On The Harmon Seaver Affair: City Attorney Or City Attack Dog?

by Tony Palmeri

June 15, 2001

As reported in the June 12 Oshkosh Northwestern , Jackson St. resident Harmon Seaver's inflammatory web site got the attention of Mayor Jon Dell'Antonia. In an e-mail to City Attorney Warren Kraft (reproduced on Seaver's web site), Dell'Antonia wrote:

Subject: FW: City Tree Rapers. You need to take a look at this guys web site. I think he has gone to far and I would like for you to "nail him to the cross" if you can. My issue is with his comments of kickbacks at city hall. This is a serious charge and he should either come forward with proof,and we should take appropriate action, or have to put out a retraction on his site. That is what I would like you to go after him about.

It is one thing for him to blow off steam with his opinions, but this is a specific charge of illegal doings and I do not think we should let him get away with it. I think it is "put up or shut up" time.

If you would like to discuss what we can do or we need a session on it, then lets have it.

Kraft then sent an e-mail to Seaver (also reproduced on Seaver's site) which said:

Dear Mr. Seaver:

The mayor invites you to come forward with proof to support your allegations of kickbacks at city hall, as posted on your website. http://www.oshkoshbygosh.org

You surely can attend the next Common Council meeting, which begins at 6PM on Tuesday, June 12, 2001, in Room 406 of City Hall, 215 Church Avenue.

There is a portion near the meeting's end, entitled Citizen Statements, during which time you have ample opportunity to substantiate your claims.

Otherwise, if you do not have such proof, you ought to consult with legal counsel to determine what appropriate retractions should be published. You might be aware that defamation of character, also known as libel, can result in civil lawsuits against the defamer. In addition, you may wish to ask about unauthorized use of portions of the City of Oshkosh website.

Please do not misinterpret this as an effort to stifle appropriate public discussion about municipal issues. Valid, public opinions ought not lead one into legal trouble unless intended to do so.

Thank you very much,

Warren P. Kraft
City Attorney's Office
215 Church Ave
P. O. Box 1130
Oshkosh WI 54903-1130
(920) 236-5115
fax: 920-236-5090

PS Just so there is no misunderstanding, I do not consent to your publication of these comments in any fashion other than during a consultation with your legal counsel, should you so choose. Feel free to contact me directly about any questions you may have in these areas.

In the Northwestern article, Seaver was asked how he felt about the Mayor asking the City Attorney to find a way to "nail him to the cross." Said Seaver: "I'm just really astonished by what he did . . . If I actually really libeled somebody, then their option is to hire an attorney. But they're using public funds. Using the city attorney to do something like that is really strange."

Mr. Seaver's comments and the Mayor's instructions to the City Attorney raise some interesting questions. To wit: What are the City Attorney's responsibilities under state statutes? Under statutes, is it appropriate for the Mayor to ask the City Attorney to find a way to nail a citizen "to the cross" for an offending web site? Let us address each question in turn.

Question 1: What are the City Attorney's responsibilities under state statutes?

The responsibilities of the City Attorney are found in chapter 62.09(12) of Wisconsin state statutes:

62.09(12)

(12) Attorney.

62.09(12)(a)

(a) The attorney shall conduct all the law business in which the city is interested.

62.09(12)(c)

(c) The attorney shall when requested by city officers give written legal opinions, which shall be filed with the clerk.

62.09(12)(d)

(d) The attorney shall draft ordinances, bonds and other instruments as may be required by city officers.

62.09(12)(e)

(e) The attorney shall examine the tax and assessment rolls and other tax proceedings, and advise the proper city officers in regard thereto.

62.09(12)(f)

(f) The attorney may appoint an assistant, who shall have power to perform the attorney's duties and for whose acts the attorney shall be responsible to the city. Such assistant shall receive no compensation from the city, unless previously provided by ordinance.

62.09(12)(g)

(g) The council may employ and compensate special counsel to assist in or take charge of any matter in which the city is interested.

Reading these responsibilities, it is difficult to see where a Mayor is given the right to ask a City Attorney to find a way to "nail him to the cross." If Mayor Dell'Antonia felt that he was being libeled by Seaver, or if he felt that Seaver's web site was damaging in some other way, then the statute does appear to give him (Dell'Antonia) the power to request a written legal opinion. For example, Dell'Antonia could have asked Kraft to prepare a written opinion as regards the legality of Seaver's web site. Had Kraft then written an opinion, it would placed on file with the clerk--presumably so any member of the public could see it.

While such use of the City Attorney could constitute "free legal advice" for city officials who feel they are being libeled, the statutes do appear to allow the City Attorney to offer such advice.

The problem, however, is that Dell'Antonia's e-mail to Kraft clearly does not represent a request for a legal opinion. Instead, Dell'Antonia makes a judgement about the web site ("I think he has gone too far"), and then gives Kraft marching orders ("I would like for you to 'nail him to the cross' if you can"). Dell'Antonia makes no attempt to find out from Kraft if in fact the Seaver site might be considered libelous under current laws, nor does he request an opinion as to what might be the options for dealing with such situation. Instead, he decides unilaterally that Seaver's charges are "serious", and that Seaver should "either come forward with proof, and we should take appropriate action," or Seaver should "put out a retraction on his site." Then, another marching order: "This is what I would like you to go after him about."

Mr. Kraft, instead of explaining the responsibilities of the City Attorney to the Mayor, decided to follow the marching orders. In his e-mail to Seaver, Kraft speaks on behalf of Dell'Antonia and invites Seaver to attend the June 12 Council meeting to "come forward with proof" to support his web site "allegations of kickbacks at city hall." If Seaver won't come forward to prove his claims, then according to Kraft he should "consult with legal counsel to determine what appropriate retractions should be published." He then warns Seaver that he may face a possible civil lawsuit. Of course, Seaver should not interpret Kraft's note as "an effort to stifle appropriate public discussion about municipal issues."

With his e-mail, it seems to me, Kraft has crossed the line from City Attorney to City Attack Dog. If Kraft did not intend to intimidate Seaver with the note, which I find doubtful, it is difficult to see what other possible intention there could be. In his PS to Seaver, Kraft says that he does not consent to publication of his comments. Why would that be, unless he felt that the comments would be interpreted as inappropriate?

Perhaps Kraft might justify his actions by reference to chapter 62.115 of Wisconsin State Statutes, which says:

62.115 Defense of officers by city attorney.

62.115(1)

(1) The common council of any city, however incorporated, may by ordinance or resolution authorize the city attorney to defend actions brought against any officer or employee of such city or of any board or commission thereof, growing out of any acts done in the course of employment, or out of any alleged breach of duty as such officer or employee, excepting actions brought to determine the right of such officer or employee to hold or retain that person's office or position, and excepting also actions brought by such city against any officer or employee thereof.

Here, the statutes tell us that the common council may authorize the city attorney to act, in essence, as a private attorney for city officials when legal actions are brought against them. In this case, Mr. Seaver has not to my knowledge brought any actions against Mayor Dell'Antonia or any other city official. Even if he did, neither Dell'Antonia nor Kraft in their e-mails appear to be interested in defending their actions. Instead, they appear to be interested in creating an intimidating and hostile environment in which Seaver will know that if he does bring actions against the city, the full weight of the City Attorney's office will be brought against him.

Question 2: Under statutes, is it appropriate for the Mayor to ask the City Attorney to find a way to nail a citizen "to the cross" for an offending web site?

The preceding analysis demonstrates that, under Wisconsin State Statutes, Mayor Dell'Antonia's directives to the City Attorney were and are clearly inappropriate. The Mayor did not ask the City Attorney for a legal opinion, nor did he ask to be defended against some action. Rather, he gave the City Attorney a directive to "go after" Seaver. This represents a politicization of the City Attorney's office, a situation that should frighten all citizens of Oshkosh. If the Mayor can direct the City Attorney to "go after" Seaver, why should he stop there? If the Mayor decides unilaterally that the Commentary show and/or web site is libelous, will he next order Kraft to go after Mr. Mather or I?

I do not know if Mr. Seaver's web site is potentially libelous. However, whether the site is or is not libelous is a question that is irrelevant to the responsibilities of the City Attorney and the Mayor. The Mayor did not ask the City Attorney to provide a legal opinion as to whether Seaver's site is protected by the First Amendment. Nor did the Mayor ask the City Attorney for an opinion as to what are the city's legal options should it turn out that Seaver's site is in a gray area not necessarily protected by the First Amendment. Instead, the Mayor asked the City Attorney to find a way to silence Seaver; to find a way, if possible to "nail him to the cross" and "go after him." I understand that this language appeared in a private e-mail from Dell'Antonia to Kraft that the Mayor probably did not expect to become public. Still, such violent imagery coming from a public official ("nail him to the cross," "go after him," "I do not think we should let him get away with it") is scary.

The use of a City Attorney for political purposes is a very serious matter. Perhaps Mr. Seaver should consider asking the District Attorney to investigate the actions of Dell'Antonia and Kraft. I would hope that Mr. Seaver takes the high road with whatever he decides to do, but if he wants to "fight fire with fire," perhaps he could ask the DA to "go after" Dell'Antonia and Kraft and request that Mr. Paulus try to "nail them to the cross" if he can.

Tony Palmeri welcomes your feedback

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