Last Saturday I wrote about the range of issues that local government deals with in the entry titled "From the tiny to the huge". This report will concentrate on the "tiny" issues that the City Council deals with and with the interesting pressure that can be brought to bear on its decision-making. It isn't a story you'll see in the newspaper or hear on radio or watch on TV; but it's the small change of local government that goes on all the time and affects peoples' lives.
A young man, 27 years old, by the name of Kevin Chaignot, applied for a Beverage Operator's License to work at the Eagle's Club in the city of Neenah. As I detailed in last Saturday's entry, the Public Services & Safety Committee was to vote at its Feb. 10th meeting on whether to recommend that the Council deny his application. The Neenah police department had run a background check and found that, contrary to the answer Mr. Chaignot gave on his application, he had indeed been convicted of a misdemeanor within the last five years.
He came to the PS&SC to plead his case during the Public Appearances segment of the meeting. Here's what he said:
I have a notification ... should I stand up? [Chairman Bruce Rhoades said, "Sure, and give us your name, please?" - Ed.] Kevin Chaignot, I'm 27 years old. I got a notification of possible denial of beverage operator license in regards to failing to disclose possession of drug paraphernalia on 9/8 of '05 and disorderly conduct on 10/9 of '05. I didn't knowingly or intentionally withhold that information from anybody; and if you could take a look at my application, I even have White-Out on the "Yes". So, I thought it was at least five years. And I really, really, really like my job and I'm doing stuff for the community. It's not like something I've really held against, you know, I really held it back or nothin' like that. It's not something I'm proud of, but, you know, it's something I would have disclosed.
So Mr. Chaignot sat down and the committee covered the agenda items that came before its consideration of his beverage operator's license. He waited 40 minutes. I observed that he held hands briefly with his girlfriend while they waited to see what the committee would recommend.
When it came time, Chairman Rhoades said, "Any questions from the committee or any recommendations from the committee?" Alderman Nick Piergrossi questioned Mr. Chaignot about why he used White-Out on the application. Mr. Chaignot, obviously a little rattled by the experience, now, of being under the microscope, said,
Because I thought that it might have been less than five years, but I wasn't sure. I marked yes but then I was like 'Uh, it could have been five years ago.' I marked 'No'.
Mr. Piergrossi pointed out that the question whose answer had been whited-out says "ever" in bold print and Mr. Chaignot stood up and walked over to the committe table saying, "I thought it said, you know, within the last five years. I thought..." And then he looked at the application again and he saw that he had whited-out the answer to the question: Have you EVER been convicted of any violation of the Wisconsin Statues [sic] and/or federal law pertaining to the sale of alcoholic beverages and/or the manufacture, possession or deliverance of a controlled substance?
He saw that he had whited-out the answer to the wrong question and said, "This one is 'No', this one is 'No'," meaning that that question, at least, he had no confusion about. He had not been convicted of any of the more serious offenses. "I thought I had whited-out this one," the question that reads: Have you been convicted of a misdemeanor or ordinance violation within the past five (5) years (e.g. speeding, OWI, disorderly conduct, driving without a license, etc.)?
"I didn't knowingly withhold information, though." At this point I could tell he was a little shaken that he'd made such a mistake and that it came to light before the committee that was to recommend the fate of his job. He was certainly aware that he'd answered incorrectly on the application. His unspoken request was for the committee to make an exception. "I've never been convicted of any possession or drugs or alcohol or anything like that."
Mr. Piergrossi asked, "Is this your main employment?" Mr. Chaignot said firmly, "This is my only employment."
The Mayor then asked for confirmation from Mr. Chaignot regarding his answer to the whited-out response to the question about ever being convicted. Mr. Chaignot again said, "I've never been convicted". "Therefore, 'No' was the accurate answer?" asked the Mayor. Again, Mr. Chaignot: "'No' was the accurate answer, yes."
Chairman Rhoades, a former employee of the Winnebago County Sheriff's department, asked "These two incidents in 2005, were you charged with them and then found not guilty, or were they dismissed?" Mr. Chaignot answered, "I was charged and I think I got an expungement for the paraphernalia, and the disorderly conduct I got a misdemeanor for. I did get a misdemeanor for that. But I thought that was more than five years."
Mr. Mayor asked, "So where does that drug paraphernalia... doesn't that come under...?" Mr. Chaignot interrupted (which may have caused the Mayor to be more critical later) with "Well, I didn't have any drugs. It was just a piece of paraphernalia. There was no drugs involved."
Chairman Rhoades said, "That makes sense, because the question is 'manufacture, possess, or deliver' controlled substances, not for paraphernalia."
The Mayor then said, "So what did... the police department recommendation is...based on the fact that..." Mr. Piergrossi then interrupted to say, "Well, if you look at the police department, too, they say that it has been within five years...and that's not accurate either." At this point he didn't realize that the police report WAS accurate. The offenses had occured in 2005 which is less than five years ago.
Mr. Piergrossi then moved that the committee recommend that the City Council approve Mr. Chaignot's application. He mangled Chaignot's name in the process (it's pronounced SHOG-NOH, hard 'G', equal emphasis on both syllables; an Americanized pronounciation of the French name), and the subject said, "It's a mouthful." Chairman Rhoades said, "We'll just go with 'Kevin'", to polite chuckles.
Chairman Rhoades asked whether there was a second to Mr. Piergrossi's motion. Several seconds went by with no one from the committee piping up. Chairman Rhoades began to say, "I will relinquish...", meaning that he was about to say that the motion would not be acted upon due to lack of a second, when Lee Hillstrom interrupted to say, "I'll second, because I want to ask a question." [UPDATE: Mr. Rhoades was actually about to relinquish his position as Chairman of the committee so that he could officially second Mr. Piergrossi's motion, when Mr. Hillstrom spoke up. Thanks to Alderman Piergrossi for that correction. - Ed.]
Mr. Hillstrom asked where and how long Mr. Chaignot had been working in Neenah. Mr. Chaignot answered that he'd been working at the Eagle's Club, and that "I've been there for a month. I have a provisional that I paid for here. That's how long I've been bartending." Then, I think because the length of time Mr. Chaignot had been bartending was so short, Mr. Hillstrom asked whether he'd worked anywhere else as a bartender. "I was bartending in Oshkosh, I have an operator's license in Oshkosh; but since I got the job at Eagles's, I stopped bartending in Oshkosh."
A soft-spoken follow-up question from Mr. Hillstrom: "And how long were you doing it in Oshkosh?" Mr. Chaignot replied,
Oshkosh? I was there for about four months...and I was working at a lesbian bar...and it wasn't exactly my...
...and here the members of the committee began to chuckle; someone even finished Mr. Chaignot's sentence for him with "...cup of tea." This was the turning point, I think.
Not to be sidetracked, the Mayor continued to be the bloodhound, and asked, "And did you fill...you had to fill out a similar application in Oshkosh, I would assume?" "Yes," said Mr. Chaignot, "I filled out applications, took the pictures, I did everything..." Continuing to vet, the Mayor asked, "And there you filled it out accurately?" Mr. Chaignot said, "Yep, I filled it out the same way I thought I'd filled it out here."
Chairman Rhoades asked for any other questions from the committee and then asked for the vote: 3-1 in favor with members Rhoades, Piergrossi, and Hillstrom voting in the affirmative while Judy Zaretzke was opposed. Committee member Todd Stevenson wasn't present at this meeting.
Chairman Rhoades told Mr. Chaignot that "It'll go from here to the City Council for final ratification next Wednesday evening. [Feb. 18 - Ed.]" Mr. Chaignot asked if he should appear at the Council meeting, too. Mr. Piergrossi said, "It couldn't hurt." Mr. Chaignot then asked, "Would you mind if I left?" To which Chairman Rhoades replied, "Go ahead. I wouldn't hang around any longer than I had to!" More chuckles from the committee.
Mr. Chaignot had been earnest, polite (except for interrupting the Mayor), honest, and forthcoming in an entirely unexpected way. I believe that it was that ingenuous comment about his experience at the bar in Oshkosh that turned the committee's opinion in his favor; that is, to overlook the facts of the case -- i.e., that he had knowingly or unknowingly filled out his application incorrectly -- and recommend that his application be accepted.
This wasn't the end of the story, however. After a couple more routine items to finish the business of the committee, the Mayor spoke up: "I guess I'm kind of curious as to the thinking...on these beverage operators licenses, you know, either we should change the policy or we should..."
Mr. Piergrossi interrupted with, "Well, to me, he adhered to the policy. I mean, it said "controlled substance". He didn't...paraphernalia is not a substance."
The Mayor continued, "But it says, 'Have you been convicted of a misdemeanor or ordinance violation within the past five years...disorderly conduct, driving without a license', and so on...he was convicted of violence and threatening behavior and fined for disorderly conduct within five years. So..." The Mayor was reading from the memo from Jeff Malcore of the Neenah Police Department that all the committee members had in front of them.
Mr. Piergrossi said, "It was '05." Ms. Zaretzke said, "'05, it's '09..." Chairman Rhoades said, "Four years," to which Mr. Piergrossi sheepishly said, "Oh, that's right."
The Mayor went on, "It's four years, so I mean, he clearly lied on the application because he says 'No' ... and we consistently, when someone lies on the application, we still give him the license. Something's inconsistent: either we should change it and say, 'It doesn't matter whether you were convicted or not,' or we should follow the ordinance, one or the other, or follow the policy, one or the other. But, I...that's just..."
He trailed off and Ms. Zaretzke spoke up with, "The reason I said 'No' is because of this violent/threatening ... disorderly conduct behavior that he had, was my biggest reason."
Ms. Zaretzke rarely speaks up during these meetings, and the Mayor made no mention while Mr. Chaignot was present of why he thought that the application should be denied, though he had to have believed that the number of questions he directed at Mr. Chaignot should have been an indicator, a clue. The meeting was then adjourned.
Today I received the weekly Council packet containing minutes, agendae, memos, etc. In it was the Mayor's "Council Update" memo which he includes with each packet that contains the Council Agenda for the next meeting. Here's the relevant paragraph from the memo:
I expressed my concern at the PS & S Committee about the approval process for bartender licenses. The policy and the application are perfectly clear yet we have a history of approving licenses after a staff background check has shown the applicant was in violation of the policy and lied on the application. Almost always, their answer is that they just made a mistake or they misunderstood the question. If the bold print questions say "have you EVER been.....or within the past five years, it simply does not leave any room for misunderstanding. I would respectfully suggest we change the policy or follow the policy. I understand it is difficult to deny a license that takes away someone's job in Neenah but to go through the background checks and then override the recommendation when the violation is clear, seems to make the entire process very subjective. Note that the instructions to applicants clearly states in bold print that "should the information you provide be INCORRECT, your license will be recommended for denial". That should provide a red flag to anyone to be very careful how they check the boxes.
To this memo the Mayor had attached three other documents:
- Instructions for applicants for Beverage Operator licenses
- A list of Bartender license approval dates
- A copy of the Application for Beverage Operator's License
Clearly the Mayor did his best to persuade the Council that the members of the Public Services Committee should not have voted to recommend approval of Mr. Chaignot's application. Clearly he thinks that either we should never reverse the policy … or that we should change it to more clearly indicate the amount of the Council's lattitude in reversing it.
After reading the memo I got to thinking about certain functions of the Council. For example, when a property owner in Neenah objects to the size of his property tax bill, he takes his complaint to the Board of Review. The ordinances and statutes dealing with property taxes include what I'd call a "fudge factor" clause; that is, as long as the property tax bill is within a 10% range, the property tax payer really has no basis for arguing. The implication is that he only has cause to complain if the bill is outside that fudge-factor range. Generally, the Board of Review denies the appeal by the property owner and life goes on.
But if the property owner persists in saying that his taxes are unfair or unreasonable even if they're within that 10% range, he may appeal directly to the City Council. I was a member of the Council when a couple of those appeals were on the agenda. At one Council meeting I cast the sole dissenting vote; that is, I voted in favor of the tax payer. That was a bit embarrassing since, really, my only reason for voting that way was that I approved of the gumption of the taxpayer in taking his complaint all the way to the Council. The next time there was a property tax appeal, I abstained because, by that time, I had doubts whether anyone on the Council had enough experience with the tax laws or with the concept of an appeal to a political body for redress of grievances. I certainly didn't know enough; but the laws allowing these sorts of political appeals are right there on the books.
That is, the Council is the penultimate body before which a taxpayer can lay out his case that his taxes are too high. (The ultimate body is the state court system.) That means that there's always the chance that the Council will vote in favor of the taxpayer, thereby reversing the decision of the Board of Review.
It's kind of like jury nullification and it's part of our system of government. What I mean by that is that apparently cut-and-dried legal issues can be decided by regular people, Council members, with no legal training. Is that right? Is that advisable? I don't see anything really wrong with the notion that a political body can reverse policy without first changing a policy.
So, here we had Kevin Chaignot, screwing up his courage to appear before the Public Services & Safety Committee. He was nervous, and abundantly aware that he had filled out an inaccurate application. During his presentation, I couldn't help but remember trying to fill out health insurance questionnaires dealing with "Have you visited a doctor's office during the last five years for any of these obscure ailments?" … and then they throw in a common one.
Mr. Chaignot knew that this was his best shot, to come clean while acknowledging that he screwed up. He was asking that the committee recommend his application for approval even though the application clearly indicated that he could be denied a license if he answered incorrectly, inaccurately, or untruthfully.
This is what impressed the committee, I think. The committee acted on faith, faith that Mr. Chaignot -- while he had been careless in the past, even violent -- cared enough about the process of government that he came in person to plead his case, knowing and accepting that his current fate was in their hands.
The Mayor and Ms. Zaretzke weren't opposed to him getting his bartender's license; they just wanted him to acknowledge the primacy of the city's policy in granting those licenses ... and that he should wait until five years have passed since his misemeanor before applying.
But I think that the Mayor overstated his case somewhat, turning his focus on past actions of the Council; that is, actions that contravened the licensing policy. Here again, as with appeals in property tax cases, the Neenah Common Council is tasked with the approval or denial of beverage operator licenses. Should they be? Why does our policy state that an incorrect application "will be recommended for denial"? Why doesn't it just say that an incorrect application will be denied, period?
I don't know why...but I'm glad that it doesn't. Perhaps the people way-back-when who wrote the ordinance or statutory language regarding the granting of bartenders' licenses took into account that people are fallible and that there should be a certain amount of consideration of each application on its merits, not merely to applying the letter of the law.
I'm fond of an old saying: "Hard cases make bad law." In this situation though, the law does makes allowances for strict interpretations to be, if not reversed, then applied with a less-heavy hand.
People write the laws and people break them and, as the Mayor pointed out, we have often given second chances to those that make mistakes; perhaps more frequently than he would like, but that's part of the role of the Council: to apply the law with people in mind.
I am in favor of Mr. Chaignot being granted his license. I hope that the Council is, too.