Trustee resigns amid arrest, village president seeks to fill vacancy with handpicked appointment as public safety concerns loom
Alex Prochaska, Editorial Intern
At the April 20 meeting of the Village of Arena Public Safety Committee, Chief of Police Nicolas Stroik, Sergeant Wyatt Miller and Officer Stephanie Benish of the Arena Police Department submitted their letters of resignation effective May 8, 2024. K9 unit Cougar, who is 9, intends to retire as well and reside with Miller.
Later, at an April 22 special meeting, the Village of Arena Board of Trustees decided to terminate the existing Fire Protections and EMS Services Agreement with the Town of Arena effective at midnight July 31, then authorized village staff to enter negotiations with the Town of Arena to create a new agreement.
Police Resignations
Stroik said he and his colleagues resigned because the board’s future plans do not include the current officers, as shown by a community survey the board created.
The board is currently in the process of mailing the survey to Arena residents presenting three options for the future of policing in Arena: two full-time and one part-time officers, one full-time officer or getting rid of the Arena Police Department entirely and relying instead on the Iowa County Sheriff’s Department.
“It doesn’t look as if we’re included in the future plans of the Village of Arena.”
Stroik also said the board’s replacement of the Public Safety Committee as motivating the officers to resign. At their April 9 meeting, the board abolished the committee—which was composed of three Arena residents and no board members—and voted to replace it with a new committee composed of two board members and one resident. Prior to an official ordinance change, this meeting consisted of the old committee.
When asked by someone in attendance if the board can choose to retain the current officers at the upcoming May 7 regular board meeting, Stroik said yes.
“If the board chooses not to accept resignations and chooses to have discussion regarding how to go forward—absolutely. That’s a discussion that can be entertained,” said Stroik. “But basically, the [survey option] information that we’re seeing right now—that was provided via the internet and not by the board itself—it doesn’t look as if we’re included in the future plans of the Village of Arena.”
The officers decided to go from full-time to part-time in November 2023, and cited low morale and disrespect from the board as reasons for their decision. Now the officers have resigned completely, and will not work even part-time hours in Arena. They have since taken positions with the Iowa County Sheriff’s Department.
The committee passed a motion to present the board a legal agreement that would retire the department’s canine unit, Cougar, and allow Miller to adopt the animal. Miller requested the adoption. The agreement states Miller will be responsible for providing the dog all proper care and financial and logistical support, that Miller accepts all risks and consequences of the future conduct and acts of the dog and that Miller cannot gift or sell the dog to another person or family.
Stroik shared notable calls involving Arena. In March, an arrest was made for Possession of Methamphetamine in the village and a stolen vehicle was recovered. In April, an arrest was made for Possession of Cocaine and Possession of Fentanyl while the perpetrator was leaving the village. Another male resident was arrested for Delivery of Cocaine, Delivery of Fentanyl and eight counts of Bail Jumping.
While summarizing other notable calls to the Arena police, Stroik mentioned the April 13 arrest of Jim Doerflinger for Disorderly Conduct-Domestic and Battery. Stroik did not reveal Doerflinger’s name or the specific charges at the meeting, but a release by the Iowa County Sheriff’s Office made the information public.
“We had to have Dane County Sheriff’s Office respond to the village to investigate one of our board members who was arrested for a couple of criminal charges,” said Stroik. “There was going to be a conflict of interest with us being involved. Dane County came down and investigated that. Subject was also arrested a few days later for Bail Jumping. But he turned himself into the sheriff’s office and there was no mutual aid request for that one.”
Doerflinger was a board trustee at the time of his arrest, but handed in his resignation April 17, effective immediately. In an email to Clerk-Treasurer DaNean Naeger, Reimann indicated she intends to fill Doerflinger’s seat with Kristen Shea, a former trustee.
“Please add the following agenda item to our May 7th 2024 regular board meeting to appoint Kristen Shea to fill the vacated seat from Jim Doerflinger’s resignation,” said Reimann, in the email obtained by public records request.
Under statute and relevant ordinances it is the board that has the authority by majority vote to make an appointment to fill a vacancy. Under the language of the agenda item, if not changed by Reimann or requested by another trustee, the board would unnecessarily forgo open nominations and only contemplate Shea’s appointment to the vacancy.
Legal Editor’s Analysis: I don’t think it’s misconduct, just undemocratic.
On April 20, the president of the village of Arena directed the clerk to place an item on the agenda for the next regular meeting of the village board: appointing a new village board member to fill a vacancy after James Doerfinger resigned as a village trustee three days before. The replacement will either serve the remainder of Doerfinger’s term, or until a special election is held.
An interesting and somewhat questionable feature of this is that the president did not simply place the filling of the vacancy on the agenda, but asked that the agenda item be placed as the filling of the vacancy with a particular candidate, one who generally supports the president’s positions.
We’ll get to that wrinkle soon, but first some words about the general process.
First of all, is appointment by the board the proper general legal mechanism for filling a vacancy on the board? Most probably yes. An overclever lawyer might make an argument otherwise, but there is nothing clearly wrong with this kind of appointment, which is pretty standard. State statute 17.24 says this process may be used.1
What about specific limits on how this should be done? Arena Ordinance 2.10.170(c) adopts Roberts Rules of Order for the conduct of proceedings, except where it conflicts with other ordinances or statutes. Roberts has a section on internal elections and describes how they are to be conducted. But it is not clear this rule should apply. If the board were electing one of its members to serve as an officer of the board, such as president or a temporary secretary, or the head of a committee, it would either have to conduct nominations or a roll call vote, or use one of the other mechanisms described in Roberts. But the board’s task here is not really election but appointment. The position is to be filled by an eligible candidate who is not part of the body making the appointment, and the statute actually uses the words “by appointment” which should be given some meaning.
Nevertheless, the Board might consider looking to what Roberts considers the best system. Of course, there is much else a conscientious board should take into account. If a special or general election were right around the corner, it might make sense to leave the position open until then (which is explicitly allowed under the statute) or if another trustee were deemed urgently needed, appoint one for a short period using a fairly short process. The idea for an interim appointment is to have a less extensive or involved process than required for a whole public election, of course, but the more opportunities for democratic input the better. Under the Roberts system, open nominations are typical but not absolutely required. A secret ballot is allowed in some circumstances, in others a full roll call vote is needed. Nothing in the law or any of the village’s adopted rules dictates one exclusive process, but whatever they do, they should keep in mind ideals of democracy, transparency, and the advantages of giving full consideration to a variety of potential trustees.
There are also a couple of particular limitations. The statute does say that an absolute majority of board members must support the appointment. This is to prevent a candidate from assuming the position who does not have the full support of board by accident of who was in attendance at a particular meeting. Also, Roberts prohibits a new member of the body from being appointed in mid-meeting.
One issue to be considered is that old devil, Open Meetings Law. Arena has fluctuated in the quality of public notice it provides. To take two recent examples, on April 22, an agenda item read, “Consider and take action to authorize Village staff to enter into negotiations with the Town of Arena to create a new Fire Protection and EMS Services Agreement.” This was clear and specific in terms of letting the public know what the board was contemplating.
In contrast, April 30 saw the village putting out a notice that had this agenda item: “Well House/park parking lot.” That’s a head-scratcher. Last year Arena solicited bids for a roughly 760-square-foot masonry block municipal wellhouse building, with a vertical turbine well pump, motor, and gas generator. But even if one knew that, it is unclear what is to be done to the parking lot, or even how the “/park” fits into the grammar of that description.
The April 30 case was particularly bad because this was a special meeting rather than one of the regularly scheduled monthly meetings of the board, so it was required to comply with state statute 61.32 and Arena ordinance 2.10.100. For the meeting to have been legally called in the first place, the clerk was to have filed an affidavit certifying that it had provided personal notice to each trustee stating the purpose of the meeting. According to the ordinance, “No business shall be transacted at a special meeting except for the purpose stated in the notice thereof.” The ordinance does not state explicitly that this purpose must also appear in notice to the public, but as readers of this space may recall, one of the factors to be considered in determining whether public notice is legally sufficient is how burdensome it would have been to provide more informative notice. If the clerk by law had to already have known the purpose of the meeting, why not state it in the public notice, rather than a five-word title that shrouds the contemplated action in mystery?
Now we come at last to the issue that triggered this discussion: the president seemingly seeking to lock the board into considering only her favorite nominee by putting only that nominee on the agenda. I don’t know that there is any nefarious goal here: perhaps there is only one nominee and the president was not being super-careful in asking that filling the vacancy be put on the agenda.
I don’t see anything in this that is prohibited by law. But I think the most responsible action by the clerk would be to put a general item on the agenda that allows for anyone to be appointed to the position. It might look something like, “Consideration of nominees to fill the vacancy in the board left by the resignation of James Doerfinger, and potential action to fill that position. (Note: President Reimann has nominated Kristen Shea.)” That’s pretty informative and would be easy to put on the agenda. The clerk doesn’t even have to write it, now!
The statute is clear that the board makes the appointment. There is nothing wrong with the president, who is after all a member of the board herself, playing a role in that by making a nomination. But the law does not say that the president makes the appointment and the board ratifies. The statute allows for the board to appoint anyone it wants. It’s at least most consistent with the spirit of the statutes that the meeting agenda reflect this.
As an esteemed advisor to the village once commented on such legal issues, “it’s not a problem until it’s a problem.” If the majority of the board goes along with the president’s proposal, then it’s hard to see who would have a legal claim against that no matter how the board gets there. If they don’t, then there’s also no problem: any trustee could request that the agenda include consideration of a different nominee, or consideration of all nominations using an open process. What the president is doing is not unfair to any trustee as long as each trustee has the equal power to do the same.
An open process may be the most democratic option, and the one with the best optics, but the board can select whomever they like however they like as long as it’s within the law. It’s their power, and if the people don’t like it they can elect different trustees or organize a recall—or initiate a 17.13(3) petition for removal to the circuit court judge in their administrative role, if some other cause exists.
And if the people of the Village like it, or don’t think it’s a big deal, that’s their business too.
I’m an attorney, I’m not your attorney. This is not intended as legal advice.
—Gary Ernest Grass, esq., Legal Editor
1 If anyone wants to get into the weeds of what I think is ultimately a kind of silly argument, here goes: Yes, the village “may” use the process in the statute. Does this mean the village can always use it, or can they create ordinances giving up that power and making the process harder? I think they probably have to follow their ordinances. What do their ordinances say? Well, the ordinance on filling vacancies, 2.55.120(b), adopts the statute. But again, if you really wanted to force an argument, you could point to ordinance 2.10.020(a) that says three trustees shall be elected to a two year term at each spring election. “Shall” usually indicates something mandatory, which one could read to say that this is an exclusive mechanism. This line of argument faces two big problems. First is grammatical. You could claim this means all trustees must be elected, but the more natural reading is that the statute is satisfied if three are elected at each election, which was done. The second is that the vacancy ordinance probably trumps it. I say probably again because even though vacancy rules are more specific than general election rules and therefore govern over them, in this case, the vacancy ordinance is in a section that deals entirely with appointed officers and employees, not elected officials, so one might cast doubt on whether the ordinance applies to village trustees. What all this goes to show is that a lawyer on a mission can find support for almost anything and it’s good that most judges have some common sense to approach these kinds of arguments with due skepticism.
Stroik defended the Public Safety Committee from accusations that it did not meet enough and did not communicate with the board.
“In the last five years that I’ve been chief, I’ve never had a board member attend our meetings and say, ‘Hey, we want to see more of this,’” said Stroik. “In 2019 or 2020—that’s the last time I’ve seen board members attend a meeting. I have never had a board member say, ‘Why isn’t there more meetings? You need more meetings.’ I’ve never had a board member say that the committee is not doing their job. You’ve been doing this same exact job for the past 18 years I’ve been here. In the past five I’ve been chief you’ve been doing the exact same job. But suddenly it’s become an issue. Nothing has changed on our end. But now it’s become a concern for board members.”
Officer Benish expressed her gratitude to the three members of the committee, as it was the last meeting they would have before the board replaced them.
“You are the committee who gave me my position and who I am and what I do. Thank you,” said Benish.
Fire and EMS Agreement Termination
At the April 22 special board meeting, Trustee Melissa Bandell said Municipal Attorney Paul Johnson advised the board to terminate and amend the current fire and EMS agreement. Johnson was not in attendance, but Bandell explained Johnson’s reasoning.
“We are paying more for our EMS services than what this agreement says,” said Bandell. “Our EMS agreements don’t even consider the entire EMT budget. You’re looking at only wages, and you’re doing a fancy funding ratio that’s not based anywhere in common law, statute or precedent, for one tiny budget item. I don’t want to get rid of EMT service. I want us to continue to offer EMT service. But I want the funding to be fair to the people that live in Arena.”
Newly elected Trustee BeccaRaven Uminowicz asked Bandell what statute the current agreement is not compliant with, but Bandell and other trustees were unable to provide an answer.
At its April 9 meeting, the board voted to give notice to the Town of Arena that they want a new agreement, but must now give notice that the board is terminating the agreement to start a negotiation period.
Per the original 2007 agreement, the village board must give notice they wish to amend or terminate to the town by May 1, otherwise the agreement would automatically renew.
Newly elected Trustee Matthew Schraeder was concerned if the board terminated the current agreement, there was no guarantee the town would agree to a new contract, and services for village residents would cease July 31.
At different points in the April 22 meeting, Bandell stated the board already notified the town they wanted a new amended agreement, or already gave the town a proposed amendment. After Uminowicz asked how the proposed amendment was given to the town, Bandell said Naeger gave it after the previous board meeting. However, Bandell said she did not have a copy of the proposed amendment. Emails obtained through public records request reveal no proposed amendment but show Reimann sent a notice of the termination to the Town on April 24.
The board also passed a motion to authorize staff of the Village of Arena to enter into negotiations with the Town of Arena to create a new Fire Protection and EMS Services agreement.
Schraeder and Uminowicz were the only board members to vote against the motion to terminate and amend the current agreement and the motion to authorize staff to enter negotiations with the town, after expressing concerns about their ability to make an informed decision, due to lack of resources.
After being elected nearly two weeks prior, neither trustee had been given computers or email addresses to use for village business, and were unable to review documents relating to the special meeting.
The board will hold a regular meeting at 7 p.m. May 7 at the Village Hall to discuss filling the vacant trustee position and taking up the police resignations.
