City Atty. Memo: ‘Substantial Harm’ may come from Keene Winters investigation

By  | 

WAUSAU, Wis. (WSAW) -- “The city may be subject to substantial [legal] harm,”begins a confidential Jan. 22 Wausau City Attorney memo to Mayor Jim Tipple, obtained by WSAW-NewsChannel 7 Investigates, surrounding the ‘fact-finding investigation of Alderperson [Keene] Winters’ alleged inappropriate verbal reprimand of city Transit Director Greg Seubert.

In the documents that follow, City Attorney Anne Jacobson warns Tipple and city Human Resources Director Myla Hite a late November letter the city intended on sending Winters, which had been prepared for City Council Pres. Robert Mielke’s signature, would violate the Alderman’s constitutionally protected rights.

“While the behavior of Mr. Winters which gave rise to the letter cannot be condoned, I am concerned the letter violates due process considerations,” Jacobson wrote on Nov. 24.

Jacobson went on to say the letter also appeared to violate Winters’ freedom of speech rights.

“We must be mindful Winters is an elected official,” Jacobson said. “We must be careful not to tread upon his right to express his opinions,” Jacobson said. I don’t believe it is lawful to limit his communications to legal counsel.”

In response Hite modified the letter, only excluding Winters from being at MetroRide meetings, reminding Jacobson and Mielke the restrictions were, “temporary only while the investigation is underway.”

“As to other points in Anne’s opinion,” Hite writes, “Please note they are opinion and are not consistent with the advice of outside legal counsel nor do they protect the rights of City Staff.”

The next day, on Nov. 25, the documents show the city hiring outside attorney Dean Dietrich, from Ruder Ware, to handle all city matters pertaining to the Winters-Seubert investigation. An action Jacobson writes violates the City’s Procurement Policy, because she was not consulted as the statute requires.

“I did not give HR Director Hite permission to unilaterally engage the services of outside council to represent my client, without my knowledge or consent of that of my client,” Jacobson said.

Through Nov. 30, 2015 the memo shows $2,117 had been spent on legal services, although, because of unclear documentation, it is not certain if any of the money was spent on the Winters’ investigation.

“The billings, while not all itemized, appear to be for very short one-time calls for advice on matters relating to bargaining issues,” Jacobson writes.

Jacobson ends her memo by reminding Tipple and council members about the “liability risk to which the City may be exposed.”

Last week, the tension was visible between Tipple and Jacobson in the moments before Tipple vetoed three Winters investigation items the council wanted:

1. The Cities and Villages Mutual Insurance Co., not Wausau city government, having final approval of a Winters investigator.

2. Hite being required to give Jacobson all documents concerning the Ruder Ware attorney who represented the city during the Winters ‘behavior investigation.

3. Jacobson reporting to the council, instead of Tipple, until his mayoral term expires.

Tuesday night, the council overrode those vetoes, and moved to officially hire an outside investigator to look into the Winters probe.

Jacobson declined comment for this story.

Tipple and Hite have not responded to NewsChannel 7 Investigates request for an interview.