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 OF THE 26TH COMMON COUNCIL, HELD AT 7:45 P.M., TUESDAY, DECEMBER 7, 2004, IN THE COUNCIL CHAMBERS OF BROOKFIELD CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD, WISCONSIN

MAYOR JEFF SPEAKER PRESIDING

ALDERMEN PRESENT: Scott Berg, Cindy Kilkenny, Thomas Schellinger, Jim Garvens, Richard Brunner (by telephone), Gary Mahkorn, Steve Ponto, Dan Sutton, Rick Owen, Ron Balzer, Christopher Blackburn, Mike Franz, Beverly Wentz, Jim Heinrich

ALDERMEN ABSENT & EXCUSED: None

ALSO PRESENT: Director of Community Development Dan Ertl, City Attorney Vince Moschella, Director of Administration Dean Marquardt, Director of Finance Robert Scott, Director of Human Resources Jim Zwerlein, City Clerk Kris Schmidt, Police Chief Dan Tushaus, Assistant City Attorney Karen Flaherty, Neighborhood Planner Carrie Johnson

Mayor Jeff Speaker called the Common Council to order at approximately 7:45 p.m.

(Two public hearings were heard regarding the request of Schlossmann's Automotive Group, 18900 W. Capitol Drive, and the request of City of Brookfield for Zoning Code Amendments regarding Guest Houses, Nonconforming Uses and Buildings, and Decision-making Procedures of the Board of Zoning Appeals.)

Five citizens spoke from the audience during the 15 minute segment set aside for citizens to address the Council. The topics were the relationship of the suburbs to MMSD and the proposed amendment to the ethics code.

Susie Just recognized Chief of Police Daniel Tushaus and the Brookfield Police Department for their support of the PARC (Preventing Alcohol-Related Crashes) Task Force and the Waukesha County Traffic Enforcement Initiative with a plaque.

The next Common Council meeting will be scheduled for December 21, 2004.

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

ACTIONS OF THE COMMON COUNCIL
CONSENT AGENDA

Alderman Heinrich moved approval of the Consent Agenda, except for Items b, f, i, and n. The motion was seconded by Alderman Blackburn and carried unanimously. Recorded as a roll call. Alderman Ponto was recorded as abstaining from Item c.

a) Minutes of the Regular Common Council meeting of November 16, 2004. As recommended by the Finance Committee

b) Removed from the Consent Agenda.

c) Resolution renewing the Investment Service Agreement with M&I Investment Management Corporation for the City of Brookfield. Resolution No. 7322-04*

High ethics in action. Ald. Ponto abstained from voting on item c since he is employed by M&I.

d) Resolution approving 2004 debt service fund budget amendment requested by the Director of Finance: increase interest on bonds account 103-909-583 by $45,600 for purposes of a current year interest payment on the 2004 bond issue. Resolution No. 7323-04*

e) Resolution approving 2004 special revenue fund budget amendment requested by the Director of Finance: increase Public Site Reserve fund expenditure account 205-215-579-503 by $44,000 for purposes of transferring monies to the dedication deposit account. Resolution No. 7324-04*

f) Removed from the Consent Agenda. As recommended by the Legislative & Licensing Committee

g) Approve Original Bartender's Licenses (see Legislative and Licensing Committee agenda for names).

h) Ethics Board Appointments: Brad Steinke - to fill the vacancy expiring November 5, 2006. Richard Wolf – reappointment expiring November 5, 2007.

This item is a bit of a sleeper - there is a lot more going on than there appears to be. 

Brookfield's Code of Ethics and Ethics Board are defined by city code §2.16.  The board has three (3)  voting citizen members and one (1) non-voting aldermanic member.  The citizen members are appointed by the Legislative and Licensing (L&L) Committee and confirmed by the Council. This is unusual since most citizen board members are appointed by the Mayor and confirmed by the Council.  The aldermen is appointed by the Council President and confirmed by the Council.  Note that the L&L approval was made immediately before the Council meeting and that the item was placed on the consent agenda, both of which stifled debate.

At the June 16, 2004 L&L meeting, the committee was apprised of a vacancy on the Ethics Board and asked to fill it.  At the November 16, 2004 meeting Jay Rosenkrantz  was nominated, apparently as a citizen volunteer via the Mayor's office, but the committee tabled the matter to provide more time to solicit more candidates.  At the December 7, 2004 L&L meeting, Mr. Rosenkrantz was nominated again.  Ald. Sutton recommended Barbara Shore and Ald. Kilkenny recommended Brad Steinke.  In addition Ald. Ponto moved that Dr.Richard Wolf, a current Ethics Board member, be reappointed to fill a new vacancy resulting from a resignation.  In the end, Dr. Wolf and Mr. Steinke were selected by L&L and confirmed by the Council.

Several aspects of this action are troubling to Ald. Berg.  The implication is that Ald. Kilkenny now has "her man" (Mr. Steinke) on the Ethics Committee, instead of "the Mayor's man" (Mr. Rosenkrantz).  There is other support for this statement, but since it involves a private email between Ald. Berg and Ald. Kilkenny written the night of this meeting , no details will be stated here.

Ald. Berg worked with Mr. Steinke for four years on the Council and has enormous respect for Mr. Steinke,  for his personal integrity and for his ability to make difficult decisions.  Ald. Berg believes that Mr. Steinke will prove to be a neutral judge, which is exactly what the Ethics Board should be.  On the other hand, it's not Ald. Berg's opinion that counts. 

Should an ethical issue have to be investigated, the Ethics Committee is intended to be a credible, independent body whose judgment is beyond reproach.  Instead the members have become political footballs.  If former Ald. Steinke should oppose disciplining a sitting alderman, especially one whom he worked with during his tenure as alderman, he will be accused of being "one of the good ol' boys" engaging in "one hand washes the other."  If current City of Mequon staff member Steinke opposes disciplining a staff member, he could be accused of being sympathetic to a kindred soul.  In either case, instead of  defusing a controversial ethical conflict, his actions will only aggravate it in the eyes of the public.

i) Removed from the Consent Agenda. As recommended by the Personnel Committee

j) Resolution approving an Intergovernmental Agreement between the City of Brookfield and Waukesha County regarding the use of County employees for on-site emergency dispatch services commencing January 1, 2005. Resolution No. 7325-04*

k) Resolution adopting a Non-represented Employee Benefits Policy. Resolution No. 7326-04*

l) Ordinance amending Section 2.14 of the Municipal Code establishing the 2005 salaries for non-union administrative personnel. Ordinance No. 1987-04* Council As A Whole

m) Resolution approving the Legal Services Agreement between Attorney E. Joseph Kershek and the City of Brookfield beginning January 1, 2005, and ending December 31, 2005. Resolution No. 7327-04*

Items Removed from the Consent Agenda

Item b - Alderman Ponto moved approval of the Vouchers exceeding $50,000 requiring immediate action. The motion was seconded by Alderman Owen and carried unanimously.

• American State Equip 2004 Lieberra A904 $160,369.00
• Walter Blischke Parcel 14/Calhoun Road 60,500.00

Ald. Berg asked for separate consideration of this item.  The first expenditure is for a new excavator for the Public Works department.  It followed the standard practice of having the city publish a specification, collect sealed bids for two weeks, then selecting the lowest qualified bid.  Suppose that the bids were not sealed, i.e. were not held secret for a short period.  The highest bid was submitted on the first day.  On the last day a new bidder demands to see all previous bids.  He then adjusts his price to be the lowest, but not as low as it would have been without total knowledge of the earlier bids.  Secrecy of a narrowly defined topic for a short period  worked to the public good, keeping the low bid low.

The second item was the purchase of right of way along Calhoun Road south of Gebhardt as needed for the Calhoun Road widening project.  Again, the negotiations with the landowner were kept secret by the city so that Mr. Blischke's neighbors did not try to match or surpass the terms, raising the project cost to the public.  Once again, secrecy of a narrowly defined topic for a short period  worked to the public good, keeping the costs low.

Item f - Alderman Ponto moved approval of the Resolution approving 2004 special revenue fund budget amendment requested by the Director of Finance: increase Public Site Reserve fund revenue account 205-000-461-000 by $68,000 for purposes of recognizing revenue from sale of City property and allocating it to the Public Site Revenue fund. The motion was seconded by Alderman Wentz and carried unanimously. Resolution No. 7328-04

Ald. Berg asked for separate consideration of this item.  This parcel is located along Brookfield Road, north of Capitol Drive.  It was purchased by the city many years ago with the intent of building a fire station there to serve the northwest corner of the city.  The majority of the parcel has since been found to be located in the flood plain and is unbuildable.  A developer is building houses on the higher ground next to that parcel and offered to buy it to serve as green space, isolating the new houses. The $68,000 has been placed in a fund dedicated to buying new park land. Setting the price and other negotiating points for this sale was performed in a closed session Common Council meeting held on November 19, 2002 Secrecy of a narrowly defined topic for a short period  worked to the public good, keeping the sale price high.

Item i – Alderman Ponto moved adoption of the Ordinance creating Section 15.04.480 D.10 banning the permanent presence of Temporary Storage Containers. The motion was seconded by Alderman Heinrich. Alderman Wentz moved to refer the Ordinance to the Plan Commission for comment. The motion was seconded by Alderman Owen and carried Ayes 13, Nays 1 with Alderman Kilkenny voting nay.

This ordinance regulates the placement of temporary storage containers.  These containers look like small semi-trailers without the wheels and are commonly used to store items during construction.

Ald. Wentz noted that ordinances concerning the appearance of the outside of properties and yards have traditionally been reviewed by the Plan Commission, and this one had not been.  She referred it to the Plan Commission for comment.  Both Ald. Wentz and Ald. Owen are Plan Commission members, so this could be seen as turf guarding.

Ald. Kilkenny stated  that approval lies solely with the Common Council and that she was ready to make a decision that minute.  This could be viewed as stripping the Plan Commission of an influence it has always had and asserting that the Council needs no outside analysis or commentary.

The lop sided vote shows what the overwhelming majority of the Council believes.

Item n – Alderman Ponto moved approval of the Appointment of Election Inspectors and Special Voting Deputies. The motion was seconded by Alderman Wentz and carried Ayes 13 with Alderman Heinrich abstaining. (Clean up of list to continue)

High ethics in action.  Ald. Heinrich's wife is one of the Inspectors, so he abstained to avoid a conflict of interest. 

(End of Consent Agenda)

LEGISLATIVE & LICENSING COMMITTEE

Alderman Mahkorn moved adoption of the Ordinance amending the Code of Ethics of the Municipal Code of the City of Brookfield relating to the disclosure of confidential information. The motion was seconded by Alderman Berg. A roll call vote was taken and carried Ayes 10, Nays 4 with Aldermen Kilkenny, Wentz, Blackburn and Franz voting nay. Ordinance No. 1988-04*

• 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, then switched 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.

This hugely controversial change is explained in detail on this site at:

Ethics Code Change - Overview

COUNCIL AS A WHOLE

The next item was the discussion relative to possibly canceling the Common Council meetings on December 21, 2004, and/or January 4, 2005.

Alderman Garvens moved that the Common Council meeting on January 4, 2005, be cancelled and the December 21, 2004 meeting be held as planned. The motion was seconded by Alderman Kilkenny.

Alderman Sutton moved to table the decision to cancel the Common Council meeting on January 4, 2005 until the Common Council meeting of December 21, 2004. The motion was seconded by Alderman Kilkenny and carried unanimously.

There were two legislative referrals:

1. Alderman Sutton suggested televising local candidate debates as an additional means of getting information out to the electorate. This matter referred to the Leadership Committee as well as the City Attorney’s office.

2. Alderman Kilkenny suggested the City explore a web based program for Aldermanic email which would allow for better archiving. This matter referred to the IT subcommittee.

Alderman Kilkenny moved to adjourn the meeting. The motion was seconded by Alderman Sutton and carried unanimously. 10:25 p.m.

___________________________________ Kristine A. Schmidt, City Clerk
* May be viewed in the City Clerk’s Office.

10105 REGULAR COMMON COUNCIL

DECEMBER 7, 2000