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Milwaukee County, sheriff point fingers over private lawyer’s bill

By: Jack Zemlicka, [email protected]//April 27, 2012//

Milwaukee County, sheriff point fingers over private lawyer’s bill

By: Jack Zemlicka, [email protected]//April 27, 2012//

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Milwaukee County Sheriff David Clarke

Milwaukee County Sheriff David Clarke and county officials are in dispute over who should pay private legal fees racked up as a result of an ongoing rift between the public official and the county.

In almost all cases, Milwaukee County Corporation Counsel is charged with representing county employees, along with the sheriff, in legal disputes. But 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.

“How can someone that brought an adverse action against me feel they can represent me?” Clarke said. “That’s insane.”

A judge allowed Clarke to hire his own attorney in the deputy layoff case because Corporation Counsel could not represent the county and also defend the sheriff. Clarke hired Milwaukee attorney Michael Whitcomb, of the Law Offices of Michael A. I. Whitcomb, to represent him at a county cost of $37,095.84, according to invoices submitted to the county.

Clarke then retained Whitcomb on four other occasions since the layoff case was dismissed March 6, running up an additional $18,889.25 in legal fees.

Two of the ongoing cases involve motions Whitcomb filed to make Clarke a party to disputes over the restoration of three captains’ positions. Another is a March 26 lawsuit Clarke filed against the Milwaukee County Civil Service Commission, tied to the captains’ layoffs.

Whitcomb also is providing legal services for Clarke in his defense of a March 23 suit filed against the sheriff by the Milwaukee Deputy Sheriff’s Association over privatization of bailiff services in the county courthouse.

Corporation Counsel opposes Whitcomb’s involvement in all four cases.

“As far as I’m concerned the office of corporation counsel represents the sheriff’s office in all legal matters,” Corporation Counsel Mark Grady said, “and we are and will continue to do so.”

According to Milwaukee County Supervisor Pat Jursik, Clarke has no budgetary authority to retain outside counsel, unless a conflict of interest is present.

She questioned if that is the case in the ongoing suits involving the bailiffs and captains.

“The sheriff isn’t just another person who can just retain any attorney he wants,” Jursik said. “He is an elected official and in a corporate body, in county government, there is a structure set up within the budgetary framework.”

That structure provides for Corporation Counsel to represent the sheriff, an ability Jursik said remains intact, despite the prior lawsuit the county brought against Clarke. She called Whitcomb’s hiring a political play that perpetuates the rift between Clarke, the county board and Corporation Counsel.

Clarke acknowledged his fractured relationship with the county, but said there is no definitive law or rule that denies him the right to hire outside counsel in matters pertaining to his constitutional duties as sheriff when there is a potential conflict of interests.

“These are unchartered waters,” said Clarke, who plans to make a formal request to the county board in May to grant him the authority to hire outside counsel for anything directly involving the constitutional authority of the sheriff.

“I’m not satisfied with what Corporation Counsel has done in the past,” he said. “And where else does a person not get to pick their attorney?”

Whitcomb has thus far submitted three invoices to the county totaling $55,985.09 for his legal work done Jan. 10 through March 30.

He said he has yet to be paid by the county, but is continuing to charge the sheriff’s office for his ongoing representation in the pending cases involving the bailiffs and captains.

“If there are issues, nobody has talked to me about them,” Whitcomb said. “I just think it’s a county obligation to pay me.”

Clarke agreed Whitcomb’s fees should come from the “county coffers” and more specifically, the Corporation Counsel budget.

“I’m not asking for additional money,” Clarke said. “Taking it out of Corp Counsel’s budget is the way to do it without including additional costs to taxpayers.”

But Jursik argued that Whitcomb isn’t entitled to payment from the county just because he is representing the sheriff.

“Mr. Whitcomb does not automatically have the right,” she said, “to look to county government to pay him.”

The source of Whitcomb’s fees likely will be debated by board members and could potentially end up in court, Jursik said.

That is, she said, unless Clarke wants to pay the fees himself.

“Mr. Whitcomb might look to get paid personally from the sheriff,” Jursik said. “If the sheriff is going to go outside his authority that may be the way Mr. Whitcomb gets paid.”

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