Sheriff Clarke, Milwaukee County close to attorney fee fight

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Milwaukee County Sheriff David Clarke’s decision to hire a private attorney without first consulting the county could end up costing him more than $55,000.

A Milwaukee judge let Clarke hire his own attorney for a January lawsuit brought by the county to force deputy layoffs. The judge cited a conflict because the corporation counsel, the entity tasked with representing the sheriff in most matters, could not represent the county and defend Clarke.

But Clarke still circumvented the county contract policy, Milwaukee County Supervisor Pat Jursik said, by directly hiring Milwaukee attorney Michael Whitcomb instead of filtering the choice through the County Board or corporation counsel.

“Does the county even have liability to pay?” Jursik said. “I would argue we don’t.”

Jursik said that in almost every case in which a conflict forces outside counsel to represent a county official, either the corporation counsel or the board approves the hiring.

That didn’t happen when Clarke hired Whitcomb in the deputy layoff case, which was dismissed in March.

Whitcomb also is providing legal counsel to Clarke in four other cases and has so far submitted invoices to the county totaling $55,985.09.

“Who is (Whitcomb’s) retainer agreement with?” Jursik said. “It’s not with the county because he didn’t go through the proper channels.”

But Whitcomb, of the Law Offices of Michael A. I. Whitcomb, said he isn’t aware of any county policy that forbids the sheriff from picking an attorney without board approval. He acknowledged that in cases involving insurance matters, the insurer has the right to pick the attorney, but that isn’t the situation with the suits involving Clarke.

“He has done nothing wrong,” Whitcomb said, “because the rules don’t apply.”

State statute does not clearly define the process through which county officials are required to select outside counsel, but Wis. Stat. 895.46(1)(a) states that failure to provide notice of private representation could bar recovery of attorney’s fees for the public employee.

Madison municipal lawyer Larry Bechler, of Murphy Desmond SC, said the law provides for a presumption that if an attorney is to be hired and paid by the county, officials should have some say in who is chosen.

“They have the right to make sure the defense is being provided in a way it sees fit, unless it’s outside the scope of official duties,” he said. “It’s their nickel at risk, but that is the stuff of lawsuits.”

A lawsuit over Clarke’s outside counsel and the resulting attorney fees could be on the horizon following the Milwaukee County Board’s Judiciary, Safety and General Services Committee’s rejection of Clarke’s request to allot $300,000 in county money for him to hire outside counsel going forward.

The full board is scheduled to take up the resolution Thursday, and Supervisor Mark Borkowski said it has little chance of passing.

“I am certain the board will sustain the committee’s vote,” he said. “But that does not mean it’s over.”

Clarke said he is prepared to take it to court to argue his constitutional right to hire the lawyer of his choice supersedes any county policy.

After the county sued him over the deputy layoffs, Clarke said, he no longer wanted to listen to internal recommendations for private attorneys if he had no say in who was hired.

“I have to have confidence in my attorney,” Clarke said. “I don’t have that with corporation counsel, and I don’t get any say in that vetting process when they hire a private lawyer.”

Whether he had the right to bypass county policy and expect the county to pay Whitcomb are questions a judge probably will have to answer, Clarke said.

“Policy can’t negate somebody of their rights,” he said. “Policy never trumps the rule of law.”

But Jursik said Clarke’s attempt to seek approval after the fact for hiring Whitcomb is an acknowledgement the sheriff broke the rules and may have to pay for it.

“I think he is realizing that he’s out there in left field without any cover,” she said. “There are penalties, and I also think there may be some personal exposure there.”