Weidner vs City of Racine 2 Unsealed Documents by Communicator News

FILED 12-22-2017 Clerk of Circuit Court Racine County 2017CV001644 STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ RESPONDENT CITY OF RACINE’S NOTICE OF MOTION AND MOTION TO FILE ITS BRIEF IN SUPPORT OF ITS MOTION TO QUASH PETITIONER SANDRA WEIDNER’S PETITION FOR WRIT OF MANDAMUS UNDER WISCONSIN STATUTES §§ 783.01, 802.06, AND 802.08 AND AFFIDAVIT OF SCOTT R. LETTENEY IN SUPPORT OF THE CITY OF RACINE’S MOTION TO QUASH PETITIONER SANDRA WEIDNER’S PETITION FOR WRIT OF MANDAMUS UNDER WISCONSIN STATUTES §§ 783.01, 802.06, AND 802.08 AND EXHIBITS ATTACHED THERETO UNDER SEAL ______________________________________________________________________________ PLEASE TAKE NOTICE that the Respondent City of Racine (“City”), by and through its attorneys, Meissner Tierney Fisher & Nichols S.C., moves this Court, pursuant to Wis. Stat. § 801.21, for an order that the City’s Brief in Support of its Motion to Quash Petitioner Sandra Weidner’s Petition for Writ of Mandamus under Wisconsin Statutes §§ 783.01, 802.06, and 802.08 (“Brief in Support of Motion to Quash”) and Affidavit of Scott R. Letteney in Support of the City’s Motion to Quash Petitioner Sandra Weidner’s Petition for Writ of Mandamus under Wisconsin Statutes §§ 783.01, 802.06, and 802.08 (“Affidavit of Scott R. Letteney”) and exhibits attached thereto filed under seal shall remain filed under seal in their entirety until otherwise ordered by the Court. The Court may decide this this motion without a hearing pursuant to Wis. Stat. § 801.21 (3). This motion is based on the following:

1971585.1

Pursuant to Wis. Stat. § 801.21 (2), the Court may seal an entire document to

ensure that confidential and privileged information is not disclosed to the public. 2.

As detailed in the City’s Brief in Support of Motion to Quash, this lawsuit

pertains to underlying attorney-client privileged communications between the City’s City Attorney’s Office and the City Common Council. (Br. in Support of Motion to Quash, passim.) Those communications are noted in the City’s Brief in Support of Motion to Quash and attached to the Affidavit of Scott R. Letteney as Exhibit G. Those communications are privileged and are not accessible to the public. Wisconsin Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 783, 546 N.W.2d 143, 149 (1996) (holding that documents protected by the attorney-client privilege are not accessible to the public through public records law). 3.

Further, much of what is detailed in the City’s Brief in Support of Motion to

Quash and the Affidavit of Scott Letteney pertains to closed session confidential communications between the City’s City Attorney’s Office and the City Executive Committee. (Br. in Support of Motion to Quash, passim; Aff. of Scott R. Letteney, passim).

Those

communications are not accessible to the public because (a) they are protected by the attorneyclient privilege, see Wisconsin Newspress, supra, and (b) they are closed session communications under Wis. Stat. § 19.85. 4.

Finally, the City’s Brief in Support of Motion to Quash and the Affidavit of Scott

Letteney details and names the people involved in the City Attorney’s Office’s request for a Board of Ethics advisory opinion. That request is to be confidential and anonymous in the eyes of the public under Racine Ordinances and the process would lose its anonymity should the Brief in Support of Motion to Quash and Affidavit of Scott Letteney not be sealed. (Br. in Support of Motion to Quash, passim; Aff. of Scott R. Letteney, passim).

2 1971585.1

For these reasons, the City respectfully requests that the Court order that the Brief

in Support of Motion to Quash and Affidavit of Scott R. Letteney and exhibits thereto filed under seal remain under seal in their entirety until otherwise ordered by the Court. Dated this 22nd day of December, 2017. MEISSNER TIERNEY FISHER & NICHOLS S.C.

By: Electronically signed by Michael J. Cohen Michael J. Cohen State Bar No. 1017787 Email: mjc@mtfn.com Dieter J. Juedes State Bar No. 1088880 Email: djj@mtfn.com 111 East Kilbourn Avenue, 19th Floor Milwaukee, WI 53202 Tel: 414-273-1300 Fax: 414-273-5840 Attorneys for Respondent, City of Racine

3 1971585.1

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Page 1 of 20 FILED 01-16-2019 FILED Clerk of Circuit Court 02-05-2018 Racine County

Clerk of Circuit Court 2017CV001644 Racine County

STATE OF WISCONSIN

CIRCUIT COURT

RACINE

644

SANDRA J. WEIDNER, Petitioner, Case No. 17-CV-1644 v. CITY OF RACINE, Respondent.

AMENDED PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF

NOW COMES THE PETITIONER, Sandra J. Weidner, by her attorney, and pursuant to sections 19.37 and 783.01, Wis. Stats., petitions this Court for a writ of mandamus ordering the City of Racine to provide such information to Petitioner as is specified herein and to grant such other requested relief and in support hereof alleges:

Petitioner, Sandra J. Weidner, is an adult resident of the State of Wisconsin, County

of Racine, with a residence address of 2310 Thor Avenue, Racine, Wisconsin

53405.

At all

times material hereto, Weidner was acting in her capacity as a member (alderperson) of the Common Council of the City of Racine and within the scope of her employment, agency, and authority.

The City of Racine (“City’) is a municipal corporation organized and operated under

the laws of the State of Wisconsin, with a principal address of 730 Washington Avenue, Racine, Wisconsin 53403.

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On August 22, 2017, the Common Council Executive Committee met per a request

from City Attorney Scott Letteney “to meet .. in Closed Session, pursuant to Wisconsin Statues section 19.85(l)(h), to consider whether to request confidential written advice from the City of Racine Board of Ethics regarding the applicability of Racine Ordinance Section 2-581(a) to the disclosure of certain confidential information and privileged information, by certain officials, which information was gained in the course of, or by reason of, the officials’ official position or official activities.” 4.

In addition to Executive Committee members, all common council members were

present at the meeting.

During the meeting,

5. Atty. Letteney

Redacted Pursuant to 1.9.19 Ora

Redacted Pursuant to 1.9.19 Oral Decision

received a recommendation from the Executive Committee

that the matter be referred to the City of Racine Ethics Board for an advisory opinion as to whether the alleged disclosures violate that portion of Sec. 2-581(a) of the Ethics Code which prohibits disclosure of confidential or privileged infbrmatioa 6.

Via counsel, Ms. Weidner thereafter notified Atty. Letteney of her position

Redacted Pursuant to 1.9.1

and requested copies of the communications which were the subject of the Executive Committee meeting

Redacted Pursuant to 1.9.19 Oral Decision

(See 9/05/17 correspondence attached as Exhibit A).

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In reply, Atty. Letteney refused to provide copies of any of the subject information,

stating in part: â&#x20AC;&#x153; I cannot comment on the substance of the August 22, 2017 City of Racine Executive Committee meeting to which you refer. Further, such Executive Committee meeting was held in closed session. No person has the authority to reveal matters discussed in closed session.â&#x20AC;? (See email accompanying as Exhibit B attached hereto).

Ms. Weidner, via counsel, thereafter reiterated her request for the information and it

again was denied. {See 10/03/17 correspondence and reply attached hereto as Exhibits C and D).

On October 9, 2017, via counsel, Ms. Weidner requested that the Board of Ethics,

among other requests, authorize disclosure of materials that were submitted to the Board for consideration and advice. (See Exhibit E attached hereto).

Ms. Weidner did not receive a reply

to the request.

10.

The present action was filed on November 29, 2017. On December 4, 2017, City

Attorney Letteney submitted to the City of Racine Ethics Board (via City Clerk), with copies to all City Common Council Members, the formal "Request for Confidential Advisory Opinion." Redacted Pursuant to 1.9.1

The request included 18 emails

Redacted Puisuant to 1.9.19 Oral Decision

11.

, the copies provided via the Advisory Opinion request were redacted (primarily to omit the identities of the senders).

12.

Despite the several prior requests for copies of the documents tliat were the subject

of the City Attorney's request for an advisory opinion -Redacted Puisuant to 1.9.19 Oral Decision 3

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it was not until the present suit was filed that City Atty. Letteney

actually provided copies of 18 of the subject documents to Ms. Weidner (albeit redacted).

13. consider the

On January 25, 2017, the City of Racine Board of Ethics met in closed session to Redacted Pursuant to 1.9.19 Oral Decision

advisory opinion request. As of this filing, Ms. Weidner is not aware

of whether the Board has yet formulated or issued its opinion in the matter.

14.

Per section 2-585 of the City of Racine Ordinances, an individual may request of

the Ethics Board “an advisory opinion regarding the propriety of any matter to which tire person is or may become a party. ...” This mirrors section 19.59(5)(a) of the Wisconsin Statutes, which provides that “[a]ny individual, either personally or on behalf of an organization or governmental body, may request of a .. . municipal ethics board ... an advisory opinion regarding the propriety of any matter to which the person is or may become a party.” The Board “shall review a request for an advisory opinion and may advise the person making the request.” Id.

15.

Ms. Weidner is in effect “a party” to the matters on which

Redacted Pursuant to 1.9.19 Oral Decisio

is seeking

guidance from the City of Racine Ethics Board. As such, fairness and due process dictate that she be allowed to fully participate, with counsel, in any proceedings before the Ethics Board on the City’s submission and to submit materials to the Ethics Board in presentation of her position and to rebut the position of the City, with which she disagrees.

16.

hr order to effectuate her participation, and facilitate due process, it was essential

that the City provide her, as she requested, with copies of any and all documents “

acted Pursuant to 1.9.19 Oral Decision

)

which the City (via Att. Letteney) cited in support ofed“ttd request of the Ethics Board for an advisory Redacted Puisuant to

opinion i

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Ms. Weidner has a clear legal right to receipt of said documents and the City has

a plain and positive duty to provide said information to her. Should she not be allowed such documentation, she will suffer irreparable injury in that she will be deprived of due process of law and unable to adequately present her position - Redacted Pursuant to 1.9.19 Oral Decision and she has no other adequate remedy at law.

18.

The refusal by the City to provide the information requested by Ms. Weidner is

arbitrary and capricious.

WHEREFORE, Petitioner, Sandra J. Weidner, requests:

A writ of mandamus requiring that the City provide her with any and all (A) documentation (information) City Attorney Letteney presented at the August 22, 2017 Executive Committee meeting wherein 1 Redacted Pursuant to 1.9.19 Oral Decision

A writ or order prohibiting the City of Racine Board of Ethics from proceeding (B) request for an advisory opinion until the further with any consideration ofR City has provided Ms. Weidner with the subject documentation and she has been afforded an appropriate opportunity to submit to the Board her position before it on such documentation and her actions relative thereto; edacted Pursuant to 1.9.19 Oral Decision

(C) An order requiring the City of Racine, pursuant to sec. 895.46(1 )(a), Wis. Stats, or as otherwise provided by law, to pay the reasonable attorneyâ&#x20AC;&#x2122;s fees and costs incurred by Ms. Weidner in participating in the Ethics Board inquiry and proceedings initiated by the City via City Attorney Letteney;

(D) An order, pursuant to sec. 19.37(2), Wis. Stats., awarding to Ms. Weidner reasonable attorney's fees incurred in procuring the relief sought herein. 5

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(E) An order, pursuant to sec. 19.37(3), Wis. Stats., awarding to Ms. Weidner punitive damages;

(F)

Such other and further relief die Court deems just, proper, and equitable.

Dated this 5th day of February, 2018.

KNUTESON, HINKSTON & QUINN, S.C. Attorneys for Petitioner, Sandra J. Weidner

Electronically signed by Mark R. Hinkston By: Atty. Mark R. Hinkston (State Bar No. 1022427) Address: 500 College Avenue Racine, WI 53403 Phone: (262) 633-2000 (262)633-9900 Fax:

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Knutesoru Hinkston & Quinn, S.C. - a limited liability organization -

Attorneys at Law Of Counsel: John W, Knutcson, J.D., C.P.A. Mark R. Hinkston, J.D.

500 College Avenue Racine, WI 53403-1058

Telephone: 262-633-2000 Facsimile: 262-633-9900 E-mail: khq@khQlaw.com

Mark Lukoff, S.C. Circuit Court Commissioner

Matthew H. Quinn, Retired John V. Casanova, J.D. (1925-2010)

September 5, 2017 Via Email [scott.letteney@cityofracine.org] and Hand-Delivery Atty. Scott Letteney City Attorney Racine City Attorney's Office 730 Washington Ave Racine WI 53403-1146

Re:

8/22/17 Executive Council Meeting (regarding pursuit of opinion from Board of Ethics)

Dear Attorney Letteney: I represent Sandy Weidner and write on her behalf in regard to your efforts to seek an advisory opinion from the City of Racine Board of Ethics. Please direct any reply and any further communications regarding this to my attention. Neither the sending of this communication nor anything contained herein shall be construed as a waiver of any right to confidentiality of subject matter or identity. Furthermore, this is not intended in any manner to be a dissemination to the public constituting any sort of consent to disclosure that Ms. Weidner is in any manner connected to or the subject of your request for Ethics Board advice. I am aware that on August 22, 2017, the Common Council Executive Committee met regarding a “Communication from [you] to meet with the Executive Committee, in Closed Session, pursuant to Wisconsin Statues section 19.85(l)(h), to consider whether to request confidential written advice from the City of Racine Board of Ethics regarding the applicability of Racine Ordinance Section 2-581(a) to the disclosure of certain confidential information and privileged information, by certain officials, which information was gained in the course of, or by reason of, the officials’ official position or official activities.” I understand from Alderman Weidner that, in addition to Executive Committee members, all common council members were present (at your specific invitation). During the meeting, you

Exhibit A

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September 5, 2017 Page 2 Redacted Pursuant to 1.9.19 Oral Decision

You received a recommendation from the Executive Committee that the matter be referred to the City of Racine Ethics Board for an advisory opinion as to whether the alleged disclosures violate that portion of Sec. 2-581(a) of the Ethics Code which prohibits disclosure of confidential or privileged information. Redacted Pursuant to 1.9.19 Oral

It was Aid. Weidner’s presumption that the Executive Committee recommendation would be put to a vote at this evening’s Common Council meeting, but the agenda makes no reference to the matter. In view of this, it is our presumption that you are circumventing final council approval and intend on proceeding directly to the Ethics Board. On Ms. Weidner’s behalf, I am expressing objection to opinion on this matter.

Redacted Purs

pursuit of an Ethics Board advisory

As you know, the City Code specifies two procedures whereby the Board of Ethics may consider the ethics of certain actual or proposed conduct. First, per Section 2-584, the Board may accept a verified complaint in writing that specifies “the activities of such officer or employee which are alleged to be in violation of the code of ethics.” If the Board finds probable cause that an ethics violation exists, it is to hold a hearing and ultimately make a written determination as to the existence of a violation and what action, if any, should be taken. Second, per section 2-585, an individual may request of the Board “an advisory opinion regarding the propriety of any matter to which the person is or may become a party. . . . j

Redacted Pursuant to 1.9.19 Oral Decisiot

According to Ms. Weidner, at the Executive Committee meeting youRedacted Pursuant to 1919 Oru fcdsim

'Per section 19.59(5)(a) of the Wisconsin Statutes, “[a}ny individual, either personally or on behalf of an organization or governmental body, may request of a ... municipal ethics board ... an advisory opinion regarding the propriety of any matter to which the person is or may become a party.” The Board “shall review a request for an advisory opinion and may advise the person making the request. No one “may make public the identity of an individual requesting an advisory opinion or of individuals or organizations mentioned in the opinion.” A city council may convene in closed session to consider requests for confidential written advice from a municipal ethics board under s. 19.59 (5)). (sec. 19.85(h), Wis. Stats.).

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September 5, 2017 Page 3

The advisory opinion route appears to be intended to allow a city official or employee an opportunity to obtain an opinion about whether something can or cannot be done - to get guidance beforehand. This would not appear to be your intent. Redacted Pursuant to 1.9

instead using the advisory opinion process to have the Ethics Board look at actions that have already occurred. The problem in using the advisory opinion track in this way is that in doing so, you are as a practical matter treating this as a prosecution. You are not affording the “accused” an opportunity to give their input or insight or in any way defend their actions. Redacted Pursuant to 1.9.19 Oral Decision

It is because of this that I am copying the Ethics Board and asking that Ms. Weidner be allowed to participate and fully give her position. Per section 19.59(5)(a) of the Wisconsin Statutes, “[a]ny individual, either personally or on behalf of an organization or governmental body, may request of a .,. municipal ethics board... an advisory opinion regarding the propriety of any matter to which ethics the person is or may become a party.” Because Ms. Weidner is the primary target ofR inquiry, she is a party to the matter and should be allowed to participate in the process. edacted Purs

At the closed Executive Committee session, you Redacted Pursuant to 1.9.19 Oral Decision On Ms. Weidner’s behalf, I ask that she is provided those materials so that she may appropriately and adequately give her position on each of the items Redacted Pursuant to 1.9.19 Oral Decision Redacted Pursuant to 19 19 Oral Decision

Sec. 2-581 (a) (“Prohibited conduct”), which provides in part: “Violation of work rules. Appointed officials and employees . . . shall not disclose confidential information or privileged information gained in the course of, or by reason of his/her official position or official activities.” Redacted Pursuant to 1.9.19 Oral Decision

At the Executive Committee meeting you

Redacted Pursuant to 1.9.19 Oral Decision

The definitions in section 2-578 of the Ethics Code are quite broad. “Confidential information” means written material or oral information related to city government, which is not otheiwise subject to the public records law and which is expressly designated or marked as confidential. (Sec. 2-578). “Privileged information” means information obtained under government authority which has not become a part of the body of public information. (Sec. 2-578).

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September 5, 2017 Page 4

The Racine Code of Ethics does not specify or discuss what is meant by “attorney-client privileged.”2 The general rule of attorney-client privilege set forth in sec. 905.03(2) of the Wisconsin Statutes provides that “[a] communication is “confidential" in this [attorney-client] context if not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” (sec. 905.03(l)(d)). As I understand it, the City has not given the Common Council any insight into what is considered confidential or privileged, especially as it relates to the attorney-client privilege. The Alderman’s Handbook contains no guidance. There have been no seminars or presentations. It also does not appear that the Board of Ethics has guidelines that shed sufficient light on confidential and privileged information so as to allow officials to get clear guidance on this issue, although it is required to “adopt guidelines and procedures necessary to cany out the provisions of this chapter and shall promptly advise the affected officers and employees thereof.” (Sec. 2-584(a)). You appear to believe

Redacted Pursuant to 1.9.19 Oral Decision

To countenance and support such a position will cause each and every alderperson to err on the side of seeking review and guidance on what they can and cannot share. Some may choose to reject even requests for the most clearly mundane information, rather than face potential inquiry and punishment. All in all, it will have a chilling effect on each and every aldcrperson’s efforts to adequately and fully serve their constituencies. Redacted pursuant to l9.19 Oral Dedsion not all communications between a lawyer and client arc privileged; only communication made in confidence to an attorney for the purpose of obtaining legal advice is protected. United States v. Weger, 709 F.2d 1151, 1154 (7th Cir. 1983). In other words, merely because a communication is between an attorney and client does not mean it is privileged: “A mere showing that the communication was from a client to his [or her] attorney is insufficient to warrant a finding that the communication is privileged.” Jax v. Jax, 73 Wis. 2d 572, 243 N.W.2d 831 (1976). The party claiming the privilege bears the burden to prove each of the elements.

Redacted Pursuant to 1.9.19 Oral Decision

The first task they would face would be to determine whether the document is indeed attorney-client privileged.

2The City of Racine Employee Handbook (Section 6.12 SOCIAL MEDIA POLICY) provides in part: “Employees may not disclose any confidential information... obtained in the course of their employment. Confidential information is defined as information disclosure which is prohibited by federal, state, or local law, personal health information of other's, non-public law enforcement records, attorney-client privileged information, or other similar types of information.” It does not, however, define attorney-client privilege.

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September 5, 2017 Page 5

In the municipal context, the attorney-client parameters are often not as clear cut as they are in the private setting. Added to this is the fact that Council Members must often balance between the competing interests of transparency in government in order to serve the best interests of their constituents and the preservation of confidentiality that in some contexts must be maintained by their employing municipality. “The circumstances under which the attorney-client privilege applies in a municipal setting is far from clear.” Goodman and Zabokrtskya, The Attorney-Client Privilege and The Municipal Lawyer, 48 Drake L. Rev. 655, 676 (2000). This unclarity, the vagueness of the City Ordinance Redacted Pursuant to i919 oral Decision and qie fact that the City of Racine has done little if anything to educate

the Common Council on the standards, support a conclusion that there have not been sufficiently obvious and clear ethical violations to support Ethics Board involvement. The timing 0fR“““d P“" request of the Ethics Board and your approach - summoning the entire council before the Executive Committee - must be questioned. Nonetheless, Ms. Weidner looks forward to defending against Red"dP“‘asserti ons, albeit in the misplaced context of an Ethics Board Advisory Opinion request. To effectively do so, Ms. Weidner should be provided copies of the subject communications involving her forthwith so that she may participate in the process. I look forward to your prompt reply. Sincerely,

Mark R. Hinkston cc: City of Racine Board of Ethics City of Racine Common Council (_CH_ALD@cityofracine. org)

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Subject:

RE: Board of Ethics Inquiry

From:

Letteney, Scott (Scott.Letteney@cityofracine.org)

To:

mhinkston@sbcglobal.net;

Cc:

CH_ALD@cityofracine.org; mwyant@wyantlaw.com; lmurphy@glr-law.com; rmozol@att.net; Ernestnia@gmail.com; norma@bwoinsurance.com; James.Palenick@cityofracine.org; Nicole.Larsen@cityofracine.org;

Date:

Wednesday, September 6, 2017 8:53 AM

Attorney Hinkston,

I am in receipt of your September 5, 2017 correspondence. Inasmuch as I am bound by attorney-client confidentiality, I cannot comment on the substance of the August 22, 2017 City of Racine Executive Committee meeting to which you refer. Further, such Executive Committee meeting was held in closed session. No person has the authority to reveal matters discussed in closed session.

For future reference, the City Attorney does not have the ability to call a meeting of the Executive Committee. Only the Mayor has such authority. Further, because the Executive Committee is a subunit of the City of Racine Common Council, all members of the Common Council have the privilege to attend an Executive Committee meeting. It has been my experience that all Common Council members are invited to attend such meetings.

SCOTT R. LETTENEY City Attorney City of Racine, Wisconsin

City Attorneyâ&#x20AC;&#x2122;s Office 730 Washington Avenue Room 201 Racine, Wisconsin 53403 (262)636-9115

Exhibit B https://mail.yahoo.com/

11/28/2017

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Fax: (262) 636-9570 scott. letteneyfricitvofracine. or»

PRIVILEGE AND CONFIDENTIALITY NOTICE. This electronic transmission may contain work-product or information protected under the attorney-client privilege, both of which are protected from disclosure. This message is intended exclusively for the individual or entity to which it is addressed. If you are not the named addressee, you are not authorized to read, print, retain, copy, or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail or telephone at (262) 636-9115, and delete or destroy all copies of the message. APPLICABILITY OF WISCONSIN PUBLIC RECORDS LAW. The City of Racine is subject to the Wisconsin Public Records law. Unless otherwise exempted from the public records law, senders and receivers of City of Racine e-mail should presume that e-mail is subject to release upon request and is subject to state records retention requirements. “I cannot give you the formula for success, but I can give you the formula for failure, which is: Try to please everybody.” Herbert W. Swope

From: Mark Hinkston [mailto:mhinkston@sbcglobal.net] Sent: Tuesday, September 5, 2017 3:33 PM To: Letteney, Scott <Scott.Letteney@cityofracine.org> Subject: Board of Ethics Inquiry

Please see accompanying.

https://mail.yahoo.com/

11/28/2017

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Knuteson. Hinkston & Quinn, S.C. - a limited liability organization -

Attorneys at Law Of Counsel: John W. Knuteson, J.D., C.P.A. Mark R. Hinkston, J.D.

500 College Avenue Racine, WI 53403-1058 Telephone: 262-633-2000 Facsimile: 262-633-9900 E-mail: khq@khqlaw.com

Mark Lukoff, S.C. Circuit Court Commissioner

Matthew H. Quinn, Retired John V. Casanova, J.D. (1925-2010)

October 3, 2017 Via Email [scott.letteney@cityofracine.org] Atty. Scott Letteney City Attorney Racine City Attorney's Office 730 Washington Ave Racine WI 53403-1146

Re:

Pursuit of opinion from Board of Ethics

Dear Attorney Letteney: I reply to your 9/06/17 emails to myself and the Council (also copied to Board of Ethics). As noted in my initial communication, neither the sending of this communication nor anything contained herein shall be construed as a waiver of any right to confidentiality of subject matter or identity. Furthermore, this is not intended in any manner to be a dissemination to the public constituting any sort of consent to disclosure that Ms. Weidner is in any manner connected to or the subject of your request for Ethics Board advice. While you did not address my specific request that you provide Aid. Weidner with the communications Redacted Pursuant to 1.9.19 Oral Decision, you did state that â&#x20AC;&#x153;[n]o person has the authority to reveal matters discussed in closed session.â&#x20AC;? I interpret that as a refusal to cooperate and voluntarily provide copies of the items. It is indeed true

Redacted Pursuant to 1.9.19 Oral Decision

Exhibit C

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October 3, 2017 Page 2

Providing Aid. Weidner with copies of the communications Redacted Pursuant to 1.9.19 Oral Decision no! a prohibited â&#x20AC;˘'cvdalio:; when, you Redacted Pursuant to 1.9.19 Oral Decision

At the very least, we would ask that you identify and specify via list form the ethics inquiry so that, as stated in my initial letter, communications that are the subject of Aid. Weidner is able to meaningfully participate in the Board of Ethics process. edacted Purs

Redacted Pursuant to 1.9.19 Oral Decision In the broadest terms, this entails two facets: the underlying allegedly privileged communications and the communications by which the allegedly privileged communications were disclosed. Thus, at the very least we would ask that you provide a list identifying: (a) the allegedly privileged communications disseminated by Aid. Weidner; and (b) the communications from her whereby she allegedly unlawfully disclosed such information. It is undisputed that Aid. Weidner received the underlying (allegedly privileged) communications Merely identifying those and you Redacted Pursuant to 1.9.19 Oral Decision communications now seems to be a fair compromise that would allow Aid. Weidner meaningful participation while preserving the sanctity and confidentiality of both the Executive Committee proceedings and the Board of Ethics process. In the meantime, I object to your inaccurate representation that in copying the Board of Ethics, I have somehow attempted to subvert the process. On the contrary, as noted initially, as the primary ethics inquiry, Aid. Weidner has the right to participate in this process. It is her target ofR desire and intention to do so, with me as her legal counsel. The only meaningful way for her to participate is to have a full and accurate identification of all items that are the subject of inquiry. edacted Purs

Redacted Purs

I thank you for your anticipated time in considering our request and look forward to prompt receipt of the requested information. Sincerely,

Mark R. Hinkston cc: City of Racine Board of Ethics Racine Common Council

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Subject:

RE: Board of Ethics Advisory Opinion

From:

Letteney, Scott (Scott.Letteney@cityofracine.org)

To:

mhinkston@sbcglobal.net;

Cc:

CH_ALD@cityofracine.org; mwyant@wyantlaw.com; lmurphy@glr-law.com; rmozol@att.net; Ernestnia@gmail.com; norma@bwoinsurance.com; James.Palenick@cityofracine.org; Nicole.Larsen@cityofradne.org;

Date:

Tuesday, October 3, 2017 5:13 PM

Attorney Hinkston,

Inasmuch as I am bound by attorney-client confidence and by the confidentiality of a Closed Meeting, I cannot, and do not, comment on anything contained in your correspondence.

The City of Racine Executive Committee has directed me to act in their behalf in a very specific manner. The City of Racine Common Council affirmed the Executive Committeeâ&#x20AC;&#x2122;s direction. I have no discretion to act in a different manner.

SCOTT R. LETTENEY City Attorney City of Racine, Wisconsin

City Attorneyâ&#x20AC;&#x2122;s Office 730 Washington Avenue Room 201 Racine, Wisconsin 53403 (262) 636-9115 Fax: (262) 636-9570 s c ot i. 1 et t en ev to' c i tyo fra c i n e. o r a

Exhibit D https://mail.yahoo.coin/

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PRIVILEGE AND CONFIDENTIALITY NOTICE. This electronic transmission may contain work-product or information protected under the attorney-client privilege, both of which are protected from disclosure. This message is intended exclusively for the individual or entity to which it is addressed. If you are not the named addressee, you are not authorized to read, print, retain, copy, or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail or telephone at (262) 636-91 15, and delete or destroy all copies of the message. APPLICABILITY OF WISCONSIN PUBLIC RECORDS LAW. The City of Racine is subject to the Wisconsin Public Records law. Unless otherwise exempted from tire public records law, senders and receivers of City of Racine e-mail should presume that e-mail is subject to release upon request and is subject to state records retention requirements. â&#x20AC;&#x153;I cannot give you the fonnula for success, but I can give you the formula for failure, which is: Try to please everybody.â&#x20AC;? Herbert W. Swope

From: Mark Hinkston [mailto:mhinkston@sbcglobal.net] Sent: Tuesday, October 3, 2017 1:36 PM To: Letteney, Scott <Scott.Letteney@cityofracine.org> Subject: Board of Ethics Advisory Opinion

Please see accompanying.

Atty. Mark R. Hinkston Knuteson, Hinkston & Quinn, S.C. 500 College Avenue Racine, WI 53403 (262) 633-2000

https://mail.yahoo.com/

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Knuteson, Hinkston & Quinn, S.C. a limited liability organization

Attorneys at Law Of Counsel: John W. Knuteson, J.D., C.P.A. Mark R. Hinkston, J.D.

500 College Avenue Racine, WI 53403-1058

Telephone: 262-633-2000 Facsimile: 262-633-9900 E-mail: khq@khqlaw.com

Mark Lukoff, S.C. Circuit Court Commissioner

Matthew II. Quinn, Retired John V. Casanova, J.D. (1925-2010)

October 9, 2017 City of Racine Board of Ethics 730 Washington Ave Racine WI 53403-1146 Re:

Executive Committee Request for Advisory Opinion

Dear Ethics Board Members: I represent Sandy Weidner and write on her behalf in regard to the recent request for an advisory opinion from your Board. You will recall that I copied you on my correspondence with the City Attorney. Redacted Pursuant to 1.9.19 Oral Decision

Neither this submission nor anything contained herein shall be construed as a waiver of any right to confidentiality of subject matter or identity. Furthermore, this is not intended in any manner to be a dissemination to the public constituting a consent to disclosure that Ms. Weidner is in any manner connected to or the subject of the City Attorney’s request for Ethics Board advice. As noted in prior correspondence, on August 22,2017, the Common Council Executive Committee met regarding a “Communication from the City Attorney to meet with the Executive Committee, in Closed Session, pursuant to Wisconsin Statues section 19.85(l)(h), to consider whether to request confidential written advice from the City of Racine Board of Ethics regarding the applicability of Racine Ordinance Section 2-581(a) to the disclosure of certain confidential information and privileged information, by certain officials, which information was gained in the course of, or by reason of, the officials’ official position or official activities.” All Executive Committee and Common Council members attended. During the meeting,

Exhibit E

Redacted Purs

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October 9, 2017 Page 2

HcRedac”d f»~*i.ri9 o,,. rcccjvcci a rccommcndation from the Executive Committee that the matter be referred to the City of Racine Ethics Board for an advisory opinion as to whether the alleged disclosures violate that portion of Sec. 2-581(a) of the Ethics Code which prohibits disclosure of confidential or privileged information. More specifically, at the meeting, the Executive Committee formally recommended “[t]hat the Executive Committee request from the City of Racine Ethics Board an advisory opinion regarding the propriety of the sharing of attorney-client confidential communications by certain aldcrpcrsons of the City of Racine.” Despite the meeting being in closed session, the fact of the referral was disclosed and made public via its inclusion on the agenda for the September 20, 2017 Common Council meeting. I wrote to City Attorney Letteney on two occasions subsequent to the August 22nd meeting to request identification of the items which are the subject ofta“c,'d advisory opinion request. On both occasions, he refused. In his latest email of October 3, 2017, he stated: Attorney Hinkston, Inasmuch as I am bound by attorney-client confidence and by the confidentiality of a Closed Meeting, I cannot, and do not, comment on anything contained in your correspondence. The City of Racine Executive Committee has directed me to act in their behalfin a very specific manner. The City of Racine Common Council affirmed the Executive Committee’s direction. I have no discretion to act in a different manner.

We presume that Atty. Letteney has now formally submitted the request to your Board, ostensibly with the communications that"*"" seeks an advisory opinion on. Per section 2-585, an individual may request of the Board “an advisory opinion regarding the propriety of any matter to which the person is or may become a party. ...” This mirrors section 19.59(5)(a) of the Wisconsin Statutes, which provides that “[a]ny individual, either personally or on behalf of an organization or governmental body, may request of a ... municipal ethics board . .. an advisory opinion regarding the propriety of any matter to which the person is or may become a party.” The Board “shall review a request for an advisory opinion and may advise the person making the request. No one “may make public the identity of an individual requesting an advisory opinion or of individuals or organizations mentioned in the opinion.” Id. Ms. Weidner is an interested party to the proceedings before your Board in that she is in effect “a party” to the matters on which Redacted Pursuant to 1.9.19 Oral Decision:. As Such, WC believe that it is fair and just to allow her to participate, with counsel, in any proceedings before your Board on the

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October 9, 2017 Page 3 Cityâ&#x20AC;&#x2122;s submission and to submit materials to your Board in presentation of her position and to rebut the position of the City, with which she disagrees. Toward this end, we would request that the Board: (1)

Authorize disclosure to Ms. Weidner and myself, as her counsel, of all materials submitted to the Board for consideration and advice; and

(2)

Allow Ms. Weidner to submit to the Board her position, both in writing and via participation in any hearings or meetings convened by the Board and, toward this end, specify a procedure and deadline for any submissions.

As you are aware, the special election for Racine Mayor is set for October 17, 2017. Ms. Weidner of course is, with Mr. Mason, one of two vying for the position. Although the advisoiy opinion process is by statute deemed confidential and we have no doubt that the Ethics Board recognizes this and will honor that mandate, we are nonetheless concerned that the City Attorney may seek or push for the Board to issue its advisory opinion in advance of the election. While we trust that, in compliance with State law, any opinion would not specifically identify Ms. Weidner, we are concerned that if an opinion is issued and received by City representatives, its mere issuance and potential dissemination will potentially impact the upcoming election. Thus, we would respectfully request that the Board defer any proceedings (and ultimate opinion) until following the election in 8 (eight) days. Deferring the matter for a short period of time will also afford the Board the opportunity to consider Ms. Weidnerâ&#x20AC;&#x2122;s request to participate and allow her sufficient time to prepare submissions and participate, as she should be allowed to do under the circumstances. Thank you for your consideration of the foregoing. Sincerely,

Mark R. Hinkston cc: City Attorney Scott Letteney City of Racine Common Council (CH_ALD@cityofracine.org)

FILED 02-08-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ ORDER ______________________________________________________________________________ On February 5, 2018, the Court held a hearing to address, inter alia, the Respondent City of Racine’s (“City”) motion for an order that the City’s Brief in Support of its Motion to Quash Petitioner Sandra Weidner’s Petition for Writ of Mandamus under Wisconsin Statutes §§ 783.01, 802.06, and 802.08 (“Brief in Support of Motion to Quash”) and Affidavit of Scott R. Letteney in Support of the City’s Motion to Quash Petitioner Sandra Weidner’s Petition for Writ of Mandamus under Wisconsin Statutes §§ 783.01, 802.06, and 802.08 and exhibits attached thereto (“Affidavit of Scott R. Letteney”) filed under seal shall remain filed under seal in their entirety until otherwise ordered by the Court (the “Motion”). Petitioner Sandra J. Weidner appeared by Mark Hinkston of Knuteson, Hinkston & Quinn, S.C. The City of Racine appeared by Michael Cohen and Dieter Juedes of Meissner Tierney Fisher & Nichols S.C. Petitioner Sandra J. Weidner did not object to the granting of the Motion. For the reasons stated on the record, the Court grants the City’s Motion and Orders as follows:

1993533.1

The Cityâ&#x20AC;&#x2122;s Brief in Support of Motion to Quash and Affidavit of Scott R.

Letteney and exhibits thereto filed under seal shall remain under seal in their entirety until otherwise ordered by the Court; 2.

Counsel for Petitioner Sandra Weidner shall have access to all pleadings filed

under seal, including the exhibits thereto, and may share copies of all such pleadings, including the exhibits thereto, with Petitioner Sandra Weidner; 3.

Any pleadings and the contents thereof filed under seal or ordered sealed in this

lawsuit, including the exhibits thereto, may not be shared or disseminated by the parties or their counsel to non-parties to this lawsuit until otherwise ordered by the Court; and 4.

The contents of any hearings in this matter that have been closed to the public

may not be shared or disclosed by the parties or their counsel to non-parties to this lawsuit until otherwise ordered by the Court.

Dated this 8th day of February, 2018 BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

2 1993533.1

FILED 02-13-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ ORDER ______________________________________________________________________________ On February 13, 2018, the Court held a teleconference with counsel for Petitioner Sandra J. Weidner and counsel for Respondent City of Racine.

As discussed during the

teleconference, the Court Orders as follows: 1.

Any pleadings, including exhibits thereto, previously filed in this lawsuit and not

previously sealed shall be immediately sealed in their entirety until otherwise ordered by the Court. 2.

Any pleadings, including exhibits thereto, hereinafter filed in this lawsuit shall be

filed under seal and shall remain under seal in their entirety until otherwise ordered by the Court.

Dated this 13th day of February, 2018 BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

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FILED FILED 02-28-2018 01-16-2019 Clerk Circuit Court Clerk of of Circuit Court Racine County Racine County

2017CV001644 STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 ______________________________________________________________________________

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. __ ______________________________________________________________________________

D E L A

NDENT’S MOTION PETITIONER’S BRIEF IN OPPOSITION TO RESPONDENT’S EN F MANDAMUS TO QUASH PETITION FOR WRIT OF _ ____________________ __________________ _____________________________________________ _______________________________ DUCTION INTRODUCTION This case arises from the

Redacted Pursuant to 1 9 19 Oral Decision

pursuit suit of aan advisory opinion from the

rd that certain email disclosures disclosure Redacted Pursuant to 1.9.19 Oral Decision City of Racine Ethics Board violated the Racine unlawful dissemination of confidential or privileged ine Code of Ethics as uunlawf he City A Attorney launch the matter via an Executive Committee meeting wherein information. The torney launched

Redacted Pursuant to 1.9.19 Oral Decision Despite its current admonition that the process was to be confidential and anonymous, and despite no apparent reasonable justification for doing so, at the meeting

Redacted Pursuant to 1.9.19 Oral Decision

Upon the Executive Committee’s recommendation that the advisory request proceed, and the Common Council’s approval thereof, Petitioner hired counsel. After Petitioner’s requests (via counsel) for the documents that moored the City’s advisory request were denied, she initiated this action. 1

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Because the following reflects that Petitioner states a valid claim for mandamus relief, Respondent’s motions should be denied.1 FACTUAL BACKGROUND The accompanying Affidavit of Sandra J. Weidner sets forth this matter’s extensive factual background.

In summary, Petitioner Sandra J. (“Sandy”) Weidner has been a City of Racine

alderman since 2000. (Weidner Aff., ¶ 2). On August 22, 2017, the City of Racine Executive Committee, at the City Attorney’s behest, convened “in closed session pursuant to Wisconsin tial al written adv Statutes Sec. 19.85(1)(h), to consider whether to request confidential advice from the City ty y Attorn Attorney Redacted Pursuant to 1.9.19 Oral Decision of Racine Board of Ethics.” More specifically, the City

(Id., ¶ 9). At the meeting,

Redacted Pursuant to 1.9.19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision Redacted Pursuant to 1.9.19 Oral Decision

(Weidner Aff., ¶¶ 18-

19). A motion to Redacted Pursuant to 1.9.19 Oral Decision passed and was confirmed by the Common Council.

Due to many concerns, and a desire to have copies of the records that the City was

relying on to support its accusations of unethical behavior, Petitioner hired counsel. Thereafter,

Without conceding validity to any of Respondent’s claims or assertions, Petitioner opts at this juncture to pursue only its claim for mandamus relief as to the documents (and not the Ethics Board process) and claim for attorney’s fees and costs under the Open Records Act.

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on her behalf, counsel made two separate requests for the records, but was denied. (Weidner Aff., ¶¶ 27-28, 35-37, 39). Petitioner then filed the instant suit to obtain the records. Within days of commencement, and on the same day as the City was served, the City Attorney reversed course and provided to Petitioner a copy of the subject communications that he was submitting to the Ethics Board for

Redacted Pursuant to 1.9.19 Oral Decision

review (

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docum Petitioner seeks a writ mandating that the City provide her with the documents underlying nd ccosts osts unde der § 19.37(2), 7(22), Wis. Stats. of the City’s advisory opinion request and attorney’s fees and under 19.37

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the Open Records Act.

ARGUME ARG MENT AR UM NT

PETITIONER NER ER STATES A CLAIM FOR FO MANDAMUS RELIEF UNDER THE OPEN EN RECORDS LAW. LA A.

Nature of a Manda Mandamus Claim Under the Open Records Law.

r’s primary cla c im in this matter is that she is entitled to a writ of mandamus asking Petitioner’s elea of the subject documents. Section 19.37, Wis. Stats. provides that “[i]f the Court to order release an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made,” the requester may “bring an action for mandamus asking a court to order release of the record.” Consideration of Respondent’s motions requires the Court to interpret and apply Wisconsin’s Open Records Law -- §§ 19.31 through 19.39, Wis. Stats. In doing so, it must be mindful that the open records law must be construed "in every instance with a presumption of complete public access, consistent with the conduct of governmental business." State ex rel. Milwaukee Police Ass'n v. Jones, 2000 WI App 146, ¶ 11, 237 Wis. 2d 840, 615 N.W.2d 190.

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Petitioner, Via Counsel, Made a Viable Open Records Request.

Under the Open Records Law, “[e]xcept as otherwise provided by law, any requester has a right to inspect any record.” § 19.35, Wis. Stats. Pursuant to the open records law, a request directed at an authority is sufficient if it reasonably describes the requested record or the information requested. § 19.35(1)(h), Wis. Stats. Via correspondence of 9/05/17 Petitioner (via counsel) sought copies of the communications that were the subject of the

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Redacted Pursuant to 1.9.19 Oral Decision

equest quest for an advisory a request opinion.

inadeq inad Respondent does not contend that Petitioner’s requestss ((via counsel) were inadequate in form.

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stt to contain any "magic words" nor does it prohibit Nonetheless, the law does not require a request Elkhorn, 2002 WI App 330 the use of any words. ECO, Inc. v. City of Elkhorn, 302, ¶ 23, 259 Wis.2d 276, 655 N.W.2d 510.

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ugh gh it contained no specific magic ma Even though words (and concededly no specific

Law Petitioner’s Petitioner etit reference to the Open Records Law), request (via counsel) adequately apprised the red records. City of the desired

bject matter, mat matt As for subject the requested documents for the most part consist of emails transmitted to and from Petitioner via the City’s computer system and, as such, are “records” as that term is defined under the law. See Schill v. Wisconsin Rapids Sch. Dist., 2010 WI 86, ¶ 152, 327 Wis. 2d 572, 786 N.W.2d 177 (Bradley, J., concurring)(E-mail sent or received on an authority’s computer system is a “record”). Petitioner, via counsel, was a legally-recognized “requester” under the law. See § 19.32(3), Wis. Stats. (generally defining “requester” as “any person who requests inspection or copies of a record”).

The City is an “authority” and the City Attorney is the proper legal custodian as to the

subject records. §§ 19.32(3), Wis. Stats.

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The City Provided Insufficient Excuses For Non-Release.

Upon receipt of the request, the City was obligated to “as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor.” § 19.35(4), Wis. Stats. If a custodian decides to withhold records, it must state specific reasons for the refusal. Osborn v. Board of Regents of Univ. of Wis. Sys., 2002 WI 83, ¶ 16, 254 Wis.2d 266, 647 N.W.2d 158. Here, City Attorney Letteney refused to provide copies of any of the subject information,

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dentiality, entiality, I can stating in part: “Inasmuch as I am bound by attorney-client confidentiality, cannot comment on ecutive Committee meeting meetin to which you the substance of the August 22, 2017 City of Racine Executive

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eting ting was held in closed session. session No person has the refer. Further, such Executive Committee meeting session (Weidner (Weiddner Aff., A ¶ 37). authority to reveal matters discussedd in closed session.”

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17, 7, City Attorney Letteney again agai refused the request, again referencing On October 3, 2017, “confident “attorney-client confidence” and the “confi “confidentiality of a Closed Meeting”: “Inasmuch as I am -client confidence aand by the confidentiality of a Closed Meeting, I cannot, and bound by attornney--client anythin contained in your correspondence.” (Weidner Aff., ¶ 39). do not, comment onn anything In a mandamus action, a court is not to consider reasons for withholding documents that were not asserted by the custodian. See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979)(stating that it is not the court's role to consider reasons for not allowing inspection that were not asserted by the custodian.). See also Oshkosh Nw. Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 484, 373 N.W.2d 459 (Ct. App.1985) ("Where inspection is denied, it is the custodian, not the attorney representing the governmental body after a mandamus action is commenced, who must give specific and sufficient reasons for denying inspection.").

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The City’s initial refusal based on simple references to “attorney-client privilege” and “closed meeting confidence” were insufficiently specific under the Open Records law. Oshkosh Nw. Co., supra, 125 Wis.2d at 485 (noting that the mere citation to an exemption statute is not specific enough to successfully withhold a record). In his Affidavit, Atty. Letteney more specifically and broadly elaborates that the City’s declination was because: “(1) those communications were and are privileged communications p between the City and its attorneys and Attorney Hickston [sic] is an outside party to that privilege;

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ntial iall and anonymous anony and (2) the ethics opinion process was intended to be a confident process in nst allegations th that would not specifically which Alderman Weidner had no rights to defend against

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Letteney yA ff ¶ 12). The Court reference her and for which she could not face any discipline.” ((Lett ney Aff., ost hoc “beef beef up up” their bases. should not countenance the city’s attempt empt to nnow ppost D.

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Thee City Fails To Overcome Release Presumption.

9.36(1), Wis. Stats. (“Limitations (“Lim (“Limitatio upon access and withholding”) exempts from Section 19.36(1), ny y record which is spec disclosure “[a]ny specifically exempted from disclosure by state or federal law or ffrom disclosure by state law….” The City has the burden to overcome authorized to be exemptedd fr the presumption in favor of releasing the subject records by showing that an exemption applies. See Fox v. Bock, 149 Wis.2d 403, 416, 438 N.W.2d 589 (1989). 1.

There Is No “Closed Meeting Confidentiality” Exemption.

The City fails to show that it has the benefit of a valid “closed meeting confidentiality” exemption. None exists under Wisconsin law. See Wisconsin State Journal v. University of Wisconsin-Platteville, 160 Wis.2d 31, 38, 465 N.W.2d 266 (Ct.App.1990)("[i]t does not follow that, simply because meetings were properly closed under sec. 19.85(1)(f), Stats., documents compiled in conjunction with those meetings are exempt from disclosure under sec. 19.35(1)”);

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Zellner v. Cedarburg School District, 2007 WI 53, ¶ 48, 300 Wis.2d 290, 731 N.W.2d 240 (holding that although the subject meeting "was closed to the public, it does not follow that records which were compiled in conjunction with that meeting are automatically exempt from release under the Open Records Law”). Petitioner revealed the purpose of her request

to obtain the documents so that she could

adequately apprise the Ethics Board of her position. The City tries to use the purpose to bolster its “closed meeting confidentiality” basis by now stating that it in essence applied to the whole process

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sory ory process. But the City had from Executive Committee meeting through Ethics Board advisory an obligation to produce the documents under the Open Records law irrespective oof th that, evidenced

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ott give ggive a reason ason for his or her request r in the law’s mandate that a requester need not to inspect a public record. § 19.35(1)(i), Stats.

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ose did somehow come into play to broaden the “closed session Even if the purpose inevita confidentiality” context, adding the inevitable Ethics Board proceedings into the fray does not xemption upon which the City may rely. It is true that Wisconsin law imposes create a valid exemption exe certain confidentialityy restrictions with respect to the identities of individuals involved in a particular opinion. Sec. 19.59(5)(b), Wis. Stats. But the City cites no law (nor can it) that specifically provides that documents are shielded by a “closed meeting confidentiality” exemption because they will be or have been considered by an Ethics Committee in conjunction with its consideration of a request for an advisory opinion. 2.

The City Fails To Show That the Subject Documents Are In Fact “Attorney-Client” Privileged.

Petitioner concedes that “attorney-client confidentiality (or privilege)” is a valid exemption under the Open Records Law to preclude disclosure of documents that so qualify. However, in making a general privilege claim, the City does not meet its burden.

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The City contends that it has filed the Board of Ethics submission “under seal solely for the Court’s in camera review.” (Br., p. 15, n. 11). In order for the City to meet its burden of proving that it could rely on the attorney-client privilege exemption, the court presumably must conduct an in camera inspection of the documents. See George v. Record Custodian, 169 Wis. 2d 573, 582, 485 N.W.2d 460 (Ct. App. 1992) (instructing trial court to conduct in camera inspection to determine if lawyer-client privilege applies). The City has not proffered specifics as to why it claims that the documents are in actuality

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onsider the iss “attorney-client privileged.” Should it do so, or should the Court consider issue sua sponte, to ege exemption exe on issue, Petitioner Pet Petiti facilitate orderly resolution of the attorney-client privilege would at

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hat at Petitioner’s counsel be allo the very least request that the Court order that allowed to access and se proceedings free from any an continuing objection by the reference the subject documents in these

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unde standable able City (with, of course, the under derstand l prohibition prohibitio against disclosure to others).

See §

s.. Stats. (“The court may permit pe 19.37(1)(a), Wis. the parties or their attorneys to have access to the d under restrictions or protective orders as the court deems appropriate”).2 requested record Petitioner made a valid va and viable request for public records which was denied without a reasonable basis for exemption. She therefore states a claim for mandamus relief under the Open Records law. II.

THE CITY’S MOTION TO DISMISS AS TO PETITONER’S CLAIM FOR FEES AND COSTS UNDER THE OPEN RECORDS ACT SHOULD BE DENIED. A.

The Action Is Not Moot.

The City asserts that because Petitioner has now received what she asked for, the matter is now moot and must be dismissed.

Petitioner disagrees that her counsel (undersigned) is an “outside party” as to the alleged communications.

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"[A] case is moot when the decision sought by the parties cannot have any practical legal effect upon a then existing controversy." In re W.J.C., 124 Wis.2d 238, 239, 369 N.W.2d 162, 163 (Ct. App. 1985). It is generally true that voluntary release or production of previously denied records following the institution of a mandamus action renders such an action moot. Racine Educ. Ass'n v. Board of Educ., 129 Wis.2d 319, 323 24, 385 N.W.2d 510 (Ct. App.1986). Petitioner seeks a writ of mandamus ordering the City to release the subject documents to her. Although the City now

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eitt without basi says in effect “She got what she asked for,” it also interjects albeit basis or specification priety of providing the do doc the specter of attorney-client privilege and the impropriety documents to her

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own lawyer. The matter is not moot. B.

Peetitioner IIss E ntitled tto oF ee and Costs. Even If Moot,, Petitioner Entitled Fees

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ude that the t e matter m tter is moot as to the document mandamus Even if the Court were to conclude costs. request, there is still the issue of fees and co sts. A requester whose mandamus action is rendered ntary tary release may still be b entitled to attorney fees and costs under the Open Records moot by a voluntary Act. Racine Educ. Ass'n v. B Board of Educ., 129 Wis.2d 319, 325, 385 N.W.2d 510 (Ct.App.1986). A petitioner must show that prosecution of the action could reasonably be regarded as necessary to obtain the information, and that a "causal nexus" exists between that action and the agency's surrender of the information. State ex rel. Vaughan v. Faust, 143 Wis.2d 868, 422 N.W.2d 898, 899-900 (Ct. App. 1988). The test of cause is whether the actor's action was a substantial factor in contributing to the result. Id. The action may be one of several causes and it need not be the sole cause. Clark v. Leisure Vehicles, Inc., 96 Wis.2d 607, 617, 292 N.W.2d 630, 635 (1980). Thus, Petitioner must show that the action’s filing was a cause, not the cause.

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The City Attorney indeed avers that the City was served with the lawsuit after Atty. Letteney provided the documents to the alderpersons. (Letteney Aff., ¶ 19). It is undisputed that the documents were provided via email on the morning of December 5, 2017 and the City was served in the afternoon of December 5, 2017. But that does not in and of itself end the inquiry. If the mandamus request is dismissed as moot, Petitioner should be allowed to explore in this matter, via discovery, when the City Attorney actually became aware of the suit

in other words, whether he learned of the commencement of

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the action.

7. Upon being made The suit was commenced on November 29, 2017. mad public on the CCAP

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came ame aware of the suit and such kknowledge in whole system, it is possible that the City Attorney became ocume 3 or in part impelled him to release thee documents.

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d, the City Attorney immediat In the case at hand, Attor immedi tely and conclusively responded to the records requests via adamant denials based on cconclusory claims of privilege and confidentiality. y’s present argument that th it could only release the documents to Petitioner and not Despite the City’s ity Attorney Attorn never so contended prior to the City’s motions and never suggested her attorney, the City at any time prior to December 5, 2017 that it could provide the documents directly to Petitioner. The documents were provided to Petitioner and other alderpersons three months after the initial request. The City Attorney avers that the “press of other business” and “time it took to prepare” the Ethics Board submission prevented him from submitting the City’s request (and thus providing copies to Petitioner and other alderpersons) earlier. (Letteney Aff., ¶18). These may have been causative factors that contributed but several facts raise a reasonable inference that the

Petitioner concedes that credible evidence, if produced, that the City Attorney did not know of the suit before December 5, 2017 might reasonably support a conclusion that there could be no lawsuit-release causation. However, she should be allowed to explore that issue via discovery or evidentiary hearing.

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lawsuit’s filing impelled the ultimate disclosure. Foremost among these is the absolute aboutface by providing the documents to Petitioner after a three-month period of time during which the City Attorney showed no inclination to produce the documents or in any way compromise from the position that Petitioner was not entitled to the documents. This precludes dismissal of Petitioner’s claim for attorney’s fees and costs under the Open Records Law. CONCLUSION The denial of public access to records generally is contrary to the public interest, and only

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4 Wis.2d 82, 82, 552 N.W.2d 892, in an exceptional case may access be denied. Chvala v. Bubolz, 204 (Ct. App. 1996). This is not such a case.

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viab e claim for mandamus mandam manda The foregoing shows that the Petitionerr states a viable under the Open o an n order that Records Act, thereby entitling her to tha the City release the requested documents and

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entitling her to attorney’s fees and costs. Therefore, it iis respectfully requested that the City’s d motions be denied

hiis 227 7tthh dday ay f F February, ebruar 2018. Dated this

KNUTESON, HINKSTON & QUINN, S.C. Attorneys for Petitioner, Sandra J. Weidner

By: Electronically signed by Mark R. Hinkston Mark R. Hinkston State Bar No. 1022427 Email: mhinkston@sbcglobal.net 500 College Avenue Racine, WI 53403 Telephone: (262) 33-2000 Fax: (262) 989-8150

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FILED FILED 02-28-2018 01-16-2019 Clerk Circuit Court Clerk of of Circuit Court Racine County Racine County

2017CV001644 STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY 2017CV001644 ______________________________________________________________________________

SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ __

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AFFIDAVIT OF SANDRA J. WEIDNE NER ______________________________________________________________________________ __________________ _________________ STATE OF WISCONSIN COUNTY OF RACINE

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) ) ss. )

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Sandra J. Weidner, being first duly sworn on oath, ddeposes and states the following: 1.

I am m the Petitioner in this matter and make this Affidavit in opposition to the

Respondentâ&#x20AC;&#x2122;s motions on personal know knowledge of the facts set forth herein. 2.

I was first elected to serve on the City of Racine Common Council as the eele

Alderman for the 6th District in April 2000 and have since then continuously served in that capacity. I am the longest-tenured Alderman currently serving on the Common Council. I am currently seeking reelection (on April 3, 2018). 3.

On July 20, 2017, I publicly announced my candidacy for City of Racine Mayor.

On July 24, 2017, upon receipt of the Committee of the Whole agenda for its

7/26/17 meeting, I emailed City Atty. Letteney to inquire as Redacted Pursuant to 1.9.19 Oral Decision In reply, Atty. Letteney pasted and re-sent to myself and other City recipients Redacted Pursuant to 1.9.19 Oral Decision

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I again replied with my concern

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Amongst the recipients that I copied was Patrick Leary of the Racine Journal Times. 5.

In response, Atty. Letteney wrote in part: Redacted Pursuant to 1.9.19 Oral Decision

(See email chain attached as Exhibit A). 6.

At no prior time had Atty. Letteney or any prior City Attorney informed me

individually or collectively as a Common Council member ber - of any rule or policy that th

Redacted Pursuant to 1.9.19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision 7.

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At no priorr time had Atty. Letteney or any an of his predecessors ever expressed to

me concern that hat at I had in any way on o aany occasion breached alleged attorney-client confidentiality. 8.

On August 17, 1 2017, via receipt of an email from Gretchen Hermann of the

Mayor’s Office, I first received notice that on August 22, 2017 the Executive Committee was going to “convene in closed session pursuant to Wisconsin Statutes Sec. 19.85(1)(h), to consider whether to request confidential written advice from the City of Racine Board of Ethics.” 9.

In the Agenda that accompanied the email (and as stated on the final Agenda

posted publicly), the Subject was specified as: Subject: (Direct Referral) Communication from the City Attorney requesting to meet with the Executive Committee, in Closed Session, pursuant to Wisconsin Statues section 19.85(1)(h), to consider whether to request confidential written advice from the City of Racine Board of Ethics regarding the applicability of Racine Ordinance Section 2-581(a) to the disclosure of certain

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confidential information and privileged information, by certain officials, which information was gained in the course of, or by reason of, the officials’ official position or official activities.

10.

The final Agenda for the meeting was made available to the public prior to the

meeting and accompanies as Exhibit B. 11.

On August 21, 2017, City Attorney Letteney sent an email to the Executive

Committee and Council members, including myself, Redacted Pursuant to 1.9.19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision

12.

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In all my yearss on the Council, I could not recall a specific plea by the City r

Attorney for all Council Committee meeting. This was also the ncil members to attend an Executive Execu

first and only time me during my tenure that an a Executive Committee meeting was being called in pursuit of an Ethics ics Board advisory adviso opinion. 13.

As for or the t subject matter, prior to the meeting we were not given any specific

indication as to what was meant by “disclosure of certain confidential information and privileged information, by certain officials, which information was gained in the course of, or by reason of, the officials’ official position or official activities.” The “certain officials” were not identified. 14.

I attended the Executive Committee Meeting on August 22, 2017.

The City

ordinances provide that the Executive Committee “shall consist of the mayor, president of the common council, the chairman of each of the three standing committees and one alderman atlarge.” Ord. 2-77(4)(a). The ordinance also provides:

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In the absence of the chairman of any of the three standing committees at any scheduled meeting, the vice-chairman of the committee should be in attendance and shall have the right to vote. In the absence of both the chairman and vicechairman of any standing committee at any scheduled meeting, the alderman next named to such standing committee should be in attendance at such scheduled meeting and shall have the right to vote. It is the intent of this provision that at all executive committee meetings there should be in attendance at least one representative of each of the three standing committees with the right to vote on any matter brought before the executive committee.

15.

Contrary to ordinance, which requires an Executive Committee of 6, the

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Committee was at that time only comprised of 5: [Then acting] Mayor Dennis Wiser and D Aldermen Q.A. Shakoor II (Council President), Terry McCarthy, Jason Meekma. rthy, thy, Jeff Coe, and Ja Jas 16.

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At the August 22, 2017 meeting,, because as excused from ause Ald. Shakoor wa was

attendance, an Executive Committee of only four Ordinance, Ald. Jim our was present to vote. (Per ( Morgenroth, Vice Chair of thee Finance and Personnel Committee, should have been present to Comm

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vote and thus give thee Executive legally-mandated composition of six members). ecutive Committee its legall legal 17.

Most of the other remaining alderpersons comprising the Common Council, remaini remain

including myself, f, were also present. prese 18. Redacted Pursuant to 1.9.19 Oral Decision

It was as at a that meeting that

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19.

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20.

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Redacted Pursuant to 1.9.19 Oral Decision

21.

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22.

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24.

During my tenure I have been aware of the City Code of Ethics Ord. Sec. 2-

581(a) (“Prohibited conduct”), which provides in part: “Violation of work rules. Appointed officials and employees . . . shall not disclose confidential information or privileged information gained in the course of, or by reason of his/her official position or official activities.”

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25.

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I have also been aware that per section 2-578 of the Ethics Code, “Confidential

information” means written material or oral information related to city government, which is not otherwise subject to the public records law and which is expressly designated or marked as confidential. “Privileged information” means information obtained under government authority which has not become a part of the body of public information. 26.

Despite his adamant contention at the Executive Committee meeting that

Redacted P

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Redacted Pursuant to 1.9.19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision More formally, the Meeting Minutes reflect the

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Motion as being: “That the request from the City of Racine Ethics Board hee Executive Committee reques an advisory opinion of the sharing of attorney-client confidential pinion inion regarding the propriety propr communications of the City of Racine.” (See Meeting Minutes made nss by certain alderpersons alderpers public attached hereto C). reto as Exhibit Ex 28.

As confirmed by the Minutes, the motion passed with three members voting Aye.

(Ald. Shakoor was excused and Ald. Meekma abstained). 29.

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30.

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31.

Immediately after the Executive Committee meeting, I was contacted by a

Journal Times reporter seeking information as to what transpired. As noted in the article of August 23, 2017 (“City looking into “disclosure of certain confidential information’”), I said I “couldn’t comment on what happened at Tuesday night’s [Executive Committee] meeting

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because it happened in closed session.” 32.

My refusal to publicly comment did not concerns. ot mean ean I had no concerns concer

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among these were: (a)

Foremost

The inspection on off my emails and Executive Committee meeting followed

on the heels of my 7/20/17 mayoral candidacy announcement. For some time prior, Atty. ann Letteneyy and I have had at times a somewhat contentious, albeit professional, tim governmental mental business relationship. relatio relati

It is my personal belief

Redacted Pursuant to 1 9 19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision (b)

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; (c)

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; (e)

Because I had no advance notice that Redacted Pursuant to 1.9.19 Oral Decision I

was not afforded any meaningful opportunity to present my position; (f)

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and

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(g)

Redacted Pursuant to 1.9.19 Oral Decision 33.

Ass a long-tenured civil servant, serva I recognize the need to balance the Cityâ&#x20AC;&#x2122;s need for

orderly administration stration tration with the needs ne ds and rights of my constituents. Alderpersons and other city officials often face situations situation where these interests must be balanced. 34.

By virtue of my over 17 years on the Common Council, I have been privy to

thousands of written and oral communications with the City Attorneyâ&#x20AC;&#x2122;s office. I have attended many closed session meetings where confidentiality has been stressed and maintained. I have been proud of my staunch and consistent respect for and preservation of confidentiality where it is legally required and warranted.

But the 8/22/17 Executive Committee meeting and

surrounding circumstances caused me to fear that pursuit of the matter in the fashion

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would not in fact serve to educate or modify behavior. Instead, I feared (and continue to fear) that

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will only have a dramatically chilling

effect on the ability of common council members to serve their constituents: fearing that

Redacted Pursuant

alderpersons will likely opt to refrain from sharing any information rather than face potential scrutiny or reprimand. 35.

In view of the foregoing concerns, I retained counsel, primarily to obtain copies

of the documents 36.

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On September 5, 2017, counsel on my behalf half alf requested copies of the

communications which were the subject of the Executive vee Committee meeting and oon

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Redacted Pursuant to 1.9.19 Oral Decision accompanying as Ex. D). 37.

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(See 9/05/17 correspondence

In reply, Atty. Letteney refused to provide copies of any of the subject pr

information, stating ting ing in part: â&#x20AC;&#x153;Inasmuch as I am bound by attorney-client confidentiality, I cannot comment on thee substance of the Aug August 22, 2017 City of Racine Executive Committee meeting to which you refer. er, such Executive Committee meeting was held in closed session. No r Furt Further person has the authority to reveal matters discussed in closed session.â&#x20AC;? (See Ex. B to Petition for Writ). 38.

On September 22, 2017, the Common Council voted (9 for, 3 against, with 2

abstentions) in open session to approve the Executive Committee recommendation. The matter appeared on the Common Council agenda and the vote/approval was noted in the meeting minutes, both made available to the public. (See attached exhibits E and F). 39.

On October 3, 2017, counsel on my behalf reiterated to Atty. Letteney my

information request.

Again, Atty. Letteney refused, stating in part that he was bound by

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“attorney-client confidence” and the “confidentiality of a Closed Meeting.” (See Petition for Writ, Exs. C and D). 40.

At that juncture, I did not know whether Atty. Letteney had yet submitted the

matter to the Ethics Board or, if not, when he would do so. Without any such indication, I authorized counsel to communicate with the Ethics Board to facilitate my participation in the process since Redacted Pursuant to 1 9 19 Oral Decision . necessary in that I

I felt that my input and participation was especially

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Per Sec. 2-584(a)(“Duties Duties es of ethics ethic board; hearings”) hearings of the Code of Ethics, the

City of Racine Ethics Board ard “shall adopt guidelines and procedures necessary to carry out the

provisions of this iss chapter and shall promptly promptl advise adv the affected officers and employees thereof.” In my almost 188 year tenure on the Council, I have never been advised of any such guidelines or Co C procedures established ished by the Board and am unaware whether any such “guidelines and procedures” have even been established by the Board. 42.

Because Atty. Letteney had previously refused to provide the email materials that

were the subject of the advisory opinion request, on October 9, 2017, my counsel wrote to the Ethics Board primarily seeking copies of such materials. He also requested that, in view of my candidacy, any further proceedings be deferred until after the special mayoral election on October 17, 2017. (See Petition, Ex. E). 43.

I authorized my attorney’s communication with the Ethics Board (and prior

submission to it of his previous letters to Atty. Letteney) and in doing so was unaware of any

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legal prohibition against communicating with the Board in matters of these kind, especially since the advisory opinion law does not contain such prohibition and to my knowledge the Ethics Board has not promulgated rules against it. 44.

The City Attorney, to my knowledge, did not reply to my counselâ&#x20AC;&#x2122;s 10/09/17

correspondence.

In other words, he posed no concern that I, through counsel, was

communicating with the Ethics Board. (The City Attorney was also aware that the Ethics Board had been copied on counselâ&#x20AC;&#x2122;s letters of 9/05/17 and 10/03/17 but posed no objection to, or

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concern over, that fact, either to counsel or the Ethics Board). 45.

I did not prevail in the October 17, 20177 mayoral election. Thereafter, I was still Thereaf There

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concerned about the fact that the City refused materials that were the edd to provide me with the mate mat subject of the advisory opinion request. est. 46.

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Because of Atty. Letteneyâ&#x20AC;&#x2122;s refusal to provide copies of the subject

communications, them from my computer records. I could not of s,, I at least tried to retrieve retriev th course recall exactly xactly from memory each specific one presented by Atty. Letteney but I did remember some. Yet when en I went to retrieve them, I found that many were no longer present on my computer. I had not deleted them. 47.

On November 20, 2017, contrary to the prior public statement where I expressed

my intent to NOT run again, I filed my Declaration of Candidacy to run for re-election in April 2018. At that point, I remained unaware as to whether and in what fashion the City Attorney had in fact submitted the matter to the Ethics Board. 48.

Had I decided to not run for re-election, I believe that Atty. Letteney would have

been less inclined to continue the process before the Ethics Board.

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Thereafter, and in view of Atty. Letteney’s continuing refusal to provide the

requested information, I authorized counsel to commence the present suit, which was filed on November 29, 2017. 50.

I would not have brought this action (and incurred legal fees in doing so) had City

Attorney Letteney

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and, upon

later request, provided them to myself or my counsel. 51.

It was only after the present suit was filed that other alderpersons and I received,

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on December 5, 2017, the City Attorney’s “Request for Confidential ntial Advisory Opinion” to the Ethics Board (“Ethics Request”). 52.

The Request included the

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Redacted Pursuant to 1.9.19 Oral Decision Request, Letteney ey Aff., Ex. G,

(See

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acknowledge that identity to the Board of Ethics via counsel’s letters (with the hat at I revealed my iden admonition that I was not conceding to any public disclosure of my identity by the Board or City),

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53. City mustered

54.

It was via review of the Ethics Request that I first learned specifically of how the Redacted Pursuant to 1.9.19 Oral Decision

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In the Ethics Request, Atty. Letteney describes Redacted Pursuant to 1.9.19 Oral Decision

(Letteney Aff., Ex. G, p. 5 of 17).

This

purported email has never been specifically identified. 56.

As stated previously [¶¶ 4-5], I concede that on July 24, 2017 (4 days after

announcing my mayoral candidacy), I copied a third party

a Journal Times reporter

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on the

emails with Atty. Letteney regarding Executive Committee scheduling. duling. uling. While the t fact that Atty. Letteney then replied with an admonition as to attorney-client it feasible ey-client y-client confidentiality makes mak m

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that this could have been the communication onn that raised concern, it was never specifically identified or produced as such during is not part of the Ethics ringg the process, and apparently apparent apparen Request. 57.

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I am aware that the City has certain cert authority to monitor the emails and computer

use of its employees loyees oyees and officials. I was never notified or made aware that my emails were searched and it was possession of the Ethics Request on December 5, 2017 that I as only upon u became aware of the fact that the search apparently began after I announced my mayoral candidacy toward the end of July 2017. 58.

In his affidavit, City Attorney Letteney states [¶ 3] that in the past, his office

“found evidence that individual Alderpersons shared privileged and confidential information with outside parties whose interests were in active opposition to the interests of the City as determined by the Common Council.” He references the Holmes and Frazier cases. 59.

As for the Holmes case, the suit was against the City and others, including seven

former and current aldermen. I was not a defendant and did not participate in the discovery

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process.

60.

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At some time in the past, Atty. Letteney (and former City Administrator Tom

Friedel) did communicate to me in conversation

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I do not recall anyone at that time or one ne from the City Attorneyâ&#x20AC;&#x2122;s office of o

thereafter broaching the matter to the he Council ouncil or taking any specific action to alert the Council or

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precautionary measures too ensure that it did not happen again (perhaps because the person no longer serves as an alderman). 61.

Similarly, as to the Frazier case, I was neither an individual party nor a

participant in discovery. overy.

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Redacted Pursuant to 1.9.19 Oral Decision 62.

Aside from the referenced conversations regarding the Holmes matter long ago,

Atty. Letteneyâ&#x20AC;&#x2122;s reference to those cases in his affidavit was the first time to my knowledge that Redacted Pursuant to 1.9.19 Oral Decision

At no time prior to his cursory admonition in an email response of 7/24/17 [Âś 5 above] has Atty. Letteney broached the topic with me personally/individually or collectively

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as a member of the Common Council.

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63.

Contrary to what he states now in his Affidavit and in the Request,

64.

At no time during my tenure has anyone from the City Attorney’s office (whether

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prior or current City Attorney or assistants) provided specific icc guidance or o insight to me personally or to the Common Council collectively on the he topic of “attorney-client “attorney-clie privilege” or

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confidentiality. 65.

Neither Atty. Letteney ey nor any prior City Attorney

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with other Aldermen

individually or collectively

ever ver provided specific guidance as to what communications to or from

the City Attorney, “attorney-client privileged or confidential.” y, if any, were to be considered conside 66.

Inn 2005, then City of Racine Administrator Stephen T. Nenonen assembled and

provided to the Alderpersons Alderperso a document entitled “The Alderman’s Handbook.” Its stated purpose was to inform the council so that members can “understand the role and responsibilities for which they have been elected in order for the city council to make sound decisions and policies for the city.” (Preface). It was updated in 2013. Nowhere in its 81 pages does it discuss or even reference standards or rules regarding “confidentiality” or “privilege” as it relates to communications with the City Attorney’s Office. 67.

Despite Atty. Letteney’s revelation on July 24, 2017 [¶ 5 above] that he Redacted Pursuant to 1.9.19 Oral Decision

, it had been my experience that the

City Attorney’s office very rarely, if ever, expressly marked emails as being “ATTORNEY-

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CLIENT PRIVILEGED” (or confidential). This was especially the case with respect to most emails merely forwarding requested ordinances or laws, summarizing matters known already in the public domain, or clearly not providing legal advice. 68.

None of the Ethics Request communications

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69.

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On severall prior occasions I had received emails from the City Attorney recei rece

transmitting requested or copies of laws and these were rarely uested summaries of process proces or procedure p if ever marked privileged or confidential. This made sense because I perceived that they did not confident confiden in any way providee “legal advice.” In any event, there was never a specific and certain pattern a or practice that I observed as to when and under what circumstances the City Attorney would deem something privileged or confidential. 70.

On January 15, 2018, the City publicly posted notice that the Ethics Board was to

convene on January 25, 2018, “in Closed Session pursuant Wisconsin Statues Sec. 19.85(1)(h) and 19.59(5)(a) for a request of confidential written advice from the municipal ethics board under 19.59 (5).” The subject was identified as “Advisory Opinion request filed on December 5, 2017, by City Attorney Letteney on behalf of the City of Racine Executive Committee.” (See Agenda accompanying as Ex. G).

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Knuteson, Hinkston & Quinn, S.C. - a limited liability organization -

Attorneys at Law Of Counsel: John W. Knuteson, J.D., C.P.A. Mark R. Hinkston, J.D.

500 College Avenue Racine, WI 53403-1058

Telephone: 262-633-2000 Facsimile: 262-633-9900 E-mail: khq@khqlaw.com

Mark Lukoff, S.C. Circuit Court Commissioner

Matthew H. Quinn, Retired John V. Casanova, J.D. (1925 2010)

September 5, 2017 Via Email [scott.letteney@cityofracine.org] and Hand-Delivery Atty. Scott Letteney City Attorney Racine City Attorney's Office 730 Washington Ave Racine WI 53403-1146

Re: e:

8/22/ 2/17 Execu 8/22/17 Executive Council Meeting (regarding pursuit ursui of o opinion from Board of Ethics)

etteney: Dear Attorney Letteney: I represent Sandy Weidner and write on her behalf in regard to your efforts to seek an advisory i of Racine Board of Ethics. Please direct any reply and any further opinion from the City communications regarding this to my attention. Neither the sending of this communication nor anything contained herein shall be construed as a waiver of any right to confidentiality of subject matter or identity. Furthermore, this is not intended in any manner to be a dissemination to the public constituting any sort of consent to disclosure that Ms. Weidner is in any manner connected to or the subject of your request for Ethics Board advice. I am aware that on August 22, 2017, the Common Council Executive Committee met regarding a “Communication from [you] to meet with the Executive Committee, in Closed Session, pursuant to Wisconsin Statues section 19.85(1)(h), to consider whether to request confidential written advice from the City of Racine Board of Ethics regarding the applicability of Racine Ordinance Section 2-581(a) to the disclosure of certain confidential information and privileged information, by certain officials, which information was gained in the course of, or by reason of, the officials’ official position or official activities.” I understand from Alderman Weidner that, in addition to Executive Committee members, all common council members were present (at your specific invitation). During the meeting, you

Exhibit D

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September 5, 2017 Page 2

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commenda It was Ald. Weidner’s presumption that the Executive Committee recommendation would be put genda makes to a vote at this evening’s Common Council meeting, but the agenda ge m s no reference to the co c matter. In view of this, it is our presumption that you aree circumventing final council approval and intend on proceeding directly to the Ethics Board.

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ection to On Ms. Weidner’s behalf, I am expressing objection opinion on this matter.

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Redacted Pursu

pursuit of an Ethics Board advisory

roceduress whereb where As you know, the City Code specifies two procedure procedures whereby the Board of Ethics may consider uall or proposed conduct. First, per p Section 2-584, the Board may accept a the ethics of certain actual verified complaint in writing that specifies “the activities of such officer or employee which are eth alleged to be in violation of the code of ethics ethics.” If the Board finds probable cause that an ethics ts,, it is to hold a hearing hearing and ultimately make a written determination as to the violation exists, iolation olation and what ac act existence of a violation action, if any, should be taken. n 2-585, 2-585 585 an individual may request of the Board “an advisory opinion Second, per section regarding Redacted Pursuant to 1.9.19 Oral Decision 1 the propriety of any matter to which the person is or may become a party. . . .” Redacted Pursuant to 1 9 19 Oral Decision

According to Ms. Weidner, at the Executive Committee meeting you Redacted Pursuant to 1.9.19 Oral Decision

Per section 19.59(5)(a) of the Wisconsin Statutes, “[a}ny individual, either personally or on behalf of an organization or governmental body, may request of a . . . municipal ethics board . . . an advisory opinion regarding the propriety of any matter to which the person is or may become a party.” The Board “shall review a request for an advisory opinion and may advise the person making the request. No one “may make public the identity of an individual requesting an advisory opinion or of individuals or organizations mentioned in the opinion.” A city council may convene in closed session to consider requests for confidential written advice from a municipal ethics board under s. 19.59 (5)). (sec. 19.85(h), Wis. Stats.).

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September 5, 2017 Page 3

The advisory opinion route appears to be intended to allow a city official or employee an opportunity to obtain an opinion about whether something can or cannot be done to get guidance beforehand. This would not appear to be your intent. Redacted Pursuant to 1.9

instead using the advisory opinion process to have the Ethics Board look at actions that have already occurred. Redacted Pursuant to 1.9.19 Oral Decision The problem in using the advisory opinion track in this way is that in doing so, you are as a practical matter treating this as a prosecution. You are not affording the “accused” an opportunity to give their input or insight or in any way defend their actions.

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att Ms. Weidner Wei It is because of this that I am copying the Ethics Board and asking that be allowed to Wisconsin Statutes, “[a]ny participate and fully give her position. Per section 19.59(5)(a) of the Wisc n or governmental body body, may request of individual, either personally or on behalf of an organization garding rding the propriety of any matter m a . . . municipal ethics board . . . an advisory opinion regarding to which he primary target tar arg of the person is or may become a party.” Because Ms. Weidner idner is the ethics uld be allowed to participate in the th t process. inquiry, she is a party to the matter and should

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Redacted Pursu

ee session, sion, you yo Redacted Pursuant to 1.9.19 Oral Decision At the closed Executive Committee

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Redacted Pursuant to 1 9.19 Oral Decision

Redacted Pursuant to 1.9.19 Oral Decision O On Ms. Weidner’s behalf, I ask that she is terials so that she may appropriately ap appropria provided those materials and adequately give her position on each Redacted Pursuant to 1.9.19 Oral Decision of the items Redacted Pursuant to 1.9.19 Oral Decision

-581( 581 (“Prohibited conduct”), which provides in part: “Violation Sec. 22-581(a) pointed off offic of work rules. Appointed officials and employees . . . shall not disclose confidential information mation ggained in the course of, or by reason of his/her official position or official or privileged information Redacted Pursuant to 1.9.19 Oral Decision activities.”

Redacted Pursuant to 1.9.19 Oral Decision

At the Executive Committee meeting you Redacted Pursuant to 1.9.19 Oral Decision

The definitions in section 2-578 of the Ethics Code are quite broad. “Confidential information” means written material or oral information related to city government, which is not otherwise subject to the public records law and which is expressly designated or marked as confidential. (Sec. 2-578). “Privileged information” means information obtained under government authority which has not become a part of the body of public information. (Sec. 2-578).

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September 5, 2017 Page 4

The Racine Code of Ethics does not specify or discuss what is meant by “attorney-client privileged.”2 The general rule of attorney-client privilege set forth in sec. 905.03(2) of the Wisconsin Statutes provides that “[a] communication is “confidential" in this [attorney-client] context if not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” (sec. 905.03(1)(d)). As I understand it, the City has not given the Common Council any insight into what is considered confidential or privileged, especially as it relates to the attorney-client privilege. The Alderman’s Handbook contains no guidance. There have been no seminars or presentations. It also does not tatio appear that the Board of Ethics has guidelines that shed sufficientt light on confidential and dance ance on this issu privileged information so as to allow officials to get clear guidance issue, although it is provision of this chapter required to “adopt guidelines and procedures necessary to carry out the provisions mployees oyees thereof.” (Sec. 222-584(a)). -584 58 and shall promptly advise the affected officers and employees You appear to believe

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Redacted Pursuant to 1.9.19 Oral Decision

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Redacted Pursuant to 1.9.19 Oral Decision

To countenance tioon will cause each and every alderperson to err on the side of seeking and support such a position ce on what they can and cannot c sh review and guidance share. Some may choose to reject even requests learly arly mundane information information, rath rrather than face potential inquiry and punishment. All for the most clearly ve a chilling effect on eacch and every alderperson’s efforts to adequately and fully in all, it will have f tituencies. ituencie serve their constituencies.

Redacted Pursuant to 1.9.19 Oral Decision

not all communications between a lawyer and client are privileged; only communication made in confidence to an attorney for the purpose of obtaining legal advice is protected. United States v. Weger, 709 F.2d 1151, 1154 (7th Cir. 1983). In other words, merely because a communication is between an attorney and client does not mean it is privileged: “A mere showing that the communication was from a client to his [or her] attorney is insufficient to warrant a finding that the communication is privileged.” Jax v. Jax, 73 Wis. 2d 572, 243 N.W.2d 831 (1976). The party claiming the privilege bears the burden to prove each of the elements.

Redacted Pursuant to 1.9.19 Oral Decision

The first task they would face would be to determine whether the document is indeed attorney-client privileged.

The City of Racine Employee Handbook (Section 6.12 SOCIAL MEDIA POLICY) provides in part: “Employees may not disclose any confidential information. . . obtained in the course of their employment. Confidential information is defined as information disclosure which is prohibited by federal, state, or local law, personal health information of others, non-public law enforcement records, attorney-client privileged information, or other similar types of information.” It does not, however, define attorney-client privilege.

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In the municipal context, the attorney-client parameters are often not as clear cut as they are in the private setting. Added to this is the fact that Council Members must often balance between the competing interests of transparency in government in order to serve the best interests of their constituents and the preservation of confidentiality that in some contexts must be maintained by their employing municipality. â&#x20AC;&#x153;The circumstances under which the attorney-client privilege applies in a municipal setting is far from clear.â&#x20AC;? Goodman and Zabokrtskya, The Attorney-Client Privilege and The Municipal Lawyer, 48 Drake L. Rev. 655, 676 (2000). This unclarity, the vagueness of the City Ordinance Redacted Pursuant to 1 9 19 Oral Decision and the fact that the City of Racine has done littlee if anything to educate no been sufficiently the Common Council on the standards, support a conclusion that there have not lvement. emen obvious and clear ethical violations to support Ethics Board involvement.

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Redacted Pursua

ur approach aappro roach summoning ummoning the th entire council The timing of equest of the Ethics Board and your ioned. Nonetheless, Noneth less, Ms. Weidner Weidn looks forward before the Executive Committee must be questioned. he misplaced co context of an Ethics E to defending against assertions, albeit in the context Board Advisory o, Ms. Weidner should be provided prov Opinion request. To effectively do so, copies of the subject thwithh so that she may participate participa in the process. communications involving her forthwith

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Redacted Pursua

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rompt ompt reply. I look forward to your prompt

cc: City of Racine Board of Ethics City of Racine Common Council (_CH_ALD@cityofracine.org)

S Sincerely,

Mark R. Hinkston

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Exhibit E

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FILED FILED 03-07-2018 01-16-2019 Clerk Circuit Court Clerk of of Circuit Court Racine County Racine County 2017CV001644 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

Respondent. ______________________________________________________________________________ _______ ______ RESPONDENT CITY OF RACINE’S REPLY BRIEF IN N SUPPORT OF ITS IIT MOTION TO QUASH PETITIONER SANDRA WEIDNER’S WRIT OF ER’S R’S PETITION FOR W MANDAMUS UNDER WISCONSIN STATUTES AND 802.08 TUTES ES §§ 783.01, 802.06, A AN ______________________________________ _________ _____________________________ ________________________ ____________________ Respondent City of Racine (the counsel, submits the “City”), byy and through its undersigned u this Reply Brief in Supportt of its Motion to Quash Petition Petitiooner Sandra Weidner’s Petition for Writ of Mandamus und n in Statut nder Wisc Wisconsin Statutes §§ 783.01, 802.06, and 802.08 (the “Motion to Quash”).1 INTRODUCTION Alderperson Weidner filed this action, seeking the “extraordinary legal remedy” of a writ of mandamus related to the City’s request for a confidential and anonymous ethics advisory opinion from the City Board of Ethics

a request where Alderperson Weidner would not even be

named and she could not be disciplined or reprimanded.2 Her petition sought two forms of

This reply brief is being filed under seal pursuant to the Court’s Order of February 13, 2018, ordering any pleadings thereafter filed in the lawsuit to be filed under seal. 2 Alderperson Weidner’s suggestion that the City’s request to the City’s Board of Ethics is not confidential and anonymous because the Redacted Pursuant to 1.9.19 Oral Decision (Pet. Br. in Opp. at 1) is ironic given that it was Attorney Hinkston who identified Alderperson Weidner to the Board of Ethics as the subject of the request for an ethics opinion on two separate occasions months before the request for an opinion was even made to the Board of Ethics by the City (Letteney Aff. ¶ 11, Ex. B & ¶ 13, Ex. D at 2-3) and then

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mandamus relief: (1) a writ requiring “that the City provide her with any and all documentation (information) it alleges or submits to the Ethics Board in support of its request of the Board for an advisory opinion” (“Documentation Mandamus Request”) and (2) a writ allowing her an “appropriate opportunity to submit to the Board her position before it on such documentation and her actions relative thereto” (“Participation Mandamus Request”). Although Alderperson Weidner’s multiple pre-suit letters to the City principally sought for her to be afforded procedural rights in the ethics opinion process (as later embodied in her

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Participation Mandamus Request), she has now abandoned that request sponse to the City’s equest quest in re respo spo Motion, presumably because she realizes that the request stt had no legal ba basis.

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Trying to muster some argument inn opposition on to the City’s Motion to Quash, Alderperson Weidner attempts to shift ft the focus of this case to t a public records case by

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maintaining her Documentation ment entation tion Mandamus Man amus Request Request even though she concedes having possession for the he last three months of the t very same Board of Ethics submission that she 3 requests this Court ourt to now order produced. pro In fact, because she is a sitting Alderperson, she

obtained the City’ss Board oof Ethics submission at the same time it was provided to the Board of Ethics, so there is certainly no basis for her to claim delay or for her to assert that the filing of this action prompted the City to provide the documents.4 Moreover, her counsel has also had

compounded the problem by filing this action without any effort to keep Alderperson Weidner’s involvement confidential, thereby drawing the attention of the local press. 3 Alderperson Weidner’s 17 page, 72 paragraph affidavit largely pertains to non-material information not relevant to the mandamus relief she seeks. It contains several assertions that are inadmissible under the rules of evidence and reads much like a filing she would make with the Board of Ethics if she were the subject of an ethics complaint under Racine Ordinance § 2-584, which she is not the subject of and which is not at issue here. 4 The Board of Ethics submission is attached to the Affidavit of Scott Letteney filed December 22, 2017 as Exhibit G. Contrary to the unsupported assertions of Alderperson Weidner, the City did not “reverse course” by providing her a copy of the submission to the Board of Ethics. (Pet. Br. in Opp. at 3.) All members of the Common Council were provided with a copy of the submission to the Board of Ethics at the same time the submission was made to the Board of Ethics. (Letteney Aff. ¶ 16.)

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access to these very same documents since at least February 5, 2018 when the Court held a hearing and counsel agreed that the contents of the subject documents would not be disseminated to non-parties, importantly, recognizing the privileged and protected nature of the documents. Accordingly, the Documentation Mandamus Request is indisputably moot

there is nothing for

the Court to order by writ of mandamus or otherwise because both Alderperson Weidner and her counsel already possess the very same documents she seeks in her petition. Her maintaining this request does nothing more than continue to waste the City’s and this Court’s resources in her

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thinly-veiled attempt to obtain her fees and costs, the occurrence were highly rrence rence of which wh unnecessary in the first instance based on an erroneous in a uss belief that she sh ccould ould ld participate pa

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confidential and anonymous Board of Ethics opinion process and an then then n jumping jumpi the gun in filing this action before any request was madee or materials submitted to th the Board of Ethics.

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In essence, Alderperson d tthat her erson Weidnerr concedes he Documentation Mandamus Request is moot. As a consequence, is devoted to a hard to discern position that nsequence, sequence, the majority of her h brief b the documents should have been provided to her and her counsel earlier in response to her pro pr counsel’s September 2017 and October 3, 2017 letters under Wisconsin’s public records law ber 5, 201 despite (a) the letters principally seeking her participation in the ethics opinion process and not the production of documents, (b) the letters not making reference to a public records request, and (c) perhaps most critically, her Petition in this case seeking what the City provided to the Ethics Board and not some other documentation that may have been previously requested. Regardless, the City was justified in not providing counsel the documentation at an earlier juncture because the documents contain attorney-client privileged information, which is exempt from public records law. See Letteney Aff. ¶ 12, Ex. C & ¶ 14, Ex. E; Wisconsin Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 783, 546 N.W.2d 143, 149 (1996). Her counsel was

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clearly an outsider to the privilege that existed between the City Attorney’s Office and the City (as embodied through the City Council) and there was no Court order in place to prevent counsel (and protect the City) from counsel’s disclosure to third parties, like there is now. As detailed below, the City respectfully requests that the Court grant its Motion to Quash because the Documentation Mandamus Request is moot. Further, even if the Court considers her factually and legally unsupported “should have been provided earlier” argument despite what she actually requested in her petition, the argument fails because the documentation contains

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attorney-client privileged information. I.

THE DOCUMENTATION MANDAMUS REQUEST EQUEST QUEST IS MOOT. MO

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As Alderperson Weidner correctly recognizes, a “case is moot when the ogn ognizes, t decision sought by the parties cannot have any practical controversy.” Matter of icall legal lega effect efffect upon a then existing exis

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W.J.C., 124 Wis. 2d 238, 239, 369 36 N.W.2d W.2d 162, 163 (Ct. (C App. 1985). Alderperson Weidner facially contendss that her request is really not moot, but provides no analysis as to why. She readily concedes: a is that she is entitled to a writ of mandamus asking the es: s: “[her] pri primary claim Court to order the release release of o the subject documents” (Pet. Br. in Opp. at 3) and “Petitioner seeks a writ of mandamus ordering the City to release the subject documents to her” (id. at 9). However, she has possessed the very subject documents

the Board of Ethics submission

since

December 5, 2017 and does not contend otherwise. (Letteney Aff. ¶¶ 16-17.) Further, her counsel has possessed them since at least February 5, 2018, and he has access and may use them pursuant to the dictates of this Court’s February 8, 2018 Order requiring that they not be disseminated to non-parties.5 Thus, simply put, Alderperson Weidner has what she seeks in her

Despite Alderperson’s Weidner’s confusing contentions (Pet. Br. in Opp. at 8-9), her counsel is allowed to access and reference the documents in this action “free from any continuing objection by the City” so long as he abides by the Court’s February 8, 2018 Order — which he expressly agreed to do on the record during the February 5, 2018 hearing.

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Petition and the order she requests will have no “practical legal effect” upon any “existing controversy.” Accordingly, her Documentation Mandamus Request is moot. Moreover, Alderperson’s Weidner’s assertion that she is entitled to her fees and costs is meritless. First, and as is detailed in the next section, the City was justified in not providing the documents to her counsel in response to counsel’s letters based on attorney-client privilege. Second, and more importantly, Alderperson Weidner received the Board of Ethics submission at the precise time that submission was made to the Board of Ethics because she is a

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sitting Alderperson; she did not receive the submission in respons In fact, as nse to this lawsuit. law Alderperson Weidner concedes, she did not serve the summons ummons mmons and complaint oon the City until

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after the City made its submission to the Boar t ics and provided a copy to all of the oard of Ethics members of the City’s Common Council, Alderperson Weidner. ouncil, including including Alderper Alderpers

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Specifically,

Alderperson Weidner filed December 1, 2017 (not on November 29, d her mandamus action on De Dec 2017 as she asserts). erts). Apparently unbeknownst unbeknowns to her, her Documentation Mandamus Request unbekno for the Board off Ethics submission was w not ripe at that time because the City Attorney’s Office had yet to make the he Board of Ethics’ request, and thus, the sought records did not exist at the time she filed suit. (Letteney Aff. ¶¶ 16-17.) See Journal Times v. Police & Fire Comm'rs Bd., 2015 WI 56, ¶ 73, 362 Wis. 2d 577, 617, 866 N.W.2d 563, 582 (declining to award attorney’s fees regarding a non-existent record because there is no duty to disclose a non-existent record).6

As explained in Attorney Letteney’s Affidavit, the press of other business and the time it took to prepare the submission prevented the City Attorney’s Office from making its request to the Board of Ethics at an earlier juncture. (Letteney Aff. ¶ 18.) Alderperson Weidner’s request that she be allowed discovery or an evidentiary hearing on when the City learned of this action prior to service on it (Pet. Br. in Opp. at 10, n. 2), is a classic red-herring and if granted, would only further waste Court and party resources. Alderperson Weidner’s Documentation Mandamus Request was not ripe when she filed this action because the requested materials had not yet been submitted to the Board of Ethics. (Id.) Thus, when the City found out about the action prior to being served is irrelevant.

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While the Documentation Mandamus Request was not yet ripe at the time Alderperson Weidner filed suit, it quickly became moot when the City Attorney’s Office provided her (and every other member of the Common Council) with the Board of Ethics submission on December 5, 2017 at the same time it provided the submission to the Board of Ethics. (Letteney Aff. ¶¶ 1617.) Stated differently, at no point in time was there ever a justiciable controversy regarding the request because there was never a time period in which she did not have access to the documents she seeks through her request.7 Moreover, the City provided her the submission because she was

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a sitting Alderperson and not in response to this action. These factors obviously make this case actors ctors obviousl completely distinguishable from a more typical publicc record records case wherein aan outsider to a

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governmental entity makes a request, has it denied, eni nied, ed, files a mandamus action, action and then the Court orders production of or the entity voluntarily such as in the case law untarily produces the documents, docum

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cited by the Alderperson Weidner. Ass’n v. Bd. of Educ. for Racine Weidne See, ee, e.g., e.g. Racine Educ. E Unified Sch. Dist., N.W.2d 510, 512 (Ct. App. 1986). For all of these st. t.,, 129 Wis. 2d 319, 326, 3385 N reasons, Alderperson person erson Weidner’s Doc Documentation Mandamus Request should be quashed and she should not be awarded rded fees aand costs. II.

THE CITY WAS JUSTIFIED IN NOT PROVIDING COUNSEL WITH THE DOCUMENTATION IN RESPONSE TO HIS LETTERS BECAUSE THE DOCUMENTATION IS PRIVILEGED. Having raised the white flag on her Participation Mandamus Request and recognizing

that her Documentation Mandamus Request is moot, Alderperson Weidner attempts to shift this case into a public records case by contending that the documents should have been provided to her and her counsel earlier in response to her counsel’s September 5, 2017 and October 3, 2017 letters.

However, her petition does not specifically request this relief (it seeks a writ of

As a matter of policy, adopting her position would incentivize needless litigation that wastes public resources by awarding fees and costs when there is no ripe and justiciable dispute.

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mandamus for production of what was submitted to the Board of Ethics), and accordingly, her argument need not be considered by the Court. Yet, even if the Court considers her argument, the record establishes that the City was justified in not turning over the documents to her and her counsel in response to counsel’s letters. On September 5, 2017, Attorney Hinkston first wrote to the City Attorney’s Office, copying the Common Council and Board of Ethics. (Letteney Aff. ¶ 11, Ex. B.) The focus of that letter pertained to the ethics opinion process and counsel’s contention that the “accused

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[have] an opportunity to give their input or insight” and “participate and ful fully give g her position.” (Id. Ex. B at 3.) The letter also made clear Attorney s on is representing ey y Hin Hink Hinkst representi Alderperson

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Weidner and that all further communicationss be directed to hhi him, confirming that he is was m, confirm interjecting himself City

an outsider too the he privilege between the City Cit Attorney’s Office and the Ci

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into this matter. (Id. copies of the underlying privileged d. at 1.) The letter also requested reques

Redacted Pursuant to 1.9.19 Oral Decision

a request that is

inextricably tiedd to her participation rrequest. (Id. at 5, “Ms. Weidner should be provided copies of the subject communications involving her forthwith so that she may participate in the mmunica mmunicat process.”). In fact, Alderperson Weidner even concedes that her document request was tethered to her participation/process request: “Petitioner revealed the purpose of her request

to obtain

the documents so that she could adequately apprise the Ethics Board of her position.” (Pet. Br. in Opp. at 7) (emphasis added). The City Attorney’s Office responded that it was “bound by attorney-client confidentiality” and thus “cannot comment on the substance of the August 22, 2017 City of Racine Executive Committee meeting.” (Id. ¶ 12, Ex. C at 1.) Thus, the City made clear that there was an attorney-client privilege that existed over the request. Further, as to the contention

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that there is no closed meeting confidentiality, Wisconsin law expressly recognizes that attorneyclient privilege still applies even in the context of a confidential closed meeting that may otherwise be discoverable. See Lakeland Times v. Lakeland Union High Sch., 2014 WI App 110, ¶ 52 357 Wis. 2d 722, 855 N.W.2d 904 (explaining that legal privilege and confidentiality are “distinct concepts” because “a privilege provides a legal right to refuse a valid subpoena,” whereas confidentiality “merely ensures that sensitive information is kept secret, a goal that may be reached with appropriate protective orders”).

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On October 3, 2017, Attorney Hinkston wrote the City Attorney’s ttorn torney’s ey’s Office, Offic again copying in the Common Council and Board of Ethics, and continued Alderperson Weidner inued nued to assert that Alderpe Alder

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had a “right to participate” in the ethics process sss and that is was “her desire desire and intention to do so” with Attorney Hinkston as her legal egall counsel. (Id. (Id (Id d. ¶ 13, Ex. D at a 2.) As in the prior instance,

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the City Attorney’s Officee responded that it was “bound by b attorney-client confidence and by the confidentiality off a Closed Meeting,” thus, could not substantively comment on counsel’s Meeting,” and thus letter. (Id. ¶ 14,, Ex. E at 1.)

Under the above facts, to the extent one construes Attorney Hinkston’s document ffa requests unconnected to the participation request and construes it as a public records request, the City specifically responded to that request indicating it was bound by attorney-client privilege, which an undisputed exemption from public records law. Wisconsin Newspress, 199 Wis. 2d at 783. All

Redacted Pursuant to 1

of the subject correspondence

subject of the ethics advisory opinion

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that are the

Redacted Pursuant to 1.9.19 Oral Decision , are protected

by the privilege. (Letteney Aff. ¶ 16, Ex. G, at Page 4 of 48 to Page 48 of 48.) Attorney Hinkston was undeniably an outside, third party to the privilege and had no right to obtain those

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documents in the absence of the protections that have been provided in this case through the Court’s recent order. In fact, as the City Attorney clearly communicated to Attorney Hinkston in both of his responses to Attorney Hinkston’s requests, the City Attorney’s Office had and has an ethical obligation to not share privileged and confidential documents with third parties. (Id. ¶ 13, Ex. C at 1; id. ¶ 14, Ex. E at 1; see also S.C.R. 20:1.6(a) (explaining that a lawyer shall not reveal information relating to the representation of a client)).8 Alderperson Weidner, as just one of fifteen members of the Common Council, has no right to waive the privilege on behalf of the

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other fourteen members, the mayor, or the City Administrator, through her or, r, by demanding demand counsel that he be provided with privileged materials based ased on an erroneous roneous belief beli that she has a

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right to participate in a confidential and anonymous d of Ethics ics opinion pprocess. “Pandora’s mous Boa Board Box” would be opened if every member mber er of a governmental vernmental body ccould retain counsel and have

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his or her personal counsel documents between the entity ell havi having ng unfettered access to privileged pr and the governmental ccepted, Alderperson Weidner’s contentions would lead to this mental body. If accepted, Alder A absurd result.

Accordingly, y, the City Cit had a legitimate basis to refuse to provide the privileged documents to Alderperson Weidner and her counsel.

CONCLUSION For the foregoing reasons, the City respectfully requests that this Court grant its motion to quash Alderperson Weidner’s petition for a writ of mandamus in its entirety.

Alderperson Weidner’s contention that City Attorney Letteney’s Affidavit is somehow improper because it further explains the City’s position with respect to Attorney Hinkston’s requests for confidential attorney-client communications (Pet. Br. in Opp. at 6), is without merit. The City Attorney’s affidavit testimony is completely consistent with the response letters he sent Mr. Hinkston. (Id. ¶ 13, Ex. C at 1, ¶ 14, Ex. E at 1.)

9 2010596.1

Case 2017CV001644

Document 180

Filed 01-16-2019

Page 10 of 10

Dated this 7th day of March, 2017. MEISSNER TIERNEY FISHER & NICHOLS S.C.

By: Electronically signed by Michael J. Cohen Michael J. Cohen State Bar No. 1017787 Email: mjc@mtfn.com Dieter J. Juedes State Bar No. 1088880 Email: djj@mtfn.com 111 East Kilbourn Avenue,, 19th Floor Milwaukee, WI 53202 022 Tel: 414-273-1300 000 Fax: 414-273-5840 3-5840

D E

L A

Attorneys neys for Respondent, Ci City of Racine

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10 2010596.1

FILED 03-14-2018 Clerk of Circuit Court Racine County 2017CV001644

STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY ______________________________________________________________________________ SANDRA J. WEIDNER, Petitioner, v.

Case No. 17-CV-1644

CITY OF RACINE, a Wisconsin municipal corporation,

Case Code: 30952

The City’s Motion to Quash is granted as it relates to Petitioner Weidner’s request

for a writ requiring “that the City provide her with any and all documentation (information) it alleges or submits to the Ethics Board in support of its request of the Board for an advisory opinion.”

2013216.1

The City’s Motion to Quash is granted as it relates to Petitioner Weidner’s request

for a writ allowing her an “appropriate opportunity to submit to the Board [of Ethics] her position before it on such documentation and her actions relative thereto.” 3.

Petition Weidner’s Amended Petition for Writ of Mandamus and Other Relief

(filed on February 5, 2018) is not accepted. 4.

By March 23, 2018, the City shall file a privilege log (and any supporting

materials) relating to the correspondence that are the subject of the City’s request for an ethics advisory opinion. 5.

By March 30, 2018 Petitioner Weidner shall file a response, if any, to the City’s

privilege log submission.

Dated this 14th day of March, 2018 BY THE COURT: Electronically signed by Eugene A Gasiorkiewicz Circuit Court Judge

2 2013216.1