Gary Ernest Grass, esq., Legal Editor
Last Halloween, the Village of Lone Rock held a public meeting and did not notify the Valley Sentinel. The next night they held public hearings on their annual budget and a village board meeting. The Valley Sentinel was sent an e-mail notice less than an hour before the meeting started. We asked for various public records related to these matters and got nothing. The village clerk told us we were not entitled to notice, and past notices had merely been given as a courtesy.
There were lots of reasons for us not to sue. You might think we rushed into this without considering those reasons. If so, you would be wrong.
We know that the ideals of government transparency sound abstract, and it’s hard to talk about them without sounding self-righteous and clichéd. In the real world, looking at something at the level of a village, they seem less important. The village says it informed its citizens in other reliable ways, and we have no strong reason to doubt that. They weren’t trying to deliberately shut out the media to hide dirty secrets or operate in the dark so they could engage in corruption. It’s all local stuff and in small towns if anything were amiss word would get around anyway. So what’s the big deal, actually?
Plus, these are not well-paid full time career politicians that run million dollar campaigns to get elected or go on junkets funded by industries seeking to peddle influence. These are our local friends and neighbors who have noble reasons for wanting to get involved. Dragging them into court or making them pay fines will only discourage civil involvement.
All that is true.
Furthermore, the paper is taking a risk that it will alienate local leaders and citizens that it relies upon as sources, readers, and advertisers.
So why?
Because at the end of the day we still consider this a vitally important issue. Because we believe the press has a solemn duty to fight for the principles of transparency, because the law is on our side, and because this is not just an ordinary lapse or mistake, but something far more egregious.
First, recall that this was not just a couple of ordinary meetings and documents. There are meetings and records concerning the village’s annual budget. This is one of the most important things that any unit of local government decides, and it has special protection under law. Summaries of proposed budgets are supposed to be made available to the public well in advance, Public hearings are required. Most municipalities are required to place a paid “Class 1 Notice” in the official paper for the locality. Once set, the budget has a legal force that cannot simply be undone. It restricts spending for the whole year unless special procedures are used to enact changes. So that makes this a much bigger deal than the average meeting.
It is also considered one of the core functions of our transparency laws that the people be able to see how public monies are being spent. In part this comes from the public experience with greed and waste. It would be wrong to think that the only concern is outright corruption. Well meaning people may direct funds to vendors they know not because they’re getting some kind of a kickback, but because they honestly think the one they know is the best or only alternative. Opening up the process is a way of making officials aware of appearances of conflict they might overlook, and allowing better alternatives to come to light.
We don’t think officials in Lone Rock are crooks, but could greater transparency have benefited them? Well, it’s hard for us to say when we can’t get most of the records.
Second, the clerk’s comment that she believes no notice to the press is required is alarming. Our understanding is that the clerk in Lone Rock, like the clerk in most villages, has been designated the responsibility of sending out notice to the press and the public. Someone in that position should know what is required. She also does not seem to have acknowledged the public’s right to inspect or receive public documents. Providing access to government records is described by statute as one of the core responsibilities of public officials. If she believes access to meetings and records is just a courtesy, how many times might she have failed to provide that “courtesy”?
In the case of media notices, it seems like she may be confusing “Public Notice” with notice “to the public,” which is admittedly a pretty easy mistake to make. The Wisconsin statutes have a section called “Public Notice” which states that notice must be given to two classes of public media and also directly to the public. (The Valley Sentinel is in one of these classes: media who have requested in advance to be notified of any public meetings.) A section of the law allows notice “to the public” to be provided in various ways, including posting in designated places or online. But this does not discharge the independent duty to inform the media. The legislature thought that informing the press was independently important because the press can play a vital role, not just transmitting the notice to the people, but also looking deeper, investigating, commenting, bringing out different perspectives and connections. We believe that as well.
Essentially, there are two kinds of mistakes a public official can make with respect to a public duty: first, the duty can be executed imperfectly, or not executed, because of inadvertence or excusable neglect; second, the duty can be rejected altogether, either because the official sees as not being a duty at all. The second is much more serious.
The final factor worth discussing here is that each failure here was, with respect to the Valley Sentinel, absolute or near absolute. Many times people sue over public records because they received most of the records, but not all. They disagree with something being redacted. Copies were not clear. The response was late. They were overcharged. They complain about meeting notices that were late, unclear, or had missing information. There was some effort to comply with the statute, in other words, but there were errors.
In this case, the Valley Sentinel has waited over two months and received no records, and no acknowledgement that any will ever be provided. Under the law, records are to be provided as soon as practicable and without delay. The Department of Justice has long recommended that records be provided within 10 days, or if that is not possible, that the custodian of records send within 10 days an acknowledgement of the request and an estimated time for completion. So it hasn’t been a small error, but as far as we can tell, a complete failure or rejection of the law.
Similarly, the Valley Sentinel did not receive late or incomplete notice for the October 31 meeting — we received no notice at all. The notice for the November 1 public hearing and board meeting came less than an hour before the meeting. The standard is 24 hours — two in an emergency. Here, not even one. This is more than a small mistake.
We acknowledged at the outset that talk about the ideals of open government often sounds self-righteous and clichéd, but it is still something we believe in. We think it is integral to the idea of democracy. If our ideal is government by the people, for the people, then government meetings are the people’s meetings, and government records are the people’s records. Having access to these things is part and parcel of the government not being some external force that we deal with at arm’s length, but something that is a part of us, that we do.
We don’t think every little mistake merits a lawsuit. But we think with issues this important, we need to be vigilant. And in this case, the violations were far too serious to just ignore.
To read about a similar situation in the Village of Arena that goes into more detail about the open meetings violation process, click here.