relating to offer to purchase made by Kings Way Land Development, LLC relative to property located on the west side of Brookfield Road at Carol Drive (Fire House parcel.)

a. Under 19.85(1)(g) Conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved. (Discussion and possible action on request for payment of legal fees by Officer Prusak.)

Alderman Ponto moved to convene into Closed Session under Section 19.85(1)(e) and (g). The motion was seconded by Alderman Schulz and carried unanimously. Recorded as a roll call. 10:25 p.m.

Present during closed session were as follows: City Clerk, City Attorney, Director of Public Works, Director of Finance, Chief of Police, Director of Human Resources and Chief of Staff.

Alderman Ponto moved to reconvene into Open Session under Section 19.85(2) Wisconsin Statutes. The motion was seconded by Alderman Garvens and carried unanimously. Recorded as a roll call. 11:15 p.m.

Wisconsin state law 19.85 defines a very specific set of circumstances where an elected body such as a City Council can meet in private and not release the details of its discussion to the public.  The intent is to allow the council to set negotiating limits for land acquisition, union contract negotiations, litigation strategy, limits for lawsuit settlements and other similar tasks, without the public observing.  For example, if the city council decided it was willing to pay up to $100,000 to buy a piece of land to build a road, and the landowner had been thinking about selling for only $80,000 but then heard the higher limit just by sitting in the audience of an open session of the council, guess what price that landowner would demand?  In the long run, it's your tax money that gets spent, so you want the city to have some privacy in negotiations.  Any action actually requiring spending money, etc., as opposed to just setting a limit for a negotiation, may be informally agreed to during the closed session, but must then be stated and approved in open session.  That's why closed sessions are typically immediately followed by adjournment with no other actions or by an open session that authorizes spending the money.

Alderman Schulz moved that the City accept the Offer to Purchase the property located at Brookfield Road and Carol Drive which was originally acquired for and which use was limited by the terms of the 1987 purchase agreement to the construction of a fire station, in that said property is no longer needed for said purpose. The sale shall be conditioned upon the written agreement of the purchaser to dedicate the wetlands on said parcel to the City as part of its overall development, at no cost to the City, said dedication being in addition to any wetland dedication normally associated with the purchaser's proposed development. Additionally, staff and the appropriate officials are directed to execute the necessary documents to complete said sale. The motion was seconded by Alderman Garvens and carried Ayes 11, No's 3 with Aldermen Kilkenny, Clappier and Wolff voting no.

This is a parcel located north of Capitol Drive along Brookfield Road. It was purchased by the city in 1987 as a location for a fire station. The purchase contract prohibited any other use by the city. It stated that if no fire station was to be built, the land would have to be offered for sale back to the original owner.

Since the purchase in 1987, about 2.5 of the three acres were declared wetlands under a new state law, making the parcel far too small for a fire station. Another vacant lot next to this one is being developed and the small usable portion of this lot can be combined with that neighboring lot to create a usable building lot. That new combined parcel with a house will probably be worth over $500,000 and will then pay over $9,900 in property taxex, compared to nothing in taxes now. Also, an analysis performed in 1999 by the Brookfield Fire Department shows that a new fire station should be located further west, near the Gateway West industrial park, which did not exist in 1987.

This parcel is located in the 2nd District represented by Alderman Wolff and Kilkenny. Alderman Klappier repeatedly stated that "land is scarce", apparently believing that the city should not sell any parcels it now owns for any reason. None of these alderman were persuaded by the legal requirement of the land being used only for a fire station nor the unsuitability of the land for such a purpose nor the additional tax revenue from the new combined lot sold to a developer nor even the Fire Department's own statement that the site was poorly located.

No action was taken on the request for payment of legal fees by Officer Prusak.

Alderman Ponto moved to adjourn. The motion was seconded by Alderman Shaw and carried unanimously. 11:17 p.m.

Kristine A. Schmidt, City Clerk

* May be viewed in the City Clerk's Office.

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REGULAR COMMON COUNCIL PAGE 9889

NOVEMBER 19, 2002