Disctrict 11 Residents,

First, I hope you are tucked in and staying safe during this nasty weather. The City has an excellent resource on winter conditions and resources, including what to do during a power outage: https://www.cityofmadison.com/residents/winter/residents/extremeCold.cfm. 

Next, I want to share the lay-of-the-land for spring elections. See this article from the Cap Times which summarizes the landscape nicely: https://captimes.com/news/government/dane-county-elections-10-supervisors-drop-out-10-districts-contested/article_456d20b4-aa06-11ee-b1a7-4b9ee9dfe1f7.html. I will be running unopposed in district 11, and we do anticipate significant turnover on our 37-member Board, including primaries in February. April is typically a very low turnount election so please share voting information with friends and neighbors, especially https://myvote.wi.gov/en-us/ for polling information and sample ballots. It is an honor to serve the residents of the near west side. 

Airport Agreement 

Another issue which I shared details about last month is the proposed Airport Joint Use Agreement, a contract between the County and Air National Guard. I met with the Guard on 1/12 independently to go through questions and pose variou scenarios. I voted to postpone action until our 1/18 meeting to request that staff follow up on several requests for contract alterations. Today, the Board received a memo from the Corp Counsel's office, our attorneys for the county, outlining why further discussion with the Guard on this is unwise. It states: 

"Our opinion that edits to the AJUA that seek to limit the indemnification language of Section 8(b) to non-military crashes where AFFF is used is unnecessary. The indemnification clause already states that it indemnifies for claims arising from services “to civil aircraft” and “to the County.” That language limits the scope of the clause to consequences flowing from service to the County. This interpretation is wholly consistent with the limited purpose and scope of the AJUA, for the Guard to pay the County for “substantial use” of its airport facilities and share responsibilities for maintenance of those facilities. Recall that under federal law, the Guard has the right to use the Airport, free of charge, and does not require an AJUA to do so. The AJUA is the means for the Guard to pay the County for its “substantial use,” a term defined by statute. Nothing more. The Guard is paying for that substantial use by providing in-kind services, specifically crash and firefighting services.

Second, the Guard has been firm in stating that the indemnification clause is not negotiable. Given that, we stand to gain nothing by seeking further negotiation and instead risk eroding the County’s interests. At present, the Guard’s attorney and a 115th Fighter Wing representative have assured County staff through emails that the clause is intended to indemnify for services provided to civil aircraft and the Airport. They have also made clear that the AJUA has nothing to do with the Guard’s remediation of past hazardous substance releases at the Airport, which is being addressed in accordance with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). If we were to ask for language making those points more explicit in the indemnification clause, it is certain that their response will be the same: the clause is not negotiable. However, the record would then show that the Guard denied a request to clarify that the clause is prospective and excludes military aircraft incidents. Questions surrounding the reasons behind the Guard’s denial could complicate the interpretation of Section 8(b) of the AJUA if a dispute were to arise.

Importantly, in the event of a dispute, the purpose of the AJUA would be the first and primary point a court would rely on to interpret the indemnification clause. To determine the meaning of any disputed term in a contract, a court is obligated to interpret the language in the context of the agreement as a whole, including its purpose. This is part of the analysis to decide whether disputed language is ambiguous. A court should not find language ambiguous based on a suggested interpretation that is inconsistent with the agreement’s purpose. A claim that the indemnity clause means that the County must pay for remediation of all PFAS impacts at the Airport, including those resulting from the Guard’s military activities, would be entirely inconsistent with the purpose. It would require finding that the County agreed to take responsibility for the Guard’s PFAS impacts, in addition to its own, in an agreement designed to make the County whole. It would not be reasonable, indeed would be unconscionable (another standard courts apply), to conclude that the County agreed to assume such additional responsibility in that context. Supporting this analysis is the fact that courts disfavor interpretation of indemnity clauses that protect a party from their own liability.

Given the above-noted analysis, it is highly improbable that a court would consider any interpretation that claims the indemnity clause transfers to the County obligation for all PFAS remediation or other effects from military operations consistent with the AJUA’s purpose. Nonetheless, assuming for the sake of argument, that such a claim were made and a court agreed there was a reasonable basis to find ambiguity, the next step of the legal analysis would be to look at extrinsic evidence, which would include the Guard’s representations that are consistent with the County’s reasonable interpretation.

Some County Board Supervisors have expressed concerns that section 12e of the proposed AJUA would foreclose the County from relying on the Guard’s representations. Rest assured, in the context of a contract interpretation analysis, such an argument would fail. Section 12e, which effectively states that the written contract constitutes the full agreement of the parties, is an integration clause. It protects against claims that the parties bargained for more or different terms than those set forth in the contract. Its application is separate from analysis of a term found to be ambiguous, which includes review of extrinsic evidence. Instead, based on the analysis above demonstrating the limited purpose of the AJUA, the 12e clause further strengthens the County’s position that the indemnity clause is limited to protecting against risks arising from provision of firefighting services to the County, not more."

Given this information, I feel it is prudent to move forward with the contract at this time with the knowedge that there is a federal acknowledgement of and commitment to remediation, that fire-fighting foam will no longer contain PFAS once the transition at the federal level is complete, the price it would cost the county in staffing and capital to stand up our own fire services, and that we've pushed as far as possible for clarity in the contract. 

Dane County Jail 

On another topic, the Board must make a decision on the Consolidated Jail Project. I've drafted a op-ed on this topic and will be submitting it to the Cap Times and a few other outlets. 

County Should Invest in Both Continued Reforms and the Jail Consolidation Project

 The Dane County Jail saga reaches another turning point: After receiving a qualified bid in November, the final step before starting construction, the long-embattled project is $27.6 million over budget and the County Board faces a decision this month while the bid clock ticks. Consistently, stakeholders agree that conditions are horrendous and safety is a key concern in the existing facility. It lacks adequate space for medical and mental health services, programming, and alternatives to solitary confinement. 

In April 2023, the Board, under the Black Caucus’s leadership, reached an agreement with the Sheriff’s Office to add $13.5 million to the project while doubling down on shared commitments to transparency and eliminating a contract with the U.S. Marshall’s Service for federal residents-in-transit, which reduced the jail population by about 60 individuals. This followed a reduction in the facility scope and redesign in 2021, value engineering to trim project costs, and a subsequent proposal that was vetoed by the County Executive to downsize further in 2022.

At this point, there are only three options to move forward. One, secure financing to fill the funding gap. Two, rebid the project (no design changes) and hope for more respondents and a reduced price tag. Three, re-open the scope, including reconsidering design and location. While conversations continue with potential bidders, there are no strong indicators that rebidding would result in additional participation to drive price competition. A rebid could also yield a higher bid from the original respondent, Miron Construction. Re-design would entail evaluating greenfield locations and reconsidering project scope. In a previous iteration, these efforts took several years, which would further push the timeline to close the outdated City County Building and add necessary programming and medical space.

The Board should act now with confidence to provide financing for the project. Any other option includes either financial risks or years of delay, including continuing to transport residents indefinitely to other counties, away from local social supports and services.

In the last two years, the efforts of the Black Caucus rightfully centered system reforms and eliminating racial disparities as the keystone in all justice system decisions, including the jail project. This has permanently changed the conversation and created momentum on system reforms. Progress includes shared efforts such as the Fair Chance Housing Program which will provide housing support for individuals transitioning from incarceration, creation of the Office of Justice Reform, integrating crisis responders into the 911 team to reduce the need for law enforcement response, additional investments in the Community Restorative Court (a restorative justice program), and advances in data reporting across agencies with new dashboards from the Community Justice Council, an intergovernmental coordinating body which now includes members with lived experience of incarceration and community-based organizations.

There is significantly more work to be done. As long as Black residents outnumber all other individuals in the jail disproportionately relative to the local population, we will not rest. The County must hire a permanent leader for the Office of Justice Reform who has a demonstrated track record of building trust with communities most impacted by carceral systems, move forward with the Crisis Triage Center, and implement Community Court. Beyond these reforms, the solution to eliminating disparities is addressing the root causes of incarceration – systemic racism, poverty, and lack of opportunity. The low-hanging fruit has been picked and the complex work to transform the conditions that lead to over-policing and crime remain. 

The County can move toward two goals simultaneously by closing the funding gap on the jail project and demand that eliminating racial disparities is central to every question in the justice system. This project, once complete, will have a smaller overall bed capacity than the current system by approximately 20%, and will incorporate more options for programming and health services. It’s time to turn the page and embrace both system reform and improving the conditions in the jail. On January 18, the County Board should authorize additional funding for the jail consolidation project, and we urge the community’s support to see this shared commitment to fruition. 

Thank you neighbors - stay warm and safe out there. 

Richelle

andrae.richelle@countyofdane.com