Source: Lake Geneva Regional News

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Legal questions remain in suspension case

by Chris Schultz

September 06, 2012

In the end, events outran the courts, and the cost of litigation proved too dear for anyone to continue.

However, legal questions remain regarding the whirlwind of political suspensions in the fall of 2009.

"It leaves us just as muddled as before," said Dan Thompson, executive director of the League of Wisconsin Municipalities.

It was three years ago this month when former Mayor William Chesen felt the need to exercise an extreme option against aldermen who opposed him on the city council.

Three Lake Geneva alderwomen and an alderman were accused of misconduct through complaints filed by a taxpayer who also happened to be mayor. Then, that taxpayer, as the mayor, signed the complaints and suspended the four duly-elected aldermen based on the charges in the complaints. The charges were neglect of duties, inefficiency, misconduct and violations of the open meAetings law.

The four council members who lost their seats, Tom Spellman, Mary Jo Fesenmaier, Penny Roehrer and Arleen Krohn, continue to argue that their suspensions ordered by former Mayor William Chesen were unconstitutional and that the mayor had misused state law.

Attorney David Rasmussen, who represented two of the suspended council members, raised perhaps the strongest arguments against the process used to oust them.

In a Nov. 18, 2009 court filing, Rasmussen attacked the charges themselves.

"If council members can be charged with 'inefficiencies,' every legislative action could subject an alderperson to sanctions," Rasmussen wrote.

The charge of "neglect of duty,' also doesn't exist, Rasmussen wrote. State statutes say city councils "may" compel attendance, but it does not require it. Lake Geneva City Council has never had rules compelling alderpersons to attend meetings, he wrote.

Under the accusation of open meetings law violations, "the mayor is not empowered to enforce the law," Rasmussen wrote.

Open meetings violations result in forfeitures of $25 to $300 under state law. "It does not result in removal from office," Rasmussen wrote.

Wisconsin statute 17.03 provides for removal of a council member if the incumbent is convicted and sentenced for crimes punishable by a year or more of incarceration.

Rasmussen argued that statutes were "misread and misused."

Yet, despite the strong presentation of Rasmussen's arguments, no judge, county or appellate, ruled on them.

The final litigation and negotiations of this episode involved who was going to pay whom and how much

The laws Chesen used to remove council members remain on the Wisconsin statute books.

Somewhere in Wisconsin it could happen again. Theoretically, anyway.

It seems almost outrageous that one person could remove half a city council.

But that doesn't mean it's illegal.

Thompson said he and others in the municipal league followed the situation very closely in Lake Geneva for the 60 days from when the four council members were dismissed, to the time all charges were dropped and they were reseated.

It was the equivalent of the city's 15 minutes of fame. Newspapers with legendary nameplates like The New York Times, the Wall Street Journal and The Washington Post running stories about the big fight in the little city.

And when it was over, there was still unfinished business, Thompson said. It's frustrating having an issue over the interpretation of state statutes just sitting there, without resolution.

But, he said, judges do not usually issue advisory judgments in the American legal system.

"It really is kind of odd to say that the only way to find out what the law says is to spend tens of thousands of dollars litigating a factual situation," said Thompson. "But that's the system we have."

Chesen's actions have been described as unprecedented. Thompson said he's heard of nothing like it before it or since.

The use of the "verified complaint" law was creative and clever, Thompson said. Chesen is certainly an adult taxpayer in the city of Lake Geneva. And he certainly was the mayor.

And the law, as written, contains no exclusions or conditions over who makes the complaints and who signs them, he said.

Thompson said laymen who read the law sometimes come to conclusions a lawyer may never reach.

"That does not necessarily mean the layperson is wrong," Thompson said.

Reading the statutes, the wording appears to allow a single person as mayor and taxpayer to file and sign complaints against officials, he said.

"For example, in the statute used to dismiss the aldermen from their seats, were the aldermen officials? Yes," said Thompson. "Were they the officials the legislators were thinking of when they created the law? Probably not," he added. "It was an imaginative reading of the statutes, but it is hard to say that it was wrong."

While the law is still unsettled and the tactic Chesen used is caught in the gray area between legal and "not illegal," Thompson said he doesn't expect this to happen again in Wisconsin, at least not for a long time.

"This kind of public brawl, it's hard on your friends, it's hard on your neighbors; it's hard on everyone," Thompson said.

Thompson said he was willing to give Chesen the benefit of the doubt on his reasoning to take an extreme action against four council members.

"I'm not certain that Mayor Chesen wanted to pick that fight," Thompson said. "He felt that something bad was happening and he had to do something about it."

But having taken that route, he unleashed a lot of voter concern and anger.

"The mayor's actions were challenged and led to controversy, and that may be a warning to mayors," Thompson said. "It's not uncommon for voters to say 'a pox on both your houses, or a pox on all your houses,' and simply clean house," he said.