Gary Ernest Grass, esq., Legal Editor
PART OF OUR SUNSHINE WEEK ROUND-UP
A couple months back, I wrote here that the Valley Sentinel was suing the Village of Lone Rock. It feels like time for an update, and I wanted to talk about our two cases — one not yet filed and one possibly almost done, and why they are so different.
As you may recall, Lone Rock’s Village Board had a special meeting back last October on Halloween night and did not let the Valley Sentinel know about it until afterwards. The following day there was another meeting. The Valley Sentinel received its legally required notice more than 23 hours late, which was pretty bad since the paper was only entitled to 24 hours of notice to begin with.
We followed this with a couple of requests for public records, mostly concerning those meetings. Our requests were ignored. It is clear the clerk got the emails which made the requests, because we received a response addressing the clerk’s understanding of why the meetings were legal, but despite repeated inquiries, we got nowhere on the records.
Public records and open meetings are closely related issues, and each is treated in its own subchapter of Chapter 19 in the state statutes. But they are in many ways different animals.
A public records lawsuit can be filed immediately by the requester as soon as they have a cause of action. An action arises when the custodian of a record explicitly refuses access to the record, supplies a copy with unwarranted redactions or omissions, or attempts to charge an exorbitant fee. Alternatively, one can simply wait and sue when the delay becomes unreasonable, but if the case is filed too soon, a court may say that the party suing jumped the gun and should have given it more time. The centerpiece of the action is demand for an extraordinary writ, issued from the court to the records custodian, ordering release of records. In addition there may be an order to pay court costs, attorney fees, actual damages or a small set amount for each violation.
We filed that suit and were quickly talking to Lone Rock’s attorneys about what we wanted. Did we just want the records? Yes, of course! We also wanted a small amount to cover our filing fees and so on, but mainly we wanted the records. The Village started to give us records. We haven’t reached a complete settlement yet, but a large part of the case has effectively achieved its purpose by triggering the release of records that we wanted. Sorry we had to sue to get there, but it seems we did. It’s still possible some records will be denied or so delayed that we will not be able to settle on those, but we are optimistic. We anticipate that we will get everything we are entitled to and that this experience will encourage the Village to better comply with the laws moving forward.
Open meetings cases are a little different. There is a different theoretical and practical relationship between the public body and the individual.A meeting cannot be opened up after the fact. The logic of the case and the possible remedies are therefore much different.
In a public records case, a requester does not need to show that they needed a record or were harmed by not getting it, because the real issue is the public policy of open government, and even though one person may specifically have been denied access to records, it is the entire public that is harmed. In open meetings cases, this idea is kicked up one more level. Where the plaintiff in a public records case acquires their ability to sue from having requested a record and not getting it, a plaintiff in an open meetings case does not have to be someone locked out of the meeting. They don’t have to have any connection to the meeting. The case is even more focused on the public interest, so much that the person who sues does not even do so in their own name but on behalf of the state.
Filing an open meetings case is a distinct process. Before you can run into the court representing the State of Wisconsin, you need to file a sworn report (a “verified complaint”) to the attorney general or the district attorney, or in some cases, corporation counsel for the county. These are the state’s preferred officials for taking action, but if they decline or do not act within 20 days, an ordinary person can act for the state.
Remedies in an open meetings case are mostly not designed to benefit the person filing the case. They can recover their court costs and attorney fees, but will not come out ahead on money. Individual officers who violated the law may be forced to pay the equivalent of a fine to the state or county, which unlike most liabilities of public officers cannot be paid for them from the public treasury.
What happens to the business conducted at the unlawful meeting? Well, it is not automatically void, but the court does have the power to nullify all or part of the public business performed at a meeting that has been found unlawful. The court must balance the public interest in transparent government against the possible disruption to innocent people who relied on the validity of the government’s acts.
The Valley Sentinel has made its report to the district attorney and has the go-ahead to sue the Village of Lone Rock on behalf of the state. Since its last report it has learned of additional violations which it will also be reporting.
As soon as the Valley Sentinel learned of the unlawfully conducted meetings, it reached out to the Village, informing them of the meetings’ illegality and asking the Village whether the meetings would be done over again, so that the public would have appropriate access and the business of the meetings could be performed again free of any legal taint. This would have been a wise action, which would have assured that no public business would be rendered void and the worst the Village would face would be some small payments of legal costs and some small fines to its members. For whatever reason, the Village did not do this. Perhaps they feared the outcome of the business would be different. Perhaps they were irrationally confident of the legality of the meetings.
It will be a big step to go into court on these claims, and ask the court to undo the actions taken at the meeting. The Village of Lone Rock committed to hundreds of thousands of dollars in expenditures on top of the annual budget. It is likely someone will not welcome such a reversal. But the fact that the actions of the Village were momentous is equally a reason why they should have been performed with respect for the law and the rights of citizens to access.
We’ve previously addressed why we think the open meetings law is important. It is not just a shield against corrupt action but a means of allowing public engagement, which might lead to more informed and better decisions. Outside parties look for such transparency as a sign of a government that is competent, honest, and responsible to its citizens. It gives the government credibility and makes it more credit-worthy. And for many of us, it is not just a matter of practical benefit but of principle. It is the life breath of a functioning democracy.
We are always happy to see issues like this resolved without recourse to a courtroom, but we are also not reluctant to sue when justice and principle demand it.