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“In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.” Sec. 19.81(1), Wis. Stats.“This subchapter shall be liberally construedto achieve the purposes set forth in this section. . . .” Sec. 19.81(3), Wis. Stats. Policy
● All meetings of all governmental bodies:● Must be preceded by public notice● Must be held in a place open to the public● Must be held in a reasonably accessible place● Sec. 19.81(2) and Sec. 19.83(1) What does the law require?
GOVERNMENTAL BODIES “Governmental body means a state or local agency, board, commission, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation . . . or a formally constituted subunit of any of the foregoing. . . .” Sec. 19.82(1), Wis. Stats.
Governmental Bodies: What’s in? ● ● ● ● The necessary minimum: (1) defined membership; (2) responsibility for aspect of government business; (3) expectation of collective action Manner of creation, not nature of authority matters Lack of binding authority not relevant Formally constituted subunits, subcommittees, or advisory bodies Governmental and quasi-governmental corporations; e.g.,economic development corporations
Governmental Bodies: What’s out? ● ● ● ● Groups of government agency employees – most of the time Bodies meeting for the purpose of collective bargaining Bodies created by the Wisconsin Supreme Court Offices held by a single individual
MEETINGS “Meeting means the convening of members of a governmental body for the purpose of exercising the responsibilities, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. The term does not include any social or chance gathering which is not intended to avoid this subchapter. . . .” Sec. 19.82(2), Wis. Stats.
Meetings: Key Concepts: ● A “meeting” takes place whenever: ● The number of members present is sufficient to determine the body’s course of action ● There is a purposeto engage in governmental business ● Members of a governmental body convene
Meetings: Key Concepts: “Numbers” Requirement ● ● ● ● ● How many? Enough to determine course of action Majority of membership Quorum. One more than half of the members of the body unless rules provide differently Governmental purpose is presumed where half of members present Negative quorums
Meetings: Key Concepts: “Purpose” Requirement ● ● ● ● ● “Governmental business” is an expansive concept Formal or informal action or discussion or learning Information gathering on subject within the group’s authority Personal interaction among members not necessary Exclusions: “social” or “chance” gatherings 2007 OML Guide, p.2
Purpose and Numbers: Trouble Spots ● ● ● • Social or chance gatherings? • Lunches • Post meeting discussions • One-half presumption • Attending other meetings: • Subcommittees and subunits • Multiple Notices
Meetings: Key Concepts: “Convening” of Members ● ● ● Critical question: how much does a particular communication resemble a face-to-face exchange? Formal written correspondence? No. (e.g., hard-copy, formal letters, formal memos, sending out minutes) Telephone conference calls? Yes.
Convening: Trouble Spots ● ● • Electronic communications: Email and Texts? • number of participants; • number of communications; • time frame of communications; • extent of conversation-like interactions • Walking quorums or serial quorums: • Series of calls or conversations • among individuals or small groups • to act, determine or discuss business of the body
Meeting Notices Who? When? What? Every meeting of a governmental body shall be preceded by public notice . . ., Sec. 19.83(1), Wis. Stats. Who #1: public, by posting or paid publication Who #2: media who have requested notice Who #3: official paper or other area news medium When: 24 hours before meeting starts When: “good cause” 2 hour minimum (rare) What: time, date, place, and subject matter ● ● ● ● ● ●
Meeting Notices Meeting Notice Content ● ● ● “Every ... notice ... shall set forth the ... subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.” Sec. 19.84(2), Wis. Stats. “Reasonableness” standard is the key General subject matter designations not permitted
Meeting Notices “Reasonable” subject descriptions ● ● ● • Factor #1: How hard is it to provide a more detailed notice? • Specificity must be compatible with the conduct of government affairs • Factor #2: Is the subject matter of particular public interest? • Breadth and intensity of interest • Factor #3: Does the subject involve non-routine or novel action beyond public’s anticipation?
Meeting Notices: Some Rules of Thumb ● ● Ask yourself: “Would a person interested in this topic be aware from reading the meeting notice that the subject would be discussed?” How hard is it to be more specific and accurate? The better the subject description, the less likely a court will determine that the description was unreasonable
Open Session Requirements ● ● ● ● ● “‘Open session’ means a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times….” Sec. 19.82(3), Wis. Stats. Accessibility: location; room characteristics; physical accessibility; persons with disabilities; teleconferences must accommodate public listening area. Citizen participation: permitted; not required Recordkeeping: motions, roll-call votes, announcements of closed session business Recording: must be reasonably accommodated in open session
Closed Session Rare: Use Sparingly This is a Trouble Spot Must be based on a specific statutory exception. ● ● ●
Closed Session Procedure Sec. 19.85(1)(a) Motion + Announcement (statute + nature of business) + Roll Call Vote (unless unanimous)__________ = Procedurally adequate closed session presiding officer’s announcement must be made part of meeting record ● ●
Closed Sessions: Attendance & Voting ● ● • Who may attend a closed session? • all members of the body, including members of parent body, if meeting is of subunit; • whoever else the body determines is necessary to conduct the closed session business • Closed session voting: propriety unclear • DOJ recommends voting in open session, unless doing so will compromise the need for a closed session
Closed Session Justifications: • ● Judicial or Quasi-judicial Deliberation. Discussion of a • case which was the subject of any judicial or quasi-judicial • trial or hearing before that governmental body. Sec. • 19.85(1)(a) • ● Employment and Licensing Matters. • Considering or taking formal action on the dismissal, demotion, licensing, or discipline of any public employee or person licensed by a body. Sec. 19.85(1)(b) • Considering employment, promotion, compensation, or performance evaluation data of any public employee. Sec. 19.85(1)(c)
Closed Session Justifications: • ● Sensitive Reputation Information. Considering certain • financial, medical, social or personal histories or • disciplinary data of specific persons, or preliminary • consideration of specific personnel problems or the • investigation of charges against specific persons that • would be likely to have a substantial adverse effect upon • the reputation of the person if discussed in public. • Sec. 19.85(1)(f). • Only applies where a member has actual knowledge of information that will have a substantial adverse effect. • Can only close for those parts of the discussion that involve the reputationally sensitive information
Closed Session Justifications: ● • Competitive/Bargaining Interests: Deliberating or negotiating the purchasing of public properties, investing of public funds, or conducting other specified business, when competitive or bargaining reasons require a closed session. sec. 19.85(1)(e) • Competitive/bargaining interests must leave the body with no option other than to close the meeting. • Body has the burden to justify closure • Conclusory assertion is insufficient • Mere inconvenience, delay, embarrassment, frustration or speculation is insufficient • Vendor or supplier request for confidentiality is insufficient
Closed Session Justifications: ● • Legal Counsel Advice. Conferring with legal counsel for the governmental body who is rendering oral or written advice about strategy to be adopted with respect to litigation in which it is or is likely to become involved. Sec. 19.85(1)(g). • Body may rely on legal counsel’s opinion as to whether litigation is “likely” is sufficient • Legal matter should be identified in meeting notice, unless there are specific strategic reasons for not identifying specific matter.
Enforcement Alternatives ● ● ● District Attorney, county where violation occurred, after receiving verified complaint from individual Private individual, after verified complaint filed with district attorney and no enforcement action filed after 20 days Attorney General, where matter is statewide concern 2007 OML Guide, p.2
Enforcement: Violations & Remedies ● ● • Key violation: “knowing” attendance at meeting held in violation of open meetings law • Means positive knowledge, awareness, or conscious avoidance of awareness of illegality or that probability of illegality is high • Civil forfeiture: $25 - $300 per member. • Other violations. (e.g., in adequate notice, improper closed session procedure) • Voiding action taken in violation of the law • Injunction to prevent future violations • Order to perform mandatory, non-discretionary duty • Courts costs and attorneys fees 2007 OML Guide, p.2
Additional Open Meetings Resources • Download DOJ Outline and other resources free of • charge, at www.doj.state.wi.us • Consult your legal counsel
