Arena Village Board deals with on-going public safety issues, debates unilateral powers of village president

Let’s talk a little about what happened at the Arena Village Board meeting. We previously discussed the meeting notice that was issued which called for the filling of an open board seat with a particular individual. The village issued a new notice instead calling for “appointment to open village trustee seat.”

Yet when the meeting actually happened, the village president simply steamrolled the board with her own nominee. In the same breath as calling the item on the agenda, she added, “and as president I get to nominate that person and I am nominating Kristen Shea for the open seat and I make a motion to seat Kristen Shea.”

Since she stated she had this power, Trustee Schroeder inquired by what state law and she cited “the League [of Wisconsin Municipalities]’s book, page 13.” There was a helpful offer that it might be in the village ordinances, but Schroeder stated that it is not. (Whether that was correct is liable to interpretation: the president, like any other trustee, can certainly make a nominee, but the president does not have any special power to a presumptive selection, which is what the president seemed to imply.)

The president went on to cite section 61.65 of the statutes, which in fact is titled, “Police and Fire Departments; Pension funds.” She appeared to actually quote section 61.197, which refers to “selection of officers” but explicitly excludes village trustees from its ambit. She explained she was making the appointment subject to board confirmation, which she simply cannot do. State law does not give her that authority and it is contrary to village ordinance, which conforms to statute 17.24. Schroeder referred to that statue but Reimann simply reiterated that she had the power, and the board caved in and voted to approve her nominee.

So the question is not, “was this legal?”—because it clearly wasn’t. The question is whether anything can be done about it. The law has had some offenses for which no remedy or penalty is offered, but generally the law abhors this kind of arrangement, and the state constitution actually has a no-wrong-without-a-remedy provision, but there are remedies and then there are remedies, and in this case, there are no remedies.

So can one fight the appointment by saying this person was not properly appointed, is it obligatory that the board not treat them as a trustee and not count their vote? Can one levy charges against the president for misconduct in office? Perhaps use the extraordinary procedure in statute 17.13(3) to have a county judge remove Reimann for cause? All intriguing and they all probably have the same answer: technically, yes—but practically no. The law says it cares, but it’s just humoring you until you go away.

There are several factors that play into this.

Technically one could seek a writ of mandamus or prohibition against the board to force it and its members and clerk not to recognize the new trustee. The process wasn’t proper, so the board has a ministerial duty — a clear absolute responsibility over which it has no discretion — not to treat a non-trustee as a trustee. 

But here the law doesn’t really care because so what? It’s a distinction without a difference. The board voted to approve, and had the process gone legally, the board would have voted, who is to say they would not have voted the same way? If they don’t really want the new trustee, they don’t need to be forced into not having her. They can just treat the vacancy as still being open and re-fill it without an order. These writs are discretionary, not automatic. The judge who decides whether to issue the writ will look at the matter and decline to act. Technically it was the wrong process, but what is the actual harm? 

A judge asked to remove Reimann might say the same thing, as might a district attorney asked to prosecute her. As might a judge from whom a Chapter 17 order is sought.

There are answers, to be sure: this was not a good process or a good look, and it might have effectively cowed the board into relinquishing its responsibilities because some of its members either did not know or care enough to stand for their rights. This affected the rights of board members in the minority to influence their peers by debate and counter-nominations. It was an instance of bad government. This is how you get poor nominees. Perhaps Shea will be stellar nominee, but this was not a process designed to secure quality but to shift power away from the broad body to a single individual.

But ultimately, the law will ho-hum it. If not for that reason, then for others.

The statute barring misconduct in office contains language requiring that an officer not knowingly exercise a power they do not have, or that they not violate a right though seeking to obtain an illicit advantage. Implicit is that the officer understand that advantage to be illicit. So these sections, which one can find in section 946.12 (2) and (3), require knowing and intentional conduct. They do not reach mistakes, either honest ones, or semi-honest ones.

Sometimes the criminal law is so concerned with something that it demands extra care not to make a mistake, where it expects someone to know what is wrong and exercise special care, but usually it does not care about people just getting stuff wrong.

Perhaps you can say, Reimann knew this power was BS. She’s been around a while, she’s been told this. She knew her power was in question and instead of getting a reliable answer, she ludicrously misconstrued a statute to work in her favor, how convenient!

But even then, she will get the benefit of the doubt. It’s just not a big deal.

The law works like this when a kind of offense involves a very common wrong that’s seen as relatively minor, especially among people that are trying to do something of social benefit. You want to run a business but violate some regulations? We’ll give you some time to correct them, we like to encourage entrepreneurship. You want to become more civically involved, become a public servant? We laud that, we’ll just issue a warning. 

It’s much different for low-level officials than higher-ups. It’s nice to have government close to the people, and these people are seen not as career politicians but local volunteers who get a little pay and a little power, but not a whole lot, and are basically putting in a little time after their day jobs. There are so many of them, they’re not drawn from an elite pool and don’t commit vast parts of their life to this. They don’t get degrees in law or political science or run million-dollar campaigns, so we expect plenty of small mistakes.

And in most cases the official that would enforce these duties against a village president is a district attorney or judge. In both cases there are special reasons to butt out.

Judges understand the doctrine of separation of powers, and are reluctant to intrude on any non-judicial branch of government. When an official is elected, they look at that and say, the remedy intended by the legislature is not me, at least not primarily. The people have spoken in electing this person in, the preferred remedy is for them to elect the person back out again.

District attorneys have to worry about the intrusion of criminal sanctions on the political system for just this reason. In a democracy, voters should not have their choices constrained by legal action against officials and candidates. No one is above the law, but going after a political figure looks unsavory because it can be easily cast as a political move. Hence there’s a sound basis to approach any potential action reluctantly. One can look at all the states in the world where political contenders have been corruptly removed from contention by fearful dictators or just corrupt opponents in a mostly free system.

For the most part, this kind of hands-off system is not terrible. The reasons behind it make sense. But it can also be incredibly frustrating when wrongs occur that seem unable to be righted. What tends to happen is that the figures who decide when the law should remain hands-off and when action must be taken gradually lose patience, and after successive warnings fail to make an impact, the intentional wrongfulness of the conduct starts to become more apparent, and action does start to get taken.

This is all a function of the law being executed by humans and not by books. It may be, as has been said of democracy, the worst system except for all the others. 

 I’m an attorney, I’m not your attorney. This is not intended as legal advice.

—Gary Ernest Grass, esq., Legal Editor