Hartman asserts authority to enforce county code

Pushing back against some county officials, Oneida County sheriff Grady Hartman says he has full authority to enforce the county code — authority in fact given to him by the county code — but has decided against issuing a citation to zoning committee and county board chairman Scott Holewinski, who has acknowledged violating the code by breaking parliamentary procedure.

Holewinski was acting on the advice of corporation counsel Mike Fugle when he improperly adjourned a public hearing during the middle of a vote on a conditional use permit (CUP) application. 

Hartman relayed his decision in an October 30 memo to Lakeland Times publisher Gregg Walker, who had filed a complaint about the parliamentary infraction, as well as an open meetings complaint against Holewinski and fellow zoning committee members Mike Timmons and Bob Almekinder. 

In his memo, Hartman asserted his right to issue a citation but said Holewinski had acknowledged his mistake and taken action to remedy the situation, namely, by taking up and holding the vote that was short-circuited.

The incident occurred at an August 2 public hearing for a conditional use permit application by Minocqua Brewing Company owner Kirk Bangstad. 

With the committee seemingly poised to deny the permit and after a motion and second had been made to deny it, Holewinski took the advice of Fugle not to hold the vote but to adjourn the session to the following August 9 meeting, ostensibly because it was 5 p.m. and another party had to use the room. 

In the complaint, Walker alleged that a motion to adjourn a meeting to another date and time is out of order when a vote is being taken, according to “A Guide to Parliamentary Procedure” by Larry Larmer, which the county code requires committees to use. Thus, Walker argued, violating those parliamentary procedures became a code violation.

The Times also contended the incident constituted an open meetings violation because the public hearing was technically continued to the following week but was reconvened without a proper public hearing notice.

After a sheriff’s department investigation, both the sheriff’s office and the district attorney’s office agreed on the procedural violation. 

“After reviewing the complaint that was made by Walker and speaking with all those involved, it appears the rules of parliamentary procedure were not followed,” Oneida County detective sergeant Robert Hebein wrote in his investigation for the sheriff’s department. “This report will be forwarded to the Oneida County district attorney’s office for review.”

In her response to the complaint, district attorney Jillian Pfeifer said the open meetings law was not violated, though she said she agreed with Hebein’s conclusion about parliamentary procedure.

“Accordingly, whether the rules of Parliamentary Rules of Procedure were followed during the August 2, 2023 Planning and Zoning meeting is beyond the scope of Open Meetings Law,” Pfeifer wrote in her response. “However, in analyzing whether a violation of Open Meetings Law occurred, I do believe the motion to adjourn the August 2, 2023 Planning and Zoning meeting could have been, and should have been, more clear, but the committee’s failure to make a clear record does not, in and of itself, change my analysis. Nor do I take issue with statement made in detective Hebein’s report stating there was a violation of the rules of parliamentary procedure.”

Later, Almekinder himself filed an objection to the August 2 meeting, citing a violation of parliamentary procedure, and Holewinski also acknowledged the violation at an October 4 zoning committee meeting.  

“So I made a mistake by adjourning that meeting [August 2] without taking action on a motion,” Holewinski said. “So my determination is that we will pick up from that motion on that floor that day.”

Holewinski proceeded to recap the testimony and events of the public hearing up through the adjournment. That included an exchange with Bangstad, who at the time said he was not going to compromise with the county.

“He brought up that he may file a federal lawsuit against us,” Holewinski said. “We asked him for a compromise and he didn’t want to compromise. We made the motion to deny his CUP. It was a motion and a second and then we were advised by corporation counsel to adjourn the meeting because there were other people coming in and we wouldn’t have had enough time to go through all the stuff and then we adjourned the meeting. That was my mistake for not going back and taking care of the motion at hand.” 

The motion to deny was then voted down, and the committee unanimously awarded Bangstad his permit.

In so doing, the committee attached a stringent set of conditions — some of which Bangstad had proposed, some of which he has objected to — one of which is that all the conditions must be met before he can serve outdoors anywhere on the property.

The reasoning

In the October 30 memo, Hartman recounted his department’s actions, the determination of his authority, and his reasoning for not citing Holewinski.

“On August 17, 2023, I assigned detective sergeant Robert Hebein to investigate your alleged open meetings violation complaint that pertained to a meeting that occurred on August 2, 2023,” Hartman wrote to Walker. “Detective sergeant Hebein sent a report to district attorney Jillian Pfeifer, who determined that it was not a violation of the open meeting statute.”

But, Hartman continued, there were discussions about the violation of parliamentary procedure, and he wrote that he had reached several conclusions.

The first is that he has authority under the code to issue citations. In fact, chapter 25.04(4)(a)(4) of the county code explicitly gives the sheriff such authority: “The Oneida County Sheriff and personnel deputized by the Oneida County Sheriff may issue citations for all violations of the General Code.”

Another provision subjects anyone violating the code to a forfeiture of not less than $5 nor more than $500, together with the costs of prosecution.

That would include Holewinski’s infraction. As Holewinski himself acknowledged, Hartman wrote that the zoning committee chairman violated parliamentary procedure, and ultimately the county code, when he adjourned the public meeting while there was a motion and a second on the floor, as Hebein concluded in his August 21 report.

“The point of contention was not that the meeting was adjourned but that the meeting was adjourned when a vote was being taken,” Hebein wrote in that report. “In researching a Guide to Parliamentary Procedure, author Larry E. Larmer, it cites on page 72 that a motion to adjourn may not be made while a vote is being taken. If this meeting was adjourned contrary to proper parliamentary procedure, then the meeting on August 9, 2023, would have been considered an illegal meeting.”

In his report, Hebein also reported that he discussed with Fugle that the complaint really only centered around if the meeting was adjourned after the motion was made.

“[A]nd that was not disputed,” he wrote.

As such, in his October 30 memo, Hartman contended that he has the authority by the county code to issue a citation not only for general violations but to Holewinski under the specific circumstances at hand.

That had been contested. Some claimed that, even though Hartman can issue citations for code violations, he could not in this specific instance because, as an officer of the executive branch, he would be intervening in a legislative body’s “rules of procedure” — that is, its own policies for conducting meetings — which would be a constitutional violation of separation of powers. 

To use an analogous situation, the attorney general, acting as the state’s top cop, or a court — another branch of government — cannot interfere with the rules the legislature sets for itself in conducting its own meetings.

By contrast, however, the legislature has never codified its rules of procedure in state statutes, but the county did so by putting Larmer’s rules into the county code. By doing so, the county not only established its rules of procedure through policy but determined that to violate them would be a code infraction.

As such, so the reasoning goes, any citations issued by the sheriff would not be for violating that body’s rules of procedures per se but for violating the county code, which the sheriff has the authority to enforce. 

Even so, Hartman called the question moot, at least in this instance because, he wrote to Walker, he had decided against issuing a citation in any event.

“After careful consideration, I have decided against issuing a citation to chairman Holewinski,” he wrote. “Chairman Holewinski accepted responsibility for violating the parliamentary procedure. Chairman Holewinski placed the item on a subsequent agenda in an attempt to rectify the issue after the fact.”

Indeed, after such remediation, issuing a citation would be an inappropriate use of his law enforcement powers, Hartman wrote.

“I feel that it would be heavy-handed law enforcement to issue a citation to chairman Holewinski in this instance,” he wrote.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.