Wauwatosa’s emergency order left out Common Council

Why wasn’t the Wauwatosa Common Council brought into the loop as the mayor and police department planned their emergency declaration order last October, and was this the proper procedure? It’s a question raised by council members ever since the curfew, which followed the decision not to charge officers involved in the shooting of 17-year-old Alvin Cole in February.

It’s clear that the Wauwatosa Police Department (WPD) and Mayor Dennis McBride were discussing the possibility of declaring an emergency order for some time leading up to the decision. “As I have said in several news articles,” McBride told Wisconsin Examiner, “city staff, the Wauwatosa Police Department and I did not know when the district attorney would issue his decision on the Cole matter, and so we began discussing a possible response in late July.”

By that time, protests in Wauwatosa over Cole’s shooting, the third of which involved former officer Joseph Mensah, had remained peaceful and non-violent. Enforcement of the demonstrations by WPD had been light, until protesters peacefully occupied a local Cheesecake Factory restaurant near the site of Cole’s killing. Officers forced the protesters out, who then sat in on one of the last in-person meetings held by the Common Council, before the city began enacting COVID-related restrictions.

As the department’s tactics escalated, so too did the community’s anxieties about events miles away in other cities. In Kenosha, the human and economic costs of clashes involving police, armed vigilantes and protesters became all too vivid.

“The city began preparing for the district attorney’s decision in mid-July,” McBride said during a meeting on Oct. 13, the first opportunity the Common Council as a whole was given to discuss the emergency order. “The police department coordinated its efforts with other police departments in the Milwaukee-area, and reached out to the office of Gov. Evers. After the unrest in Kenosha, which took place between Aug. 24-28, the planning took on new urgency.”

This planning and discussion, dating back to at least two months prior to Oct. 7, excluded most other council members. McBride and City Attorney Alan Kesner have cited Wisconsin statutes which state that, “if because of the emergency conditions, the governing body of the local unit of government is unable to meet promptly, the chief executive officer or acting chief executive officer of any local unit of government shall exercise by proclamation of the powers conferred upon the governing body.”

It further states, “the proclamation shall be subject to ratification, alteration, modification, or repeal by the governing body as soon as that body can meet, but the subsequent action taken by the governing body shall not affect the prior validity of the proclamation.” The council ultimately voted to table further discussion of the order, and took no further action during the Oct. 13 meeting.

Given the chance to discuss the emergency order prior to the meeting ended, some alders refuted the notion that the council was not able to meet promptly on the order. “The statute says that the mayor has the ability to issue an emergency order if council is unable to meet, or if the governing body is unable to meet,” said Ald. Matthew Stippich. “And I look at Sept. 30, and I notice that we’ve got at least one council meeting that went by during that time where we had the opportunity to talk about this.” While Kesner argues that certain aspects of the planning needed to remain secret and confidential, Stippich and others have rejected this.

“I’m troubled by that, because I have heard from business owners in the village and along North Avenue that, as early as a week before Oct. 7,” he said during the meeting, “that those business owners were informed by officers that the decision was coming down and that they should protect their businesses and board up their businesses. I know for a fact that we informed members of our city that the decision was coming down, and they needed to take safety precautions…so the Police and Fire Commission were given warnings that their safety might be in jeopardy and they need to prepare and they should leave town. There was enough time for conversations with the school district to have them adequately prepare. But yet, we didn’t have a conversation about it.”

McBride’s assertions that he did not know when Milwaukee County District Attorney John Chisholm’s decision would be made did not quell Ald. Joel Tilleson, who heard similar rumors. “A lot of people in my district, a lot of businesses, seemed to have leaked advance notice as far back as the preceding  weekend. They were boarding up on Monday. So, I think someone knew and that could’ve been sufficient time for the council to look in on that, and weigh in on the decision.” Tilleson questioned why the council wasn’t allowed to go into closed session, especially because there are statutes which allow for closed sessions to discuss crime detection and prevention.

Despite the fact that the order was partly intended to prevent property damage and other criminal offenses, Kesner argued the emergency order fell outside of crime detection and prevention. “If you read the mayor’s order, however, this is not a ‘let’s prevent crime.’ This was a public safety and protection of the public and property. Yes, sometimes criminal activities do risk those things. And yes, we were using criminal law enforcement officials to do that. But, this actually rises far beyond just crime prevention,” he said.

Kesner added that in regards to businesses and schools being warned of impending civil unrest, “the secret was leaking like a sieve. It was out there. Obviously there was a lot of people involved in planning. But the city as a body, and as an organization, had specifically been provided that information on condition of confidentiality. We, as an organization, did not have permission to use it for any other purpose other than our planning purposes. Which we did, and the police department and others did.”

Ald. Nancy Welch says  the arguments by McBride and the city attorney are entirely “bogus.” She told Wisconsin Examiner, “the big issue there is that the council was not involved at all in the planning of it. And was actually asked to approve the declaration on Oct. 13, after the fact.” She added that, “if you listen to the discussion, the rationale provided was basically that the Common Council couldn’t be trusted with such a high-level security-type issue. Which, again, I take significant issue with.”

Welch calls the argument about confidentiality “an inappropriate excuse … it’s pretty bogus.” Beyond the question of secrecy around the emergency order, numerous questions still surround those few fall nights.

“I have yet to get what is, in my mind, a full and complete answer to things like the costs to the community, the costs to the damages. I asked for a number of people who were arrested for reasons, and got really a bulk accounting number. Not the break-down that I would’ve hoped for. And what I find is that the police department continues to conflate accounts of what occurred in the city which make it virtually impossible to dial down what happened at City Hall, versus what happened on Burleigh. Or what happened on 35th in Milwaukee. And it doesn’t allow for, in my mind, a complete understanding of what actually happened.”

WPD continues to process open records requests related to the emergency order, including from Wisconsin Examiner. A full accounting of the various law enforcement agencies that were on the ground in Wauwatosa during the curfew has yet to be provided. During an Oct. 12 press conference after the curfew, Chief Barry Weber denied reports from numerous people who described the manner in which they were arrested, detained, and released by officers.

Stippich highlighted how the council was not informed that Cole’s shooting was in essence a repeat issue with Mensah until the George Floyd protests sprang the issue of police violence and accountability into center stage.

“While I have a tremendous amount of respect for the mayor,” said Stippich, “and I certainly think he was acting in good faith, this is not a statement about the mayor as much as it is I think we overstepped the way in which we need to be operating as a municipality.” He added that, “yeah we didn’t have a lot of damage as compared to Kenosha. But I don’t know if that’s really the measure that I want to be looking at. What I did see was infringing upon people’s rights to protest. Hopefully we can learn from this and move forward in some productive way.”

Tilleson echoed the point. “As my mom used to say when I was a kid, ‘the ends don’t always justify the means.’ And I have the same concern that had we been privy to some of these discussions earlier, we could’ve provided valuable counsel on how the community would react to some of the events which transpired.”

Tilleson’s  district is in eastern Wauwatosa, which borders the City of Milwaukee and is where much of the militarized operations by police spilled over. “I’d have a lot to say if I knew that military convoys were rolling through the neighborhood and people experiencing tear gas while they’re sitting in their backyard at the fire pit. I would’ve advised extreme caution on those elements, and would’ve asked for a better dialogue among the mayor, and the police department, and of course the common council, on how to mitigate some of the negative impact that I think a lot of people have experienced.”