County disappointed by ‘technicality’ dismissal

La Crosse County Circuit Court Judge Ramona Gonzalez dismissed the civil case brought against Sheriff Nancy Hove by Pierce County at a Dec. 9 hearing. Gonzalez said the individuals who initiated the suit did not have the authority to do so.

“This is a case about personalities and this is a case that would make bad law and as such, the iniquities in this case require that this case be dismissed,” Gonzalez said.

County Corporation Counsel Brad Lawrence in a statement Dec. 12 said, “Unfortunately, what some will take away from this is simply that the case was dismissed. However, because of the dismissal on the procedural technicality, the court did not render a ruling on the substantive issues brought by the County.”

Pierce County filed suit against Hove Nov. 7 in Pierce County Civil Court, claiming she has no constitutional authority to hire sheriff’s department personnel without input from other county departments and employees, and if she does so, it’s violating county policy. Richard Hodsdon, the attorney representing Hove, asked the court to dismiss the suit Dec. 9.

“As I have said multiple times, I think this matter has been made moot due to developments over the last several weeks,” Hodsdon noted.

He said the county’s Finance & Personnel Committee voted Nov. 7 to proceed with the hiring process to fill vacant chief deputy, patrol lieutenant and other open positions in the sheriff’s office.

“The proposed written job descriptions have been submitted to the county, working through the process with incoming Sheriff Chad Koranda, which will be reviewed at a future Law Enforcement Committee meeting,” Hodsdon said. “I think this is a really important case to remember. There is simply no basis for equitable relief. No criteria could possibly be met for the request for relief.”

Attorney Kraig Byron, representing Pierce County, said the county is not able to trust the sheriff to do what she says she is going to do. He pointed out that Hove appointed Diane Doheny as undersheriff on Dec. 3, essentially eliminating the chief deputy position held by Steve Albarado, who was out on FMLA leave, despite the fact that the county had eliminated that position in 1995.

Gonzalez redirected the discussion to the question of whether or not the suit was filed without the proper authority.

At a motion hearing held Nov. 16, Gonzalez ordered the Byron to bring forth a full Pierce County Board decision authorizing litigation. She gave them until Dec. 1 to bring the proper resolution and expressed surprise that they had not done so. Byron said the Lawrence told him County Board Chair Jon Aubart and Vice-Chair Michael Kahlow had authorized the litigation to go forward. Byron said he was told the full body was aware of the litigation.

“Under the emergency situation presented to the county, we think it was within the authority of the county chair to commence the litigation and then later ratified by the county board,” Byron said.

Gonzalez countered that due to the importance of the case, which was addressing the unbridled authority of an elected official to make personnel decisions unilaterally, it should have been handled properly.

“If you’re going to challenge the constitutionality of the office of sheriff, it should be done while dotting the I’s and crossing the Ts,” she said. “But I don’t know whether this is the kind of case, quite frankly, that should be brought forth to address those issues when it’s clear that the beginning of this case is more about personalities than it is about actual legitimate concerns….”

Gonzalez also lamented the fact that Byron filed an affidavit at 1 p.m. Dec. 9, half an hour before the hearing, which did not give her time to review it.

“The affidavit simply demonstrates that this is not a one-off, that this has been an ongoing issue,” Byron said. “Under 59.12, the county board chair is authorized to make sure federal, state and local laws are enforced. As soon as she (Hove) found a qualified candidate, she was going to appoint that person and did not feel constrained by the county to follow these actions at all.

You asked us to provide verification that the county board authorized litigation and we did so.”

The affidavit contains emails between Hove, county board members and county administration about Albarado’s FMLA leave and subsequent return to work, concerns about Hove’s alleged retaliation against Albarado, the dispatch center being removed from her control, the undersheriff appointment and following personnel policies.

Byron also said the county did not violate open meetings law when it noticed the Nov. 29 special F& P and county board meetings, at which time the bodies voted on whether to go ahead with litigation.

“Attorney Hodsdon was allowed to present an argument to the board as to why it should not ratify this litigation,” Byron said. “I don’t believe there is an issue as to the open meetings law.”

Byron said even if the county did violate its code, it’s not an open meetings law violation. Per Robert’s Rules of Order, voting to suspend the county board rules and waive the rules for special board meetings is a parliamentary option, he said.

“If the board had not suspended the rules, they could not have provided the resolution,” Byron said.

Hodsdon disagreed. “Clearly notice wasn’t appropriate,” he said. “The committee did not even comply with the county code. The special session was not in compliance with the county code and they made a motion to ignore county code. The county code appears to appear and disappear at the whim of the board chair and his associates.”

Hodsdon argued that the county’s code basically allows the board chair to be an “absolute dictator.” He claimed an emergency to Aubart is “not getting his way.”

It was noted the lack of trust goes in both directions. Hodsdon’s affidavit alleges that when Hove returned to work in March 2021 after being diagnosed with brain cancer, Pierce County administration became increasingly uncooperative and interfered with operational aspects of the sheriff’s office.

“The sheriff accepted a donation for a K9 for her office,” Hodsdon acknowledged. “She was told, there’s a process you have to follow, and she said ‘OK, what do I need to do.’ When given direction, she has complied with the rules and regulations … If anybody has been acting in good faith here all along, it’s been the sheriff.”

Gonzalez ended the hearing by stating the county should not have filed the suit without the county board ratification.

“I don’t know whether they could have done it in the timeframe I gave them,” she said. “I was asking them to fix a problem and I was hoping they had it (the full board ratification).”

She also declined to order the county to pay for Hove’s court costs.

“I can’t impose costs on a county when people are acting outside of the law,” Gonzalez said. “I don’t believe the county is liable in this case of the unauthorized individuals who brought this case forward.”

Response

“In light of today’s court decision, I am grateful for Circuit Court Judge Ramona A. Gonzalez’s decision to dismiss the meritless filing brought before the court,” Hove said in an email to The Journal Dec. 9. “It is with great sadness the actions of a select few resulted in this filing at all. These cases always have two sides, thank you attorney Rick Hodsdon for your very diligent work to shed light on both sides.

“With this litigation essentially placed in the past, I look forward to serving out my term as Sheriff and working with the incoming Sheriff Elect for a seamless transition. Citizens have a voice and it is the citizens who elect our government officials; please seek out the answers to your questions, it is your right. Thank you to all who have supported me throughout my service to the citizens of Pierce County.”

Lawrence made a statement on behalf of the county, emailed to The Journal Dec. 12, concerning the case’s dismissal.

“Pierce County has existing policies and procedures relating to recruiting and hiring for County positions, to ensure compliance with Federal and State law, and to prevent unfair hiring practices, and limit unnecessary liability to the County. Unfair hiring practice lawsuits can be very costly to public sector governments, and Pierce County wants to make sure that doesn’t happen here. The County not only has a vested interest, but an obligation to make sure that each hiring process is fair and consistent, and these policies have been in place for many, many years. Sheriff Nancy Hove was unilaterally going forward with the process of filling a vacant County job position, without following County policies and the law. She made an “Internal Patrol Lieutenant Posting” on Oct. 20, 2022 without authorization, with a response deadline of Nov. 1, 2022. Such a posting is part of the overall County recruitment process, and is controlled by County policy.

“This suit was about the County’s legal right to regulate, administer and enforce its personnel policies with regard to the ability to recruit, hire and promote employees for position vacancies within the County, including Sheriff’s Office deputies, and the failure of Sheriff Nancy Hove to follow the well-defined case law, statutes, the County Code and County policies. The County in turn sought to enforce its policies to preserve and protect the County’s rights, in light of a Sheriff who was unilaterally and intentionally proceeding with an unauthorized recruitment of the Patrol Lieutenant. Two separate communications by the Administrative Coordinator informed Sheriff Hove of the policy language, and that her efforts to recruit were unauthorized. She moved forward with the unauthorized recruitment anyway. On Nov. 1, the Corporation Counsel subsequently reiterated the prior communications, again informed Sheriff Hove of the policies, and made her aware of the law, that the authority to implement and enforce County policy with regard to recruitment and hiring, including the recruitment and hiring of Sheriff’s Office deputies, does not fall unilaterally within the constitutional powers of the Sheriff and that her actions were without legal authority and would not be recognized by the County. Sheriff Hove again failed to align her actions with County policy and on Nov. 2, responded to the Corporation Counsel that “[t]o be very clear and explicit in no way do I waive my right to fill this position or positions that present themselves.” Thereafter, when asked if she would follow the County policies during a meeting before the Finance & Personnel Committee on Nov. 7, Sheriff Hove stated she didn’t know whether she would follow the policy all the way and that she had to look at the policy.

“The County respects the decision of the court, however, it should be noted that the court dismissed this suit on a procedural technicality, that the suit was not initiated properly. This is unfortunate because with regard to the powers and duties of a Board Chairperson, the Wisconsin Statutes relating to the duties of a Chairperson states in relevant part: ‘When directed by ordinance the chairperson shall … take care that all federal, state and local laws, rules and regulations pertaining to county government are enforced.’ The authority of the County to conduct recruitment, hiring, and promotion for County job positions is clearly ‘pertaining to county government’ and is set forth in the law. Furthermore, Section 4-5 of the Pierce County Code with regard to Officers, identifies authority delegated to the Chairperson by the County Board via ordinance, and consistent with the statute, states that the Chairperson ‘shall take care that all federal, state and local laws, rules and regulations pertaining to county government are enforced. [§59.12(1), Wis. Stats.]’ Additionally, the County Board ultimately authorized proceeding with litigation against Hove when it approved Resolution 2227 on Nov. 29.

“County leadership has the responsibility to ensure that laws, policies and procedures are adhered to. When an elected agency head takes the affirmative position that she will not follow County policies or the law, and staff have done their job by calling this to the elected official’s attention, if compliance is not achieved then the County has no choice but to take action to preserve and enforce its rights.

“Unfortunately, what some will take away from this is simply that the case was dismissed. However, because of the dismissal on the procedural technicality, the court did not render a ruling on the substantive issues brought by the County. As unfortunate as it is, it was not until such time as the County filed suit for injunctive relief and declaratory judgment that Sheriff Hove even started to comply with County policy, which would not likely have occurred, but for filing the action. Thereafter, Sheriff Hove stated that she had given permission for Sheriff- elect Chad Koranda to proceed with the process. All along, the County has only sought for Sheriff Hove to follow policy and to work together in the recruiting and hiring process. Administration subsequently met with Sheriff-elect Koranda, having a collaborative discussion regarding evaluation of position descriptions, and the recruitment process and timeframe associated with refilling vacant positions. It was determined to utilize an aggressive timeframe to have two key vacant management positions refilled without delay. As part of the overall recruitment process, a Law Enforcement Committee meeting was scheduled for Dec. 12 to consider proposed updates and changes to position descriptions.

“As always, County staff seek to work collaboratively with the Sheriff’s Office, as well as all County offices, in the recruitment and hiring process.”

Next week, The Journal will report on specifics in the affidavits filed by both the county and Hove.

Attorney Richard Hodsdon, representing Sheriff Nancy Hove, argued for the case to be dismissed on Friday, Dec. 9.Screenshot courtesy of La Crosse County Circuit Court