Ethics Board Finds Violations, By Alderman Recommends No Penalty

At its monthly meeting on Tuesday, Sept. 7 Peshtigo City Council agreed to accept the findings and recommendation of the city's independent Ethics Board and take no further action against Alderman Richard Berth in the matter of an ethics complaint filed against him in June by Mayor Cathi Malke.

Mike Behnke, who is a former alderman and current County Board Supervisor representing parts of the City of Peshtigo, was elected to chair the Ethics Board at its meeting in June. Other members are Fred Meintz, Barbara Bauman, Gerald Valley, Mary Seidl, Fire Chief Charles Gardon and Alderman Brigitte Schmidt. Gardon did not attend the Aug. 5 meeting because he was busy with other firefighters battling a blaze in Carney, Mich.

After discussion at two 2-hour meetings, one on June 22 that included an evidentiary hearing on a complaint, and the second on Thursday, Aug. 5, the Ethics Board issued a decision finding probable cause to believe that Berth had violated one or more of the standards as alleged, including exceeding authority, breach of law or confidentiality, disclosure of confidential information, misconduct in public office and violation of Open Meetings Laws, but recommended that no further action be taken against him, and cautioned other city officials to "...take note of this matter and conform their conduct to the ethical standards applicable to their positions as well."

Proceedings of the Ethics Board on June 22 included reorganization and then a closed session evidentiary hearing that was followed by a discussion between Behnke, Malke, Berth and City Attorney David Spangenberg "in an attempt to reach an acceptable and beneficial resolution of the matter."

A preliminary findings of fact and conclusions was then drawn up, and read in full by Behnke at the Sept. 7 Council meeting prior to the vote accepting it. Printed copies of the findings were also included in informational packets for the meeting.

Behnke read:

On June 22, 2021, the Board held an evidentiary hearing and deliberated on the merits of the case in a closed session of the Board. Thereafter, a discussion was arranged by mutual agreement between the chairman of the Board, the City Attorney, the Complainant and Mr. Berth in an attempt to reach a resolution of the matter beneficial to the parties involved, the City of Peshtigo and acceptable to the Board.

Finds of Fact stated:

"The Board has determined that there is probable cause to believe that Mr. Berth violated the ethics code in the following respects: 1) That he exceeded his authority when dealing with, or directing city employees, including the city building inspector, the city clerk, and the director of parks and recreation; 2) That he violated the Wisconsin open meetings law by discussing a vote for the appointment of a vacant council seat with council/committee members prior to the meeting. Specific findings are not stated herein due to the agreement of the parties that potential violations have occurred.

"However, the Board is concerned that violations of the ethics code is not limited to Mr. Berth as others may have also violated certain ethical standards which could lead to a loss of the Complaint but to serve as a warning to other city council members and elected officials to comply with the ethics code. In addition, the Board recommends that new council members attend appropriate training provided by the City and/or the State of Wisconsin on ethics and the roles of city officials in the operation of city government. The Board finds the following information relevant and useful for current city officials to review and incorporate.

"City council members are meant to act as part of the council, not individually. A primary reason why council members have virtually no role with regard to individual city employees is that applicable law provides that council members will act as a body, not as individuals. Indeed, the law required that, with limited exceptions, the council conduct city business only through duly convened meetings in full view of the public. Thus, when an individual city council member takes unilateral action, his or her conduct may well lose the sanction of the law. The council member may then lose certain protections and immunities from liability, and his or her actions may more easily be rescinded or disputed.

"Legislative immunity is limited. Second, city council members may well not have legislative immunity with regard to actions toward individual employees. This is particularly true if the council member acts unilaterally. Typically, when a city council member acts as a legislator, he or she has absolute immunity. But that immunity can be lost when the legislator takes actions outside the sphere of legitimate legislative activity. Accordingly, if a council member takes any unilateral actions concerning an individual employee, he or she could risk loss of legislative immunity. Even actions taken collectively with the full council might conceivably lack immunity if they relate to specific individuals instead of furthering general city policy.

"City Council members may be liable for invasion of privacy, among other things. Third, the threat of liability presents another factor that limits council member roles toward individual employees. One potential type of liability is for invasion of privacy. For instance, removing or disclosing a city employee's confidential personnel file could be an invasion of privacy which could result in person liability to the city official.

"Other officials, such as the city mayor or department heads, are charged with overseeing city employees. Fourth, council member actions with regard to individual employees may be considered suspect because other high level city officials are officially charged with supervising and/or overseeing individual employees. Most cities appoint city managers or mayor to provide overall supervision to a city's human resources function. Because a designated official already has this responsibility, there should be little need for city council members to become involved with individual employees."

The report continued, "Open Meeting Law Violations. Violations of the open meetings law may be prosecuted by the attorney general or the district attorney upon the verified complaint of any person. The individual who filed the complaint may bring an action on behalf of the state if the district attorney fails to commence an action within twenty days after receiving a complaint. Members of a governmental body who knowingly attend a meeting in violation of the open meeting law or otherwise violate the open meeting law by some act or omission are subject to a forfeiture of between $25 and $300. This is personal liability and is not reimbursable by the municipality.

A "Conclusions of Law" section in the "findings" states that city ordinances and Wisconsin statutes "establish an ethical standard of conduct subject to the jurisdiction of the Board. That as an alderman for the City of Peshtigo, Mr. Berth is subject to the standards of conduct set forth by city ordinance and state law. The Board has found probable cause to believe that one or more violations of these standards have occurred.

It went on to state, "By stipulation, Mr. Berth is willing to accept the conclusions of the Board and their recommended course of action as stated below and will make efforts in the future to be educated and comply with all ethical standards. Based on the agreement, no formal hearing or further proceedings shall be scheduled."

The report concluded, "Therefore, the Board finds that the following penalties are appropriate in this matter:

"a. That no recommendation to the City Council for censure, suspension or removal from office is warranted under the circumstances;

"b. That no monetary penalty is appropriate for the violations.

"c. That Mr. Berth shall conform his conduct to the ethical standards applicable to his position as alderman for the City of Peshtigo.

"d. That other city officials should take note of this matter and conform their conduct to the ethical standards applicable to their positions as well."

The "finding" concluded with a reminder to all holders of public office: "Remember that it is an honor and a privilege to be elected into any office of government so it is for that reason the elected official, as a voice for all os his/her constituents, treat the position they occupy and their colleagues with dignity, honor and respect in return."

Motion to accept the findings as read by Behnke was made by Berendt and seconded by Schmidt. All voted in favor except Berth, who abstained.

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