City Could Spend $100,000 To Argue Over $100,000

The fight between City Attorney Tearman Spencer and the Common Council is reaching new levels of absurdity. The Common Council is poised to authorize spending up to $100,000 to fight with Spencer over a $100,000 anti-displacement fund contribution.

“We find ourselves in the rather bizarre situation in being adverse to our city attorney,” said Alderman Robert Bauman to members of the Judiciary & Legislation Committee. “Once upon a time the city attorney represented the council.”

The specific issue at question is the legality of an amendment to The Couture development agreement that required Barrett Lo Visionary Development to contribute $100,000 to an anti-displacement fund in exchange for the city granting a requested liability shield for the unfinished streetcar project to be built in the base of the $188 million, 44-story luxury apartment building.

Bauman proposed the idea, which the council unanimously adopted, but Spencer refused to sign the agreement and said Bauman overstepped his authority and committed an ethics violation by pursuing the grant. Department of City Development Commissioner Lafayette Crump backed Bauman’s idea via email before raising concerns at a committee meeting.

A compromise was reached where the money would go into escrow and a third party approved by Spencer and the council would decide who acted appropriately. The resolution of the issue could have a far-reaching impact on the council’s ability to amend future tax incremental financing agreements.

Up to $50,000 would go to retired judge Chuck Kahn who will decide if the council acted properly. Up to $50,000 in additional funding would be used to hire an outside attorney for the council, which would normally be represented by the city attorney.

Kahn has set out a schedule of written briefs. Spencer will represent himself with his in-house staff. Who will represent the council?

“We do have a number of attorneys on the council. Do we think we could write our own brief?” asked committee chair and attorney Ald. Ashanti Hamilton.

“I raised that possibility, but then that member would be actually practicing law,” said Bauman. “I don’t think that would be wise to have us, in essence, represent ourselves.” The council has three attorneys in its ranks: Bauman, Hamilton and Alderwoman Milele A. Coggs.

“I think it is very frustrating being in this position,” said Hamilton.

“I am reluctantly going to support this,” said Ald. Michael Murphy. “But I think taxpayers have the right to be very mad.”

Murphy and Hamilton both agreed with Bauman’s assertion that the council has done this before, including with the Fiserv Forum and Milwaukee Tool deals, and acted appropriately in modifying the agreement.

But Spencer sees things differently, and reiterated that Monday.

“It is unfortunate that we have to engage in such diatribe when we have to skew what the actual facts are,” said Spencer. He said the only issue was the ethics of amending a deal at “the 11th hour,” not the council’s authority.

But Bauman’s proposal, according to an email thread provided to Urban Milwaukee by Bauman’s office, only came after he was informed that Barrett himself wanted something new, the liability shield, from the city.

“If there were unethical behavior. It was the entire council that was unethical,” said Bauman, noting the unanimous approval. “So fine, file a complaint with the ethics board. That’s what they are there for.” He suggested Spencer also go to the District Attorney if he thought the issue was criminal.

“Some pretty serious allegations have been levied,” said Ald. Nik Kovac. He called it a smokescreen. “The potential ethical violation as far as I’m concerned would only apply if Alderman Bauman or any of us were going to personally benefit from the anti-displacement fund… We are in essence dealing with a structural crisis of city government.” He said Spencer calling it an ethical violation amounted to a fundamental misunderstanding of how legislative bodies work.

“It’s absurd legally, it’s absurd politically, and it’s absurd from common sense,” said Kovac.

Ald. Jose G. Perez is moving to prevent the issue from happening again. He introduced an ordinance to repeal the section of the city code that council members say Spencer is incorrectly attributing.

Spencer said the code has been unaltered for 51 years. “For a reason and one reason only, because it’s good law,” said the attorney, first elected in April 2020. The repeal would remove a requirement that the city attorney review and approve any “any agreement, contract, or instrument in which the consideration for transfer or purchase of property exceeds $25,000.” The council members contend that The Couture agreement does not include any such transfer or purchase.

“We could argue about this for the next 10 hours,” said Bauman. But Hamilton shut down the discussion.

The committee approved the funding requests unanimously and approved Perez’ resolution on a 3-0-2 vote with Hamilton and Ald. Nikiya Dodd abstaining in hopes of clarified language. Perez pledged to bring forth an amendment by the full council meeting on June 15th.

For more on Spencer’s conflicts with the council and others at City Hall, see my April 29th piece “Tearman Spencer Vs. City Hall.”

UPDATE: An earlier version of this article said Perez had introduced an ethics code change. It is an ordinance change to a finance-related provision in the code.