Procedure for Mayor McManus Hearing Outlined
Earlier this month, attorney James Kalny, who is acting as legal representation for the Common Council, outlined the rules of procedure for the hearing involving Mayor Bob McManus.
The hearing, which will determine whether to remove McManus from office, will take place Friday, March 19, Monday, March 22, and Tuesday, March 23. (Friday’s hearing starts at 6:00pm. The following hearings start at 5:00pm.) The March 23 regular Common Council meeting was moved to Tuesday, March 30.)
Below is the information shared regarding hearing procedure. Item 9 will begin Friday.
CITY OF MARSHFIELD COMMON COUNCIL RULES OF PROCEDURE FOR SECTION 17.16 WIS. STATS. FOR CAUSE MATTERS
Section 17.12 Wis. Stats. provides that elected officers of a City may be removed by the Common Council for cause. Section 17.16 (3) Wis. Stats. provides that when the Common Council receives verified charges demanding the removal an officer for cause, the officer charged is entitled to a speedy public hearing at which the officer shall have full opportunity to be heard to present a defense against the charges, personally and by counsel. Section 17.16 (5) Wis. Stats. provides that the Common Council may make and enforce such orders and rules as are necessary to properly conduct such hearing. These rules are promulgated by the Common Council to aid the Common Council and the parties to the hearing to have a fair, efficient, and orderly process.
- Definitions of terms:
- Charges: A written, verified statement by a resident of the City of Marshfield, demanding the removal of a City officer for cause for the reasons set forth in the document
- Charged Party: The Public Officer against whom a charge has been filed
- Charging party: Person or party filing charges
- Presiding Officer The Mayor or if the Mayor is the Charged Party the President of the Council
- Filing of Charges. A proceeding under these rules is initiated by the filing of Charges with the City Clerk. Upon receipt of the Charges the Common Council is to conduct such hearing and investigation with due dispatch. The Presiding Officer shall place the matter on the agenda of the Common Council to review the process to be implemented in response to the Charges and consider any circumstances that may affect the fair efficient or orderly processing of the investigation and hearing. The Common Council may make such orders as may be necessary to provide for a full, efficient, and orderly hearing and investigation. The City Attorney shall act as legal counsel to the Common Council except in cases of conflict in which case the Common Council may appoint special council as it deems necessary.
- Bond/Expenses. Before acting upon any Charges, the Common Council may require the Charging Party to execute and deliver a bond in the sum of $1,000 with one or more sureties to be approved by the Common Council, for the payment of all costs and expenses actually incurred by the Common Council in the hearing or investigation of the charges. The expenses incurred in the hearing and investigation shall be paid by the Common Council. But if the Common Council finds that the complaint was willful and malicious and without probable cause all such expenses shall be paid by the person who preferred the charges and may be collected in an action against the person or on the bond furnished by the person.
- Scheduling, Notice of Charges and Answer. The Common Council shall schedule the hearing to take place as promptly as possible taking into consideration the complexity of the charges, the need for investigation in preparation for the hearing, the Charged Party’s entitlement to a speeding hearing and the obligation to provide fair notice and opportunity to prepare. A copy of the charges and written notice of the time and place for the hearing shall be given to the Charged Party by the Common Council by delivery in person or by mailing the same to the Charged Party’s last and usual post-office address not less than 10 days prior to the date scheduled for the hearing. The Charged Party may, within 10 days from service of the charges file with the Common Council a verified answer thereto.
- Form and Service of Documents. All documents submitted to the Common Council shall be printed, type or legibly handwritten. All documents filed with the Common Council shall also be filed with all counsel of record and upon all parties not represented by counsel. Filing of documents required in this Section upon a party’s counsel shall constitute filing with the party. Filing of all documents other than service of the charges shall be in a manner satisfactory to the Presiding Officer or designee and may include hand delivery, mail delivery, and in some cases by email.
- Prehearing Conference. A Prehearing/Scheduling conference may be scheduled by the Presiding Officer. No witnesses need to appear at the prehearing conference. The purpose of the conference is to provide an opportunity to consider issues that may affect the provision of a fair and efficient hearing:
- Orderly exchange of witness information and exhibits;
- Whether the parties can reconcile differences and settle issues among themselves;
- The possibility of obtaining stipulations as to the facts in the case;
- Procedural and all other pre-hearing motions by the parties; and
- Any other matters which may aid in promoting a fair and efficient hearing.
The Prehearing/Scheduling conference may be facilitated by legal counsel for the Common Council. If necessary, more than one conference may be scheduled.
- Exchange of Witnesses and Exhibits. Each party shall provide the other party and legal counsel for the Common Council with a list of witnesses they intend to call at the evidentiary hearing. Each party shall also provide the other party with copies of the evidence which he or she intends to utilize at the hearing. Each party must also provide legal counsel for the Common Council with a list of exhibits. This exchange must occur at least five (5) days prior to the evidentiary hearing or on a date set by the President of the Common Council or designee. The names of additional witnesses or other evidence that was not exchanged shall be provided to the opposing party immediately upon a party’s discovery of such witnesses or evidence the party intends to use at the hearing, and may be subject to exclusion, unless good cause satisfactory to the Common Council for the failure to meet the five-day deadline to comply is shown.
- Council Member Subpoenas. In accordance with Section 17.16 (5) Wis. Stats. the members of the Common Council are authorized to administer oaths and issue subpoenas for the attendance of witnesses and production of evidence. To facilitate a fair, orderly and efficient hearing the members of the Common Council who wish to call witnesses and compel the attendance of witnesses shall inform the Presiding Officer of their wishes. The Presiding Officer, shall provide the parties notice of any witness and evidence that Council Members request to be produced at the hearing and shall facilitate the service of the subpoena(s) and production of any such evidence.
- Hearing. All hearings shall be public. Both the Charged Party and the Charging Party may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the President of the Common Council. The City shall coordinate the service of the subpoena(s) as required by law. The Presiding Officer shall control the hearing process and may make evidentiary rulings and otherwise direct the progress of the hearing with the assistance of legal counsel for the Common Council. For purposes of deliberation, the Common Council may adjourn into closed session.
- Opening Statements. Opening statements may be made by both parties upon the request of the President and shall be confined to a brief summary of the nature of the case, the evidence intended to be offered, and the controlling legal authorities. Time limits for opening statements may be established by the Presiding Officer or designee.
- Witnesses. Examination of witnesses shall be under oath and conducted in the following manner: A witness shall be examined first on direct examination by the party calling the witness. The witness will then be subject to cross examination, examination by the opposing party. Rebuttal examination with re-cross examination if necessary. If a witness is called adversely, the witness shall be first examined adversely by the party calling the witness. After the parties have performed direct, cross and any rebuttal testimony, the members of the common council may examine the witness. Legal counsel for the Common Council may also ask questions at any point during the witness examination process to assist in clarifying the evidence or to provide for efficiency and order.
- Compelling Testimony. No person may be excused from testifying or from producing evidence at the hearing for the reason that the testimony, documentary or otherwise, required of him or her may tend to incriminate him or her, but no person so testifying may be prosecuted for or on account of testifying or producing any documentary evidence, except for perjury committed in giving the testimony. Immunity under this provision is only from the use of the compelled testimony or evidence in subsequent criminal or forfeiture proceedings, as well as immunity from the use of evidence derived from that compelled testimony or evidence.
- Evidentiary Matters. The Common Council is not bound by and will not require that the statutory or common law rules of evidence be strictly followed in the hearing. While the Common Council may receive hearsay into the record, no factual conclusions may be based solely on hearsay evidence. Testimony will be limited to matters that are relevant, material and of probative value of the charges at issue. The Presiding Officer may exclude immaterial, unduly redundant, and nonprobative testimony.
- Burden. The applicable burden of proof shall be whether the charges as stated in the complaint are sustained by substantial evidence. The burden of persuasion will be whether the charges as stated in the complaint constitute cause as provided at Section 17.001 Wis, Stats – inefficiency, neglect of duty, official misconduct, or malfeasance in office sufficient to merit removal from office.
- Argument. Written argument may be required at the discretion of the Presiding Officer to aid in the consideration of any motions or objections to the process or for consideration in deliberation. If briefs are to be filed, then the President shall indicate the date on or before which they shall be submitted and any limits as to length. The parties shall be given the opportunity to give closing arguments to the Common Council, in the manner proscribed by the Council President, before deliberation.
- Exhibits. All exhibits shall be marked and made available for inspection by the opposing party before being shown to a witness. Copies of all documentary exhibits shall be provided to each Common Council member participating in the hearing at the time any such exhibit is first introduced at the hearing, or at such other time as directed by the President. Stipulated evidence may be provided to the Common Council at the beginning of the hearing.
- Order of Hearing. At the hearing, the order shall be determined by the President and shall normally be as follows:
- Opening statements, if any, by both sides, except the Charged Party may reserve opening statement until the beginning of his or her case.
- Presentation of testimony as described in these rules, and the introduction of evidence by the Charging Party to substantiate the charges.
- Presentation of testimony as described by these rules and introduction of evidence by the Charged Party.
- Opportunity for each side to present evidence in rebuttal of any evidence presented by the opposing side.
- Opportunity for the Common Council to consider the need for additional evidence to provide for a complete investigation of the facts.
- Closing arguments by both sides.
- The Common Council may modify the order of testimony or make such additional rules as it deems necessary in the interest of fairness to the parties.
- Continuances. After commencement of a hearing, continuances, postponements, adjournments, recesses and extensions of time may be granted by the Common Council at the sole discretion of the Common Council in the interest of fairness to the parties.
- Record of Hearing. The Hearing shall be transcribed.
- Extensions, Modifications. The Common Council, on its own accord, may modify, extend or waive rules established herein that, or promulgate additional rules where appropriate in the interest of fairness to the parties.
- 21. Basis of Decision and Vote. The Common Council shall decide the matter solely on the basis of the evidence presented at the hearing. Removals by the Common Council shall require an affirmative vote of three-fourths of all the members thereof.
- Disposition. If the Common Council determines that the evidence presented meets the burdens of proof and persuasion, it shall issue an order, a certified copy of which, together with a complete transcript of the testimony and proceedings at the hearing and a statement of the cause or causes for which removal is made, shall be filed with the City Clerk.
- Appeals. An appeal from a decision of the Common Council may be taken to Circuit Court by certiorari.
Editor’s note: Hearing times were updated
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Author: News Desk
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