60 Op. Att'y Gen. 9 (1971)

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Anti-Secrecy
Open Meetings

Formal

Consideration of a resolution is formal
action of an administrative or minor
governing body and when taken in proper
closed session, under Sections 66.77(2)
and 66.77(3), Stats., formerly Sections
14.90(2) and 14.90(3), Stats., resolution
and result of vote must be made available
for public inspection, pursuant to
Section 19.21, Stats., absent
specific showing that the public
interest would be adversely affected.

In general, the public has a right
to know the result of any vote
taken at a closed session.

GERALD C. NICHOL,
District Attorney of Dane County

Your predecessor has requested my opinion on
several questions relating to the Wisconsin
anti-secrecy law, Section 66.77, Stats.,
renumbered from Section 14.90, Stats.,
by Chapter 276, s. 62, Laws of 1969.

The request does not specify which
type of governing or administrative
body is concerned.

Some governing bodies exercise legislative
and administrative tasks and some also
exercise quasi-judicial powers.

Both Section 66.77 and Section 19.21(2),
Stats., renumbered from Section 18.01(2),
Stats., by Chapter 259, s. 6, Laws of 1969,
recognize that each state and local governing
and administrative body or officer may be
subject to express law with respect to the
necessity for holding open meetings and
permitting the inspection of documents.

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Other laws specifically require publication
of ordinances before they become effective
and the publication of proceedings.

Absent a specific fact situation involving a
given body, it is impossible to render an
opinion which will be meaningful in
every incident which may arise.

In any specific case the statutes applicable
to the body involved must be examined
in addition to the provisions of
Sections 66.77 and 19.21, Stats.

Special statutes will be construed together
with Sections 66.77 and 19.21, Stats.

State ex rel. Cities Service Oil Co. v. Board
of Appeals (1963),
21 Wis.2d 516, 537,
124 N.W.2d 809.

However, see
State ex rel. Journal Co. v.
County Court (1969),
43 Wis.2d 297,
168 N.W.2d 836,

as to special considerations applicable to
special statutes pertaining to specific
officers requiring public inspection,
where statute is antecedent to
former Section 18.01, Stats.

This opinion is not concerned with either
house of the state legislature.

While Sections 66.77 and 19.21, Stats.,
appear to be generally applicable to those
bodies, either those specially acting
pursuant to Article IV, Section 10,
Wisconsin Constitution., can exercise
reasonable secrecy as to meetings and
publication of proceedings when it
determines such measures are required
in the interests of the public welfare.

The questions relate to executive or closed
sessions held under Subsection 66.77(3)
of Section 66.77, Stats.

For the purposes of this opinion I will
assume that all executive sessions
discussed herein are legally held
under Subsection 66.77(3).

Question 1:

     If a resolution is considered in
     executive session, must the
     resolution be made public?

Section 66.77(2), Stats., provides in part:

     No formal action of any kind, except as
     provided in subsection 66.77(3), shall
     be introduced, deliberated upon or
     adopted at any closed session or closed
     meeting of any such body, or at any
     reconvened open session during the same
     calendar day following a closed session.

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     No adjournment of a public meeting into
     a closed session shall be made without
     public announcement of the general
     nature of the business to be considered
     at such closed session, and no other
     business shall be taken up at such
     closed session.

I am of the opinion that consideration of
a resolution, including introduction,
deliberation on, rejection or adoption,
is formal action within the meaning
of Section 66.77(2), Stats.

Resolutions may take many forms.

To be entitled to consideration at a closed
session, any resolution must be pertinent to
a proper purpose for which a closed session
may be held under Section 66.77(3), Stats.,
and within the limits of the public
announcement of the general nature
of the business to be considered
at the closed session of the
meeting publicly called or
adjourned for closed session.

Section 66.77(2); 54 OAG iii, vi(1965).

Webster's Third International Dictionary
defines "resolution" as "a formal expression
of opinion, will, or intent by an official
body or assembled group; also: a declaration
submitted to an assembly for adoption."

An oral motion passed by a county board,
common council, or school board thereupon
becomes a "resolution."

Meade v. Dane County (1914),
155 Wis. 632,
145 N.W. 239;

City of Green Bay v. Brauns (1880),
50 Wis. 204,
6 N.W. 503;

Lindahl v. Independent
School District No. 306 (1965),
270 Minn. 164,
133 N.W.2d 23, 26.

When passed by a legislative body,
a resolution may have the effect of law.

Section 59.02(1), 59.02(2), Stats.

At page 612 of Meade v. Dane County
it is stated:

     While there are in some instances and
     for some purposes fundamental
     distinctions between an ordinance
     and a resolution, there is no such
     broad distinction between a resolution
     and other acts of an administrative
     or quasi-legislative board.

     Almost any one of these acts not
     required to be by ordinance may
     be in the form of a resolution.

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Also see
Wisconsin Gas & E. Co. v.
Fort Atkinson (1927),
193 Wis. 232, 244,
213 N.W. 873, and
 

State ex rel. Fulton v. Zimmerman (1926),
191 Wis. 10, 16,
210 N.W. 381.

Ordinarily, bodies not having legislative
power take formal action by resolution.

The question of whether a resolution
considered at a legally held closed session
must be made public is not, however,
determined under Section 66.77, Stats.,
but rather is more correctly considered
under the provisions of Section 19.21,
Stats., or other special statute which
regulates the keeping of public records
and, particularly, under Section 19.21(2),
which requires that such records be
available for examination and copying
and in that sense be made public.

The distinctions between Sections 66.77 and
19.21, are more technical than real because
the Wisconsin Supreme Court has interpreted
the provisions of Section 19.21 according to
the policies expressed in Section 66.77.

See
State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470;

Beckon v. Emery (1967),
36 Wis.2d 510,
153 N.W.2d 501.

In

International Union v. Gooding (1947),
251 Wis. 362, 369,
29 N.W.2d 730,

the Supreme Court stated that where Section
19.21, Stats., is applicable, the officer
concerned is required to keep and public
inspection extends to three specific
kinds of papers:
 

(1)  Such books, papers, records, etc., as
     are required by law to be filed,
     deposited, or kept in his office;

(2)  books, papers, etc., in his
     possession as such officer;

(3)  books, papers, etc., to the possession
     of which he is entitled as such officer.

In most cases any resolution would have
been reduced to writing and would be at
least a "paper" in possession of an
officer or a paper to the possession
of which he is entitled as such officer.
 

Where Section 19.21, Stats., was the only
statute applicable, the officer could only
avert examination and copying by giving
specifically stated sufficient reasons as to
why he believes inspection would be contrary
to the public interest as required by the
Youmans case, supra. Beckon v. Emery, supra.

Where a statute, or resolution of a superior
body such as a county board, requires
publication of proceedings or requires
a report, reduction of resolutions to
written form is incumbent upon the
minor deliberative body concerned.

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Special consideration must, however,
be given where any specific statute,
antecedent to former Section 18.01, Stats.,
provides for the right of inspection as
to the records of any specific body.

Former Section 18.01, the predecessor to
Section 19.21, Stats., was created by
Chapter 178, Laws of 1917.

Section 19.21, Stats., which provides for
examination and copying of public documents,
was a restatement of the common law and the
right of inspection is absolute, subject
only to the common-law limitation that
inspection need not be permitted if there
is a specific showing that the public
interest would be adversely affected.

In

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470,
139 N.W.2d 241,

the court set forth a procedure for judicial
determination of whether, in cases governed
by the common law, specific harmful effect
upon the public interest outweighed benefits
to be obtained by following the general
public policy of permitting inspection.

However, common-law limitations are not
applicable to other statutes, antecedent to
former Section 18.01, Stats., which impose
upon particular officers the duty to keep
certain records and which evidence an express
or implied legislative intent that such
records be open to public inspection.

In

State ex rel. Journal Co. v.
County Court (1969),
43 Wis. 297,
168 N.W.2d 836,

the court held that Section 59.14(1), Stats.,
was a legislative declaration independent and
in substitution of the common law and posed
no requirement that a person have a special
interest in the subject matter of the
document and that the right of inspection
was absolute, and that the county judge
had no right to suppress a decision from
the public after it had been made
available to the parties.

It is my opinion that any resolution
considered by a minor governing or
administrative body which has a duty
to keep a record of its proceedings
or has a duty to report its actions
to a superior governing body, must,
as a general rule, be made public.

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I have reached that conclusion, in part,
upon examination of the statutes relating
to records to be kept involving meetings of
local units of government.  In the case of
cities, Section 62.11(4)(a), Stats.,
provides:

     Proceedings of the council shall be
     published . . . The proceedings for
     the purpose of publication shall
     include the substance of every
     official action taken by
     the governing body. . .

Also see
Section 62.09(11), (b), (c), (d), (f), Stats.

For village boards see Sections 61.32
and 61.25(4), Stats., and for town
board meetings and town meetings, see
Section 60.45(1), (7), (9), Stats.
For county boards see Sections 59.09(2),
59.17(1), (2), (14), 59.09, Stats.

Section 59.06(1), Stats., provides that
county boards may establish committees

     designating the purposes . . .
     prescribing the duties . . and
     manner of reporting.

Examination of all statutes relating to all
bodies, boards, commissions, committees and
agencies that may be covered by Section
66.77, Stats., would be exceedingly tedious
and, by and large, not very fruitful.

Specific provisions to the contrary, all
meetings are essentially governed by the
provisions of Section 66.77 itself, and
statutory provisions, such as discussed
above, requiring local units of government
to hold open meetings will be construed
together with Section 66.77.

State ex rel. Cities Service Oil Co. v.
Board of Appeals, supra.

The previously cited statutory sections
provide us, however, with a useful basis
for analogy and clearly demonstrate a
legislative intent that resolutions,
considered by a minor governing or
administrative body which has a
duty to keep a record of proceedings
or report its actions to a superior
governing body, be made public.

Question 2:

     May a body, board, commission,
     committee or agency not acting
     in a quasi-judicial capacity
     formally vote in executive session
     or must it, after deliberating in
     executive session thereafter vote
     at a reconvened open session?

In Cities Service Oil Co. v. Board of
Appeals, supra, the court held that
the specific provisions of Section 66.77,
Stats., applied to the more general
open meeting provision contained
in Section 62.23(7)(a), Stats.

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The court concluded that the Board of Zoning
Appeals acted properly when, after an open
hearing, it held closed sessions to
deliberate the decision, stating that:

     When the two statutes are construed
     together we think it clear that where
     a municipal board, such as the instant
     Board of Appeals, is acting in a
     quasi-judicial capacity, all meetings
     in the nature of hearings held on a
     pending appeal must be open to the
     public, but that closed executive
     sessions may then be held for the
     purpose of deliberating to determine
     what decision should be made. . . .

     21 Wis.2d at 537.

This court stated that the board could
properly take a formal vote at such a
closed session because voting was an
integral part of the deliberative process.

It follows that a body or board acting in a
quasi-judicial capacity may take formal
vote after deliberations at a meeting
closed pursuant to Subsection 66.77(3)(a).

In a recent decision, the Supreme Court
determined that a particular formal action
of a body not acting in a quasi-judicial
capacity could not be taken at a closed
session under Subsection 66.77(3)(d).

In

Board of School Directors of Milwaukee v.
WERC (1969),
42 Wis.2d 637,
168 N.W.2d 92,

the court agreed with, and adopted
the conclusion of my predecessor in
54 OAG vi (1965), where it was stated that
wage negotiations between a municipality and
a labor organization could be held at a
closed session under Subsection 66.77(3)(d).

However, the court went on to quote the
language of the attorney general's opinion
with approval and held that:
     . . . the formal introduction,
     deliberation and adoption by the
     elected body of the bargaining
     recommendations must be at
     open meetings. . . . . .

42 Wis.2d at 653.

From the preceding cases it can be seen that
Subsection (3) performs a dual function in
providing for specific exceptions to the
blanket prohibition of closed meetings
contained in Subsection 66.77(2).

First of all, it defines the situations where
the legislature thought that open meetings
might be incompatible with the conduct of
governmental affairs or the transaction
of governmental business so that public
bodies should have the discretionary
authority to close meetings.

See 57 OAG 213, 214-215 (1968).

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Secondly, Subsection (3) also acts to define
what formal actions can be taken at a meeting
properly closed under Subsection 66.77(3).

The cases also suggest that a case-by-case
and situation-by-situation approach will be
necessary in order to determine what
formal actions can be taken.

Section 66.77(2), Stats., uses the language:

     . . . No formal action of any kind,
     except as provided in subsection
     66.77(3), shall be introduced,
     deliberated upon or adopted
     at any closed session . . .

The statute contemplates that certain
formal actions, if within the exceptions
set forth in Subsection 66.77(3), can be
adopted at a closed session.

Minor governing or administrative bodies
adopt proposals by voting, with a majority
of the quorum prevailing, absent specific
statute to the contrary.

See Section 990.001(8) and (8m), Stats.
 

Since only two cases dealing with relatively
specific situations have been decided, I
cannot formulate an opinion regarding which
formal actions can be taken at closed
sessions that would apply to all subjects
considered by all the various state and local
bodies and boards covered by Section 66.77,
Stats. I am of the opinion, however, that
the basic guideline for decision in any
particular situation has been provided
us by the legislature.

Thus, just as meetings should be closed under
Subsection 66.77(3), only where an open
meeting would be incompatible with the
conduct of governmental affairs or the
transaction of governmental business, formal
action, by vote, may be taken at a closed
meeting only where open formal action would
be incompatible with the conduct of
governmental affairs or the transaction of
governmental business.
 

Question 3:

     If such body, board, commission,
     committee or agency can lawfully,
     formally vote in closed session,
     must the result of the vote and the
     vote of each of the voting members
     thereafter be made public?"

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I am of the opinion that the "result" of the
vote must be made public.  Where the formal
action was positive in nature, no purpose
would be served by secreting the action.

The "result" of the vote may, however,
be limited in certain cases to a
report of "adoption" or "rejection"
of a given resolution.

Absent statute, or rule of a given minor
governing or administrative body, there
is no requirement that there be a roll
call of votes or that the numerical
split of votes be recorded.

I am of the opinion that where such a body
does take a vote and records the same, public
inspection of such paper is available to any
person, subject to the limitations applicable
to Section 19.21, Stats., set forth in State
ex rel. Youmans v. Owens; Beckon v. Emery;
and State ex rel. Journal Co. v. County
Court, and any special statute applicable
to such body.

I am not aware of any substantial reason
why such record should not be immediately
available to the public. While there are a
number of statutes which require more than
a majority of a quorum, or of those elected,
to formally act in a given area, few statutes
require recordation of a roll call vote.

Section 59.17(1), Stats., requires the
county clerk to:

     . . .record the vote of each supervisor
     on any question submitted to the board,
     if required by any member present . . .

Section 119.04(5), Stats., applicable to the
Milwaukee School Board, provides:

     All elections or appointments of
     members and officers, authorized
     by law to be made by such board
     of school directors, shall be
     made by roll call vote.

     The records of such votes shall be
     entered by the secretary-business
     manager in the minutes and the
     printed proceedings of such board.

It is for the legislature to determine
whether the public is entitled to know
how each member voted. However, if
such records are kept, they should
be available for public inspection.

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An administrative agency speaks
only through its records.

It is therefore incumbent that every minor
administrative body as well as every
legislature and quasi-judicial body
keep and maintain adequate records
to support actions taken by them.

When such records exist, they are available
for public inspection subject to the
limitations herein set forth.

RWW:RJV

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