Nicole Aimone, Editor-in-Chief
The Arena Village Board met April 13 for its regular meeting amidst a new lawsuit filing, took up the resignation of a trustee and purported to fill the resulting vacancy in a vote that didn’t include enough trustees, leaving questions as to how the board will proceed.
The board first took up a consent agenda of routine items and passed them unanimously. Trustee Paul Pustina, former village president, in an email sent to Village of Arena Clerk DeNean Naeger, Village President Kate Reimann, Village Attorney Paul Johnson and press, raised the issue that March financials were left off the consent agenda — and the April agenda entirely, despite being approved earlier by the Finance Committee, and would need to be taken up at the next meeting of the board.
Pustina has previously publicly called for a forensic audit of the village finances, with a focus on water bills.
Trustee resignation and appointment, issues
The board then took up and unanimously approved accepting the resignation of Trustee Jessica Voight, who has moved out of the village.
The next agenda item taken up was the appointment of Rachel DePouw to the open seat vacated by Voight, with a term expiring April 2022. Valley Sentinel reached out to Clerk Naeger seeking to clarify if DePouw was the sole resident interested in the seat and we have not received a response as of press time. If we receive a response this story will be updated online.
Reimann has recently appointed residents to fill trustee vacancies, which are then acted on by the board. Typically, interested residents have appeared before the board and given presentations under a general appointment agenda item, with the appointments decided on by a roll call vote of the board. It’s not clear under what authority Reimann is making the appointments, as statute states that the board as a whole has the sole authority of making appointments to fill vacancies, but does not specify that authority to village presidents.
Before and during board action on her appointment, DePouw sat amongst the trustees with a village provided laptop. Pustina raised concerns about the optics of the seating arrangement.
“I really think this is inappropriate, having her sitting with the board, with a laptop, before the meeting even started,” said Pustina. “It kinda looks as if this is a formality.”
Reimann ended discussion and took a voice vote on the appointment. With trustees Charles Burch and Tara Hill absent, only Pustina, Reimann and trustees Kathy Stoltz and Tami Erspamer were present to vote, with Pustina voting against the appointment.
With a 3-1 vote, Reimann concluded that the appointment had passed and Naeger proceeded to swear DePouw in.
However, after reviewing the meeting, Valley Sentinel’s legal editor noted that the board’s action on appointing DePouw to the vacant trustee seat lacked the statutory number of votes needed to appoint a trustee by one vote.
Statutorily, a majority of the members of the village board, four, is needed, rather than a majority of members present. See analysis provided.
Editorial Analysis: Village of Arena trustee appointment not proper
The Village of Arena claims to have elected an interim trustee to fill a vacancy until the next election for that position. The vacancy was not filled by an internal election among competing candidates but as an up-down vote on a single candidate who was proffered to the board as the appointee of the president. There were four trustees present, out of six (seven total positions pursuant to Village Ordinance 2.10.020, minus one for the vacancy). Of the four, at least one voted against the filling of the vacancy by the candidate. My conclusion is that the person was not lawfully appointed trustee.
Wisconsin Statute section 17.24 provides that other than in the context of a recall, “a vacancy in any elective village office may be filled by appointment by a majority of the members of the village board…” “Majority of the members” means what it says, and is intentional language to distinguish from a mere majority votes of members present at any meeting with quorum. Roberts Rules of Order, for example, uses the phrase “majority of the members” to explain quorum and certain types of supermajority votes. See Roberts Rules Online, sections 53, 62, 64, 68, etc. A majority means more than half. Since there were six members of the village board, half would be three, and a majority would be four or more. There were not four votes for the appointment.
The state law provides a mechanism for filling a vacancy, but is ambiguous regarding whether any other means may be used. It says a vacancy “may” be filled this way, not “may only.” I therefore examined the Arena ordinances to see whether they provided for any alternative means of filling the position. On the contrary, the ordinances mandate, at section 2.55.120 (b) that all vacancies “shall” be filled by the means provided in the statute, referencing section 17.24.
I conclude that the new trustee was not properly appointed. Consequences are another issue. The best route, if the votes exist to secure the appointment, would be for the Board to vote again to ratify its earlier vote, without the new trustee voting, but with sufficient attendance to meet the majority of members standard. If not, a suit could be brought to challenge the appointment. A trustee opposing the appointment would have the clearest standing to do this, but in the short term, anyone affected by any deciding vote cast by the new trustee would have a colorable case. Any action that relies on the new trustee’s vote would not automatically be void, but could be voidable in a court action. The sooner a legal action is brought, the more comfortable a court is likely to be in removing the trustee and voiding actions of the Board.
-Gary Ernest Grass, esq., Legal Editor
Valley Sentinel reached out to Naeger for comment on how the village will proceed with the appointment and we have not received a response as of press time. If we receive a response this story will be updated online.
Lawsuit filed against the village
The board postponed action on a resolution disallowing a claim, instead acting on village attorney advice to postpone any action until the next meeting.
Village residents Christopher and Deana Toutz filed a lawsuit against the village on March 24, claiming inaccurate assessment of property and asserting that the village did not provide written notice/appeal rights.
The village’s insurance carrier had recommended disallowance, meaning the village would reject the claim. Court records indicate that the lawsuit was dismissed on Tuesday. Valley Sentinel will provide an update in next week’s edition.
Mary Jones Memorial
The board decided it was in the best interest of the community to not hold the annual Mary Jones Memorial and fireworks in July. This is the second year in a row the event has had to be cancelled.
Organizer David Jones indicated he felt it wasn’t possible to monitor and enforce masks and social distancing at the event to be in compliance with county health department guidance.
Pam Gauger indicated that Little League has 300 members, which make up 32 teams, of which six teams are from Arena. The league is looking at approximately 26 home games, plus practices. Little League encompasses T-ball to 8th grade. The board approved action to waive fees for Little League use of village baseball fields.
The daily fee for the Rustic River Archery Club Park, a village park located at 7698 US-HWY 14 in Arena, has been $10, in line with what the Rustic River Archery Club that maintains the property in cooperation with the village has been charging. The board heard from Public Works Superintendent Mike Schmidt, who recommended signage and a fee reduction to $5 to promote stricter following of the fees, which the board passed unanimously.
Other board actions
- The village expects to get $81,749 in American Rescue Plan aid.
- The board approved chicken permit for Jenna Christensen and Stephanie/Ian McCririe.
- The board accepted a park bench donation in recognition of Bill Akins and directed Public Works to determine the best placement.
- The board passed a resolution seeking Stewardship grant money for the West Park ramp to the fishpond.
- The board approved Ordinance #2021-0413 to amend Section15.05.030 (a) & (c) of the Municipal Code of the Village of Arena, Iowa County, WI relating to State Uniform Dwelling Code to apply to camping units.
- Along with the invalid appointment of the vacancy created by the resignation of Voight, there is an additional vacancy on the board created by Hill declining to pursue reelection. Interested parties should contact Naeger with a letter of interest.