Milwaukee County board rejects sheriff’s request for private counsel stipend (UPDATE)

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A defeated proposal that would have given Milwaukee County Sheriff David Clarke the ability to hire private attorneys on the taxpayers’ dime could still find its way before a judge.

By a 15-2 vote Thursday, the Milwaukee County Board of Supervisors rejected a Clarke’s request to hire his own attorney, at a cost of up to $300,000 annually in taxpayer expense, for representation in all cases relevant to his constitutional duties.

Clarke submitted the resolution due to ongoing disputes he has with county-provided representation. After Milwaukee County sued Clarke in January to force 27 department layoffs in accordance with the county budget, the sheriff cited a conflict of interests going forward in corporation counsel’s ability to effectively represent him, and started hiring a private lawyer.

County supervisors said at their board meeting Thursday that Clarke has no authority to hire private lawyers in cases where there is no conflict of interest with corporation counsel, the entity charged with representing the sheriff.

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

Clarke did not appear at the county board meeting, nor did Corporation Counsel Kim Walker. Neither could be reached for comment Thursday.

Clarke hired Milwaukee attorney Michael Whitcomb, of the Law Offices of Michael A. I. Whitcomb, to represent him in the deputy layoff case, which was dismissed in March. Since then, Clarke has retained Whitcomb to represent him in four other ongoing cases, at the objection of corporation counsel.

Whitcomb has so far submitted invoices to the county totaling $55,985.09 for his work on the deputy layoff case and the four additional cases.

Milwaukee County Supervisor Mark Borkowski, one of two supervisors who voted in opposition of denying the resolution Thursday, cautioned colleagues that despite denying Clarke’s resolution, the county will likely be on the hook for money owed to Whitcomb.

“Don’t feign surprise when his invoices do come to us,” he told the board. “There is some money Milwaukee County probably does owe because of the sheriff’s use of this private attorney.”

In an attempt to compromise with Clarke and avoid a legal dispute over the sheriff’s desire for private counsel, Borkowski said he is looking into adding Whitcomb to the roster of approved counsel available for hire by the county when there is a conflict of interest with corporation counsel.

“Attorney Whitcomb is currently not on that list,” he said. “I’ve spoken to him and attorney Whitcomb is amicable to be listed. That may be a way to solve the problem and take away the perception that the sheriff has his own private attorney.”

Whitcomb said he has spoken with Borkowski and, like the supervisor, also would prefer to resolve the issue in private, rather than in public through the courts. He welcomed the compromise option to add his name to the list of approved counsel.

“I’d be flattered to be added to that list,” Whitcomb said, “and I appreciate the efforts being made to resolve this.”

But Whitcomb still believes the sheriff should be allowed to choose his own attorney, he said, even if it’s outside of corporation counsel, in matters pertaining to his constitutional duties.

“It shouldn’t be a case-by-case basis,” Whitcomb said. “The sheriff has that right to hire who he wants without getting approval from the county board, corporation counsel or the county executive.”