60 Op. Att'y Gen. 43 (1971)
 
60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

Wisconsin Attorney General Opinions

26 January 1971

Fair Employment Practices Act
Open Meeting Statute (Formal)

Proposed rule which would prohibit
departmental employes from making any
information obtained under Section 111.36,
Stats., of the Fair Employment Practices Act
prior to the time an adjudicatory hearing
takes place, if used as a blanket to prohibit
persons from inspecting or copying public
papers and records, would be in violation
of Section 19.21, Stats.

Open meeting statute,
Section 66.77, Stats., discussed.

Under Section 111.36, Stats., the stage at
which publicity is to be given to complaint
or proceedings is for the department, but
subject to Sections 19.21 and 66.77, Stats.

Under Section 101.60 (3), Stats., Fair
Housing Law, the department is precluded from
actively publicizing complaints only at those
stages before the department finds that
conference, conciliation and persuasion have
not eliminated the alleged discrimination.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

EDWARD E. ESTKOWSKI, Chairman,
Department of Industry,
Labor and Human Relations

You have requested my opinion whether a
proposed rule which would prohibit the
Department or any of its agents or employees
from making public, prior to the time an
adjudicatory hearing actually takes place,
any of the information obtained by the
Department acting pursuant to its authority
under Section 111.36, Stats., would be in
violation of the anti-secrecy law, Section
66.77, Stats. (renumbered from Section 14.90,
Stats., by Chapter 276,  Section 62, Laws of
1969), or Section 19.21, Stats, (renumbered
from Section 18.01, Stats., by Chapter 259,
Section 6, Laws of 1969) relating to the
right of the public to examine and copy
records and documents in possession of a
public officer.

Your department is charged with the
administration of the Wisconsin Fair
Employment Practice Act, Sections
111.31-111.37, Stats.

Section 111.325, Stats., makes it unlawful
for any employer, labor organization,
licensing agency or person to discriminate
against any employe or any applicant for
employment or licensing.

Discrimination is defined in Section
111.32(5), Stats., to include discrimination
based on age, race, color, handicap, sex,
creed, national origin or ancestry.

Section 111.33, Stats., provides that the
Department may adopt rules and regulations
to carry out the Subchapter and may
conduct proceedings, hearings,
investigations or inquiries.

Section 111.35, Stats., provides that the
Department shall investigate the existence,
causes and character of discrimination; study
ways of elimination and plan therefor;
publish and disseminate reports embodying its
findings and results of investigations and
findings; confer and educate; make specific
and detailed recommendations to the
interested parties and report its
recommendations to the legislature.

Section 111.36, Stats.,
is concerned with the powers
of the Department to

   "receive and investigate complaints
   charging discrimination or
   discriminatory practices in particular
   cases, and give publicity to its
   findings with respect thereto."

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

Subsections 111.36(2) and 111.36(3) of
Section 111.36, Stats., as amended by
Chapter 276, Section 584, Laws of 1969,
provide:

111.36(2)

   In carrying out the provisions of this
   Subchapter the department and its duly
   authorized agents are empowered to hold
   hearings, subpoena witnesses, take
   testimony and make investigations in the
   manner provided in chapter 101.

   The department or its duly authorized
   agents may privilege witnesses
   testifying before them under the
   provisions of this Subchapter
   against self-incrimination.

111.36(3)

   If the department finds probable cause
   to believe that any discrimination as
   defined in this Subchapter has been or
   is being committed, it shall immediately
   endeavor to eliminate the practice by
   conference, conciliation or persuasion.

   In case of failure so to eliminate the
   discrimination, the department shall
   issue and serve a written notice of
   hearing, specifying the nature of the
   discrimination which appears to have
   been committed, and requiring the person
   named, hereinafter called the
   "respondent" to answer the complaint
   at a hearing before the department.

   The notice shall specify a time of
   hearing not less than 10 days after
   service of the complaint, and a place
   of hearing within either the county of
   the respondent's residence or the county
   in which the discrimination appears to
   have occurred.

   The testimony at the hearing shall be
   taken down by a reported appointed
   by the department.

   If, after hearing, the department finds
   that the respondent has engaged in
   discrimination, the department shall
   make written findings and recommend such
   action by the respondent as will
   effectuate the purpose of this
   Subchapter and shall serve a certified
   copy of the findings and recommendations
   on the respondent together with an order
   requiring the respondent to comply with
   the recommendations, the order to have
   the same force as other orders of the
   department and be enforced as provided
   in Chapter 101.

   Any person aggrieved by noncompliance
   with the older shall be entitled to have
   the same enforced specifically by suit
   in equity.

   If the department finds that the
   respondent has not engaged in
   discrimination as alleged in the
   complaint, it shall serve a certified
   copy of its findings on the complainant
   together with an order dismissing the
   complaint.

It is clear from a reading of the statute
that even where formal complaint is made the
Department is not confined to conducting
investigations by formal hearing.

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           45  47  49  51  53  55  END

The statute provides that the Department
may rely on the provisions of Chapter 101
relating to hearings, subpoena, testimony
and investigations.

Subsection 111.36(3) provides that the
Department shall "find" probable cause that
discrimination has or is being committed
before the adjudicatory hearing on notice
referred to in 111.36(3) is held.

Prior to scheduling such hearing on notice,
the Department has a duty to endeavor to
eliminate the practice by conference,
conciliation or persuasion.

To implement this statute the Department
has adopted administrative rules,

IND. 88.01-88.50.
 

Rule IND. 88.02 provides that the complaint
be in writing, signed and sworn to before
a notary public and filed.

IND. 88.02(7) provides that, at the time of
filing, the Department shall promptly, and
prior to the commencement of the
investigation, serve a copy on
the party charged.

Rule IND. 88.03 provides for an investigation
by a departmental agent and a determination
of whether or not there is probable cause.

If no probable cause is found, the
complaint is to be dismissed with
notice to both parties.

Rule IND. 88.04 provides that, if the
departmental agent does find probable cause,
he shall give notice to both parties and
proceed to eliminate the alleged unlawful
practice through conference, conciliation
or persuasion.

It is only after these procedures fail
that a formal adjudicatory hearing
on notice is scheduled.

See IND. 88.06-88.13.

Your first question is whether the proposed
Rule IND. 88.05, quoted below, would violate
either Section 66.77 or Section 19.21, Stats.

   IND. 88.05 PROHIBITED DISCLOSURES

   The commission or any of its agents or
   employes shall not make public in any
   manner whatever any of the information
   obtained by the commission, or its
   agent, pursuant to its authority under
   Section 111.36, Stats. prior to the
   time a hearing actually takes place.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

I am of the opinion that the proposed rule
would violate Section 19.21(2) and (4),
Stats., if it were used as a blanket
applicable to all proceedings under
Section 111.36, Stats., to prohibit
all persons from inspecting and copying
papers and records required by law to be
filed, deposited or kept, papers in
possession of such officer, or papers
to the possession of which he is
entitled as such officer.

Section 19.21(1) and (2), Stats., provides:

19.21(1)

   Each and every officer of the state, or
   of any county, town, city, village,
   school district, or other municipality
   or district, is the legal custodian of
   and shall safely keep and preserve all
   property and things received from his
   predecessor or other persons and
   required by law to be filed, deposited,
   or kept in his office, or which are in
   the lawful possession or control of
   himself or his deputies, or to the
   possession or control of which he or
   they may be lawfully entitled, as such
   officers.

19.21(2)

   Except as expressly provided otherwise,
   any person may with proper care, during
   office hours and subject to such orders
   or regulations as the custodian thereof
   prescribes, examine or copy any of the
   property or things mentioned in
   Subsection 19.21(1).

   Any person may, at his own expense and
   under such reasonable regulations as the
   custodian prescribes, copy or duplicate
   any materials, including but not limited
   to blueprints, slides, photographs and
   drawings.

   Duplication of university expansion
   materials may be performed away from the
   office of the custodian if necessary."

(As amended by Chapter 219, Laws 1969.)

Administrative agencies have only such
powers as are expressly granted or
necessarily implied.

American Brass Co. v.
State Board of Health (1944),
245 Wis. 440,
15 N.W.2d 27.

Rules of administrative agencies must
be in accord with statutory policy.

Josam Mfg. Co. v.
State Board of Health (1965),
26 Wis. 2d 587, 133 N.W.2d 301.

While the Department has rule-making
authority under Chapter 227, Section
101.10(7), Stats., and, with respect to this
area, Section 111.38, Stats., its rules
cannot be contrary to the provisions of
Sections 19.21 and 66.77, Stats., absent
specific statutory authority to the contrary.

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           45  47  49  51  53  55  END

Nowhere in Sections 111.31-111.37, or
in that part of Chapter 101 made applicable
to Section 111.36, is there authority to
adopt the rule referred to.

There may be good reason to preclude public
inspection of records and papers prior to
the time notice of formal hearing under
Section 111.36, Stats., is given; however,
in view of the general policy established by
Sections 19.21 and 66.77, Stats., any blanket
limitation on the right of public inspection
or open meeting is for the legislature.

The legislature has provided special
legislation with respect to the
Fair Housing Law.

The procedures followed by the Department
under Section 101.60(4), Stats., are
essentially similar to those provided
in Section 111.36, Stats.

Section 101.60(3) is far more limited
than proposed rule IND. 88.05,
but does provide in part:

101.60(3)

   No publicity shall be given a complaint
   in those cases where the department
   obtains compliance; or finds that the
   complaint is without foundation."

With respect to the Federal Equal Opportunity
Commission, federal law provides that
whenever it is claimed in writing by a person
claimed to be aggrieved or where a member of
the Commission has made written charge that
an employer, employment agency or labor
organization has engaged in unlawful
employment practice, the Commission shall
furnish the person charged:

   with a copy of such charge and shall
   make an investigation of such charge,
   provided that such charge shall not be
   made public by the Commission.

   If the Commission shall determine, after
   such investigation, that there is
   reasonable cause to believe that the
   charge is true, the Commission shall
   endeavor to eliminate any such alleged
   unlawful employment practice by informal
   methods of conference, conciliation, and
   persuasion.

   Nothing said or done during and as a
   part of such endeavors may be made
   public by the Commission without the
   written consent of the parties, or used
   as evidence in a subsequent proceeding.

   Any officer or employee of the
   Commission, who shall make public in any
   manner whatever any information in
   violation of this subsection shall be
   deemed guilty of a misdemeanor and upon
   conviction thereof shall be fined not
   more than $1,000 or imprisoned not more
   than one year."

42 U.S.C.A. Section 2000e-5 (a).

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

It will be noted that the proscription runs
only against officers and employes of the
Commission and does not apply to state
officers or employes, even where the federal
agency notifies the state and gives the state
time to act pursuant to state law.

If your department is of the opinion that
similar provisions would be in the public
interest in eliminating discrimination in
housing and employment and licensing
practices, the matter should be brought to
the attention of the legislature.
 
 

The provisions of Section 19.21, Stats.,
would not require an officer having custody
of papers in a specific matter to allow
examination and copying if he determined
that inspection would be detrimental
to the public interest.

In such case he must specifically state
the reasons for refusal and the person
seeking inspection could institute court
action to compel inspection.

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,

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

Section 66.77, Stats. (formerly 14.90,
Stats.), the anti-secrecy statute, would
apply to the Department (Commissioners),
but as pointed out in 52 OAG 363 (1963) and
54 OAG i, vii (1965), it is only applicable
to meetings of administrative bodies,
whether or not formal action is taken.

The proposed Rule IND. 88.05 could
conceivably be used in violation of
Section 66.77, Stats. However, present
procedures of the Department would not
offer great opportunity for breach.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

In 57 OAG 213, 216 (1968), it is stated:

   A basic but sometimes overlooked fact is
   that Section 14.90 applies only to
   meetings of bodies. Thus meetings
   between the one-man head of a department
   and a member of his staff, or even a
   meeting of the entire staff of a
   department, may not be covered by the
   anti-secrecy law because the staff does
   not constitute a body. On the other
   hand, meetings of statutorily defined
   public bodies, such as the state
   university board of regents, clearly
   are covered by Section 14.90.

There is no doubt but that commissioners
comprise an administrative body.

It is questionable, however, whether one
commissioner, or an agent acting alone
for the Department, does in every
case constitute a body.

I am of the opinion that an examiner who was
conducting an investigation by hearing, prior
to an adjudicatory hearing on notice after
conciliation and conference failed, could
exclude the public in a case where it was
his duty to investigate and report his
recommendations to the Commission for
their determination of probable cause.

I am of the further opinion that a
commissioner or examiner could privately
conduct conferences with the complaining
party and party complained against for the
purposes of conciliation or persuasion.

In the usual case there would be no
formal action on the part of the
commissioner or examiner.

The Commissioners cannot order an agreement
between the parties at this stage.

It might be better procedure, however, where
such conferences are conducted by the
Commissioners, to publicly announce a
reason why the conference is being
restricted to the parties.

While it is questionable whether such
conferences constitute meetings of a public
body at which formal action may be taken,
Subsection (3)(d) of Section 66.77, Stats.,
permits closed meetings for conducting public
business which for competitive or bargaining
purposes requires closed meetings.

Subsection 66.77(3)(b) might be involved in
certain cases under Sections 111.31-111.37,
Stats., where the charge is against a person
licensed by the state, and Subsection
66.77(3)(e) relating to "financial, medical,
social or personal histories and disciplinary
data which may unduly damage reputations"
could be involved.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

Each case involving alleged
discrimination is different.

However, where a matter has gone to the
conference, conciliation and persuasion
stage, there will generally be sufficient
specific reasons available to justify
closing by the Commissioners.

Where Section 66.77, Stats., is applicable,
assuming presence of an administrative body,
and a meeting, the general rule is that in
order to close any meeting or portion,
specific reasons must be stated as
to why the meeting is to be closed.

54 OAG i, vi, xi (1965):
Board of School Directors of
Milwaukee v. WERC (1969),
42 Wis.2d 637, 653, 168 N.W.2d 92;

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

State ex rel. Youmans v. Owens,
supra, pp. 672, 684, 685.

Notice of the closing can be given at the
time of closing; however, notice of the
conference is given in the usual case by
letter to the parties and could contain a
statement that the conciliation conference
would be closed to the general public.

Notice of such conference and reasons
for closing the same could be given to
the public by means of prior posting
in the building or other public area.

Your second question is at what point the
Department can give publicity to its
findings under Section 111.36, Stats.

You further inquire whether the Department
can give publicity to a finding
of probable cause.

Section 111.36(1), Stats., provides that the
Department may receive and investigate
complaints and "give publicity to its
findings with respect thereto."

Under the statute, the Department is not
precluded from giving publicity at any stage
subsequent to the filing of the complaint,
which must be in writing by reason of
departmental rule.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

The point at which publicity should
be given under present statutes is
a matter of departmental policy.

The Department might wish to follow the
federal policy referred to above or the
policy set forth in Section 101.60(3),
Stats., applicable to the Fair Housing Law.

Where access to records or documents in the
possession of departmental officers is
sought, it cannot prevent the parties
concerned or third parties from publicizing
such materials absent foreclosing inspection
in the public interests, on the basis of
specific reasons stated, in compliance with
the mandate of the Youmans case, supra.

Your third question is at what point the
Department can give publicity to its
findings under Section 101.60(3), Stats.,
of the Fair Housing Law.

Section 101.60(3), Stats., as amended by
Section 381 of Chapter 276, Laws of 1969,
provides:

101.60(3)

   DEPARTMENT TO ADMINISTER.

   This section shall be administered by
   the department of industry, labor and
   human relations through its division of
   equal rights.

   The department may promulgate such rules
   as are necessary to carry out this
   section.

   No publicity shall be given a complaint
   in those cases where the department
   obtains compliance with this section or
   the department finds that the complaint
   is without foundation.

I am of the opinion that this provision
cannot be used by department officers to deny
all persons the right to inspect and copy
public records and documents which is
guaranteed under Section 19.21, Stats.

Refusal can only be denied on a case-by-case
basis where the officer having custody
initially determines that inspection would be
detrimental to the public interest and gives
specific reasons for such denial.

State ex rel. Youmans v. Owens,
Beckon v. Emery,
State ex rel. Journal Co. v.
County Court, supra.

The provision in Section 101.60(3), Stats.,
could be a supporting reason in such refusal,
as it shows a legislative intent that at
certain stages of the process to eliminate
discrimination the Department shall not
actively publicize.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

It is commonly recognized that publicizing
efforts to eliminate discrimination with
respect to specific instances can be a
beneficial tool in deterring its general
spread or in eliminating it.

The legislature, however, has apparently
recognized that harm can be caused to
individuals or corporations unfairly charged,
or who may be unaware of a violation and
promptly comply when state action is taken.

The provision in Section 101.60(3), Stats.,
is somewhat vague as to the point in the
proceedings where active publicity by
the Department is proscribed.

I construe the restraint as running only
against the Department or its employes.

In my opinion it is not restrictive on the
complainant, the party charged, or such
persons who may lawfully be apprised of the
proceedings through inspection of public
records or otherwise.

It should be noted that Section 101.60(3),
Stats., provides in part:

   No publicity shall
   be given a complaint

Other language in Subsection 101.60(3),
however, extends the prohibition to some
proceedings beyond the complaint stage.

Section 101.60(4)(a), Stats., provides
that the Department may receive and
investigate complaints which must
be written and verified.

Subsection 101.60(4)(b) provides that the
Department is empowered to investigate,
hold hearings and take testimony.

Section 101.60(4)(c), Stats., as amended by
Chapter 276, Section 584, Laws of 1969,
provides:

101.60(4)(c)

   If the department finds probable cause
   to believe that any discrimination has
   been or is being committed in violation
   of this section, it shall immediately
   endeavor to eliminate such
   discrimination by conference,
   conciliation and persuasion.

   If the department determines that such
   conference, conciliation and persuasion
   has not eliminated the alleged
   discrimination, the department shall
   issue and serve a written notice of
   hearing, specifying the nature and acts
   of discrimination which appear to have
   been committed, and requiring the person
   named, hereinafter called the
   "respondent" to answer the complaint at
   a hearing before the department.

   The notice shall specify a time of
   hearing, not less than 10 days after
   service of the complaint, and a place of
   hearing within the county in which the
   act of discrimination is alleged to have
   occurred.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

   The testimony at the hearing shall be
   recorded by the department.

   In all hearings, except those for
   determining probable cause, before the
   department the burden of proof shall be
   on the party alleging discrimination.

   If, after the hearing, the department
   finds by a fair preponderance of the
   evidence that the respondent has engaged
   in discrimination in violation of this
   section, the department shall make
   written findings and recommend such
   action by the respondent as will
   effectuate the purpose of this section
   and shall serve a certified copy of its
   findings and recommendations on the
   respondent and complainant together with
   an order requiring the respondent to
   comply with the recommendations, the
   order to have the same force as other
   orders of the department and be enforced
   as provided in this section except that
   the enforcement of such order shall
   automatically be stayed upon the filing
   of a petition for review with the
   circuit court for the county in which
   the alleged discrimination took place.

   If the department finds that the
   respondent has not engaged in
   discrimination as alleged in the
   complaint, it shall serve a certified
   copy of its findings on the complainant
   and the respondent together with an
   order dismissing the complaint.

   Where the complaint is dismissed, costs
   in an amount not to exceed $100 plus
   actual disbursements for the attendance
   of witnesses may be assessed against the
   department in the discretion of the
   department.

I am of the opinion that the provision of
restraint as to publicity contained in
Section 101.60(3), Stats., is applicable
against the Department or its agents only
at those stages before the Department
finds that the conference, conciliation
and persuasion have not eliminated
the alleged discrimination.

It is my opinion that the legislature did not
intend that the Department refrain from
giving publicity where it finds that there is
probable cause for discrimination that has
been or is being committed, and where efforts
to eliminate it without the necessity of the
adjudicatory hearing have failed.

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END

The adjudicatory hearing is on notice,
testimony must be recorded, formal findings
and an order must be entered and served.

I am of the opinion that the Department
could not exclude the public from such
quasi-judicial hearing except in
circumstances specified in
Section 66.77(3), Stats.

54 OAG vii, viii (1965).

State ex rel. Cities Service Oil Co. v.
Board of Appeals, supra, p. 537.

Board of School Directors of Milwaukee v.
WERC, supra, p. 653.

I do not believe that the legislature could
have intended that the Department should be
precluded from actively publicizing the
final outcome of an adjudicatory hearing,
where the order is subject to judicial
review by either party.

Section 101.60(5), Stats., provides that
such judicial review shall be a trial
de novo with right to a jury.

Final compliance could conceivably be
delayed until after appeal to
the supreme court.

RWW:RJV

60 OAG 43  44  46  48  50  52  54
           45  47  49  51  53  55  END