Legal Column: Complaints filed with DA against Arena officials, open meetings law violated – analysis

Gary Ernest Grass, esq., Legal Editor

Arena Village Hall (File photo)

On Tuesday, February 22, at 8 a.m. the Village of Arena Personnel Committee met, made a recommendation to accept the resignation of Arena’s superintendent of public works effective March 31, and started right in working on interviewing for a replacement. If nothing else, the committee moved with laudable speed to fill a hole that was not even official yet. 

By the next day, the Valley Sentinel was lodging complaints with the district attorney.

Why? Not because of anything specific to do with the candidates for the position, nor the way they were interviewed. The issue was one of transparency. The Valley Sentinel believes in open and above-board government, and it believes that to preserve this, open meetings laws need to be enforced with some degree of rigor.

There were two main violations: the notice of the meeting was issued late, and the mechanism for going into closed session was faulty. According to the Attorney General, the “two most basic requirements of the open meetings law” are to give advance public notice of each meeting, and to operate in open session unless an exception is carefully satisfied. Here both were faulty.

One needn’t worry that because the Sentinel went to the district attorney that it wants anyone locked up over this. That isn’t part of the law. The first step in enforcing the open meetings law is a complaint to the district attorney or the attorney general. Usually in local matters, a complaint to the DA is typical.

Nor does the Sentinel want to nullify the meeting and have it done over, although the law provides for that. There isn’t any reason to think that the Personnel Committee would have taken different substantive actions in this case had there been greater public scrutiny. There was no direct harm.

But the Sentinel and I think a reminder is useful that transparency laws are important. We want public officials to strive to operate as openly as possible. The least they can do is follow the law.

The Wisconsin Open Meetings Law is not hard. Sure, it has its tricky bits. It has covered tens of thousands of government bodies for decades, so lots of interesting questions have arisen and some do not have definitive answers. But on the whole it’s not that difficult, and there’s a lot of help available. The DOJ has a nearly exhaustive manual for public officials and UW has some excellent video tutorials.

Let’s talk about notice first. First, the Valley Sentinel receives direct notices by email. The open meetings law allows news media to request direct notice independent from that given to the public. Part of this is because the media play a special role in watching over government actions, and notice to news media is thus especially important; another consideration is that a news outlet may cover many public bodies for its readers, and it would be difficult to have someone make the rounds to go to all the different places that the various bodies post their notices. So the Sentinel gets its notices by email, and relies on email notices.

Second, the rule is that unless there is good cause for a special exception to be made, every notice must be given at a time reasonably proximate to the date and time of the hearing, but at least 24 hours in advance. In emergencies, notice may be reduced to as little as two hours. Of course, governments often want to move quickly. Simply wanting to move more quickly and flexibly is not an excuse to offer less than 24 hours notice.

In this case the Sentinel received notice by email at 10:09 a.m. the preceding day. However, the preceding day was a state holiday, and the day before that was a Sunday. That means legal notice needed to be issued by 8 a.m. Saturday. It was 50 hours late and counted only as 8 hours notice. (There is actually a state statute that says to start counting from midnight.) This may seem like an obscure rule, but the notice would still have been late without it. Furthermore, the Village of Arena had previously been alerted to the rule and was forced to cancel some of its meetings because it noticed them on Sundays.

Of course, it would be a good idea to provide notice more than 24 hours in advance. Nothing in the law requires a committee to wait until just before the deadline to send out notices. There is a balance to be made between allowing members of a body greater liberty to add items to an agenda close to a meeting, versus affording greater notice. A committee well-organized enough to have candidates lined up for interviews before a position is even vacant should probably have been able to manage earlier notice.   

The other issue was the closure of the interview portion of the meeting. The interview of a prospective public employee is allowed to be held in closed session. The exemption exists because a person is more likely to apply, and an applicant is more likely to be forthcoming in an interview, if guaranteed confidentiality. A public body may fear a lawsuit if private information is made public. Such a lawsuit might happen. Even allowing a candidate to be interviewed publicly may cause other prospects who place a premium on privacy to feel that this is expected, and not seek a position. So if the Committee wants to have interviews in closed session, the law allows it. 

Here is what happened: The committee has three appointed members, plus the village president is a member of all standing committees. The chair, village president, and one other member were present. 

One minute into the meeting, the chair read verbatim from the public notice that the item was closed session pursuant to section 19.85 of the statutes, for purposes which were described in language taken directly from the statutes: “considering employment, promotion, compensation, or performance evaluation data of any public employee…” and so on, to interview candidates for public works superintendent. 

The chair stopped and asked how to proceed, and another committee member moved to close the meeting. The chair seconded. Seemingly there was no discussion or vote. Members of the public were directed to leave. Under the law, members of a parent body cannot be excluded, so at least one other Arena village trustee remained.   

The announcement did not give subsection and paragraph of the provision that allowed this, but it quoted the statute, directed interested parties to section 19.85, and was specific about the kind of activity (applicant interviews) and the position (superintendent of public works). This follows almost perfectly the suggested manner for making such an announcement.

So what was wrong? Here is a case where sloppy parliamentary procedure collides with the law. The Village of Arena has adopted Robert’s Rules of Order as its parliamentary authority. This is the little book that tells how to make a motion, when it can be made, and so on. In a small committee like the Arena Personnel Committee, the rules are intended to be looser and more informal.

But even still, it is useful to both the government body and the public to be organized. What happens in a large deliberate assembly is a model for what happens in a tiny committee. When someone moves that an action be taken, that is not a vote for the position, nor even a signal of support. It is merely a means of bringing it to the floor for discussion. The mover may vote yea or nay. Once an agenda item is brought to the floor, the chair should call for statements for and against the motion, recognizing speakers until debate is exhausted or called to a close by another motion. Then there is a vote, or the chair may see that agreement is unanimous and hold the vote only if someone rises in dissent. Either way, the members of the body have the chance to commit themselves for or against.

In the case of a motion to close a meeting, the law requires this. There must be a vote by which the position of each member is clear, and this must be placed in the record. If there was a vote here, it escaped the notice of the audio recorder and the other trustee who was present.

People who know about this requirement typically think it is for the public, so that they can know who voted to close a meeting and hold them accountable for that decision. But the requirement also disciplines members to think about their votes. 

Each member of the governmental body is supposed to know what the motion for closure is for and make an informed decision how to proceed. There is no law that interviews of applicants must be held in secrecy. Perhaps they should be. But each member of the body is expected to seriously consider the interests of the public in an open meeting against the common interest to be safeguarded by closure.    

Once an open meetings law complaint is filed, the DA has the opportunity to pursue the matter, but does not have to. Sometimes the DA will try to broker a settlement where the government agrees to reform its procedures or better train its officers in order to better protect public access to its proceedings. Or the DA may file a lawsuit, or may decline to do anything. When the DA refuses to sue, or lets 20 days go by without suing, the complaining party may sue in the name of the state. 

In open meetings lawsuits, unlike most, the person filing the lawsuit is not considered the plaintiff: the state of Wisconsin is. In 1987, the state supreme court chided an official who was sued by the publisher of the Milwaukee Journal that it it did not matter how the newspaper was affected, because the “fundamental issue” wasn’t the right of the media or a particular reporter, but “the right of the public to be fully informed regarding government business.” This is of course what matters to the Sentinel.

If the DA does not pursue this matter, the Valley Sentinel will. Its lawyers will represent the people of the state of Wisconsin in a suit against the village officials. The Sentinel will not be eligible to recover a cent in damages, because it will not be the plaintiff. It will not seek to void the meeting. It will ask for its attorney fees, which it will try to keep modest. And it will ask for the one other remedy available: forfeitures.

In an open meetings lawsuit, officials can be forced to pay small forfeitures (as low as $25 for a minor violation). This may not seem like much, but it’s fair for very minor violations. In most lawsuits against public officials they typically pay nothing, letting the public purse bear the costs. Here that is not true: the law forces the official to pay personally. More serious violations may warrant pretty serious penalties. An official who repeatedly and egregiously violates the statute may be fined up to $300 per violation, still not a fortune, but there have been cases where an official has been accused of dozens or scores of violations.

Our supreme court explained way back in 1979 that access to government functions was so important that the legislature intended all public officials to “practice a high degree of diligence for the protection of the public” so that unfairly limiting access would be virtually “impossible.” The law is very strict because an official must “at his peril see to it that the regulations are not violated” — not just by his own acts but by the actions or omissions of others over whom he has authority.

Some local officials have lost sight of this high duty. Editors at the Sentinel are in a position to see that these lapses occur all the time. Often they are treated as no big deal. Previously, the Village of Arena attempted to pass an ordinance that would have illegally concealed some public documents from the people and allowed them to be deleted in violation of various laws. The same ordinance would have added illegal fees for records. The ordinance was blocked by a court and withdrawn. The suit cost the Village a few hundred dollars.

When the chair of the Personnel Committee asked conscientiously how to proceed there was laughter. This is not a laughing matter to the Sentinel. 

A sense of perspective is important. No one here is seeking blood. But it would also be wrong to keep looking the other way. That would lead to more of the same, but with bigger stakes. Eventually, there would be a lawsuit from the Sentinel or someone else, and it would not be about forfeitures, it would be about voiding a government action, maybe some contract with lots of money at stake where the public did not have their say. Maybe something unpopular, or illegal, or harmful.

The Valley Sentinel is a watchdog. Mostly watchdogs bark when something is amiss. Sometimes, this one bites. 

Read the complaints here:

The story regarding the meeting has been updated to clarify that it appears the Personnel Committee did not take a vote at all to go into closed session (rather than the emphasis being on a lack of roll call vote), a motion and a second do not preclude a vote from being taken after the motion and second are made, even if the committee is only two or three people.

Wis. Stat. § 19.85(1): Any meeting of a governmental body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section. The motion shall be carried by a majority vote in such manner that the vote of each member is ascertained and recorded in the minutes. […] [emphasis added]

Audio and witness to the meeting reflect a motion was duly made, but not carried by any sort of vote.

Update: As expected, the Iowa County DA recused himself from prosecuting the open meeting complaints, as he had spoken to the Arena Village Board at a prior meeting as a candidate for Iowa County Circuit Court Judge – a position he subsequently won.

The Arena Village Board re-held the meeting in question properly and has been observed following Wisconsin Open Meetings and Public Records Law since. However, the statute of limitations is two years and offers an avenue if education isn’t enough to inspire government transparency and accountability.