By Michael S. Hoey
City Attorney Steve Koch responded to questions about why a discussion by the Common Council on Nov. 19 about the Temperance House was conducted in closed session. Koch said doing so was proper and no one associated with the Temperance House should be surprised the city is moving toward a resolution about what to do with the property.
In a statement submitted to the Enterprise, Koch said the city has been discussing what to do with the Temperance House at the committee level and the council level since 2016 with the full knowledge of Patti Marsicano, Director of the Historical Society. The Historical Society has owned the Temperance House since 2010 with the hopes of raising enough money to rehabilitate the building. About a year ago, the Historical Society gave up that idea and began marketing the building for sale. Marsicano said the hope was that someone with deep pockets would buy and save the building.
Koch submitted to the Enterprise 45 pages of meeting minutes that show the city has been discussing the condition of the Temperance House since 2016 and moving to raze it was not a rushed decision. The building is in bad enough shape that the city has been moving toward issuing a raze order. The city gave the Historical Society a year to try to sell the property and, according to Mayor Mel Nieuwenhuis, it’s time to look at the next step.
Though no decisions were made on Nov. 19, the issue was discussed in closed session. Nieuwenhuis said it would also be on the agenda of the General Operations Committee meeting this past Tuesday and the Dec. 17 council meeting in open session.
Alderman Ryan Schroeder asked on Nov. 19 why there needed to be any closed session discussion at that time if the issue was scheduled for open session discussion later. Koch said it was due to the potential for litigation. Open Meetings Law in Wisconsin allows governing bodies to go into closed session to discuss matters in which the body is or is likely to become involved in litigation.
Schroeder, who serves on the board of the Historical Society, and Marsicano, both said they do not believe there is any potential for litigation or that the discussion should have been in closed session. Schroeder made a motion to pull that item and one other item out of the closed session that was scheduled. The motion died due to a lack of a second, so he made a motion to discuss those two items in open session before adjourning into closed session. That motion received a second and was discussed but failed to pass after Nieuwenhuis broke a 3-3 tie with a vote in opposition of the motion.
In answering a request for comment explaining why the discussion on Nov. 19 was held in closed session, Koch cited the Wisconsin statute that allows governing bodies to do so if litigation is possible.
“Pursuant to the minutes that have been provided to you (see Exhibits 1 through 17), and, considering many of the comments made at present and past meetings regarding the Temperance House, it is the attorney’s opinion that the City is likely to become involved in litigation,” Koch wrote.
“Different strategies needed to be discussed, including, but not limited to, the grounds for pursuing the raze order, the strategy to whether or not to proceed with the raze order or to pursue condemnation of the property, and other strategic reasons,” Koch added. “Litigation does not only involve a party suing the City but could also involve the City pursuing legal action against another entity or individual.”
Koch also said that allegations were made regarding an entry that was made to the Temperance House before the Nov. 5 GOC meeting that could have involved litigation and, he said, they needed to be discussed fully and in closed session.
Marsicano said the city asked for entry to the Temperance House while she was out of town and city officials had a difficult time gaining access. She did not go into detail on record about what happened.
Koch also said that due to the tenor of the comments made from the public and owners of the Temperance House, it’s likely the City will become involved in litigation due to the purchase price of the property and in taking the steps of either taking down the building or salvaging the remainder of the materials.
“Based on Wis. Stats 19.85(1)(g), it was appropriate for the Council to go into closed session to discuss the myriad of ways litigation could occur with regards to the Temperance House,” Koch said.
