Wisconsin Open Meetings Law Wisconsin Counties Association Annual Conference September 25, 2017 Philip J. Freeburg Andrew T. Phillips Open Meeting Law Common Sense Approach Public Access Open Decision- Making: information gathering, discussion, and voting 1
Intent of Open Meetings Law The Open Meetings Law is meant to ensure: Advance public notice of meetings, Meetings are open and accessible to the public, and Closed sessions are limited. Bodies Subject to the Law Governmental Bodies Includes any state or local agency, board, commission, committee, department or council created by law, ordinance, rule or order. Wis. Stat. 19.82 (1) 2
Bodies Subject to the Law Local governing bodies of general and special purpose units of government, Their committees, commissions and boards, Special study and advisory committees, and other bodies or subunits created by a governmental body or an officer, and Governmental and quasi-governmental corporations. (Body members covered by the law include citizen members.) Definition of Governmental Bodies and Krueger v. Appleton Area Sch. Dist. Bd. of Educ. 2017 WI 70 6 3
Krueger Facts in a Nutshell Parent complaint regarding book list for a 9 th grade class Two Administrators created a committee to review the book list The committee was based on curriculum committees as detailed in a department handbook that had been adopted by the Board A board rule provided that the Board is legally responsible for all educational materials Committee met 9 times throughout the school year Made a recommendation First to a Board committee Then to the Board as to the book list for the 9 th grade class 7 Issue in Krueger Case? Was the committee a governmental body created by rule of the Board? Based on: The form it takes The source of its existence a rule of the Board 8 4
The Supreme Court Holding: Form and Rule The review committee was a governmental body Took form of governmental body Defined membership, meetings, votes, minutes Created or authorized by Rule Authority to review books based upon Board rule and the Board adopted Handbook Review Committee created by District employees on the basis a Board rule and the Board adopted Handbook 9 Supreme Court Holding: Rule defined Rule includes any authoritative, prescribed direction for conduct, such as the regulations governing procedure in a governmental body Board rule and the Handbook constituted a Rule [A] committee is created whenever a governmental body, by rule, authorizes the committee and assigns the duties and functions of the committee 25 10 5
Court s Interpretation of the Facts Form & Rule 27. [Review Committee] qualified as a "committee" for purposes of the open meetings law because it had A defined membership of 17 Conferred with authority, as a body, to review and select recommended educational materials for the Board's approval. Not individuals acting on own but: The Board acting through Rule and the Handbook provided that the members of review committees would exercise such authority collectively, as a body. 11 Court s Interpretation of the Facts: Authority & Rule [Committee] was created by rule because District employees, when they formed [Committee], relied on the authority to form review committees that was delegated to them by Rule 361 and the Handbook. 12 6
Troubling Statements in the Decision 36. Underscoring the nature of the rule under which [Committee] was formed is the fact that, after forming [it], [an administrator] went before the Board to explain how the Handbook procedures had been modified to create [Committee]. The Board had a chance to ask questions, and it permitted [Committee] to continue. 13 Troubling Contradiction: Court Acknowledged Administrators Created Committee BUT Also Found Board Rule Created 37. we conclude that [Committee] was created by Rule 361 and the Handbook, because even though it was [two administrators] who put the Handbook process into action when they formed [Committee], it was the Board's Rule 361 and the Board-approved Handbook that authorized review committees like [Committee] to be created and conferred on them the collective authority to review curriculum materials and make recommendations to the Board. (emphasis added) 14 7
Troubling Statements: Reality Not a Concern 42. we are not at liberty to exempt [Committee] from the definition of "governmental body" simply because government officials would find it convenient. "Mere government inconvenience is obviously no bar to the requirements of the [open meetings] law. Conta, 71 Wis. 2d at 678. 15 Unanswered by the Supreme Court Whether a high ranking official can create a governmental body by rule or order? Krueger argued alternatively that high-ranking administrators creating a Committee is enough to bring it under the Open Meetings Law. Attorney General voiced support for this proposition. Not addressed by court because of its finding that Committee was created by board rule. 16 8
Krueger Decision: Guidance Moving Forward Determine what committees are created by rule of the governing body ordinances, bylaws, resolutions, policies, handbooks, etc. Ensure written policies are consistent with practices. Revise and amend policies to reflect accurate interpretations of what groups constitute committees created by rule. Educate board members, administrators/ managers, department heads, etc., as to proper application of the Open Meetings Law. 17 Determining if a Committee is a Governmental Body 1. What body created the committee? 2. To whom does the committee report? 3. Is there a rule or policy of the governing board that relates to the topic of the committee s work? 4. Is the committee addressing a topic that is explicitly the governing board s responsibility? 18 9
Meeting =a gathering of members of a governmental body for the purpose of exercising its responsibilities. A meeting occurs when both a purpose test and a numbers test are met. Meeting Defined Numbers test = enough members of a body are present to determine the outcome of an action Purpose test = discussion, information gathering or decision-making on a matter within the jurisdiction of the body. The Two Tests 10
Numbers Test By statute, if one-half of the members of a body are present, there is a presumption that a meeting has occurred, unless the purpose test is not met. A lesser number of members may meet the numbers test if they can affect the outcome. Special Cases Walking Quorum--A series of phone calls, e- mails or conversations to line up votes or conduct other business, known as a walking quorum, violates the law. Phone conferences may constitute a meeting if the numbers and purpose tests are met. 11
Public Notice Requirement Every meeting shall be preceded by public notice. Separate notice for each meeting. Reasonably proximate to the time and date of the meeting. Special exemption for subunit meetings held during or right after lawful meeting of parent body. Quiz Economic Development Committee makes plans to attend the regularly scheduled meeting of Plan Committee. Does the Open Meeting Law require any action before Economic Development Committee attends? 12
Quiz: Any Open Meeting Requirement? A. Warn the Plan Committee Chair. B. Nothing is required so long as they do not speak. C. Nothing is required so long as they do not speak to each other. D. Give notice of time, place and subject of committee s gathering Quiz: Any Open Meeting Requirement? A. Warn the Plan Committee Chair. B. Nothing is required so long as they do not speak. C. Nothing is required so long as they do not speak to each other. D. Give notice of time, place and subject of committee s gathering 13
7/26/16 Letter: DOJ to Winnebago County District Attorney & Corporation Counsel At issue Whether the attendance of a quorum of the subcommittee members at a meeting of a Judicial Branch committee (thus not subject to Open Meetings Law) required compliance with the Open Meetings Law The Assistant Attorney General said: When a quorum of the members of one governmental body attend a meeting merely for purposes of gathering information even if the members do not interact or to otherwise engaging in governmental business a meeting takes place and notice must be provided DOJ 7/26/16 Letter: Notice Required While Attending Another Body s Meeting Re: Badke notice That is, that any county board subcommittee may have a quorum attending any county meeting DOJ said that Boilerplate language insufficient under the Open Meetings Law Not a notice of an actual meeting; only, the possibility of a meeting Open Meetings Law requires separate public notice for each meeting of a governmental body A single notice could be used if: Notice clearly indicated that a joint meeting would be held & Identifies the names of each governmental body involved 14
DOJ 7/26/16 Letter: Unanswered Issues How far does the Attorney General s letter extend? Does the DOJ interpretation intend that any time a quorum of members is present at another gathering, the Open Meetings Law applies? How should a governmental body comply with notice requirements in a manner other than Badke notices? Krueger and the Winnebago County Opinion Conundrum Solutions? Potential Legislative Fixes to Open Meetings Law Counties, and other local governments, deserve clarity. Despite efforts by the Supreme Court and the Attorney General to provide clarity, ambiguity remains. Purpose of a legislative fix is not overturning the decision of the Supreme Court in Krueger or discrediting the guidance of the Attorney General Rather, purpose is providing clarification to local governments What constitutes a governmental body or a Meeting What Notices are required 15
Potential Legislative Reponses 1. Focus on clarifying the definition of governmental body set forth in Wis. Stat. 19.82(1) making clear that formal action by a governmental body is required to create a committee. 2. Defining who creates a committee that would be subject to the Open Meetings Law re: High Ranking Officer 3. Address the problem of a quorum of committee members attending another meeting: when and how to provide notice and comply with the Open Meetings Law. Laws ought to be written and interpreted in a manner that supports an informed governing body, rather than discouraging elected officials from attending other meetings Public Notice: What? Time Date Place Subject Matter 16
Public Notice: What? Subject Matter Specific. Apprise public of what will be addressed. Only noticed agenda items may be discussed. Does not grant citizens right to participate. Public comment period may be included. Which of these is an Appropriate Agenda Item? A. Other business. B. New business. C. Other business as allowed by law. D. Support the creation of a Friends of County Parks group. E. Unfinished business. 17
Which of these is an Appropriate Agenda Item? A. Other business. B. New business. C. Other business as allowed by law. D. Support the creation of a Friends of County Parks group. E. Unfinished business. Public Notice: When? At least 24 hours prior (2 hours prior for good cause). 18
Public Notice: To Whom? Recommendation is to post in at least 3 locations. Notify official newspaper, if there is one; if none, notify news medium likely to give notice Must provide notice to any media requesting it. Internet Posting? Notice shall be [Ii]n such form as is reasonably likely to apprise members of the public Wis. Stats. 19.84 (2) New Internet posting law (2015 Wisconsin Act 79) applies to Legal Notices One public place and on official website 19
Public Notice: By Whom? Chief presiding officer. Or designee, usually the clerk. Ultimate responsibility rests with the chief presiding officer. Reasonable access. Anticipate large crowds for controversial topics. Proximate to the public served. Public Access 20
Permitted Closed Sessions Closed sessions are limited to those authorized by statute, including... Deliberations concerning a judicial or quasi judicial case. Certain Personnel matters including employee discipline and licensing. Employee evaluation Permitted Closed Sessions Other closed sessions authorized by statute... Conferring with attorney regarding current or likely litigation. Discussing damaging personal information where public discussion would have substantially adverse effect on a person s reputation. Such as medical or investigation records 21
Permitted Closed Sessions Deliberations on property acquisitions, investments, when competitive or bargaining issues require. Remember Closed session must be interpreted strictly and narrowly Any doubts resolved in favor of openness Closed Session Procedures Convene in open session. Announce authority and purpose of proposed closed session. Close session by a majority vote, showing vote of each member. 22
Closed Session Procedures Objecting body members, personnel essential to closed discussion and members of parent body may remain. Limit discussion to announced items. Do not reconvene in open session unless it was included in the public notice. Votes and Ballots No secret ballots, except election of officers. Any member may request that a vote be taken so that the vote of each member is ascertained and recorded. 23
Votes and Ballots Vote in open session unless the vote would compromise the need for the closed session. Record motions, seconds, and votes Preserve record and allow access per public records law. Meeting minutes should document: proper notice, reasons for closed sessions, and motions, seconds, votes and procedural requirements. Open Meetings Law Violations A court may void a decision made at an illegal meeting if the public interest in enforcement of the Open Meetings Law outweighs public interests in sustaining the decision. 24
Penalties Any member $25-$300 nonreimbursable forfeiture. Attorney s fees may or may not be reimbursable. Loss of public trust. Personal embarrassment. Open Meeting Law Resources Local Government Center lgc.uwex.edu Fact Sheet #1 Open Meetings Law Open Meeting Law video Wisconsin Department of Justice Office of Open Government http://www.doj.state.wi.us/ and click on About DOJ banner and Office of Open Government in the drop down menu Dept. of Justice Open Meetings Compliance Guide. 50 25