As Madison grapples with police shooting, a dispute over who is in charge

Aeiramique Glass, the city’s independent police monitor, has drawn criticism for getting into an altercation with police officers while they worked to clear the intersection of Williamson and South Baldwin Streets early Tuesday morning and later saying in a now-deleted video posted to social media that she would “burn this city down.” 

Mayor Satya Rhodes-Conway said “it’s disturbing anytime a city employee is calling for violence,” while reiterating the independence of Glass’ office. William Sulton, a Milwaukee-based civil rights attorney hired by Glass to represent the office, said she was making a “figurative, idiomatic expression.”

Glass’ position was established by the common council in 2020 as part of the city’s response to the widespread police reform protests that summer. The Office of the Independent Monitor and the Police Civilian Oversight Board were established and given independence from the mayor’s office and council. 

Madison is the only city in the state with such a civilian oversight system, and this is the first time the system has had to respond to a police killing, meaning that as the board and office work to investigate Ruiz’s death, they’re testing the limits of the ordinance granting them those powers for the first time. 

Within the ordinance establishing the OIM, the city gave the office complete access to MPD documents and the authority to issue subpoenas — so long as those provisions don’t conflict with other laws. 

“The OIM shall, to the extent permitted by law, have unfettered access to all MPD records, policies, Standard Operating Procedures, data, computer databases, and other information necessary to fulfill the duties of the OIM,” the ordinance states. “The Monitor may, to the extent permitted by law, issue subpoenas for the purpose of compelling testimony or receiving documents necessary to fulfill the duties of the OIM.”

Soon after Ruiz was killed, Glass opened her own investigation and issued a subpoena to the police department demanding all records related to the shooting be handed over to her office by July 31. 

However, under state law, when a police officer kills someone, the investigation must be conducted by an outside agency. In this case, the Wisconsin Department of Justice’s Division of Criminal Investigation is handling the review. DCI’s investigative report will be turned over to Dane County District Attorney Ismael Ozanne, who will determine if the officer who killed Ruiz should be charged with a crime. 

Glass, members of the oversight board and activists in the community have argued that the ordinance establishing OIM granting “unfettered access” to police department materials and subpoena authority means that the department should hand over its materials related to the shooting — including dash cam videos, 911 call recordings, a list of officers on duty and communications with the chief of police. 

“We have a mandate and an ordinance that says we are to have unfettered access to all of MPD’s records, databases, video footage, everything,” Glass told the Examiner. “There’s no limit to what we are able to and should have access to.”

But the city attorney’s office, MPD and city officials say that limits on the office’s subpoena authority are set under state law. Once the independent investigation started, all of those materials, initially under the purview of the department, are now controlled by DOJ and state law prevents the release of evidence and materials pertaining to an open criminal investigation. 

Because DOJ is investigating a government employee, state law also prevents the release of “information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.”

“I think the case is clearly made [that] we can’t interfere with a criminal investigation,” Madison Alder Tag Evers told the Examiner. “The concern is the release of that information could compromise the ongoing investigation and if it’s determined prosecution is warranted, complicate or interfere with the prosecution of a crime.”

DOJ’s work in these cases can often be slow and clash with the public’s demands for answers. The Examiner has previously reported on the flaws of the independent investigation system. 

 A spokesperson for DOJ did not respond to a request for comment.

The argument over the limits of the Madison independent monitor’s subpoena power have resulted in dueling FAQ pages on the city’s website in which the mayor’s office says it is limited in what can be released and Glass accuses the city attorney and mayor of helping the police department obstruct her investigation. 

This dispute was explicitly predicted when the common council drafted the ordinance in 2020. In a pair of memos to the council, City Attorney Michael Haas wrote that giving the independent monitor  subpoena power without explicitly outlining its limits could lead to legal challenges.

“It is the opinion of our Office that the Council may enact an ordinance providing subpoena authority to the Independent Monitor,” the memo states. “Where there is no contrary statutory provision or contractual right, we would expect such subpoenas to be enforceable.  It is less clear that a subpoena issued in the course of an investigation, or in a case which could lead to a disciplinary decision by the Police Chief or PFC, would be held to be enforceable if challenged.” 

Haas’ memo also directly addresses the question of officer-involved shooting investigations. 

“It may also be useful to note that, under [the statute], all officer-involved shooting deaths are investigated in the first instance by an outside law enforcement agency rather than by MPD, and that the Monitor would not be entitled to participate in such investigations,” the memo states. 

At a meeting of the Police Civilian Oversight Board Executive Subcommittee on Wednesday, Haas and board members continued to debate the issue.

“People cannot deny that the words ‘to the extent permitted by law,’ are in the ordinances, and I think that has been consistently overlooked when people simply talk about unfettered access and subpoena authority,” said Haas, whose office is working to release an official opinion on the issue. “Those words were intentionally put in the ordinances, and that means we have to look to existing Wisconsin law.”

But members of the board and independent monitor staff suggested that Haas’ office should seek outside legal opinions on the matter and charged that the city attorney’s office has a conflict of interest in the matter. Glass has asserted several times that the ordinance’s grant of independence to her office means that the city attorney doesn’t represent the office — a claim that city officials also dispute. 

“There’s an inherent structural conflict of interest between city attorney offices and police oversight agencies,” the independent monitor’s data analyst Greg Gelembiuk said at the Wednesday meeting. “You can see this play out again and again and again across cities in the U.S. City attorney’s offices are very enmeshed with police departments, and of course, the mayor’s office. They have a primary role of risk management. Police oversight agencies have a primary role of investigating police, exposing the truth. Those roles are in conflict, and because of that, you have a universal pattern where you cannot rely on the opinions of the city attorney’s office to be accurate and valid.” 

Glass has hired an outside attorney, Milwaukee-based William Sulton, to represent the office, telling the Examiner that she has “the ability to take full legal action that is available to us.” Sulton did not respond to a request for comment. 

Glass has previously threatened to sue the city over the limits of her authority, a legal action that itself is in dispute because even though the ordinance grants the office independence, it is still a city department and a city can’t sue itself. 

“The basic law in Wisconsin is that one city agency cannot sue another city agency. City agencies are all part of the same organization and one arm cannot sue another arm,” Haas told the Madison alternative newspaper Isthmus during the previous episode. “City agencies have the authority delegated to them in the ordinances and cannot file lawsuits independent of the city.”