ccm19940419@ COMMON COUNCIL
CITY OF MUSKEGO
MINUTES OF ORGANIZATIONAL MEETING HELD APRIL 19, 1994
The meeting was called to order at 7:03 PM by Mayor De
Angelis. Also present were Aldermen Patterson, Dumke, Misko,
Sanders Schneider, Taube and Woodard, City Clerk Marenda,
Attorney Molter, and Circuit Judge Kathryn Foster.
Judge Kathryn Foster spoke briefly. She administered the oaths
of office to:
Jean K. Marenda, Clerk/Comptroller
Jean A. Sanders, Treasurer
Laura L. Mecha, Assessor
Jill Blenski, Deputy Clerk
Sally A. Luell, Deputy Treasurer
Patrick A. Patterson, Alderman District 1
Brian R. Misko, Alderman District 3
Peter D. Lentz, Municipal Judge
Prior to the reading of the resolution regarding the
Council President Patterson stated that he had a lot of
eligibility of Domonic D'Acquisto to hold office as Alderman,
concerns; not whether he is a felon or isn't a felon. The
question is, should we be making this decision or should the
make a decision here, then the court or legislature may have to
legislature or the courts be making this decision. If we don't
make a decision on their own, and then some other community
isn't going to be thrown in the turmoil we were thrown in last
Friday when we were told that the governmental agency that is
responsible for this is saying, we're not responsible any
more. We were told for months they were going to make a
decision, but when it came down, they said no, we're going to
push it down to you. Now we all have to vote our best
conscience, and if this is brought to the floor, I will vote my
conscience. Would it not be better to let the courts battle it
out? Let them decide what they should decide rather than make
this a political decision.
Mayor De Angelis said, I feel basically the same way that Ald.
particular issue on someone's constitutional rights.
Patterson does, that this is not the venue to be deciding this
holding office for Mr. Domonoc D'Acquisto who was duly elected
Resolution #87-94 deals with the issue of eligibility of
in his district. As outlined by the District Attorney there
are basically three options: One is to allow Mr. D'Acquisto to
be seated without taking any action and not challenging his
right and allowing the electors of his district if they so feel
body, through statute, to qualify its members and that is the
to take that to the courts; the other is for this particular
in the light of being disqualified, it is not written in that
reason for this resolution. This resolution is brought forward
particular way because of any other means except that if it
Common Council Organizational Meeting
April 19, 1994
Page 2
were not an issue of him not being qua
taking this vote.
lified, we would not be
Reso. #87-94 - Resolution Declaring Domonic D'Acquisto
the City of Muskego. Taube moved for adoption. Misko
Ineligible and Not Qualified to Hold the Office of Alderman in
seconded. Atty. Molter noted former Ald. Schneider is no
longer a member of the Council and should step down at this
time. Schneider complied. Atty. Molter made the following
comments: Per Wisconsin Statute 62.11(3), the Council shall be
All of the council members should have reviewed the District the judge of the election and qualification of its members.
Attorney's research and attachments dated April 15, 1994. I
strongly recommend that the Council allow Mr. D'Acquisto and/or
his attorney to speak if they want. If you do not pass the
resolution finding Mr. D'Acquisto ineligible and not qualified,
he will then be sworn in. He was elected, so he should be
sworn in unless you find that he is found to be ineligible and
not qualified. I have drafted the resolution on the agenda
that finds that Mr. D'Acquisto is ineligible and not qualified
for reasons I believe legally support the conclusion that he is
ineligible and not qualified. I have also passed out reasons I
believe to be valid for not adopting this resolution and
proceeding to have Mr. D'Acquisto become a member of the
member voting against passage should state his or her reasons
Council. If you do not pass the resolution, each Council
on the record. The law is unclear as to what is an infamous
crime and either way you vote will be subject to legal
will most likely uphold your decision if you state valid legal
challenge. I believe that which ever way you decide a court
reasons. You may wish to add or subtract reasons from the
resolution or the list. The decision is yours to qualify your
members. As to this decision, I think it is my responsibility
as the City Attorney to attempt to lead you procedurally and to
advise you as to the different legal considerations you should
give this decision. I understand there is talk about people
abstaining. Municipal Code Chapter 2.17(5) states in part that
every alderman shall vote when a question is put unless the
Council by a majority vote of those present shall excuse him
for special cause. The Council has a duty as part of their
job as Aldermen to vote on all the issues.
Ald. Dumke made the following comments. I have just heard that
of Muskego can ask him to be taken out of office. Is that
if the aldermen put him in office that any citizen of the City
true? Attorney Molter responded. I think a citizen may
attempt to bring a court action. There may be deficiencies to
be true that any citizen could bring a lawsuit like that.
that. I can't tell you if that is true or false. It may well
Upon no objections from the Council, Atty. Schober was
permitted to speak on behalf of Mr. D'Acquisto. He distributed
decision to be made. He spoke as follows. You know this is a
copies of various statutes he thought are relevant to the
Common Council Organizational Meeting
April 19, 1994
Page 3
1981 conviction for battery. It occurred when Mr. D'Acquisto
was approximately 25 years of age, when he was a police officer
for the City of Milwaukee. There are some strong feelings
whether or not Mr. D'Acquisto was guilty of the offense, and if
you talk to people who were close to the situation at that time
they will register some strong feelings, oftentimes as respects
disclosed what the prior record was. There is no personal
his innocence. When he was placed on the ballot, he fully
interest in what he is trying to accomplish. I think he put
his name on the ballot for the same reasons I think each of you
did and that is to serve the public. The vote was 124-4.
There were 4 write-in votes I think for 3 different
candidates. The people in his district have spoken. No one
else chose to run against him. That was in spite of the heavy
publicity that this matter got, prior to the time that the
election occurred. You are placed in the position, although
you may be poorly equipped to decide it, whether the language
in the Wisconsin Constitution that says no person convicted of
any infamous crime shall be eligible to any office applies to
this situation, whether this is an infamous crime. The
District Attorney tells you at one point going back to the
an infamous crime was and that is that it included all felony
1920's there was a case that seemed to make it clear as to what
convictions and this is although the least serious felony,
still a felony. Then a case came down in 1981 called Lyndon
Station. The Supreme Court said we disavow the Appelate
Court's language and ruling that all felonies constitute
infamous crimes within this constitutional provision. This
constitutional provision that you have to now interpret. Some
people in the legislature have tried to change the
constitutional provision to define infamous crimes. They
haven't passed to define what infamous crime means. In the
footnote to the statutes, right below the article you have to
interpret, the reviser to the statutes siting Lyndon Station
says infamous crimes under this section does not necessarily
include all felonies. The question is how do you tell which
are and which aren't, and I think the answer is really in the
statutes. When Lyndon Station was decided and today, there are
5 classes of felonies and they range from the most serious,
which is "A" to the least serious which is "E". Mr. D'Acquisto
was charged with and found guilty of a Class E felony. It is
the least serious felony. If the Supreme Court is saying that
not all felonies are infamous crimes, then which class of felony
cannot be infamous? It is the Class E, the least serious.
with what you have to put in your application when you run for
Recently there was a legislative change to 8.21 which deals
office, and they've changed it now to require that you have to
list all infamous crimes and all felonies that you've been
convicted of. So the legislature is again acknowledging that
Lyndon Station says that all felonies are not infamous crimes.
a conclusion, weigh the affect of your decision on the elective
You have to, I think, as part of what you consider in coming to
elected by a vote of 124-4. More people voted here in this process. You have a situation where one of your peers was
Common Council Organizational Meeting
April 19, 1994
Page 4
district than a number of others, and voted overwhelmingly for
Mr. D'Acquisto. I agree with the City Attorney that you have
the responsibility to make the decision. I know that there was
at least one individual who indicates it would be difficult to
vote on this topic, that it would be difficult to sit in
vote on this subject and you have to vote your conscience. judgment of another person. I believe you are compelled to
Rarely will you make a decision that will affect a single
person's life more profoundly than the decision that you're
going to make tonight. I would suggest to you that unless you
are convinced beyond any reasonable doubt that this crime is an
infamous crime, and this is a crime that is a least serious
felony, it is a crime for which Mr. D'Acquisto was given 6
months Huber, and I don't know how anyone can consider that
type of penalty imposed by that judge in Milwaukee as being
consistent with an infamous crime, then I would say that you
should certainly vote down this resolution. It requires an
D'Acquisto. Chapter 111, which deals with employment
affirmative vote of a majority of you to disqualify Mr.
discrimination, says that no employer may engage in the
activities of employment discrimination on the basis of
conviction records. The legislature is telling us they don't
want us to do this unless the conviction substantially relates
to the duties which are going to be performed. I don't think
this 13 year old battery conviction has anything to do with what
any of you would do in your public duties. Mr. D'Acquisto was
convicted of a crime and given 6 months as the penalty. He
served that penalty. Don't do what makes that penalty a life
sentence for him.
Mayor De Angelis clarified an "aye" vote will mean that you are
disqualifying Mr. D'Acquisto for office and a "no"
say that you are qualifying him for office.
vote will
Ald. Dumke commented on the process. I can't understand why our
big body in Madison passes laws of this magnitude and don't give
guidelines. Why didn't our District Attorney say in January, he
can't be on the ballot? Why did the District Attorney say he
can't give guidelines. I don't want to vote. I don't think it
this. If our big bodies can't put guidelines to define a
is fair for him. I don't know how to vote. We didn't ask for
felony, how are we going to judge?
Ald. Patterson said, I have a real problem with a felon taking
office. But the citizens voted for Domonic. I didn't hear
thousands of people screaming keep the convicted felon out of
office. In fact, I really didn't hear anything much and I was
really surprised at it. The man went out like all of us,
campaigned, did what he thought was right, talked to the people
and they must have believed him because they elected him. I
don't know where I have the right to take that vote away. If
truly his constituents are now concerned about him taking
can proceed and their rights can be represented. So I guess I
office there is the proper method through the courts that they
Common Council Organizational Meeting
April 19, 1994
Page 5
have to as I always have, to go with the constituents and with
to the people.
someone that has been convicted, but I do lean toward listening
Mayor stated an affirmative vote is to not qualify Mr.
D'Acquisto, and a no vote will qualify him to hold office.
Dumke, asked to abstain. Mayor said, if you wish to be
remanded from your duty of voting on this matter, the Council
should vote on this particular issue. Ald. Taube said, I
thought the attorney made it quite clear that under our own
ordinance, whether you like it or not or how much you distaste
the duty, you have an obligation to vote. Mayor said, what the
attorney stated also is that the individual can be remanded
from his right to vote by a decision of the council to allow
him to abstain for special circumstance.
Ald Dumke said, I would beg you take me out of this, but I
vote. Motion to adopt Reso. 01-94 defeated 4-2 with Patterson,
cannot put you on the spot. It wouldn't be fair to you. I'll
Dumke, Sanders and Woodard voting no. Misko and Taube voting
yes.
Atty. Molter asked that those voting not to pass the resolution
should please state their reasons for the record. Patterson
said, I still think we ought to send it to the court and let
them stand on their interpretations and not try to beg off on
our opinion so I would like not as a group not to send it and
make them make their own decision and stand up so they get the
law straight.
Atty. Molter said, I think the court is going to be reviewing
the decision you made. The best chance of upholding your
decision is if you state the reasons. Patterson said, I'm not
looking for them to uphold or not uphold this decision. I'm
looking for them to clarify the law so it's fair to people.
Mayor said, at this point if a citizen of District 5 comes
forward and wishes to challenge this decision they have the
right to do so. There is a quo warranto, they can bring a
avenues if someone wishes to challenge his eligibility to hold
civil suit in circuit court and I believe there are a few other
office.
The following reasons were given for their "no"
Patterson said, the majority of his constituents voted for him
vote.
and he didn't hide it from them so therefore we should listen
to the voters. Dumke said it could have gone either way. The
people of his district wanted him in so I went along with the
people of his district. Sanders said, I guess I'm pretty much
in line with Patterson's thinking as far as having to determine
the definition of infamous at this type of proceeding. I don't
that. We're not attorneys, we don't have that kind of resource
''e the voters, even though it is against my craw to go with
m think it's fair and I don't think we're really able to do
Common Council Organizational Meeting
April 19, 1994
Page 6
to look in the nuances of what infamous means. I go back to
the vote in that district and the fact that his record was
known from the very beginning, and that the record was majority
in favor of having him elected as their alderman 124-4. I
think that speaks for itself. Woodard said, I agree with
everyone else that his constituents voted him in. His record
was public record and like his attorney said, how much does he
have to pay for his crime. He served his 6 months. Let's get
on with it. I think that if his people didn't want him, he
wouldn't have gotten voted in.
The oath of office was administered to Domonic D'Acquisto by
Municipal Judge Peter Lentz. Ald. D'Acquisto then took his
seat as Alderman of District 5.
Each newly elected official made a few comments.
Patterson moved for adoption. Taube seconded. Schneider was
Reso. #88-94 Expressing Appreciation to William Schneider.
thanked for his contributions as Alderman. Motion carried
7-0. Schneider made a few comments as outgoing alderman.
City Clerk Marenda acted as ballot clerk.
ELECTION OF COUNCIL PRESIDENT
On the nominating ballot, the following votes were cast:
Ald. Patterson 5
Ald. Dumke 1
Ald. Taube 1
On the first election ballot, the following votes were cast:
Ald. Patterson 5
Ald. Dumke 1
Ald. Taube 1
Alderman Patterson was elected President of the Common Council.
ELECTION TO COUNCIL REPRESENTATIVE TO THE PLAN COMMISSION
On the nominating ballot, the following votes were cast:
Ald. Taube 4
Ald. Sanders 3
On the first election ballot, the following votes were cast:
Ald. Taube 5
Ald. Sanders 2
Aldermen Taube was elected to serve as Council Representative
to the Plan Commission.
Common Council Organizational Meeting
April 19, 1994
Page 7
ELECTION OF COUNCIL REPRESENTATIVE TO THE LITTLE MUSKEG0 LAKE
PROTECTION AND REHABILITATION DISTRICT
Mayor noted the Council representative should reside in the
lake district.
On the nominating ballot, the following votes were cast:
Ald. Taube 7
On the first election ballot, the following votes were cast:
Ald. Taube 7
Ald. Taube was elected to serve as Council representative to
the Little Muskego Lake Protection and Rehabilitation District.
Ald. Sanders moved to adjourn at 8:22 PM. Ald. Dumke seconded,
carried.
Respectfully submitted, -
ty Clerk