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, SEPTEMBER 16, 2003, IN THE COUNCIL CHAMBERS OF BROOKFIELD CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD, WISCONSIN

MAYOR JEFF SPEAKER Presiding

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

ALDERMEN ABSENT & EXCUSED: Brad Steinke

ALSO PRESENT: City Attorney Sue Schalig, City Clerk Kris Schmidt, Director of Finance Robert Scott, Chief of Staff Dan Waffenschmidt, Director of Human Resources Jim Zwerlein, Director of Public Works Tom Grisa, Director of Information Services Fred Miller, Director of Community Development Dan Ertl, Police Chief Dan Tushaus, Director of Facilities & Inspection Services Dean Marquardt

Mayor Jeff Speaker called the meeting of the Common Council to order at approximately 7:45 p.m. One person spoke during the 15 minute segment set aside for the citizens to address the Council regarding the proposed Shire's Subdivision.

Charlie Cousland, Dennis Buehler and Brad Smith, Board members of the Sharon Lynne Wilson Center for the Arts, gave a status report on the Center for the Arts, 18 months after opening.

The next Common Council meeting is scheduled for October 7, 2003.

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

Alderman Heinrich moved approval of the Regular Common Council minutes of September 2, 2003. The motion was seconded by Alderman Brunner and carried unanimously.

ACTIONS OF THE COMMON COUNCIL

PLAN COMMISSION

Alderman Schulz referred to the actions and recommendations of the Plan Commission as represented in the September 8, 2003, minutes (all items require Common Council approval, except items #8, #9 and #10), including the Plan Review Board actions and recommendations of August 21, 2003.

The first item was the request of the Mandel Group, 111 E. Wisconsin Ave., Milwaukee, WI 53202, c/o Robert Monnat, for approval of an amended "P.D.D.-General Plan" for Georgetown Square, a 144 unit apartment development located south of an extension of Wisconsin Avenue east of Thomas Lane. This request would also approve an ordinance to rezone the subject property to "P.D.D.-Residential" and apply a conditional use to modify (increase) the "FF" Floodfringe Overlay zoning district on the subject property.

The Plan Commission recommended approval of the staff recommendation to approve the amended "PDD-General Plan" for Georgetown Square to include the following:

1. Eliminated the closest building to Clearwater Lakes and replaced the same with a landscape wall and berm. See revised site and building plans. 2. Reduced the project density by two units to 144 to incorporate the above change. 3. Added surface parking supply to provide required parking supply without reliance on "tandem" parking spaces.

This motion does not include the options suggested as conditions of approval. The motion also approves an ordinance to rezone the subject property to "PDD-Residential" and apply a conditional use to modify (increase) the "FF" Floodfringe Overlay zoning district on the subject property.

Alderman Schulz moved to adopt the recommendation of the Plan Commission. The motion was seconded by Alderman Shaw and carried Ayes 12, Nays 1 with Alderman Kilkenny voting nay.

This is a complex of apartments and condominiums to be located on a new stretch of Wisconsin Avenue, roughly behind Marty's Pizza and Toll House Furniture. The neighbors to the north in Clearwater Lakes condominiums objected to having new construction, citing increased traffic. Alderman Kilkenny sided with the Clearwater Lakes group, sharing their concerns over too many buildings too close together.

Alderman Schulz moved adoption of the Ordinance rezoning certain properties to Planned Development District Residential, No. 8, Georgetown Square – from Conservancy and "B-3" Regional Business to "PDD" Planned Development District – General Plan located south of an extension of Wisconsin Avenue east of Thomas Lane, and a Conditional Use to modify (increase) the associated floodplain. The motion was seconded by Alderman Shaw. A roll call vote was taken and carried Ayes 12, Nays 1 with Alderman Kilkenny voting no. Ordinance No. 1926-03*

Alderman Schulz moved approval of the balance of actions and recommendations of the Plan Commission as represented in the September 8, 2003, minutes (all items require Common Council approval, except items #8, #9 and #10), including the Plan Review Board minutes of August 21, 2003, subject to City Attorney review of Items #4 and #5, Brookfield Commons & SBC Abandonment. The motion was seconded by Alderman Shaw and carried unanimously.

CABLE TV SUBCOMMITTEE

Chief of Staff Dan Waffenschmidt and Alderman Scott Berg, members of the Cable TV Subcommittee, presented a PowerPoint presentation on the findings of the subcommittee. (May be viewed in the City Clerk's Office.)

Alderman Shaw moved to receive the report. The motion was seconded by Alderman Brunner and carried unanimously.

See: Televising City Meetings

FINANCE COMMITTEE

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

Alderman Garvens moved approval of Item #7, the Resolution approving the contract with Blue Cross and Blue Shield United to provide direct payment to the City of Brookfield for ambulance claims revenues; and Item #8, the Resolution approving the contract with Compcare Health Services Insurance Corporation to provide direct payment to the City of Brookfield for ambulance claims revenues. The motion was seconded by Alderman Heinrich and carried unanimously.

Item #7 – Resolution No. 7131-03* Item #8 – Resolution No. 7132-03*

Alderman Garvens moved approval of the Request of Fleet Maintenance Department to approve the purchase of a Horizontal Grinder including a 36 month/3000 hour warranty, from Vermeer-Wisconsin, Inc. for $275,173. The motion was seconded by Alderman Schulz and carried unanimously.

Alderman Garvens moved approval of the Resolution awarding the bid for the Library Roof Replacement project to Schranz Roofing for $298,710. The motion was seconded by Alderman Heinrich and carried unanimously. Resolution No. 7133-03*

LEGISLATIVE & LICENSING COMMITTEE

Alderman Clappier moved approval of six Original Bartender Licenses (see Legislative and Licensing Agenda for individual names). The motion was seconded by Alderman Shaw and carried unanimously.

Alderman Clappier moved approval of the change of corporate officers, agent and premise description of Brookfield Restaurant, Inc., d/b/a Pedros, 17105 W. Bluemound Road (Class B Combination Beer and Liquor License). The motion was seconded by Alderman Shaw and carried unanimously.

BOARD OF PUBLIC WORKS

Alderman Schulz moved approval of the Resolution amending the Official Traffic Control Map to install a "Stop Sign" on Lynette Lane at Lancelot Drive. The motion was seconded by Alderman Franz and carried unanimously. Resolution No. 7134-03*

Alderman Schulz moved approval of the Resolution approving the Snow and Ice Agreement between the City of Brookfield and the Village of Elm Grove. The motion was seconded by Alderman Kilkenny and carried unanimously. Resolution No. 7135-03*

SEWER AND WATER BOARD

Alderman Brunner moved approval of the Final Resolution levying special assessments: Jennifer Fontanini, 16465 Willow Ridge Ln., BRC 1019-042, $2,433.10. The motion was seconded by Alderman Kilkenny and carried unanimously. Final Resolution No. 7136-03*

COUNCIL AS A WHOLE

Alderman Ponto moved to remove off the table, the Ordinance amending Chapter 2.08.030, Polling Places, changing the location of the 4th Aldermanic District Polling Place from Hillside Elementary School to Brookfield Elementary School, 2530 N. Brookfield Road. The motion was seconded by Alderman Schulz and carried unanimously.

Alderman Ponto moved adoption of the Ordinance amending Chapter 2.08.030, Polling Places, changing the location of the 4th Aldermanic District Polling Place from Hillside Elementary School to Brookfield Elementary School, 2530 N. Brookfield Road. The motion was seconded by Alderman Schulz. A roll call vote was taken and carried unanimously. Ordinance No. 1927-03*

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)(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)(g). The motion was seconded by Alderman Schulz and carried unanimously. Recorded as a roll call. 9:00 p.m.

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

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. 9:50 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 Franz moved to pay the legal fees of Officer Prusak as claimed. The motion was seconded by Alderman Kilkenny and carried with seven ayes and six nays. Alderman Kilkenny, Alderman Wolff, Alderman Berg, Alderman Heinrich, Alderman Clappier, Alderman Schellinger, and Alderman Franz voting Aye. Alderman Brunner, Alderman Garvens, Alderman Shaw, Alderman Ponto, Alderman Schulz, Alderman Mahkorn, voting nay.

Alderman Berg moved to reconsider the previous motion. The motion was seconded by Alderman Kilkenny and carried unanimously.

Alderman Kilkenny moved to pay the legal fees of Officer Prusak in exchange for a release against all claims current and future stemming from the state of facts as to this incident and a withdrawal of all claims. The motion was seconded by Alderman Franz and failed seven nays, 6 ayes and one abstention. Mayor Speaker casting a nay vote to break the tie. Alderman Kilkenny, Alderman Wolff, Alderman Berg, Alderman Clappier, Alderman Schellinger, and Alderman Franz voting aye. Alderman Heinrich abstaining. Mayor Speaker, Alderman Brunner, Alderman Garvens, Alderman Shaw, Alderman Ponto, Alderman Schulz, Alderman Mahkorn, voting nay.

This action was extraordinary for several reasons.

First, it involved the claim that Brookfield Police Officer Russell Prusak abused the authority of his office by taking cars abandoned in the city, selling them, and pocketing the money. This matter was investigated by the Waukesha District Attorney Paul Bucher who concluded that there was not enough evidence to get a conviction and declined to prosecute. i.e. the DA concluded that Officer Prusak had stolen nothing. During the DA's investigation, Officer Prusak hired an attorney to represent him during questioning, as is every citizen's right when accused of breaking the law. The attorney charged about $4,700.

Next, the Brookfield Police and Fire Commission listened to the case to decide if Officer Prusak had broken any department rules, which are more stringent than state law. They concluded Officer Prusak had exercised poor judgment, but also concluded that there were no department policies written to control what was happening. They split the difference by suspending Officer Prusak for 60 days without pay and ordering the department to write appropriate policies. The city's fee to outside attorney's to prosecute this was over $35,000.

The matter before the council was whether the city should reimburse Officer Prusak's $4,700 attorney fees incurred during the DA's investigation. Under state law, the accused may request this reimbursement which may be paid at the discretion of he city council.

Half the council, including Alderman Berg, decided that both the DA and Police Commission had determined that there was no crime, that the city had some responsibility due to poor written procedures, that the city had already spent a huge amount of money on outside attorneys on the matter and that Officer Prusak would never have hired the attorney if he had not been wrongly accused. The other half of the council decided that the findings of the DA and Police Commission were irrelevant and that the city should never pay any legal bills of someone they accused of wrongdoing, regardless of the outcome. The deadlock was broken by Mayor Speaker's first tie breaker vote and the payment was denied.

Officer Prusak is now appealing the Council's decision with Circuit Court. The city is continuing to pay attorneys to defend against this appeal.

Another interesting aspect of this action was that the payment originally was carried, 7-6. It was immediately realized that the motion to make the payment did not require Officer Prusak to waive all future claims on this matter, a standard requirement to make sure the deal is final. Alderman Berg moved for a reconsideration in order to repair this error. That gave opponents another chance and Alderman Heinrich changed his vote from yes to abstain, creating a 6-6 tie. Mayor Speaker decided to deny the claim.

MJS - September 18, 2003 - Cleared Officer Stung by Decision

Alderman Ponto moved to adjourn. The motion was seconded by Alderman Kilkenny and carried unanimously. 10:22 p.m.

___________________________________ Kristine A. Schmidt, City Clerk

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

9978 REGULAR COMMON COUNCIL SEPTEMBER 16, 2003