Back on 04/18/2023 and 04/19/2023, the Common Council held first an informal organizational meeting and then a formal organizational meeting. The purpose of these meetings was to update the Council rules for the new Council year. The formal organizational meeting was the meeting in which they officially voted on various rules changes. The informal meeting provided an opportunity for the Council members to discuss various proposals without voting and simply get a sense of how the alderpersons felt about possible ideas. Not all of the rule changes proposed at the informal meeting even made it to the formal organizational meeting on the 19th because some of them were withdrawn by their authors when it became apparent the rest of the Council had no interest in supporting them.
I think one of those withdrawn proposals is worth highlighting because it ties in with Alderperson Chad Doran’s (District 15) Resolution to Eliminate No Mow May which was recently voted down by the Common Council.
During the 04/10/2023 Municipal Services Committee meeting at which the resolution was discussed, Alderperson Israel Del Toro (District 4) suggested that the resolution calling for the elimination of No Mow May was defamatory and presented misinformation.
Additionally, during that meeting, Alderperson Brad Firkus (District 3) expressed the position that the resolution omitted information, and he called into question Alderperson Doran’s motivations in submitting the resolution before suggesting that, in the future, such actions should perhaps warrant censure of some sort, saying, “I think that this is an entirely inappropriate use of the powers we have as an alderperson. And I think we should defeat this. And I think any alderperson that decides to use their power in the future should face some sort of public notification—something. I don’t know what, but I find this entirely inappropriate.”
With that background, Alderperson Del Toro suggested a rule change which read as follows:
All resolutions submitted, will be made available to the entire council 48 hours prior to being read in. Council members may object to the introduction of a resolution based on the inclusion of false information, defamatory language or assumptions or language unbecoming of a public servant. The Mayor will decide if the resolution will be accepted into the record and distributed to committee for review and further discussion. The Mayor may also request the author modify the language to comply with the council rules.”
After it was submitted, Alderperson Del Toro told the Council he wanted to change it so that the Council President, rather than the mayor, was the one who would decide if a resolution would be accepted into the record or not.
City Attorney Christopher Behrens noted that submitting a resolution to the entire Council 48 hours prior to the meeting opened up the possibility of pre-meeting discourse which could quickly put the Council into jeopardy of violating open meetings laws.
Another concern raised and echoed by several alderpersons was that it was not appropriate for either the mayor or the Council President to decide if a resolution would be accepted into the record, and that, rather, it was up to the Council using the legislative process to determine how to respond to a resolution.
Although no alderpersons supported the proposed rule change, some expressed understanding of or support for where Alderperson Del Toro was coming from in submitting this proposed rule.
Alderperson Kristin Alfheim (District 11) said, “There’s clearly some heat around this conversation, and I don’t know that anybody cannot understand that. I would hope that as we move forward this year, that when there is going to be something contentious that we do our due diligence on the front end to communicate to the best of our ability prior to putting a lit match on our desk. I think that would have perhaps helped. In the end, I don’t believe we can legally stop a resolution from being submitted. I think we can offer each other some professional courtesy, and I think that that should have taken place at least to have a conversation before the exact words were written if that’s the case. But that’s us. That is on us, and I hope we do better this year. I’m not in favor of this resolution but I need to—I think we need to mind our manners and get at our business.”
Alderperson Patrick Hayden (District 7) said, “I appreciate the intent that Alder Del Toro has here, but some of the language just kind of concerns me. So, I would be against this.”
Alderperson Vered Meltzer (District 2) thought that giving the mayor the power to filter out resolutions was problematic as was submitting resolutions 48 hours in advance, but still wondered if there was a way to factcheck resolutions to “make sure that they are not promulgating false information,” and threw out the example of a resolution that claimed that the sky was red and Appleton was founded in 1948.
Attorney Behrens said, “[T]he way to handle it is the 14 other people you’re on the Council with and the people that voted you into the office, if you submit a resolution like that? That’s the solution. Trying to vet it any other way, I really would urge against that. This is the legislative process here.”
Alderperson Meltzer followed up by asking, “So in in our process what, what tools are available to us to deal with what’s considered false or damaging? Would that be amendments at committee? Like, what would be the proper recourse that this body would take?”
Mayor Woodford responded, “Yes, that’s the legislative process, which would be debating and offering amendments, or outright recommending denial of a resolution. You have the legislative process at your disposal is all there is to handle that.”
He also noted that in terms of the conduct of members of the Common Council, “[Y]ou also have an existing code of conduct and there are procedures available through the rules of order to address more serious issues of conduct related to alders.”
Alderperson Meltzer said, “I just want to finish by saying that I’m really glad that this proposal has been submitted, and I think it highlights our need to really look at what work we are doing in committee and maybe how to how to do more and better work at committee.”
Alderperson Del Toro indicated that he would likely vote against his own rule change, “And I know that sounds ridiculous, but don’t judge me. The big goal, I think is for us to start to have a conversation about misinformation and its potential role in the legislative process and how it is not welcome in this chamber period.”
He went on to say, “Now, yes, the language in here is purposely extreme, but only so that it actually perks your ears up and says like, no, that sort of behavior is not allowed here, period. To misuse the power of resolution crafting is a serious, serious violation of our role as elected officials for the city of Appleton, period. And it just—yeah, it’s intolerable, and I think we need to be a little bit more proactive, and I’ve tried to do this in the past months, about exploring the possibility for censure and misconduct when a colleague is inappropriately behaving themselves or putting forward resolution that is purely false.”
After Mayor Woodford told him that he could withdraw the proposed rule rather than bringing it to a vote, Alderperson Del Toro opted to withdraw the rule.
I’ve prepared a transcript of the discussion regarding the proposed rule change for your downloading pleasure.
In light of the fact that this proposed rule change was brought forward and that some alderpersons expressed appreciation for the intention behind it, even if they were not in favor of the rule change as written, I think it would be worthwhile to look more closely at the claims regarding defamation and impropriety that were leveled at the Resolution to Eliminate No Mow May.
There were three claims that stood out to me:
- Alderperson Del Toro’s claim during the 04/10/2023 Municipal Services Committee meeting that the resolution bordered on defamation, and
- Alderperson Brad Firkus’ (District 3) statement during the 04/10/2023 Municipal Services Committee meeting that the resolution omitted information which called into question Alderperson Chad Doran’s (District 15) motivations in submitting the resolution.
- Alderperson Del Toro’s claim in a comment on the NextDoor app that Alderperson Doran “just plainly lies.”
In response to the post on NextDoor, I asked Alderperson Del Toro to explain what Alderperson Doran lied about or what was defamatory in the resolution, but Alderperson Del Toro merely directed me to review the video of the meeting. This was confusing to me because while the discussion in the meeting clearly demonstrated that there was disagreement regarding the validity of the study findings and what the implications were of the retraction of Professor Del Toro’s 2020 Now Mow May study, I did not see any evidence of outright “lies”.
The meeting, as experienced by people viewing the recording, did not include the PowerPoint slides that Alderperson Del Toro presented to the committee members. After finally acquiring a copy of those slides, I was able to see more clearly what Alderperson Del Toro presented to the committee as being potentially defamatory language.
The issue seems to revolve around two “whereas” statements in the resolution:
- Whereas the editor of the journal noted the findings of the study are “unreliable and could impact the results”
- Whereas the retraction guidelines for the journal note that a paper should be retracted if the findings are unreliable, or the result of fabrication or falsification.
In his slide presentation, Alderperson Del Toro responded to those claims saying, “This statement is factually untrue: see the actual retraction notice.” He then quoted the 11/18/2022 retraction notice for the article which reads:
“After finding several potential inconsistencies in data handling and reporting, the authors and editorial team have agreed to retract this article with the opportunity for re-evaluation should the authors choose to submit a new version.”
Alderperson Del Toro then concluded, “Because it is a direct false accusation of my ability to do my professional job; this can be argued to be defamatory libel slander.”
Alderperson Doran, however, was merely quoting from the 10/31/2022 publishers note affixed to the study which read, “In the spirit of full transparency, after finding inconsistencies between the published summary data and raw data, the authors and the editorial team have agreed to retract this article. The formal retraction notice will be published shortly.”
Regarding PeerJ’s retraction policy, the actual policy on the PeerJ website states, “PeerJ reserves the right to retract articles which are found to be fraudulent (for example subject to deception such as data manipulation) or in serious breach of one of our policies.
The section of the resolution referencing that retraction policy reads, “Whereas the retraction guidelines for the journal note that a paper should be retracted if the findings are unreliable, or the result of fabrication or falsification.”
Professor Relena Ribbons, the coauthor of the retracted study, indicated in that conversation on NextDoor that she believed that referencing PeerJ’s retraction policy was defamatory, even though the resolution also mentioned unreliable findings as a reason for retraction. Her position was, “The lying is that alder Doran made claims about ‘falsified data’ in the request to remove the ordinance that allows No Mow May. We did not falsify data, that is a lie.” She later reiterated, “PeerJ has a general retraction policy, yes. Alder Doran quoting it as the reason for the No Mow May paper retraction is mid-representing the facts. That is misleading, and not a true representation of the issue.”
I’ve prepared a PDF for download with screenshots of the entire conversation I had on NextDoor with Alderperson Del Toro and Professor Ribbons.
I also talked via email with Alderperson Firkus regarding the statement he made during the 04/10/2023 Municipal Services Committee meeting. During that meeting, Alderperson Firkus expressed the position that because Alderperson Doran was familiar with the Medium article that led to the paper being retracted, he would also have been familiar with why the study was retracted, that Alderperson Doran intentionally omitted information from the resolution, and that the resolution was not submitted in good faith. His full statement at the committee meeting was as follows:
The points made about this professor Portman’s blog posts that led to the concerns that led to this paper being retracted, my colleague, expressing that he’s familiar with this, would also then be familiar with why this was done, why this was retracted. What this resolution fails to add in, what it intentionally omits, is that bee populations were stronger where there was no mowing. That seems to me to be the strongest and most relevant fact of all about this. The fact that you would know that information, omit that information, and submit this resolution makes it inconceivable that this resolution’s primary impetus is about No Mow May to even begin with. I think that this is an entirely inappropriate use of the powers we have as an alderperson. And I think we should defeat this. And I think any alderperson that decides to use their power in the future should face some sort of public notification—something. I don’t know what, but I find this entirely inappropriate.”
Part of my discussion with Alderperson Firkus revolved around what the retraction of the study meant for all of the findings in the study. My perspective was that it was reasonable for a person to discount all of the results of the study because of the retraction. Alderperson Firkus’ perspective was that the concerns regarding the identification of bee species did not mean that the findings regarding the number of bees were being questioned. Our conversation began on 04/14/2023. On 04/15/2023, Zach Portman, the bee taxonomist who raised the issues that led to the retraction of the study, updated his article critiquing the No Mow May study to include a statement that read in part, “First, in my professional and scientific opinion, no part of the now-retracted paper should be considered reliable. In general, retractions of papers only happen for serious issues that cannot be addressed with a correction, and the findings of a retracted paper should be considered invalid.”
Additionally, on 04/19/2023 Mr. Portman reached out to Alderperson Katie Van Zeeland (District 5) and let her know about the update. I didn’t learn about the update until after the conversation with Alderperson Firkus was over, and I would assume he was not aware of the update until it was brought up at the Common Council meeting on 04/19/2023 or shortly before. I don’t know how knowledge of this update would have impacted our conversation, but I assume it would have had some sort of impact. At any rate…
I reached out to Alderperson Firkus on 04/14/2023, first to see if he had a copy of the, at that time missing, PowerPoint presentation Alderperson Del Toro gave during the committee meeting. Secondly, I wanted to clarify the statement Alderperson Firkus had made at the meeting, and I asked him “[W]as the information that was presented in the slideshow what you were referring to when you said, “What this resolution fails to add in, what it intentionally omits, is that bee populations were stronger where there was no mowing.” Or were you referencing some other data that was available to Alderperson Doran and that should have been included in his resolution?”
Alderperson Firkus responded, “My comments were in reference to data in the 2020 study that showed the impact No Mow May had on overall bee populations. That Alder Doran demonstrated his familiarity with the paper that had been published to PeerJ, the website where Professor Zach Portman stated the parts of the study he had concerns over and had challenged, has been part of conversations about Now Mow May, which was to increase bee populations over his two years on the council where this has become an annual topic of discussion. He also was an employee of the city when No Mow May was introduced and passed and was posting content on behalf of the city of Appleton on No Mow May. It would be an unimaginably large stretch that someone with all this familiarity and knowledge, who has presumably researched this topic in preparation for past discussions did not know that the 2020 study contained data showing an impact on bee populations on No Mow May and that those findings were in no way being challenged as part of the study’s retraction.”
In light of that, he felt that “this resolution was rooted in trying to portray Alder Del Toro and his work in his life outside the Common Council in a negative light.”
He was concerned about the impact that the resolution would have more broadly on the city’s relations with other organizations and on the interest of residents to run for public office, saying, “Will this make residents of Appleton who would otherwise consider pursuing a position on the Common Council think twice because they do not want their professional life or business to potentially have to go through similar publicity as Alder Del Toro is experiencing? Would employers start to worry about having their employees involved in local politics over fears of having their or their business’s reputation get dinged?”
He finished up by saying, “This is not to say the Common Council should avoid criticizing behaviors or actions in the community that negatively impact the community as it could be warranted sometimes. But when you see something like this, where the weakness of the argument is hidden by omitting facts and you have something that singularly focuses on bringing attention to something that has been intentionally taken out of context to the detriment of an individual’s or organization’s reputation, I think that deserves some sort of response to try to avoid it from happening again.”
I responded that it seemed like one could reasonably doubt the entirety of the study’s findings and I asked, “If Alderperson Doran did not believe the underlying data about bee richness was accurate, would that change the way you view his actions at all?”
I also offered the perspective that, in this specific situation, there was inherently a level of connection between Alderperson Del Toro’s personal work and the business of Common Council that does not typically show up. “This specific situation seems a little tricky given that city business (approving No Mow May and placing it into city code) had been explicitly and publicly tied to then not-yet-Alderperson Del Toro’s professional work so there is a degree of professional connection there that alderpersons don’t normally have. Presuming that an alderperson genuinely believed that the retraction and the issues with the study invalidated the overall findings, what do you think would have been a better way to respond to that and pursue eliminating No Mow May?”
Alderperson Firkus responded and said, “I feel that identifying bees is a significantly more difficult task than counting bees. I have a hard time thinking that not identifying bees correctly would be a strong indicator for not getting good counts.”
He also believed that the paper’s status in getting No Mow May placed into city code was overstated. “There is a connection, and it was referenced in support of no mow May, but after the first year there was also a lot of hands-on experiences and observations from that first year.”
He concluded, “The omitting of why the study was retracted feels like the most serious aspect about this resolution because without that detail it goes for negative framing that sounds more authoritative by not including something that I cannot imagine Alder Doran not being aware of. The thing that really drives it home for me that this resolution was more about the study and highlighting that it was retracted than not was that it was submitted with the study being referenced in every single ‘where as’ statement in the resolution. I think if this had been submitted where this retraction was one argument among other statements referencing the other arguments like studies about optimal grass heights and mowing frequency it would not look like it was about trying to bring negative attention to Alder Del Toro’s work. That approach would have changed my perception of the intent of this resolution. And to be clear, it is not that I think Alder Del Toro or his work are above criticism or questioning, it is that using resolutions in this manner is both inappropriate and could open up a whole new front in petty back and forth with some serious consequences for alders and the people and institutions in our community.”
I replied and explained why I, as someone who watched the meetings last year, felt that, at the time, the study had been treated as a strong reason to embed No Mow May into city code, and that, like the meaning of the study’s retraction, reasonable people could disagree on its importance.
I asked again about the claims of defamation that had been leveled against Alderperson Doran and the desire to, in some way, censure him. “I can understand viewing this resolution as being framed negatively, but I’m still missing what it was that Alderperson Doran ‘left out.’ He quoted directly from PeerJ regarding the reason for the retraction. If anything, it seems like PeerJ is somewhat negligent for being so vague about the reasons for the retraction. The claims of defamation and the low key calls to censure Alderperson Doran seem pretty overwrought given that the disagreements on this matter could easily be chalked up to simply differences of opinion. Do you think it’s healthy to go down the path of official reprimand when there’s no clear-cut evidence of wrongdoing?
Alderperson Firkus responded, and I will quote his email in full:
I think you question is poking near something I’ve had to consider since making those remarks. Since we don’t have an existing process, we’d have to create one. Creating one in response to this resolution, especially at this point in time, feels like it goes against something at the core of my biggest concerns with all this. Trying to come up with some mechanism when its use is no longer an abstract thought exercise makes it hard to bring something in front of the council without the potential of it turning into a vehicle for retaliation. On the other hand, in the absence of a point of reference, creating a rule felt unnecessary.
Right now, I think the comments I made are as far as this can and maybe even needs to go. While they don’t carry the same weight as something from the council, the unexpected attention they’ve received have largely done what I thought would have required something more formal. Hopefully my fears over this will be unfounded and the temperature in the council cools down moving forward. If the temperature doesn’t lower or if it does but there’s also a desire to define parameters around what is or isn’t acceptable and how to handle infractions, then this can possibly be addressed at a later date. I hope that that will be unnecessary.”
[As I noted above, at the time I was communicating with Alderperson Firkus, I was not aware that Mr. Portman had updated his Medium article to clearly state “in my professional and scientific opinion, no part of the now-retracted paper should be considered reliable. In general, retractions of papers only happen for serious issues that cannot be addressed with a correction, and the findings of a retracted paper should be considered invalid.” I do think that update bolsters the argument that it is not unreasonable to view the retraction of the study as reason to discount all the findings presented within the study and leaves me further questioning what it was Alderperson Doran omitted.
While I can appreciate the desire, possibly even the need, to not have alderpersons’ personal lives brought into Council business, when an item of professional work has intentionally been brought into the public eye and tied to an item of Council business, that work becomes a part of the public record and the public discourse.
Professor Del Toro has been interviewed by numerous news outlets including the New York Times and NPR about No Mow May, and last year, prior to being elected an alderperson, he willingly came and gave public comment both at the Municipal Services Committee and the Common Council highlighting this study and presenting its findings as a reason to permanently embed No Mow May into city code. I do not understand how it can be, on the one hand, completely appropriate to bring this study forward as a reason to pass ordinance changes, but then, on the other hand, become an inappropriate violation of an alderperson’s personal professional life to bring forward the retraction of that study as a reason to repeal those ordinance changes.
Additionally, I think it’s relevant that Zach Portman reached out to PeerJ (and by extension Professor Del Toro) regarding the issues with the study in September of 2020 and May of 2021, and PeerJ indicated to him that they were working on the issue. So these problems were not unknown to Professor Del Toro prior to discussion around ordinance changes that took place in February and March of 2022.
The problems with the study, by all rights, ought to have been part of the discussion in February and March of 2022 when the Municipal Services Committee and the Common Council deliberated and voted on the resolution to embed No Mow May into city code. Instead, the only indication the public had that there was an issue with the study was a publisher’s note dated 08/16/2021 stating, “The Publisher is conducting an investigation into issues raised by a reader. We are working with the authors to clarify the situation and will update the article depending on the outcome of this inquiry.”
In light of the fact that there were major flaws with this study that the public did not have ready information about and which eventually led to the retraction of the study, it seems to me, from a public discourse standpoint, that the open and transparent thing to do was essentially what the Resolution To Eliminate No Mow May did, i.e., to let the public know that the study which served as a major basis for No Mow May had been retracted and offer them the opportunity to lobby for changes to city code in light of this fundamental change.
It’s concerning to me that Alderperson Doran’s actions, which furthered open and transparent government and public discourse, resulted in claims of lying and defamation, a call for consequences of some sort, and flirtation with a Council rule change which would have, if passed, opened up legal issues, potentially stifled the submission of resolutions, and resulted in either the mayor or the Council President having complete dictatorial control over the resolutions Council could take up. That seems like a step backward in terms of the transparency and general political openness that the City of Appleton has historically tried to foster.]
View full 04/18/2023 Common Council Informal Organizational meeting details and video here: https://cityofappleton.legistar.com/MeetingDetail.aspx?ID=1084960&GUID=66D1043C-D875-478A-A9D1-D8E1C65124B7
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