Fire and police commissioner accused of conflict of interest after sitting in on police interview with a corporate client

Ashley Luthern , Gina Barton | Milwaukee Journal Sentinel

The man with the power to decide whether Milwaukee’s police chief will keep his job may have violated ethics guidelines by accompanying corporate client Kalan Haywood Sr. to a meeting with a Milwaukee detective investigating a sexual assault, according to the Milwaukee Police Association.

The detective told the attorney, Fire and Police Commission Chairman Steven DeVougas, that it was “odd” and was like questioning “the chiefs,” according to police video obtained by the Journal Sentinel.

The commission is in the midst of deciding whether to give Police Chief Alfonso Morales a full term. As a commissioner, DeVougas is essentially among the police chief’s bosses and helps decide officers’ discipline, hiring and promotion.

The police union on Tuesday called for DeVougas to resign.

"How can the MPD detective or any supervisor overseeing that investigation not feel intimidated by DeVougas when he literally has the power (and) influence to discipline them, including termination?" union president Shawn C. Lauda asked in a news release.

Morales was appointed to complete Chief Edward Flynn's term, which ends Jan. 7.

DeVougas has single-handedly held up a commission vote on whether Morales should continue as chief by canceling a meeting earlier this month and refusing to put the item on the agenda for Wednesday’s meeting. Late Tuesday, the commission announced it would hold a special meeting at 8:30 p.m. Wednesday to take up the reappointment of Morales.

DeVougas said Monday that the board still has too many questions to take a vote. If the commission does not vote to re-appoint Morales by the time his contract expires, Morales could continue on an interim basis.

A 1977 ethics opinion from the Wisconsin State Bar says it is unethical for a commissioner to serve as an attorney in a criminal or traffic case involving the agency he or she oversees.

The opinion notes: "The attorney could find himself in opposition to the very policemen over whom he exercises substantial control.” An attorney found guilty of ethics violations in Wisconsin can face penalties ranging from a reprimand to a suspended law license.

DeVougas said the opinion doesn't necessarily apply to his situation.

In an interview, DeVougas told the Journal Sentinel he was not representing Haywood, who runs the Haywood Group, where DeVougas practices real estate law. He said he was simply sitting in on the questioning and taking notes because a police matter involving Haywood could affect the company’s business.

The video shows DeVougas told the detective he wasn’t there in his capacity as Fire and Police Commission chairman.

“There was no conflict of interest in that regard,” he told the Journal Sentinel.

In a statement, Morales said DeVougas' presence was a problem:

“When a member of our oversight commission provides criminal defense in a matter being investigated by our department, it places our members in an extremely difficult position and risks compromising the integrity of that investigation.”

Milwaukee Mayor Tom Barrett, who appointed DeVougas to the commission, indicated he had questions about the situation.

"I think there are common sense rules that an individual who is a member of the (Fire and Police Commission) should be very careful to avoid a conflict of interest," Barrett said.

Reporters requested that Barrett review the part of the video in which Haywood was questioned, but the mayor declined to do so Monday or Tuesday. By late Tuesday, Barrett had viewed the video and was consulting with the City Attorney's Office, a spokeswoman for his office said.

The mayor, who wants the commission to renew Morales' contract, said it was too soon to say whether DeVougas should resign.

"I need to know more information as to what the concerns are, so I'm not jumping to any conclusions about anything."

Milwaukee County Deputy District Attorney Kent Lovern said his office would have no comment on the pending investigation.

He added: “The release of evidence like this video while our case review is pending is entirely inappropriate. It is unfair to the victim, unfair to the person who is the subject of the investigation, and can negatively impact the integrity of the investigation.”

‘You actually are, like, oversight over me’

Haywood was questioned by Milwaukee police in August about allegations of a 2014 sexual assault a woman made against him. He was not under arrest and gave a voluntary statement. He has not been charged in the matter.

Haywood told the Journal Sentinel he has never sexually assaulted anyone.

“I have no motive. I have no reason to do that to anybody,” he said.

The Journal Sentinel is using his name because he has been publicly identified by the Milwaukee Police Association, he sits on numerous civic boards, and he has received city funding for real estate projects.

In May, the Common Council and Barrett approved a $4 million loan to help Haywood begin his planned redevelopment of a former Sears store, 2100 West North Avenue, into the 80-room Ikon Hotel and a conference center.

A second loan, of $5 million, was approved in September. That loan cannot be used until the project's other financing sources have been tapped.

Haywood's other projects include the conversion of the historic Germania Building, 135 West Wells Street, into the 90-unit Germania Apartments, and the construction of City Place, a 51-unit affordable apartments development at 506 West Walnut Street.

The video obtained by Journal Sentinel shows the police interview, which lasted about an hour and 40 minutes.

Detective Steve Wells recognized DeVougas as a member of the commission.

“Yeah,” DeVougas said. “I’m the chair.”

“You’re the chair,” Wells said. “Um, it just seemed a little odd that, you know, I mean, you actually are like oversight over me, you know, so.”

DeVougas interjected: “But I’m not in that capacity.”

“I know you’re not but it’s still —,” Wells said.

“Weird, I know,” DeVougas said.

“Very weird, it’s like, um, me sitting here interviewing the chiefs, you know, or something like that, you know, it’s like — so I just wanted to get that — get that out,” Wells said.

Before Wells entered the room, DeVougas told Haywood he had heard the department’s standard operating procedure was to arrest anyone accused of sexual assault.

“I’ll get the SOP on that,” DeVougas said, using department shorthand to refer to the policy. In his role on the commission, DeVougas has the power to review, approve and order changes to that procedure.

“That’s a lawsuit waiting to happen,” he said of quickly arresting sexual assault suspects: “That’s some Central Park Five type (expletive). So, note to self. … It’s innocent until proven guilty.”

DeVougas was referring to an infamous case involving five black and Latino teens who were arrested and gave false confessions after hours of interrogation about the beating and rape of a white female jogger in Central Park in 1989. All five were exonerated and later received a $41 million settlement in a civil rights lawsuit. A convicted serial rapist and murderer confessed to the crime in 2002.

But despite he and Haywood discussing the department's sexual assault policy on video before the interview with the detective began, DeVougas said, in his interview with the Journal Sentinel, that he wasn’t aware of the nature of the investigation regarding Haywood until well into the questioning.

“Once I found out the nature of the charges, I advised him he would have to have outside counsel,” DeVougas said.

Haywood is now represented by attorney James Toran.

In an email, Morales said the department doesn’t immediately arrest anyone accused of sexual assault.

“The Milwaukee Police Department makes arrests based on the facts and circumstances related to that investigation,” Morales said.

Conflict of interest?

During an interview Monday, DeVougas pointed out that other commissioners in Milwaukee and elsewhere have represented criminal defendants.

He told reporters one of them was M. Nicol Padway, who served on the commission from 1988 to 1994. Reached Tuesday, Padway said that wasn't accurate.

"When I was on the commission, I did not get involved in cases involving the Milwaukee Police Department," he said. "My brother did most of the criminal defense work for our firm once I was on the commission. We kind of kept a wall between us."

He was concerned about how it might look to have a commissioner working for a criminal defendant, he said. Padway also wanted to make sure he wasn't representing clients in cases involving excessive force claims or officers up for promotion that might later come before the commission.

"It would be creating, essentially, a conflicting situation," he said.

He did continue to represent criminal defendants in the suburbs, Padway said.

Wendy J. Muchman, senior lecturer at the Northwestern University Pritzker School of Law, said, in general, conflicts of interest rest on a specific set of facts.

“What conversation was exchanged between the attorney and the person with whom the lawyer is appearing? What’s the setting? How did the attorney identify him or herself? What is the understanding of the other parties about what the attorney is doing here,” she said.

Dean Dietrich, an attorney based in Wausau and past chair of the State Bar Professional Ethics Committee, called the 1977 opinion dated.

“In the size of a city of Milwaukee, I would find it really unusual to suggest that because this lawyer serves on the Police and Fire Commission that he would unduly influence the police officers doing the investigation,” he said.

“As a person that works in the lawyer ethics realm, I’m not that concerned,” Dietrich added.

Turmoil at the commission

The commission has come under fire in recent weeks for its lack of transparency and failure to solicit more public input in the chief’s reappointment process.

Aldermen recently grilled the commission’s executive director — a city staffer who assists DeVougas and the other five part-time board members — about a series of high-profile resignations, staff turnover and allegations of mismanagement.

Commissioners are appointed by Barrett and must be confirmed by the Common Council.

The commission’s responsibilities — particularly hiring, promoting and investigating complaints — require it to function like other city departments with a full-time staff, which includes the executive director, Griselda Aldrete. The commission can have up to 28 employees; it currently has 14 open positions.

Aldrete has a powerful role but does not get to vote on issues before the commission. Since she took over in September, the commission’s operations manager abruptly resigned and a longtime investigator resigned, saying staffers were being treated with mistrust and suspicion. Aldrete, who gained some negative publicity of her own recently for padding her resume, also has fired three employees.

Commissioners serve overlapping five-year terms and receive an annual salary of $6,600. The commission can have up to nine members, but typically has had seven.

A seventh commissioner, Raymond Robakowski, was confirmed Tuesday by the Common Council. Critics had urged the council to vote against him because Robakowski is a retired city officer and his son is a current Milwaukee police officer, which could lead to conflicts of interest.

Tom Daykin of the Journal Sentinel staff contributed to this report.

Contact Gina Barton at (414) 224-2125 or gbarton@gannett.com. Follow her on Twitter at @writerbarton.