Call for Councilor’s Removal Faces Hurdles
Earlier this week, Mayor Jim Paine called for Graham Garfield to resign his position as the city councilor representing the sixth district of Superior. As previously reported, Garfield was arrested for numerous charges last week, including one felony count. (See video of Mayor Paine’s statement here)
This article is not an indictment of Mr. Garfield, nor is it meant as a statement of support for his removal from office. Instead, it is an examination of the myriad of issues facing elected officials and the public when it comes to removing an elected official from office.
First off, let’s be clear on one point. Mr. Garfield is innocent until proven guilty, and the outcome of his case will no doubt take time to reach resolution. Even if convicted on one or more counts, he may ultimately not have a felony on his record subject to whatever plea agreement can be reached between his lawyers and the district attorney’s office.
Secondly, an elected official cannot be recalled by the electorate for a period of one year after being elected. Since Mr. Garfield was just re-elected on April 4th, he could not be recalled for any reason until April 4th, 2018.
State Rules & Regulations
According to the state constitution, the mayor may suspend an elected officer. ES found the following statement in Wisconsin Statutes:
17.12 (3) SUSPENSION. The mayor of any city may summarily suspend from office any officer thereof whose removal is sought and against whom charges have been preferred therefor, and may appoint an officer to discharge the duties of such office until such charges have been disposed of.
If such charges are dismissed, the officer so suspended shall thereby be restored to office and be entitled to the emoluments of the office for all of the time the officer would have served therein had the officer not been suspended.
Additionally, according to “The Municipality” (a publication of the League of Wisconsin Municipalities), February 2013, Vol. 108, Number 2:
“The common council can remove elective city officers for cause…removals by the common council require an affirmative vote of ¾ of all the members thereof.” [Wis. Stat. sec.17.12(1)(d)]
This article goes on to say that…”any officer lawfully removed from office is ineligible to appointment or election to fill the vacancy caused by the person’s removal.”
Allowable causes for removal are listed as “inefficiency, neglect of duty, official misconduct or malfeasance in office.” [Wis. Stat. sec. 17.001]
Procedures for Removal
We will continue to quote from “The Municipality”:
Removals from office at pleasure must be made by order. The removing authority must file a copy of the order in the clerk’s office. Removals from office for cause must follow the procedure set forth in Wis. Stat. sec. 17.16 and are more complicated.
Removal for cause under sec. 17.16 requires that a resident taxpayer of the governmental unit bring written verified charges against the officer. These charges must be followed by a speedy public hearing at which the officer must be given a full opportunity to present a defense against the charges, personally and by counsel. Section 17.16(3) contains important details relating to the time frame for notifying the officer of the charges and hearing, and delivery of the notice.
The removing power may, before acting upon any charges brought against the officer, require the person bringing the charges to execute and deliver a $1,000 bond with approved sureties, conditioned for payment of costs and expenses incurred by the governmental unit and the removing power in hearing and investigating the charges. The expenses for removal procedures are paid by the city or village. However, if the removing power finds that the complaint was “willful and malicious and without probable cause,”1 the expenses shall be paid by the person who brought the charges and may be collected in an action against the person or on the bond furnished by the person.
If the officer is removed, the removing power must file a certified copy of the removal order in the clerk’s office, together with a complete transcript of the testimony and proceedings at the hearing and a statement of the cause(s) for which removal is made.2
1 Wis. Stat. sec. 17.16(9)
2 Wis. Stat. sec. 17.16(8)
Precedent for Removing Elected Officials in Wisconsin
It is highly unusual for an elected official to be removed from office in Wisconsin. ES found the following information in a Politifact Wisconsin article, pertaining to attempts to remove Bob Ryan as mayor of Sheboygan.
Ryan was under pressure to resign his position as mayor due to his drinking problems, humiliating depictions on YouTube making sexual remarks about his sister-in-law, and even public ridicule on the Jay Leno show. At the time he stated that no elected government official had ever been ejected from office by means other than recall.
The Sheboygan Common Council launched a process on August 15, 2011 to essentially put Ryan on trial before the council, with the council acting as judge and jury. At the time Ryan stated that,
“There’s never been a public official removed from office in this state for anything but malfeasance in office.”
After extensive research with the help of the Legislative Reference Bureau, the state Historical Society, the Department of Public Instruction, the Judicial Commission, the League of Municipalities, the Counties Association, the Association of School Boards, as well as various political scientists at the Universities of Madison and LaCrosse, Politifact Wisconsin determined that Ryan was correct.
No Wisconsin elected official has ever been kicked out of office for reasons other than malfeasance or recall.
A territorial state Senator, James Vineyard, was expelled from the legislature in 1842 for murdering a fellow member during an argument after the legislative session had adjourned. However, since the shooting occurred on the floor of the legislature it would be fair to say he was kicked out for misconduct while in office. Vineyard was later acquitted of manslaughter at trial!
What about felony crimes?
According to Politifact Wisconsin, “at least four state lawmakers have been removed from office after being convicted of a felony. But under state law, the expulsions were automatic — no action needed to be taken by the Legislature.” (Mr. Garfield has been charged with one felony).
Politifact Wisconsin goes on to say,
“Crimes not directly related to official duties also have led to removals that were not automatic. For example, the New Holstein School Board fired Christopher J. Nelson, the district’s superintendent, after he was charged in February 2011 with trying to set up a sexual encounter with a person he thought was a 15-year-old boy. That could undercut Ryan’s claim, but Nelson was an appointed official, not elected.”*
*appointed officials are subject to different standards than elected officials.
Racine County Circuit Court Judge Jon Skow was removed from the bench in 1992 after admitting that he was permanently disabled from stress and depression. The State Supreme Court ruled that the judge, an alcoholic, could not carry out his duties. Prior to being removed from his position, he had been suspended due to numerous incidents, including leaving the bench during a trial. While he wasn’t removed for malfeasance, one could make a case that the medical conditions justified removal in this case.
Wisconsin Mayors Targeted for Removal
In 2008, the mayor of Montello, Frank Breitenbach was under the gun to resign for misconduct in office by that city’s common council due to various allegations, including charges of using profanity towards employees and threatening to fire the police chief without legal authority. Ultimately, Breitenbach was removed from office by a vote of 6 to 1 for misconduct in office. This would fulfill the requirement of proving malfeasance in office.
In 2011, the common council of Marinette recommended the hiring of a special prosecutor in order to attempt the removal from office of Mayor Robert Harbick after he pleaded no contest to a first-offense drunk driving charge. That removal process failed to proceed when the council failed to pass the proposal by a vote of 4-4. Harbick later chose not to run for re-election and left office in 2012.
The above case of Mayor Bob Ryan of Sheboygan also failed in evicting that elected officer from office. He had been accused of sexual harassment and racial discrimination, along with the other issues listed above. Eventually a cash settlement was made in that case by the city.
Ryan was also involved in a physical altercation related to his drinking. Nonetheless, the Sheboygan Common Council failed to remove him from office. He was eventually recalled by a 53% to 47% vote of the electorate, and forced from office in that manner.
Green Bay Mayor Survives Removal Attempt
Earlier this year, the mayor of Green Bay, one Jim Schmitt survived attempts by the common council of “Title Town” to kick him to the curb. Schmitt had been previously convicted of campaign finance violations.
Green Bay resident Scott Vanidestine filed a petition in December 2016 asking for the mayor’s removal saying, “I don’t trust him anymore, and I couldn’t do business with the city anymore.”
Schmitt’s attorney responded to the complaint by stating that the charge does not meet state law criteria for removal. Patrick Knight, Schmitt’s attorney said the charges “did not involve any mayoral duty…(and)…did not involve any breach of mayoral duty.”
In this case, the Green Bay Common Council did put their mayor on trial in February, and voted 9-3 in favor of finding cause for removal of Schmitt from office. However, in a second vote to actually remove the mayor from office, one councilor changed his vote, making the vote for removal 8-4, one shy of the 75% margin required by state law.
The alderman who changed his vote, Randy Scannell, stated “I feel a bit arrogant to assume I know the electorate better than themselves and I should act on their part and remove someone when they have that within their own power to do.”
Reportedly there is a recall effort circulating, however Mayor Schmitt plans to serve until the end of his term in 2019.
What Might Happen in Superior?
There has been talk of removing Councilor Garfield from his office, and ES suspects that the city council is likely to entertain the notion of putting him on trial for his recent personal troubles. It is not our place to suggest one path or the other.
Nonetheless, it is apparent that it would be a singular event were Garfield to be ejected from the Superior Common Council. The charges against him, while serious on a personal level, do not rise to malfeasance in office, nor has he been convicted of any crimes at this time.
To further complicate matters, an elected municipal official can only be removed by the Common Council by a 75% vote of the total elected body. Since Superior has ten council districts, it would take eight votes to remove Garfield from his seat on the Superior council. Assuming Garfield votes in favor of his remaining on the council, only two other councilors would have to back him to save his seat.
To further complicate matters in a heavily Democratic city and county, Garfield’s fiancée is the chair of the Douglas County Democratic Party. There is no doubt that Garfield has support within the party.
Despite the call for Garfield’s removal or resignation from office by Mayor Paine, it would seem unlikely that the council can prevail in an attempt to remove this alderman from office based on state precedent, and his party affiliation.
Recall Not An Option
Unfortunately, a recall cannot be undertaken by those in Garfield’s district. As explained above, according to Wisconsin State Statutes, an elected official may not be recalled from office for a period of one after being elected. Garfield was just reelected to office on April 4th, and so is safe in that regard until the same date in 2018.
Personal Toll Not To Be Discounted
The personal issues of domestic abuse charges, coupled with a loaded weapon, and operating a vehicle while impaired no doubt weigh heavily on Garfield. The negative experience this situation has taken on him and those close to him is no doubt enormous.
One can only imagine how a lapse in judgement of this nature could haunt a person for years to come. The implications to career and family are daunting, and the embarrassment is no doubt shaming.
Nonetheless, people tend to be forgiving of those who accept responsibility for their actions, and who take appropriate steps to make things right. Sometimes redemption requires positive acts and public apology, sometimes punishment on a civil or criminal level, and sometimes all of the above. This story has yet to be told…only time will reveal the proper path for this young man.
Bad Timing for Superior During Optimistic Times
However, this event occurs at a time when Superior is coming together as a community for a common good. Leaders in our community are attempting to improve our economy, redevelop our downtown, and enhance our reputation. The Better City Superior group has been working for three years to build up our reputation in Madison in hopes of creating a $100M+ development district downtown Superior.
Meanwhile, entrepreneurs have been investing in downtown Superior by opening businesses, and redeveloping vacant buildings. Thanks to city, state and federal funding, along with the work of former mayor Bruce Hagen, downtown streetscapes have seen complete overhauls on Tower, and this will soon happen again on Belknap.
To further grease the wheels of progress, just two weeks ago a website (WalletHub) named Superior the 16th best small city in America to start a small business. By comparison, Duluth was ranked at 1171 in the same survey.
At a time when Superior needs all of the good news it can get, coupled with optimism and a can-do spirit, we find ourselves once again weighed down by a negative narrative. For years, the butt of jokes due to a disproportionately large number of liquor licenses, where Duluthians could drink heavily and misbehave, “Souptown” residents have learned to suffer in silence.
This incident involving an elected official again puts Superior in a bad light and threatens to derail the efforts of many to do good at the hands of one person who did not.
Trial Should Be Avoided
It is our opinion that Mr. Garfield will survive any attempt to remove him from office. Wisconsin history is on his side, his party affiliation may protect him, and his job as a government employee in the postal service is probably protected.
Should the Superior Common Council choose to put Garfield on trial for his personal actions, it will surely dredge up old rivalries and grudges. It will generate a great deal of negative press locally, and probably in Madison as well.
We have a newly minted, youthful and ambitious mayor in Mr. Paine, who most assuredly has better things to do than preside over a salacious session of city councilors turning on each other. What a way to start an administration that hopes to create a “Superior for everyone.”
This entire affair may do serious damage to the credibility of those who are working diligently to improve Superior. It’s as though two trains are speeding at each other for an imminent and explosive collision.
The best resolution for all may be resignation. Mr. Garfield should take that step for the good of the entire city, those he represents, and for his own personal well-being. Then he would be free to work through his legal troubles, personal issues, and embarrassment outside the spotlight of constant public scrutiny.
People can recover from serious errors in judgement and behavior, but it is very difficult to do so when serving as an elected official.
Superior may be on the verge of a rebirth. Our community does not need the bad publicity that the expulsion of an elected official would bring. As a member of the Rotary, I am mindful of the motto, “service above self.” Mr. Garfield could serve his community better by resigning immediately.
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