Madison City Council member proposes that council, mayor decide whether to settle lawsuits

March 18--Weeks after the city's insurer agreed to pay a record $3.35 million to settle a lawsuit brought by the family of a teen killed by a Madison police officer, a City Council member is proposing that the council and mayor decide whether to settle future lawsuits against the city or its employees.

The proposal is generating interest but may not find support over concern the city could lose its insurer.

The family of Tony Robinson filed a federal civil rights lawsuit after the 19-year-old was killed by Officer Matt Kenny in 2015. The settlement, announced last month, is the largest in state history for a police shooting, surpassing the previous record of $2.3 million the city agreed to pay the family of Paul Heenan in 2015 to settle a civil rights lawsuit against the city and former police officer Stephen Heimsness, who fatally shot Heenan.

The settlement between the Robinson family and the city's insurer was made over Kenny's strong objections. The city -- which had been dismissed as a defendant in the case -- was not involved in the settlement and had no ability to influence the court or the parties in approving it, Mayor Paul Soglin has said.

Ald. Paul Skidmore, 9th District, has introduced a resolution that would give the mayor and council a role in deciding whether lawsuits should be settled. The proposal will be considered by city committees and decided by the council at a later date.

"It's my desire to not have this happen again," Skidmore said of the lawsuit settlement process. "This is not political. This is bad public policy."

Soglin said he'd like to have the ability to review all settlements but is withholding an endorsement of the proposal until he speaks with City Attorney Michael May about whether the resolution would jeopardize the city's ability to get insurance.

Council President Mike Verveer said he has had informal conversations with the city attorney's office and risk manager and was told the resolution is problematic.

"In concept, it sounds good," he said. "But we could end up having to be self-insured."

May could not be reached for comment Friday.

Kenny shot the unarmed Robinson after the teen, who had taken hallucinogenic mushrooms, punched Kenny in the head and knocked him into a wall during an altercation in the narrow stairway of a Williamson Street apartment home on the night of March 6, 2015, authorities said. Police had been called to the area after reports that Robinson had been running in traffic and battering people.

In May of that year, Dane County District Attorney Ismael Ozanne determined the shooting was a lawful use of deadly force and declined to bring criminal charges. A state review and an internal investigation also found Kenny acted appropriately.

The lawsuit, brought by the family against the city in August 2015, was due to go to trial on Feb. 27. The city was removed as a defendant by U.S. District Judge James Peterson after he found no evidence to suggest that city practices or procedures led to Robinson's death. The city's insurance company remained involved, however, because Kenny, who was also named in the lawsuit, is insured under the city's policy with Wisconsin Municipal Mutual Insurance Co., May has said.

The insurance company has the authority to make settlements under its policy with the city, May has said, adding that the city does not need to approve any settlements "and cannot tell WMMIC not to settle." The city pays a retention fee, similar to a deductible, of $350,000 a year, which "was used up long ago in this case," he has said.

The settlement "leaves the plaintiffs free to disparage the city of Madison and its employee without recourse to sworn testimony, cross examination, or the independent judgment of a disinterested judge," Skidmore's resolution says.

Decisions involving lawsuits brought by or against the city are properly the responsibility of its elected officials, not agents of an insurance company, and removing elected officials from decisions in such matters frustrates the accountability citizens expect from them, it says.

"If there is a compelling reason to go to court, we will," Skidmore said.

Meanwhile, Soglin and Skidmore will introduce a resolution to the council Tuesday to reimburse Police Chief Mike Koval for close to $22,000 in legal fees from a misconduct complaint.

The Madison Police and Fire Commission dismissed the complaint without disciplining Koval, though it found that Koval had engaged in misconduct when he called Robinson's grandmother, Sharon Irwin, a "raging lunatic" after a combative City Council meeting.

Koval publicly apologized for the remark.

Last year, the City Council passed a resolution allowing police and fire chiefs to have their legal expenses reimbursed if they prevail in complaints filed against them.

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