Protection and Welfare Committee

City of Oconomowoc Protection & Welfare Committee Aldermen: Rosek, Chairman /Schellpeper, Secy / Ellis Tuesday, July 06, 2021 - 5:50 PM City Hall - Council Chambers 174 E. Wisconsin Ave. Oconomowoc, WI 53066 Notice: If a person with a disability requires that the meeting be accessible or that materials at the meeting be in accessible format, call the City Clerk at least 48 hours prior to the meeting to request adequate accommodations. Tel: (262) 569-2186. 1. Call to order and confirmation of appropriate meeting notification 2. Committee Business a. Consider/recommend Repealing Ordinance Section 12.03(b)2. of the City of Oconomowoc Municipal Code Regarding Pit Bull Dogs Presumed Vicious b. Discuss Whether to Amend Ordinance 1.37 Police Commission Regarding Appointment of One Alderman to Serve with the Board of Police Commissioners 3. Adjourn ________________________________ Diane Coenen, City Clerk City of Oconomowoc Notice is hereby given that a majority of the Common Council will be present at the above scheduled meeting to gather information about a subject over which they have decision-making responsibility. This constitutes a meeting of the Common Council pursuant to State ex rel. Badke v. Greendale Village Board, 173Wis. 2d 553, 494 N.W. 2d 408 (1993) and must be noticed as such, although the Common Council will not take any formal action at this meeting. 1 2 3 4 5 6 7 12.03 - DOG AND CAT LICENSING AND REGULATION. (1) LICENSE REQUIRED. (Am. #04-0591) Every person residing in the City who owns a dog or cat which is more than 5 months of age on January 1 of any year shall annually at the time and in the manner prescribed by law for the payment of personal property taxes obtain a license therefor. (2) FEES. (Am. #91-0282; #93-0318; #03-0578; #04-0591) The owner shall pay to the City Treasurer a fee as provided in §12.01 of this chapter for each dog and cat. (3) ISSUANCE OF LICENSE. (Am. #04-0591) Upon payment to the City Treasurer of the required fee, the Treasurer shall issue to each person a license to keep such dog or cat for one year and such person shall, upon procuring the license, place upon the dog or cat a collar with a tag furnished to him/her by the City Treasurer or the County Clerk. (4) STATE REGULATIONS. (Am. #04-0591) Ch. 174, Wis. Stats., shall apply so far as applicable. Sec. 95.21, Wis. Stats., which is the rabies control program, shall apply to all dogs and cats harbored in the City. Sec. 95.21(2), Wis. Stats., requires rabies vaccinations for dogs, and by the terms of Ordinance No. 04-0591 for cats also. Sec. 95.21(2)(a), Wis. Stats., sets forth the requirements for vaccinations, and said section is incorporated into this subsection by reference as though set forth herein in its entirety. (5) DOGS RUNNING AT LARGE. (a) Prohibited. No person who owns, harbors or keeps a dog shall permit the same to run at large. (b) Defined. For the purpose of this section, the phrase "at large" means all places within the City except the owner's premises and includes streets, alleys, sidewalks or other public property which may abut on the owner's premises. A dog shall not be considered to be running at large if it is on a leash and under the control of a person physically able to control it. (c) Turning Dogs Loose . No person except the owner or his/her agent shall open any door or gate of any private premises for the purpose of getting or setting any dog at large or otherwise enticing or enabling any dog to leave any private premises within which such dog is kept for the purpose of setting such dog at large. (d) Restraint of Dogs . (Cr. #1-79) Any person owning or having charge, custody, care or control of any dog shall keep such animal exclusively upon his/her own premises, which shall include his/her automobile, either by personal and direct supervision, such as voice command of such person physically present, or by keeping such animal upon an appropriate chain or tie no less than 6 feet in length, or in an enclosed yard, either walled or fenced, or in any other appropriate restraining enclosure. Dogs may be kept off such premises if they are restrained by an appropriate leash or chain not exceeding 6 feet in length, in the hands of a person directly controlling the movement of such animal, provided the person is of sufficient strength to control the animal. 8 (6) KEEPING OF DOGS AND CATS RESTRICTED. (Am. #05-O637) (a) Number of Dogs and Cats . No person or family unit living together shall keep more than any combination of 3 dogs over 6 months of age and/or cats upon any premises, except a litter of pups or a portion thereof may be kept for not exceeding 5 months from birth. Kennels as defined in §174.06, Wis. Stats., are exempt from this paragraph provided the placement of such kennel shall be regulated by Chapter 17 of this Municipal Code. (b) Manner of Keeping Dogs . Any pen or structure in which a dog is kept shall be of such construction as to be easily cleaned and shall be kept in good repair. (7) HARBORING CERTAIN DOGS PROHIBITED. No person shall own, harbor or keep any dog which: (a) Habitually pursues any vehicle upon any public street, alley or highway. (b) Assaults or attacks any person. (c) Reserved. (Rep. #02-0531) (d) Habitually barks, howls or yelps and thereby disturbs the peace and quiet of the neighborhood or in such a manner as to materially disturb or annoy persons in the neighborhood who are of ordinary sensibilities. Disturbance to persons residing in 3 separate households shall be deemed evidence of neighborhood disturbance. (Am. #90-0246) (e) Is required to be licensed, but is not. (7A) WILD OR VICIOUS ANIMALS. (Cr. #02-0531) (a) Generally. 1. Definitions; Keeping Wild Animal as Pet. a. Definitions. Canine animal. Includes all members of the family Canidae except foxes. Coyote. Canis latrans. Dingo. Canis dingo. Domesticated dog. Canis familiaris. Jackal. Canis aureus. Vicious animal. Vicious animal means any animal that, when unprovoked, inflicts bites, injures, kills or attacks a human being or domestic animal on either public or private property, unless the behavior is caused by acts as provided in §12.03(7A)(b)2. Wild animal. Wild animals means any live monkey or other nonhuman primate, raccoon, skunk, fox, wolf, wolf-dog hybrid, poisonous snake 9  exceeding 3 feet in length, leopard, panther, tiger, lion, lynx or any other warm-blooded animal which can normally be found in the wild state. Wolf. Includes both Canis lupus and Canis niger. Wolf-dog hybrid. Any cross-breed resulting from the mating of a domesticated dog and a wolf, coyote, jackal or dingo, or resulting from the mating of any wolf-dog hybrid and another wolf-dog hybrid or domesticated dog. b. Keeping Wild Animal as Pet. No person shall keep or permit to be kept any wild animal as a pet. (b) Vicious Animals. 1. Procedure for Declaring Animal Vicious. Any law enforcement officer empowered to conduct an investigation into the circumstances surrounding an unprovoked animal attack, after conducting such an investigation, is hereby empowered to declare the animal in question vicious. The owner of the animal declared vicious pursuant to this section shall be served personally, or by certified mail with return receipt, with an order declaring the animal vicious. Any animal owner aggrieved by the order may petition the Common Council for a review of the order in accordance with the procedure set forth in this section. Upon receipt of the petition of the aggrieved owner, the Common Council shall schedule a hearing at the next regular meeting of the Common Council. If the petition is received within 7 days of the next regularly scheduled meeting, the hearing shall be scheduled at the next monthly meeting. The hearing shall be conducted in conformance with the existing rules of the Common Council regarding administrative hearings. After the hearing, the owner or keeper of the animal shall be notified in writing of the determination. If a determination is made that the animal is vicious, the owner or keeper shall comply with the provisions of this division in accordance with a time schedule established by the Common Council, but in no case more than 30 days subsequent to the date of determination. If the owner or keeper of the animal contests the determination, he/she may, within a reasonable time, seek review of the Common Council's decision by the circuit court. The aggrieved party may also seek review of the Common Council's declaration of viciousness upon showing of a significant change in circumstances regarding the animal's disposition. 2. Pit Bull Dogs Presumed Vicious. There shall be an irrefutable presumption that any dog registered with the City as a pit bull dog is a dangerous dog and is therefore subject to the requirements of this ordinance. Pit bull dog means and includes any of the following dogs: the Staffordshire Bull Terrier breed of dogs, the American Staffordshire Terrier breed of dogs, the American Pit Bull Terrier breed of dogs, dogs that have the appearance and characteristics of being predominantly of the breeds of dogs known as Staffordshire Bull Terrier, American Staffordshire Terrier, or American Pit Bull Terrier. 10 3. Certain Animals Not Be Declared Vicious. Notwithstanding the definition of a vicious animal in §12.03(7A)(a)1.a. a. No animal may be declared vicious if death, injury or damage is sustained by a person who, at the time such injury or damage was sustained was intentionally committing a trespass on the land or criminal trespass on the dwelling upon premises occupied by the owner of the animal, was teasing, tormenting, abusing or assaulting the animal; or was committing or attempting to commit a crime or violating or attempting to violate an ordinance which protects persons or property. b. No animal may be declared vicious if death, injury or damage was sustained by a domestic animal which, at the time such was sustained was teasing, tormenting, abusing or assaulting the animal. c. No animal may be declared vicious if the animal was protecting or defending a human being within the immediate vicinity of the animal from an unjustified attack or assault. d. No animal may be declared vicious for acts committed by the animal while being utilized by a law enforcement agency for law enforcement purposes while under the control and direction of a law enforcement officer. 4. Confinement and Restraint. a. On Premises of Owner. While on the owner's or caretaker's property, a vicious animal must be: (i) Securely confined indoors; (ii) In a securely enclosed and locked pen or structure suitable to prevent the entry of young children and designed to prevent the animal from escaping. The pen or structure must be constructed with chain link fencing on all 4 sides and top. If the pen or structure has no bottom secured to the sides, the sides must be imbedded in the ground no less than 2 feet, or have a concrete pad for the bottom; or (iii) Securely leashed or chained to an immovable object, with the owner or caretaker being physically present. b. Off Premises of Owner. While off the owner's or caretaker's premises, the vicious animal must be muzzled and restrained by a substantial chain or leash not exceeding 4 feet in length and under the control of a responsible person. The muzzle must be made in a manner that will not cause injury to the animal or interfere with its vision or respiration, but must prevent it from biting any person or animal. c. Warning Signs. All owners or caretakers of vicious animals shall display, in prominent places on their premises, near all entrances to the premises, signs in letters of not less than 2 inches high using the words "Warning- Vicious Animal." A similar sign is required to be posted on the kennel or pen of the animal. 11  5. Sale or Transfer of Animal. No person may sell or transfer possession of a vicious animal to another person without first notifying the person to whom the vicious animal is being sold or transferred of the fact that such animal is a vicious animal and of any requirements imposed upon the selling or transferring party. No person may sell or transfer possession of a vicious animal to another person without first notifying the Police Department in writing at least 3 days in advance of the sale or transfer of possession. 6. Impoundment and Destruction of Animal Injuring Humans. If the animal control officer has probable cause to believe that an animal has caused serious injury to a person by an attack without provocation, the officer shall request the Common Council to convene a hearing for the purpose of determining whether or not the animal in question should be impounded and destroyed by the City. The owner of the animal shall be notified of the hearing date as specified in subsection (b)1. hereof, and the hearing shall be conducted and the final determination made in accordance with the procedure set forth therein. (7B) WOLF-DOG HYBRID REGULATION AND CONFINEMENT. (Cr. #02-0531) (a) [ Exemptions .] Any person currently harboring, keeping or maintaining a wolf- dog hybrid within the City on the effective date of this subsection is exempt from the provisions of §12.03(7A) as far as the terms thereof relate to wolf-dog hybrids. This exemption does not apply to wolf-dog hybrids once relocated outside the City limits. Once relocated, the person harboring, keeping or maintaining a wolf- dog hybrid so relocated may not again relocate said animal within the City. (b) [ Registration Required .] This exemption does not exempt a person who is harboring, keeping or maintaining a wolf-dog hybrid within the City from registering said animal pursuant to §12.03(7B)(j) of the Municipal Code. Registration shall be accomplished on or before September 1, 2002. Wolf-dog hybrids permitted in the City shall be confined as set forth in this ordinance. (c) [ Nonregistered Hybrids .] Whenever any person is charged with harboring, keeping or maintaining a wolf-dog hybrid in the City which does not fall within the exemption set forth in paragraphs (a) and (b) above and which has not been registered on or before September 1, 2002, that person shall, to the satisfaction of the court, remove said animal from the City until a trial on the citation. If said animal has not been so removed within 48 hours of the service of the citation, the said animal may be impounded as directed by the City Police Department until the trial on the citation. In that case the owner of any such animal shall pay all expenses incurred due to such impoundment, including but not limited to, the cost of shelter, food, handling and veterinary care. If it is determined by plea or trial that said animal is a wolf-dog hybrid not registered pursuant to §12.03(7B) on or before September 1, 2002, it shall be removed from and not returned to the City. (d) [ Confinement Required .] The owner of any wolf-dog hybrid permitted to be kept in the City, and the owner of any property on which such wolf-dog hybrid is kept, shall see that the animal is at all times confined according to the minimum requirements of this subsection. 12 (e) [ Enclosure Requirements .] A wolf-dog hybrid may be kept only in enclosures meeting the following minimum requirements: 1. The enclosure shall be constructed of woven, galvanized after weaving wire, securely anchored by stainless steel or copper rings. Such enclosure shall be not less than 500 square feet in extent, plus 250 square feet for each additional canine animal kept therein and shall be the location in which the animal is primarily kept. An exception may be granted by the Building Inspector if the lot is substandard in area (per the zoning code), in which case the Building Inspector may modify the required square footage of the enclosure; provided, however, that it be of a size adequate to protect the animals confined against weather extremes and still provides for the well- being of the animals. 2. The enclosure shall extend to a height of not less than 8 feet and shall be surrounded from ground level to a height of 4 feet by one-quarter inch galvanized mesh screening. 3. The base and top of the enclosure shall be constructed of securely anchored galvanized mesh screening to extend inward a distance of not less than 2 feet at the top of the enclosure at an angle of not less than 45 degrees. Fabric mesh shall be installed to a height of one foot above ground level and shall be rolled out underneath the inside of the enclosure not less than 4 feet and below a crushed stone base of not less than 4 inches. 4. The enclosure shall be kept locked with a case hardened lock at all times when the animal is unattended and the enclosure shall have double entrance gates or doors so as to prevent an animal from escaping past an open gate or door. 5. Any person who was, at the time of the enactment of this section the owner of a single wolf-dog hybrid, may obtain an exemption from the requirements of subsection (e) above by obtaining an inspection by the Building Inspector. The inspection fee shall be $50.00. The inspector shall file a report with the Common Council to the adequacy of the enclosure to protect the safety of the public and provide for the well being of the animal. The Common Council shall review the report and if the Common Council is satisfied that the owner has provided a secure enclosure that is adequate for the protection of the public and the well being of the animal, it may issue a written exemption from the terms of subsection (e) above. Such exemption shall be valid for the animal's lifetime; provided, however, that a conviction of the owner for allowing the animal to run at large in violation of this section shall void such exemption. In issuing exemptions, the Common Council shall consider the size and observed behavior of the animal and any prior convictions of the owner for allowing any animal to run at large. The Common Council may require modifications to be made to existing enclosures as a condition of issuing an exemption. (f) Wolf-Dog Bites; Sacrifice of Animal . Every person, including the owner of a wolf- dog hybrid who knows such animal has bitten any person, shall immediately 13  report such fact to the Police Department. Pursuant to §95.21(4)(b) and (6), Wis. Stats., the Police Department may kill such animal, taking care to preserve the head, and deliver such animal to a veterinarian for preparation of the carcass to be sent to the State Laboratory of Hygiene for testing. (g) Transportation . A wolf-dog hybrid may be transported only if confined in a secure, locked container with no openings not covered with fine mesh screen. This paragraph does not prohibit the walking of such animal on a leash, provided that said animal is muzzled at all times. (h) Registration Papers . In order to insure compliance with the terms of this section, no person in possession of any registration papers, certificate, advertisement or other written evidence by which the blood lines of a canine animal found within the City or its ownership might be ascertained may refuse to produce the same for the inspection of any law enforcement, conservation or public health officer or court upon demand. (i) Exception . The provisions of this section shall not apply to doctors of veterinary medicine in temporary possession of such animals in the ordinary course of their practice. (j) Registration and Insurance . All owners of any wolf-dog hybrid in the City shall, on or before September 1, 2002, and annually thereafter on or before April 1 of each year, register such animal and provide a current color photograph of such animal with the City Clerk's office and pay a registration fee of $25.00. At the time of registration, each owner of any wolf-dog hybrid kept within the City limits shall provide to the City Clerk proof of liability insurance in the amount of at least $100,000.00 for any acts of property damage, personal injury or other liability incurred by virtue of any injury or damage inflicted by such wolf-dog hybrid. Such insurance shall name the City of Oconomowoc as a co-insured solely for the purpose of notice of cancellation of such insurance policy. (8) RESERVED. (Rep. #02-0531) (9) CERTIFICATE OF INOCULATION REQUIRED. No license shall be issued hereunder for any dog unless the applicant exhibits a certificate of a qualified veterinarian showing that the dog has been inoculated for rabies and distemper within the 2 years prior to the application. (10) IMPONDING AND DESTRUCTION OF DOGS. (Cr. #8-10-71) (a) Confinement and Notification of Owner . Any police officer finding any dog running at large shall pick up and confine such animal in some suitable place as the Chief of Police may direct; however, if any such dog is vicious or dangerous, it may be disposed of immediately. Whenever any impounded dog bears an identification mark such as a collar or license tag, the owner shall be notified immediately. Any dog impounded shall be held for 7 days and at the end of such period shall be disposed of unless the owner thereof reclaims such dog and pays the reasonable costs of keeping the dog plus an impounding fee determined by resolution of the Council. 14  (b) Destruction of Impounded Dogs . The destruction of any impounded dog hereunder shall be done by a method approved by the Waukesha County Humane Society. (11) RABIES. (Am. #04-0591) Any person who has in his/her possession a dog, cat or other such animal which has contracted rabies, or which has been subject to the same, or which has bitten any person shall, upon demand by the Police Department, have such animal examined by a veterinarian selected by such person and, if found to be suffering from rabies, or if treatment is recommended by such veterinarian, such animal shall be placed in the custody of the examining veterinarian for treatment and shall thereafter be disposed of as the circumstances or the law may require. (12) DOG ADOPTION. (Cr. 9-8-77) (a) General Conditions . All unwanted dogs shall be sheltered for a period of 7 full days after the date of their pickup. At the end of 7 days, the City shall offer any such animal for adoption by authorizing the Director of the Department of Public Works to publish a notice in the next edition of the Oconomowoc Enterprise that such animals are available for adoption. If the dogs are not adopted within 7 days following such publication, the dogs may be destroyed. (b) Fee . The adoption fee shall be $20.00, $15.00 of which would be returned upon receipt by the City of a certification from a veterinarian that the animal has been spayed or neutered. (c) Owner Wishing Dog Adoption . Any dog owner who wishes to dispose of his/her dog through the City in this manner may sign a waiver indicating a willingness for the dog to be adopted and waiving the 7-day retention period required herein. (13) DISPOSAL OF DOG FECES. (Cr. #86-0165) Any person owning or having control of a dog on any property, public or private, which is not owned or occupied by such person shall promptly remove excrement left by such dog and place it in a proper receptacle, bury it or otherwise dispose of the same on property owned or occupied by such person. 15  MEMORANDUM DEPARTMENT – ADMINISTRATION Date: June 24, 2021 To: Protection and Welfare Committee From: Matt Trebatoski, City Administrator Re: Ordinance 1.37(2) – Appointment of an Alderman to Serve with the Board of Police Commissioners (Police Commission) RELATES TO THE STRATEGIC PLAN Strategic Goal- N/A BACKGROUND Through the recent hiring process of a new Chief of Police late last year and the current development of bylaws for the Police Commission, the matter of whether an alderman should be appointed to the Police Commission has surfaced. City Ordinance 1.37 provides for the appointment of an alderman to serve with the Board as a sixth, ex officio nonvoting member. The question however, is if this is allowable under state law. Wis. Stat §62.13(1) states: “…each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum.” ADDITIONAL ANALYSIS To address this issue, I requested both our City Attorney and Police Commission Labor Attorney to provide legal opinions (attached) related to our current Ordinance. In their memos, the two attorneys concur that there should only be 5 members on the commission per state statute. State law is less clear however, in its definition of “citizen.” Given this ambiguity, it could be interpreted that an alderperson could be appointed to the Commission. The question for the Council then becomes whether it is legal and appropriate to have one of the 5 members be an alderperson. In considering this question, the following should be taken into account: 1. Commission members are appointed for five-year terms. Alderpersons are elected for two-year terms. Presumably, an alderperson who is not reelected could continue to serve out the balance of his or her five-year term on the Commission. 2. Having an alderperson participate in the deliberations and/or vote of the commission in any hiring/firing/promotion/disciplinary decision could jeopardize the validity of the decision. The employee or candidate could sue the Commission / City claiming the make-up of the commission is illegal based upon the 5 citizen member language of the statute. 1 16  3. If the alderperson is prohibited from participating in deliberations and voting, the commission runs the risk of having tie votes with only the four remaining members left to vote. 4. Statute reads that no appointment shall be made which will result in more than 3 members of the Board belonging to the same political party. Aldermen are elected on a non-partisan basis and should not be subject to disclosing their political affiliation, if any. Given these potential difficulties and risks to the City, I don’t believe it is in the best interest of us to continue to appoint an alderperson to the Commission moving forward. Not knowing the original intent behind having an alderperson on the Commission, it seems that the potential risks far outweigh any gains. Police and Fire Commissions were created to insulate the process from politics and present an impartial Board with no direct interest in the outcome of its decisions. To compare ourselves to other municipalities, we conducted a survey (attached) to get an idea of how many other communities appoint a councilmember to their commission and what role that member plays. Out of the 17 responses received, six of them indicated they appoint a councilmember as a non-voting, liaison member only. FINANCIAL IMPACT N/A RECOMMENDATION To direct staff to amend Ordinance 1.37 (attached) to remove: Section (2) – In addition to the members provided for in sub. (1), the Mayor shall appoint, for a term of one year, subject to confirmation by the Council, one alderman to serve with the Board as an ex officio nonvoting member. SUGGESTED MOTION This is a discussion item only. 2 17  DALE W. ARENZ - Retired 730 N. GRAND AVENUE PAUL E. ALEXY DONALD S. MOLTER, Jr. - Retired WAUKESHA, WISCONSIN 53186 MATTEO REGINATO JOHN P. MACY Telephone (262) 548-1340 LUKE A. MARTELL H. STANLEY RIFFLE - Court Commissioner Direct (262) 806-0212 SAMANTHA R. SCHMID ERIC J. LARSON Facsimile (262) 548-9211 CHRISTOPHER R. SCHULTZ REMZY D. BITAR Email: sriffle@ammr.net ANTHONY J. GARCIA SADIE R. ZURFLUH LUCAS C. LOGIC ----------- STEPHEN J. CENTINARIO, JR. MICHAEL J. MORSE JAMES P. WALSH June 21, 2021 MEMO To: Common Council From: City Attorney H. Stanley Riffle Re: City Ordinance 1.37 - POLICE COMMISSION Council Members: The City Administrator requested that I provide legal opinion related to our current Ordinance §1.37 related to the appointment of an Alderperson as an ex officio member of the Police Commission (“Commission”). I understand that this issue will go to Committee for consideration of potential changes to the ordinance. First, let me address the appropriate number of members that should constitute the Commission. The relevant statute, Wis. stat §62.13(1) states: “…each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum.” The statute provides for a Commission of five members – not six as provided for in our ordinance. It is my opinion that our ordinance is not consistent with the State statute and should be amended to provide for 5 members. The second issue relates to the make-up of the Commission. As noted above, §62.13(1) states that the Commission is to comprise citizen members. Thus, there is an argument that could be made that the legislature intended this language to exclude elected officials. There is no case law dealing with this issue that I am aware of, and the statute is very dated – therefore there are no legislative history notes that can be consulted. In the late 1800s, the Wisconsin Legislature enacted the statue providing for the creation of police and fire commissions in Wisconsin. The legislature’s MUNICIPAL LAW & LITIGATION GROUP, S.C. 1 ARENZ, MOLTER, MACY, RIFFLE, LARSON & BITAR 18 purpose in doing so was to remove the administration of fire and police departments from city politics and place it in the hands of impartial and non-political citizen boards. This was done in direct response to bitter political wars over the police and fire departments and departmental leadership in the City of Milwaukee. To analyze this issue, we start with the City Ordinance itself. §1.37 of our Code states: (1) The Police and Fire Commission shall consist of 5 members, 3 of whom shall constitute a quorum. The Mayor shall annually, between the last Monday of April and the first Monday of May, appoint in writing, to be filed with the Secretary of the Commission, one member for a 5-year term. All appointments shall be subject to confirmation by the Council. No appointment shall be made which will result in more than 3 members of the Board belonging to the same political party. All members shall be residents of the City and shall maintain residency during their term. Members of the Board shall serve without compensation. The Board shall keep records of its proceedings. (2) In addition to the members provided for in sub. (1), the Mayor shall appoint, for a term of one year, subject to confirmation by the Council, one alderman to serve with the Board as an ex officio nonvoting member. In contrast, the governing statute, §62.13 does not mention the appointment of a sixth aldermanic member to a Commission, ex officio, nonvoting or otherwise: (1) COMMISSIONERS. Except as provided in subs. (2g), (2m), (2s), and (8) (b) each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum. So, can an alderperson be appointed to the Commission? There has been much debate over this issue over the years, but the Wisconsin courts have never weighed in to answer this question. However, the League of Wisconsin Municipalities has. In their publication Municipalities Handbook for Wisconsin Police and Fire Commissioners - December 20191, the League opined: A frequent question is whether governing body members (members of the common council…) can serve on the PFC. The courts have not decided this question so there is no clear answer. As noted above, the League has suggested that the term “citizen” is used to distinguish between civilians and public officials and employees. Certainly, one could argue that the legislature, in using the term “citizen” meant to foreclose local officials or employees from serving on the PFC. However, it also may be argued that it is permissible for a governing body member to be appointed 1 My partner, Remzy Bitar is one of the 3 co-authors of this book, so it must be right. MUNICIPAL LAW & LITIGATION GROUP, S.C. 2 ARENZ, MOLTER, MACY, RIFFLE, LARSON & BITAR 19  to the PFC by virtue of Wis. stat. §66.0501(2), which provides in pertinent part as follows: The governing body may be represented on city, village or town boards and commissions were no additional compensation, except a per diem, is paid to the representatives of the governing body and may fix the tenure of these representatives notwithstanding any other statutory provision. An informal (unpublished) attorney general opinion dated June 28, 2004 concludes that governing body members may not serve on PFCs since the legislature’s clear intent in providing for PFCs was to insulate the police and fire departments from politics. However, the short informal opinion fails to acknowledge or consider legislative history where a statute similar to §66.0501(2) but specific to cities was briefly amended to specify that the council could be represented on other boards and commissions, except the police and fire commissioners, but was quickly repealed. An earlier version of the same League manual was unequivocal on the topic: Commissioners need not be residents of the municipality they serve unless residency is required by ordinance. Nor are members of common council, village or town board barred from serving on a police and fire commission, providing no added compensation is received for services as a commission member. League of Wisconsin Municipalities Handbook for Wisconsin Police and Fire Commissioners” - March 1993 I cannot argue with the analysis and logic from the League. An alderman may serve on the Commission. The question for the Common Council is should an alderman serve on the Police Commission? A Police Commission serves three functions related to the Police Department: hiring (including promotions), firing and discipline.2 Although the law does not definitively answer whether a governing body member may serve on the Commission, having a governing body member on the board may not be the best policy given that the Commission’s primary purpose is to insulate the police and fire departments from politics. Moreover, governing body members who serve on a Commission may find this service creates significant tension with the procedural due process rights of police and fire department personnel. In fact, this issue was directly addressed in Heil v. Green Bay Police and Fire Commission, a 2002 Wisconsin Court of Appeals decision (attached). Green Bay, just like 2 Assuming the Common Council has not authorized the Commission to exercise optional powers, which we have not. MUNICIPAL LAW & LITIGATION GROUP, S.C. 3 ARENZ, MOLTER, MACY, RIFFLE, LARSON & BITAR 20 Oconomowoc, had a sixth non-voting aldermanic member of the Police and Fire Commission. Heil was before the Commission on disciplinary charges. During the hearing, the Alderman participated in the proceedings, but, of course, had no voting rights due to his ex officio status. The Commission discharged Heil. Heil sued, claiming he was deprived rights of his due process rights to a fair and impartial hearing. The Court of Appeals agreed: We conclude, however, that [the Alderman’s]’s mere presence was enough to taint the entire proceedings, including the record and decision. We perceive that the practice of having a common council liaison to the PFC is not a reasonable local adaptation of the statute, as the PFC argues. While [the Alderman’s]’s presence may not infringe on the statutory authority of the five PFC members, it does infringe on Heil’s right to due process, his right to be judged by an impartial board. The PFC is composed of an impartial body that operates independently of the city itself. By statute, the PFC is to be comprised of five, not six, citizen members who have no direct interest in the outcome of the case, as would a party to the dispute. Member appointment is designed to prevent the board from operating as an agent of a city official or police or fire chief. Based on all stated above, I have the following recommendations: 1. City Ordinance §1.37 should be revised to provide for 5 not 6 members. 2. The Common Council should consider whether an Alderman should be one of the five members. 3. If an Alderman is one of the members, he/she should have voting authority only in hiring functions, and the ordinance should prohibit attendance by the Alderman member in any disciplinary/firing proceeding. Consider that if the Aldermanic member is excluded from disciplinary proceedings, there would only be 4 members of the Commission making the determination. Further, consider that the issue of whether an Alderman can be appointed as one of 5 citizen members, an unsuccessful candidate for hiring to a position could sue claiming the make-up of the Commission is illegal based upon the 5 citizen language of Wis. stat §62.13(1). The Council should consider what the purpose of appointing the council liaison was in the first place. I surmise that the reason was to have a member appear so that that member could inform the council of Commission activities. Consider that proceedings of the Commission (other than deliberations in hiring or disciplinary proceedings) are held in open session and any member of the council may attend to observe. Further, the Mayor or Council could direct the Administrator to attend proceedings and report to the Council. MUNICIPAL LAW & LITIGATION GROUP, S.C. 4 ARENZ, MOLTER, MACY, RIFFLE, LARSON & BITAR 21 118 Wis. 652 NORTH WESTERN REPORTER, 2d SERIES candle. The harm to Alvarado is tragic, Oakbrook, did not do or fail to do anything but it is, under any reasonable view, a that would provide a basis for a finding of highly extraordinary result of Oakbrook’s negligence. failure to anticipate and remove the haz- Judgment and order affirmed. ard. Similar to our conclusion in Steffen, we conclude here that we cannot say that Meriter and Oakbrook are fairly charged with apprehending that Alvarado’s injury was ‘‘within the realm of expectant possi- , ble harm.’’ Steffen, 2000 WI App 56 at ¶ 39. As a matter of public policy, liability is precluded because the harm to Alvarado 2002 WI App 228 was too remote from the alleged omission STATE of Wisconsin ex rel. Patrick on the part of Oakbrook and it was too HEIL, Plaintiff–Respondent, highly extraordinary that Oakbrook’s omission would result in the harm. v. ¶ 35 At the same time, we stress that GREEN BAY POLICE AND FIRE our holding is case-specific. This case in- COMMISSION, Defendant– volves a highly unusual cause of an injury Appellant.† to a cleaning person employed by a con- tractor. We do not hold that landlords In the Matter of Charges Filed Against have no obligation to assure that apart- Patrick Heil by Police Chief James ments are hazard-free prior to the time Lewis. new tenants take occupancy. Neither do Patrick Heil, Petitioner–Respondent, we suggest that landlords never have an obligation to search for hazardous materi- v. als. To take one of many possible exam- Green Bay Police and Fire ples, it might be that a landlord could be Commission, Respondent– found negligent and held liable for failing Appellant.† to inspect for hazards if the landlord knew a vacating tenant was involved in the reck- Nos. 01–1781, 01–3002. less use of firearms. Given this knowl- Court of Appeals of Wisconsin. edge, the landlord might properly be held liable for permitting new tenants with chil- Submitted on Briefs May 13, 2002. dren to take occupancy without a thorough Opinion Filed July 2, 2002. inspection. ¶ 36 Because we affirm the circuit court, Police officer appealed and sought we need not address Meriter’s and Oak- certiorari review of city police and fire brook’s alternative argument that Alvara- commission’s decision to terminate his em- do’s negligence exceeded that of any of the ployment. The Circuit Court, Brown defendants as a matter of law. We also County, James T. Bayorgeon, J., vacated need not address Meriter’s argument that commission’s decision and remanded for the circuit court properly granted sum- further proceedings. Commission appeal- mary judgment in favor of Meriter on the ed. The Court of Appeals, Hoover, P.J., ground that Meriter, as distinguished from held that: (1) matters raised in petition for † Petition for Review granted Nov. 12, 2002. 22  STATE EX REL. HEIL v. GREEN BAY POLICE Wis. 119 Cite as 652 N.W.2d 118 (Wis.App. 2002) writ of certiorari could be considered be- remanding matter without considering fore those raised on statutory appeal, and whether disciplinary charges were sup- (2) proceedings were tainted by presence ported by just cause, which was raised on of commission’s liaison. statutory appeal. W.S.A. 62.13(5)(i). Affirmed. 5. Constitutional Law O278.4(5) Municipal Corporations O185(5) 1. Municipal Corporations O185(12) In discharge proceedings before city A police officer accused of disciplinary police and fire commission, police officer’s charges may file for a writ of certiorari to rights to due process and to judgment by review legal defects in the administrative an impartial board were violated by the record of proceedings before city police presence of a common council liaison to the and fire commission for which there is no commission; liaison was mayor’s represen- statutory judicial review. W.S.A. tative and the charges were brought by 62.13(5)(i). police chief, who was another subordinate 2. Municipal Corporations O185(12) of the mayor, which violated statutory mandate for panel composition since prose- On certiorari review of city police and cuting official’s superior appointed his own fire commission’s decision to discharge a representative. U.S.C.A. Const.Amend. police officer, the court is limited to deter- 14; W.S.A. 62.13(1). mining: (1) whether the commission kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judg- On behalf of the defendant-appellant, ment; and (4) whether the evidence was the cause was submitted on the briefs of such that it might reasonably make the Scott Herrick and Herrick, Kasdorf, Dym- order or determination in question. zarov & Twietmeyer of Green Bay. 3. Municipal Corporations O185(12) On behalf of the plaintiff-respondent, the Trial court, when presented with both cause was submitted on the brief of Thom- a statutory appeal and a petition for certio- as J. Parins and Parins Law Firm, S.C. of rari review of city police and fire commis- Green Bay. sion’s decision to discharge police officer, Before CANE, C.J., HOOVER, P.J., and may address either matter in whatever PETERSON, J. order it deems prudent, and it is not re- quired instead to first consider the statuto- ¶ 1 HOOVER, P.J. ry appeal. W.S.A. 62.13(5)(i). The Green Bay Police and Fire Commis- 4. Municipal Corporations O185(12) sion (PFC) appeals trial court orders re- Trial court acted properly in deter- manding its decision terminating Green mining issue raised in police officer’s peti- Bay Police Department officer Patrick tion for writ of certiorari, i.e., that dis- Heil. The PFC argues: (1) the trial court charge proceedings before the city police was required to determine whether there and fire commission were tainted by the was just cause under WIS. STAT. presence of a commission liaison, and in § 62.13(5)(i) 1 before considering legal ar- 1. WISCONSIN STAT. § 62.13(5)(i) provides, in rel- evant part: 23 120 Wis. 652 NORTH WESTERN REPORTER, 2d SERIES guments raised in a writ of certiorari; (2) law certiorari review of legal issues relat- its practice of allowing the non-voting ing to the PFC’s actions. presence of a common council representa- ¶ 4 The trial court had both matters tive is proper; (3) any error caused by the before it. It decided that Theisen sitting representative’s presence did not invali- with the PFC at the hearing and delibera- date the proceedings; and (4) on certiorari tion sessions, even as a non-voting observ- review, the trial court improperly supple- er, tainted the proceedings and the com- mented the record of the PFC’s decision mission’s decision. The court held: by allowing the representative’s deposition It is of no consequence whether or not and adding it to the record. We conclude Anthony R. Theisen was influential in, that statutory and certiorari reviews are or had any effect upon the voting mem- discrete procedures and one need not be bers’ ultimate determinations. It is suf- decided before the other. In addition, we ficient to contaminate the conclusions of determined that the representative’s pres- the commission by the mere partic- ence tainted the PFC’s decision and the ipation of Anthony R. Theisen in the decision is therefore void. Accordingly, deliberative process. Participation, in we affirm the orders. this sense, need not mean taking an active role in the discussion, but simply BACKGROUND being present during the executive deci- ¶ 2 Police chief James Lewis brought sion making sessions. numerous charges against Heil before the The court decided that Heil ‘‘had a funda- PFC, which conducted hearings on the mental due process right to have his case charges. The City of Green Bay follows deliberated and decided upon without the the practice of maintaining a liaison posi- involvement of an outsider TTTT’’ It found tion between the PFC and the common that Theisen’s involvement constitutionally council. Anthony Theisen was the mayor- tainted and contaminated the PFC’s deci- appointed liaison at the time the PFC sion. The court remanded the record to heard and decided the charges against the PFC for proceedings consistent with Heil. He was present throughout most of its decision. After hearing argument over the hearings and sat in on the PFC’s delib- what the court’s decision required, the erations. Theisen participated fully except court issued a judgment that ‘‘vacated and that he did not vote or sign the decision. set aside’’ the PFC decision and remanded The PFC described Theisen as a ‘‘non- both appeals to the PFC for further pro- voting observer and resource’’ who ‘‘partic- ceedings consistent with its decision. ipated in the deliberative process.’’ ¶ 5 The PFC concluded that the court ¶ 3 After hearings and deliberations, the was concerned primarily with Theisen’s PFC discharged Heil. Heil pursued a stat- presence and deliberated again without utory appeal of the PFC decision, pursuant him, affirming its earlier decision. The to WIS. STAT. § 62.13(5)(i), and a common- court conducted a hearing on June 22, Any person suspended, reduced, suspend- shall be: Upon the evidence is there just ed and reduced, or removed by the board cause, as described under par. (em), to sus- may appeal from the order of the board to tain the charges against the accused? the circuit court by serving written notice of All references to the Wisconsin Statutes are the appeal on the secretary of the board to the 1999–2000 version unless otherwise within 10 days after the order is filedTTTT noted. The question to be determined by the court 24  STATE EX REL. HEIL v. GREEN BAY POLICE Wis. 121 Cite as 652 N.W.2d 118 (Wis.App. 2002) 2001, and clarified what it intended when it is limited to determining: (1) Whether vacated the PFC’s order. The court reiter- the board kept within its jurisdiction; ated that the process with Theisen in at- (2) whether it acted according to law; tendance was flawed and that it had vacat- (3) whether its action was arbitrary, op- ed the entire process as a result. It said, pressive or unreasonable and represent- ‘‘And if there is to be discipline imposed, it ed its will and not its judgment; and (4) has to be on the basis of a fresh hearing whether the evidence was such that it and deliberation based on those facts rath- might reasonably make the order or de- er than something that happened before.’’ termination in question. This order was later reduced to writing.2 Id. at 215, 222 N.W.2d 622. Here, Heil properly filed both. See State ex rel. Enk STANDARD OF REVIEW v. Mentkowski, 76 Wis.2d 565, 571, 252 ¶ 6 All issues presented raise questions N.W.2d 28 (1977). of law that we review de novo without ¶ 9 The PFC argues that under WIS. deference to the trial court. See State ex STAT. § 62.13(5)(i), the scope of the appeal rel. Reedy v. Law Enforce. Discip. Comm., process is considerably broader than under 156 Wis.2d 600, 606, 457 N.W.2d 505 (Ct. the previous statute.3 It contends that App.1990). § 62.13(5)(i) does not allow the trial court to give precedence to the certiorari review DISCUSSION and decide certiorari legal issues before determining just cause. The PFC con- I. STATUTORY APPEAL AND CERTIORARI tends that most of the issues formerly REVIEW under certiorari review are now reviewable ¶ 7 There are two avenues available to as part of the statutory appeal. appeal PFC decisions, statutory review pursuant to WIS. STAT. § 62.13(5)(i) and [3] ¶ 10 Even if it is true that the review by writ of certiorari. Under appeal process covers a broader range of § 62.13(5)(i), any person subject to a PFC issues, it does not necessarily, nor even decision may appeal to the trial court with- logically, follow that the statutory appeal in ten days. The court then determines, takes ‘‘precedence’’ over certiorari review, upon the evidence in the administrative as the PFC contends. Nor is there any record, whether there is just cause to sus- language in WIS. STAT. § 62.13(5)(i) sug- tain the charges against the accused. Id. gesting appeal priority. For example, § 62.13(5)(i) does not say that the trial [1, 2] ¶ 8 An accused may also file a court must address ‘‘just cause’’ before writ of certiorari to review legal defects in undertaking a certiorari review. The the administrative record for which there amendments to the statutory procedure is no statutory judicial review. State v. notwithstanding, statutory appeal and cer- Goulette, 65 Wis.2d 207, 214, 222 N.W.2d tiorari review are discrete procedures for 622 (1974). On certiorari review, the court obtaining judicial review of the PFC’s deci- 2. While there are two orders vacating the two 3. The statute providing for appeal from PFC PFC decisions and remanding to the PFC, the decisions was amended in 1993. This deci- effect of the second order is to clarify the first sion interprets the newer version of WIS. STAT. order. The notice of appeal filed after the § 62.13(5)(i). first order effectively places both orders be- fore this court. WIS. STAT. § 808.04(8). 25 122 Wis. 652 NORTH WESTERN REPORTER, 2d SERIES sion. The trial court may address them in process, his right to be judged by an im- whatever order it deems prudent. partial board. [4] ¶ 11 We also conclude that the trial ¶ 14 The PFC is composed of an impar- court should not be confined to determine tial body that operates independently of just cause on a tainted proceeding. Here, the city itself. Eau Claire County v. Gen- the court considered legal issues raised by eral Teamsters Union Local No. 662, 228 Heil’s writ of certiorari before it deter- Wis.2d 640, 650, 599 N.W.2d 423 (Ct.App. mined just cause under the statutory ap- 1999). By statute, the PFC is to be com- peal. The court found error, Theisen’s prised of five, not six, citizen members who presence tainting the proceedings, as part have no direct interest in the outcome of of the certiorari review. It declined to the case, as would a party to the dispute. conduct the ‘‘just cause’’ analysis mandat- WIS. STAT. § 62.13(1); General Teamsters, ed under statutory review until the defect 228 Wis.2d at 650, 599 N.W.2d 423. Mem- in process had been remedied, and re- ber appointment is designed to prevent the manded to the PFC. board from operating as an agent of a city ¶ 12 The PFC obliquely concedes that official or police or fire chief. General the trial court should not have to deter- Teamsters, 228 Wis.2d at 650, 599 N.W.2d mine just cause on a tainted proceeding 423. when it argues that, in its view, under the new appeal process, the trial court has the ¶ 15 In Cramer v. Stone, 38 Wis. 259 last word on just cause: ‘‘No inadequacy of (1875), the Wisconsin Supreme Court dis- a PFC decision is legally relevant which cussed the ramifications of the presence of does not obstruct that last word of the an extra person in deliberations. ‘‘Where Circuit Court.’’ (Emphasis added). How- a particular power or duty is delegated to ever, a defect in process depriving Heil of a select body, that body must perform the adjudication by an independent body does duty or exercise the power, and if others, obstruct the last word by the trial court. who have no right to act, join in its perfor- Heil is entitled to an untainted process mance, the act will be void.’’ Id. before the court determines whether just cause supports the charges against him. ¶ 16 The PFC has been granted the power to decide charges brought against II. PFC LIAISON police officers. The statutes also mandate [5] ¶ 13 The PFC argues that Theis- an independent board. General Team- en’s mere presence was a formal error, sters, 228 Wis.2d at 650, 599 N.W.2d 423. and that the trial court did not find actual Theisen was the mayor’s representative, prejudice, influence or impropriety. We and the police chief, another subordinate of conclude, however, that Theisen’s mere the mayor, brought the charges against presence was enough to taint the entire Heil. Theisen thus effectively was a repre- proceedings, including the record and deci- sentative of one of the parties. Yet, he sat sion. We perceive that the practice of with the PFC at the hearings and in the having a common council liaison to the deliberations. This tainted the appearance PFC is not a reasonable local adaptation of of the PFC’s independence. Moreover, al- the statute, as the PFC argues. While though Theisen did not vote, he participat- Theisen’s presence may not infringe on the ed as a ‘‘resource’’ in deliberations. We statutory authority of the five PFC mem- conclude that these circumstances render bers, it does infringe on Heil’s right to due the PFC’s decision void. See id. 26  AMERICAN FAMILY MUT. INS. v. PLEASANT CO. Wis. 123 Cite as 652 N.W.2d 123 (Wis.App. 2002) ¶ 17 Theisen sitting with the panel, how- tion based on the record of a tainted pro- ever, unquestionably and materially dimin- ceeding, a full rehearing is appropriate. ishes the appearance of the board’s inde- Orders affirmed. pendence. Here, Theisen, the council member and panel ‘‘resource,’’ was the mayor’s representative on the panel. The mayor also supervises the police chief, , who brought the proceedings against Heil.4 Thus, we have the prosecuting offi- cial’s superior appointing his own repre- 2002 WI App 229 sentative to the panel, contrary to the statutory mandate for the composition of AMERICAN FAMILY MUTUAL IN- the panel. We agree with the trial court SURANCE COMPANY, Plaintiff– that under these circumstances, Theisen’s Appellant–Cross–Respondent, mere presence, sitting as a non-voting v. panel member, gave a sufficient appear- The PLEASANT COMPANY, ance of impropriety to taint the entire Defendant–Respondent– proceedings.5 Cross–Appellant,† ¶ 18 The PFC also argues that even if it erred by having Theisen at the hearings The Renschler Company, Inc., Defen- and in deliberations, that error did not dant–Third–Party–Plaintiff–Re- invalidate the entire proceedings and rec- spondent–Cross–Appellant,† ord. However, as noted, Theisen’s mere v. presence sufficiently tainted the proceed- Western American Insurance Company, ings to void their result. The Ohio Casualty Insurance Compa- ny, Regent Insurance Company and III. OTHER ARGUMENTS General Casualty Company of Wis- consin, Third–Party Defendants–Re- ¶ 19 We need not address the PFC’s spondents–Cross–Respondents. argument regarding the trial court’s dis- covery order because the court was con- No. 01–1871. cerned with the appearance of impropriety Court of Appeals of Wisconsin. in the proceedings, not with what Theisen actually did. Therefore, Theisen’s deposi- Submitted on Briefs June 12, 2002. tion is not necessary to determine that the Opinion Filed Aug. 29, 2002. PFC’s process was tainted. ¶ 20 We also do not address the PFC’s Insurer brought declaratory judgment argument that we should determine action against insured, seeking declaration whether it had just cause to support its that its comprehensive general liability decision. Because the trial court is not (CGL) policies and excess liability policies required to make a just cause determina- did not provide coverage to insured re- 4. Heil asserts this relationship and the PFC the PFC’s decision. However, the court was does not dispute it. concerned with the ‘‘inadequacy’’ of the pro- cess before the PFC, not the decision itself. 5. The PFC focuses on what it claims was the trial court’s perception of the inadequacy of † Petition for review granted Nov. 12, 2002. 27  N19W24200 Riverwood Drive – Suite 140 Waukesha, WI 53188 Phone: (414) 251-0318, Fax: (847) 549-9636 Ronald S Stadler rsstadler@kopkalaw.com To: Common Council From: Attorney Ronald S. Stadler Re: City Ordinance 1.37 - POLICE COMMISSION Date: June 24, 2021 Council Members: The City Administrator requested that I provide legal opinion about City Ordinance §1.37 related to the appointment of an Alderperson as an ex officio member of the Board of Police Commissioners (“Board” or “PFC”). This issue has been the topic of discussion at several Board of Police Commissioners meetings and most recently as the Board has considered adopting a set of rules or bylaws for its operating procedures. I understand that the Council is currently considering whether to make changes to the ordinance. The first issue that arises under §1.37 is whether a city council can appoint a sixth, ex officio. member to the Board. I believe that the clear and unambiguous language of the relevant statute, §62.13(1) Wis. Stats., precludes the appointment a sixth member. The statute provides: “…each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum.” Our Supreme Court has held that in construing a statute, the “first recourse is to the language of the statute itself, and we must interpret [the statute] on the basis of the plain meaning of its terms. If the meaning of the statute is clear and unambiguous on its face, then resort to extrinsic aids for the purpose of statutory construction is improper.” State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12, 15, 1981 Wisc. LEXIS 2755, *8. On its face, §62.13(1) Wis. Stats. is clear and unambiguous: the board shall be composed of five members, not six, not four and not any number other than five. To the extent that one believes that the appointment of a sixth, non-voting member could be permissible under §62.13(1) Wis. Stats., that issue has been resolved to the contrary. The City of Green Bay had an ordinance similar to Oconomowoc’s, allowing for the appointment of a common council non-voting liaison to its PFC. The Court of Appeals specifically held that the PFC “is to be comprised of five, not six” members. State ex rel. Heil v. Green Bay Police & Fire Comm'n, 2002 1 28  WI App 228, P13-P14, 256 Wis. 2d 1008, 1016, 652 N.W.2d 118, 122, 2002 Wisc. App. LEXIS 757, *9-10. The Court went on to explain: We perceive that the practice of having a common council liaison to the PFC is not a reasonable local adaptation to the statute, as the PFC argues. While Theisen's presence may not infringe on the statutory authority of the five PFC members, it does infringe on Heil's right to due process, his right to be judged by an impartial board. The PFC is composed of an impartial body that operates independently of the city itself. Eau Claire County v. General Teamsters Union Local No. 662, 228 Wis. 2d 640, 650, 599 N.W.2d 423 (Ct. App. 1999). By statute, the PFC is to be comprised of five, not six, citizen members who have no direct interest in the outcome of the case, as would a party to the dispute. Wis. Stat. § 62.13(1); General Teamsters, 228 Wis. 2d at 650. Member appointment is designed to prevent the board from operating as an agent of a city official or police or fire chief. General Teamsters, 228 Wis. 2d at 650. Id. Thus, I agree with City Attorney Riffle that the statute provides for a PFC board of five members – not six. It is my opinion that the City’s ordinance is not consistent with the State statute and should be amended to provide for five members. The second issue relates to whether a common council member may be appointed to the Board. The Board’s composition is address in §62.13(1) Wis. Stats. It provides: (1) Commissioners. Except as provided in subs. (2g), (2m), (2s), and (8) (b) each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum. The mayor shall annually, between the last Monday of April and the first Monday of May, appoint in writing to be filed with the secretary of the board, one member for a term of 5 years. No appointment shall be made which will result in more than 3 members of the board belonging to the same political party. The statute does not directly address whether a common council member may be appointed to the Board. As City Attorney Riffle has pointed out, there is an argument that could be made that the legislature intended this language to exclude elected officials. Nevertheless, although there has been much debate over this issue over the years, the Wisconsin courts have never opined on the issue. The League of Wisconsin Municipalities has addressed the issue, but it too has not been definitive. In their publication Municipalities Handbook for Wisconsin Police and Fire Commissioners - December 2019, the League opined: A frequent question is whether governing body members (members of the common council…) can serve on the PFC. The courts have not decided 2 29  this question so there is no clear answer. As noted above, the League has suggested that the term “citizen” is used to distinguish between civilians and public officials and employees. Certainly, one could argue that the legislature, in using the term “citizen” meant to foreclose local officials or employees from serving on the PFC. However, it also may be argued that it is permissible for a governing body member to be appointed to the PFC by virtue of Wis. stat. §66.0501(2), which provides in pertinent part as follows: The governing body may be represented on city, village or town boards and commissions where no additional compensation, except a per diem, is paid to the representatives of the governing body and may fix the tenure of these representatives notwithstanding any other statutory provision. Id. The Legislature’s creation of Wis. Stat. §66.0501(2), seems to address the issue of whether a council member may be appointed to the PFC. It specifically allows that council member may serve on a city board where no additional compensation is paid to the council member. “Statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes.” See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110 The PFC commissioners are not paid additional compensation. Therefore, there is support in the law for the proposition that a council member is eligible to be appointed to the PFC. City Attorney Riffle raises a concern about whether to appoint a council member to the Board is a good policy given that the PFC’s primary purpose is to insulate the police and fire departments from politics. I share in that concern, but policy decisions are beyond the scope of this legal opinion. The City Council will need to make that policy decision. Nevertheless, aside from being a policy issue, one could also argue that despite the existence of Wis. Stat. §66.0501(2), appointing a council member to the PFC creates an issue as to whether the Board continues to be truly independent of the City. I do not believe that the holding in Heil v. Green Bay Police and Fire Commission addresses the validity of a council member’s participation in PFC proceedings as a member. The Court in Heil found that the council member’s role as a sixth, ex officio, member violated the officer’s due process rights. It was the fact that the council member was the “sixth” member of a five-member board that the Court questioned, not whether a council member could serve on the board. The Heil Court did not address whether a council member could ever be one of the five appointed members. The Court did note, however, that a PFC board must be 3 30 “independent” and that “Member appointment is designed to prevent the board from operating as an agent of a city official or police or fire chief.” 2002 WI App 228, ¶14. Reasonable minds could differ on whether appointing a council member to the PFC board violates the independence requirement or creates a situation where a member of the board is operating as an agent of the City. This issue has not been definitively resolved in Wisconsin law. CONCLUSION Based on the analysis set forth above, I have the following recommendations: 1. City Ordinance §1.37 should be revised to provide for five members, not six. 2. When a mayor “annually, between the last Monday of April and the first Monday of May” appoints a member to the PFC board, he or she may consider any citizen to serve as one of the five members. If a mayor is inclined to appoint a member of the City council as a commissioner on the PFC, the City should be cognizant that the propriety of a council member serving on the PFC board is not well-settled and leaves open a possibility that an officer facing discipline or discharge could sue claiming that the make-up of the board is illegal because appointing a council member violates the independence requirement or creates a situation where a member of the board is operating as an agent of the City. 4 31  Police/Fire Commission Survey 5-Apr-21 Councilmember on Voting Municipality PFC Member Comments We do not have any elected people on our PFC and quite frankly I think it would be a very bad idea to Elm Grove No N/A mix the two bodies together considering the elected are to have no authority in that realm. We do not have any current City Council members serving and/or appointed to PFC. We have one member who is leaving this month to be on the Council. We do not allow Council members to be on Fitchburg No N/A the PFC. Thank you! In the Village of Sussex we have one Trustee who serves as a non-voting member of the BOFC. He's Sussex Yes No basically just there as a liaison between the Commission and the Board. Oak Creek No N/A City of Oak Creek does not have any Council members on the PFC. We did have a Village Board member on our PFC as a voting member some time ago. It created Greendale No N/A unnecessary conflict between officials and residents who supported it or hated it. The City of West Allis has an optional powers PFC and we do not have alderpersons serve on the West Allis No N/A Commission. We asked a person who had been on the PFC and was then elected as an alderperson to resign their PFC seat due to possible conflicts of interest. I don’t believe anything precludes someone from serving on both but I do think problems can occur hence why we acted as we did. We do have a South Milwaukee Liaison only N/A Council liaison for the PFC just as we do for other committees. They are not voting members. Sheboygan No N/A There is not a council member on the Board, so that leave question 2 as N/A West Bend No N/A We do not have anyone Greenfield No N/A Nothing typically prohibits it, but it’s a bad idea. Hales Corners has an optional powers Commission and therefore we do not have any elected officials on it. As stated by another, even without the optional powers for your PFC, state statutes govern how discipline and discharge of employees under their authority must be handled. We do have a “liaison” who is an Elected Board Member, but they leave during any close session, do not vote on anything and only report under public comments as to items that may be of interest to the Hales Corners Liaison only N/A Commission. Watertown No N/A No, we have all citizen members not a part of the Common Council. We have a separate Police and Fire Commission because we are a member of the Lake Country Fire and Rescue. With that: Police Commission Pursuant to Sec. 2-105 of our Municipal Code, there is an Alderperson appointed by the Mayor for a one-year term to serve as an ex-officio nonvoting member. Fire Commission Pursuant to the Lake Country Fire and Rescue Intermunicipal Agreement, the Chief Elected Official of each member Municipality appoints two voting Commissioners who are residents of that municipality, and they shall not be members of the Fire Board, Fire Dept., nor elected officials. There Delafield Yes No are no nonvoting ex-officio members on this body. The Village of Pewaukee only has citizen members for the Police Commission per Village Code – no Pewaukee No N/A Village Board members are on the Commission. The City of Kenosha has citizens on its PFC. You may want to consider that Council's cannot interfere with a PFC in the exercise of their statutory authority thus having alderpersons serve in that capacity Kenosha No N/A may cause perception issues. Hartford Liaison only N/A Does not vote. There is an aldermanic liaison to the Police and Fire Commission. They are not an official member nor do they vote. I am not an attorney but I did ask Julie Aquavia if council members are prohibited from serving on a Police and Fire Commission – she said she is not aware of any prohibition, however given that PFCs were created to remove the governing body from the hiring and discipline processes, it would seem to imply that council members should not be members of a PFC. He should probably ask Stan. I also found the following footnote in the section of the statutes regarding police and fire departments and PFCs which would support that perspective. “Having a common council liaison to the PFC was not a reasonable local adaptation of the statute. The liaison effectively was a representative of one of the parties yet sat with the PFC at hearings and, although nonvoting, participated in deliberations, tainting the appearance of PFC independence and rendering the PFC's decision void. State ex rel. Heil v. Green Bay Police and Fire Commission, 2002 WI App 228, 256 Wis. 2d 1008, 652 N.W.2d 118, 01-1781.” Brookfield Liaison only N/A 32 1.37 - POLICE AND FIRE COMMISSION. (1) The Police and Fire Commission shall consist of 5 members, 3 of whom shall constitute a quorum. The Mayor shall annually, between the last Monday of April and the first Monday of May, appoint in writing, to be filed with the Secretary of the Commission, one member for a 5-year term. All appointments shall be subject to confirmation by the Council. No appointment shall be made which will result in more than 3 members of the Board belonging to the same political party. All members shall be residents of the City and shall maintain residency during their term. Members of the Board shall serve without compensation. The Board shall keep records of its proceedings. (Am. #06-O653; #07-O704) (2) In addition to the members provided for in sub. (1), the Mayor shall appoint, for a term of one year, subject to confirmation by the Council, one alderman to serve with the Board as an ex officio nonvoting member. 33