City Staff Omissions: Mistakes or Intentional?

Resident Todd Murtha made this statement at Matters from the Floor before the Shorewood City Council on June 22.

He has submitted it to SCA for publication.

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I want to bring to your attention a serious problem with the City’s actions in the appeal of the Council’s decision to require an Environmental Assessment Worksheet (EAW) for the Watten Ponds project.

The Court of Appeals decides the case based on the facts available to the Council when you voted to require the EAW, which is called the “record.” The City’s legal team is required to file the record – the information you had for your decision – with the Court. Unfortunately, the “record” filed by the City’s team with the Court omits critical information. And the omissions skew the case against the City and in favor of the Watten Ponds developer.

That matters because the Court does not decide whether it agrees with your decision, it decides whether your decision was reasonable based on the information that you had. In other words, the Court judges you by evaluating the record. But important parts of the record submitted by the City are missing, and the Court cannot know that you considered that information.

This would be disturbing no matter what, but it is more disturbing because the missing parts do not appear to be random. City staff argued that the Council should reject the EAW, and the omissions appear to advance that result by undermining the City’s case and making it more likely the Court will reject the EAW. In other words, the omissions make it more likely the developer will win, the City will lose and the EAW will be rejected, the position argued for by City staff – but not how the Council voted.

For example, the record contains agenda packets that do not contain all materials provided to the Council. Residents submitted detailed letters regarding the EAW, including facts that are at the center of the legal case. Council members discussed those letters during their deliberations and they clearly should be part of the record. Yet the letters are not included in the record, even though the emails sending the letters specifically asked for them to be included.

We now know that City staff compiled all the documents, including the residents’ letters, in a final agenda packet – but did not submit that final packet to the Court, instead submitting an earlier version that omitted the residents’ letters. Why would staff submit an earlier, incomplete version rather than the complete version that included residents’ letters?

Equally troubling, the transcript of the Council’s meeting on the EAW omits the discussion during Matters from the Floor. Residents were prohibited from speaking during the EAW discussion, residents’ only opportunity to present information was during Matters from the Floor. Residents provided extensive factual information, observations, and analysis that supported the EAW. But the residents’ comments were omitted from the transcript provided to the Court. Strangely, the City included Matters from the Floor in transcripts of other meetings but not in the transcript of the critical meeting relating to the EAW. Why were Matters from the Floor treated differently in this meeting?

When the Court reviews your decision, it will not know what information is missing. It will take the record at face value and see less evidence for your decision than you actually considered. The record omits most of the facts that support your decision and incorrectly creates the impression that you acted without support.

The impact is significant – the City may lose a legal case not because of issues with the Council’s conduct but because the City’s team failed to present an accurate picture of the Council’s actions.

This issue is bigger than Watten Ponds, it goes to the Council’s authority. This case may come down not to what the Council did or how the Council voted – not to the actions of elected officials – but to administrative activities undertaken in the deep background by people who never face voters.

The facts and law strongly support the City’s position in this case, and the City should win – the biggest risk is whether the City is willing and able to mount a competent defense.

I am not speculating about anyone’s motives. I don’t know whether these omissions were intentional or mistakes. But preparing the record is the simplest, most straightforward part of a case. What confidence can the Council have in the City’s ability – or willingness – to handle the difficult parts of the case?

The question is, what now? What accountability or changes will the Council require? City staff has agreed to update the record, but is that enough? This is not the kind of failure that would normally be met with “we’ll fix it and move on like nothing happened.” The Council manages staff, and the Council must decide how to handle this extremely significant failure.