Commentary: Attorney's advice on Bain perplexing

[The following is a commentary written by Stephen Hintz for the Oshkosh Northwestern on the independent counsel's advice that Councilor Bryan Bain should not participate in further discussions about the city manager's performance and future employment - at least not while termination is being discussed. It is published here with permission from Mr. Hintz and we thank him for that...]

Commentary: Attorney's advice on Bain perplexing

By Stephen Hintz

The attorney advising the Common Council in its discussions about the status of the city manager has come up with a legal interpretation requiring Councilor Bryan Bain to remove himself from any discussions about termination because Bain previously had stated that Oshkosh needed a new city manager.

What is the basis of this interpretation? Clearly, it is not in state statute chapter 64, which establishes council-manager government.

First, the city council by state statute has the authority to hire and terminate the city manager. This means the entire city council.

Second, by state statute, the city manager can be dismissed for cause (defined as willful misconduct in office, misfeasance, or malfeasance) or without cause. The city manager thus is an at-will employee who serves at the pleasure of the council. The only obligation of the city council is to provide specific reasons in writing for the dismissal, 60 days notice, and an opportunity for the city manager to present his response in a public forum. The specific reasons do not have to rise to any level of seriousness or meet the cause standard as defined by court cases.

There are instances when the city council functions as a quasi-judicial body such as considering a recommendation to revoke a city license. It is understandable why a public comment on the case by a councilor might disqualify the councilor from hearing the case. However, in the instance of deliberating about the city manager, the council is not acting as a quasi-judicial body. It is the employer making a decision about an at-will employee.

The interpretation by the attorney seems to suggest that the discussions of the council essentially constitute a hearing for the city manager to evaluate evidence. State statutes mention nothing about a hearing, in either open or closed session, or an appeals process. The city manager does not get to argue his case in front of the council. He simply is entitled to know the reasons for dismissal and to have an opportunity to publicly respond.

I do not believe that there is any legal connection between prior comments by a council member and council deliberations. By barring a council member from participation, the interpretation is improperly restricting the legal authority of the council member.

Let us look at several situations. What if a slate of candidates campaigned on the dismissal of the city manager and they won. Does it make any sense that they would be disqualified from participating in a discussion about termination? What if the slate included all of the council members? Would this mean that the council could not discuss termination of the manager?

What if several councilors publicly indicated that they thought that termination was a bad idea. Shouldn't they also be barred from participating in council discussions on termination by the same logic that kept Bain from participating?

We need a better legal explanation than we have received.


*Stephen Hintz is the former Mayor of Oshkosh and common council member. He is retired from the UW Oshkosh faculty where he as Director of the Masters of Public Affairs program, Chair of the Department of Public Affairs, and Associate dean of the College of Letters and Science. He is a partner in Public Administration Associates, LLC, a consulting firm specializing in local government recruitment and management studies and an acknowledged expert in local government, organizational theory, and intergovernmental relations.