Ever since Jesse Alba lost his job as the Waukesha fire chief in October, he and his attorney, Victor E. Plantinga, have focused on and contested one aspect of the investigation: City Attorney Curt Meitz's role in it.
Now, Alba and Plantinga will argue the impropriety of Metiz's actions in Waukesha County Circuit Court.
Meitz represented the city Police and Fire Commission (PFC) during the investigation against Alba, who had a laundry list of city and department violations filed against him last year. Alba stood accused of asking a part-time Fire Department employee to resign as a way to help them get past the affair they had the previous year.
"Our contention is that Curt Meitz, who was involved early on in the investigation of Chief Alba and represents the mayor, the party bringing the charge, cannot also participate in the commission's deliberations," Plantinga said. "Although we suspect Meitz participated in deliberations, based on the statements of the city administrator, we still have to have evidence of that to put before the Circuit Court."
Plantinga said that after he filed an open-records request "it is clear that Meitz has represented and continues to represent the mayor and the city administrator in the Alba matter. Yet Meitz also ran the hearing, ruled on objections, advised the PFC in closed hearing and likely drafted the final decision."
In December, attorney Alan Levy, who is now representing the PFC, filed a motion seeking a protective order on further evidence beyond what the court has already received from the hearings and investigation. The motion objects that the information being sought is protected by attorney-client privilege and attorney work-product doctrine.
Plantinga speaks out
Needing this evidence, Plantinga filed a brief with the Waukesha County Circuit Court last week that would allow for "limited discovery" regarding Meitz's involvement in the proceedings.
Alba and his attorney are scheduled to argue the city's protective order motion Jan. 30 before Circuit Court Judge Lee S. Dreyfus Jr.
"We believe that he participated in the deliberations, which we contend is a violation of the constitutional due process rights of Jesse Alba," Plantinga said.
Plantinga's filing comes after his initial appeal of the PFC's decision in October, where he blasted the city's investigation.
"The findings of fact and determinations (in the case) were arbitrary, oppressive and unreasonable and represented its will and not its judgment," the petition of writ of certiorari states, filed on Oct. 31. "The City of Waukesha clearly failed to follow its own internal procedure as it relates to the investigation of the disciplinary action in violation of the petitioner's due process rights.
"The respondent relied upon inadmissible hearsay in the findings of fact and determinations on two occasions. By relying on hearsay, (the) respondent acted in violation of (Alba's) due process rights."
Plantinga maintains that these rights are protected by the Wisconsin and United States constitutions.
Meitz's involvement was first brought up in Plantinga's appeal.
"By allowing the city attorney to participate in these proceedings, the Police and Fire Commission, which is supposed to be composed of an impartial body, tainted the appearance of the commission's independence and impartiality," the petition said.
While Meitz, who has been with the city for almost 30 years, said last week he couldn't respond to ongoing litigation, he did offer a couple comments.
"After 30 years of doing this, I think we know what the parameters are and what the do's and don'ts are in representing various committees, including the Police and Fire Commission," Meitz said.
Meitz said Levy will be at next week's hearing. Levy, who has more than 45 years of experience practicing law, is one of many lawyers with Lindner & Marsack S.C. of Milwaukee.
"Apparently they want to expand the case with additional discovery, but we, of course, are in opposition to that," Meitz said.
Green Bay example
In the brief, Plantinga said the argument related to Alba's due process rights being violated is found in a case from 2002 that involved Green Bay Police Officer Patrick Heil vs. the Green Bay Police and Fire Commission. The Police and Fire Commission had fired Heil after finding evidence supporting 13 counts of misconduct, including sexual harassment.
However, Plantinga's brief states "the Heil case involved a successful challenge to a Police and Fire Commission decision because of the participation of a person who was not a member of the commission, a liaison between the commission and the Common Council."
In that case, the brief says, the trial court allowed additional records to be found, and the commission's decision was overturned in the Court of Appeals.
"Although Alba contends that, consistent with Heil, City Attorney Curt Meitz's presence in the deliberations is sufficient to find a due process violation, warranting the reversal of the commission's decision, Meitz's participation in the deliberations and authoring the opinion is not of record," Plantinga's brief says. "Alba needs to supplement the record with information obtained by discovery to provide a factual basis for this court to act."
Plantinga's brief states that the "documentation from the open-records request that was not presented to the Circuit Court is necessary to support Alba's claim of a due process violation."
If granted, Plantinga is confident that, just as in the Heil case, the PFC's decision will be overturned.
"Alba is clearly able to establish a violation of his due process, since the mere presence of City Attorney Meitz in the PFC deliberations is enough to taint the entire proceeding, which should result in this court vacating and setting aside the entire decision," Plantinga wrote in the brief. "With allegations of Alba's due process rights being violated, this court cannot simply rely on the record since this involves matters that would necessarily be outside the record."