Milwaukee County rejects sheriff’s private attorney request (UPDATE)

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A Milwaukee County judiciary board Thursday shot down Sheriff David Clarke’s request to retain outside counsel in matters pertaining to his professional duties.

Clarke submitted the petition after the county sued his office in January. Following the lawsuit, he argued the county’s Corporation Counsel has a conflict of interest when representing him.

In at least four other cases after the resolution of the January lawsuit, which centered on enforcing the layoffs of 27 deputies, Clarke hired Milwaukee attorney Michael Whitcomb, of the Law Offices of Michael A. I. Whitcomb, over the objection of Corporation Counsel.

So far, Whitcomb has submitted three invoices since January totaling $55,985.09 but has not been paid. The majority, $37,095.84, stems from his approved representation in the deputy layoff case, but the remainder is tied to ongoing litigation.

“I have another invoice for work I’ve done in April that I will be submitting,” Whitcomb said. “I’ve not heard any expressed objections to the invoices.”

But Corporation Counsel objected to his involvement in cases beyond the deputy layoff litigation, and there is a question about to how Whitcomb will get paid, given that his hiring wasn’t done in accordance with county policy.

Typically, when there is a perceived conflict or need for specialized representation beyond the scope of Corporation Counsel, it recommends several attorneys to the County Board of Supervisors, said Supervisor John Weishan, a member of the Judiciary, Safety and General Services Committee.

That wasn’t the case with the hiring of Whitcomb, who is an admitted longtime friend of the sheriff.

“I’m not sure how the sheriff came up with his attorney,” Weishan said.

Wieshan said the Corporation Counsel budget includes $250,000 to $300,000 annually to pay for outside counsel by county employees, but the money is dispersed with oversight from the board.

Clarke had sought approval by the County Board’s Judiciary Committee for an additional $300,000 annually in taxpayer money so he could hire private counsel for representation in lawsuits, notice of claims, equal employment complaints, disciplinary cases, legal opinions, unemployment hearings and open records consultations.

“The reality is that the sheriff had been forced to use outside legal counsel on legal matters based on the actions of Corporation Counsel earlier this year,” said Sheriff’s Department Inspector Ed Bailey, who submitted the petition on Clarke’s behalf.

Weishan said it isn’t clear where the sheriff intended to get the money to pay for his private attorney. The committee voted 5-2 to reject Clarke’s petition.

“What we denied today,” Weishan said, “was just giving a blank check to the Sheriff’s Department to get outside counsel anytime they see fit.”

But Bailey said the relationship between Corporation Counsel and the Sheriff’s Department is “irretrievably broken” and that should free Clarke to hire his choice of attorney to represent him. Bailey said given that the legal relationship had dissolved, Clarke had no obligation to seek approval from Corporation Counsel to hire a private attorney.

“I’m not sure what the proper channel is when one’s primary issue is with the attorney that in general practice is involved in the decision,” Bailey said. “It’s a unique situation.”

Bailey said he expects Whitcomb to be fully compensated for his representation. Bailey also said he expects to meet with Corporation Counsel and County Board members to reach an amicable resolution.

Committee members said that upon conclusion of the deputy layoff case, in which a judge determined there was a conflict of interest, Corporation Counsel resumed its role as the internal law firm for the Sheriff’s Department.

Corporation Counsel Kimberly Walker declined to comment on whether her office is responsible for compensating Whitcomb for his work but said she disagrees with the court’s decision that her office couldn’t represent the sheriff in the deputy layoff case.

“The matter is resolved and behind us,” she said. “We are the attorney for county officials and are charged with representing and defending them in all lawsuits, and we will continue to do so.”

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