62 Op. Att'y Gen. 299 (1973)
 
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Wisconsin Attorney General Opinions

14 December 1973.

Anti-Secrecy   Open Meetings

In giving notice of public hearings held
under Section 13.56(2), Stats., Legislative
Committee for Review of Administrative Rules
should concurrently employ the various forms
of notice available which best fit the
particular circumstances.

JAMES J. BURKE, Revisor of Statutes

You advise that, pursuant to Section
13.93(2)(e), Stats., you serve as the
secretary of the Legislative Joint Committee
for Review of Administrative Rules

Section 13.56(2), Stats., provides
that this committee

   . . may hold public hearings to
   investigate complaints with respect to
   rules if it considers such complaints
   meritorious and worthy of attention and
   may, on the basis of the testimony
   received at such public hearings,
   suspend any rule complained of by the
   affirmative vote of at least 6 members.

Since this statute is silent as to any notice
requirement for such public hearings, you
have requested my opinion as to what kind of
notice of these hearings is required, both
generally and in several specific situations.

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Because of pending litigation, this opinion
assumes, without actually considering the
matter, that Section 13.56, Stats.,
constitutes a valid delegation of
legislative power.

Although Section 13.56(2), Stats., contains
no specific notice requirement for the public
hearings which may be held under that
section, this does not necessarily mean that
no notice of these hearings is necessary

The importance of public notice in a
representative government is well
recognized in this state

For example, notice was viewed as an integral
part of the public meeting process by my
predecessor in 54 OAG i

That opinion dealt with Section 14.90,
Stats., the anti-secrecy law, which has
been renumbered Section 66.77 by
Chapter 276, Section 62, Laws of 1969

Subsection (2) of that law
read in pertinent part:

   . . all meetings of all state and local
   governing and administrative bodies,
   boards, commissions, committees and
   agencies . ., unless otherwise expressly
   provided by law, shall be publicly held
   and open to all citizens at all times,
   except as hereinafter provided. . . .

Section 14.90(2), Stats

In discussing the anti-secrecy law,
the opinion stated:

   . . The question naturally arises
   whether a meeting, concerning which the
   public has received no notice and no
   information whatsoever, is publicly held
   and open to members of the public within
   the meaning of the statute.

   It is my opinion that a meeting is not
   publicly held if the public receives
   no notice of the meeting

   A meeting secretly called, though "open
   to the public", violates the spirit of
   the anti-secrecy law and is, in my
   opinion,a violation of the intent and
   purpose of the law.

   The statute does not specifically
   require that notice of a meeting
   be given.

   The statute does, however, impose a
   duty on the public agencies to
   make meetings public

   This duty is not complied with by
   merely keeping the doors of
   the meeting room open.

   The spirit of the law requires the
   agency concerned to take some additional
   positive steps to inform the public of
   the fact that the meeting is being held
   in order to give members of the public a
   fair opportunity to attend.

54 OAG, at iii, iv.

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Advance notice would seem to be even more
important to the public hearing process than
to the public meeting process for without
such advance public notice interested members
of the public may have no fair opportunity to
attend the hearing and to express their views

Such a result would be contradictory to the
very purpose of a public hearing

As is stated in the committee note to Section
227.021, Stats., which defines a specific
notice procedure for public hearings held as
part of an agency's rule-making process,

   . . Advance public notice is one
   of the essential characteristics
   of a public hearing. .

(W.S.A. 227.021)

Because of the foregoing I believe that a
hearing called by the Committee for Review of
Administrative Rules under 13.56(2) should be
preceded by notice in order to be "public"
within the meaning of that section.

You have inquired as to what kind of notice
is proper for these hearings.

You indicate that the committee has
attempted to provide advance notice
to the public but that there are
problems with certain forms
of notice.

For instance, you believe the Administrative
Register is not a satisfactory answer to
giving notice because its issuance is often
delayed, it is issued only once a month, and
it goes to a limited mailing list.

And although you feel the legislative hearing
bulletins give better notice, they provide
you no chance to check the notice's accuracy.

Of course no single form of giving notice
of hearings is entirely satisfactory

In the absence of specific statutory notice
requirements, the question to consider with
regard to any particular public hearing held
by the Committee would seem to be whether the
form of notice was reasonable under all the
circumstances.

This will often have to be
determined after the fact.

In order to ensure that notice to the public
is adequate, however, I would suggest that
you concurrently employ several of the notice
forms utilized for other public hearings.

For instance, notice can be published in the
Administrative Register, as required for
agency rule-making under Section 227.021,
Stats., if there is sufficient time.

This can be supplemented by posting on
legislative bulletin boards and by
publication in legislative hearing bulletins,
two forms of notice required for the
committee hearings of each house under
Assembly Rule 25 and Senate Rules 25 and 26.

In addition, notice to representatives of the
news media would seem to be an important step
toward ensuring that the general public is
informed of any public hearing to be held.

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Finally, just as an administrative
agency under Section 227.021(1)(c), Stats.,
is required to

   "Take such other steps as it deems
   necessary to convey effective notice to
   persons who are likely to have an
   interest in the proposed rule-making,"

I would suggest that the committee consider
providing specific notice to those persons
likely to have a particular interest
in the rules in question.

A list of such persons could undoubtedly be
obtained from the agency which adopted the
rules, since that agency should be aware of,
at the very least, those parties who actually
participated in the rule making process.

You also inquire about three specific fact
situations which are as follows:

1. Assuming that you give notice of a
   public hearing before the committee by
   posting on the bulletin boards and by
   publication in the hearing bulletins and
   that the posted copies were correct but
   the notice in the hearing bulletin was
   not, can the committee proceed?

2. What kind of notice is required if the
   committee believes an emergency exists
   and does not feel it can wait the 8 or 9
   days needed to have a notice published
   in the hearing bulletins?

3. What kind of notice is required if the
   committee wishes to hold a hearing at a
   time of year when no hearing bulletins
   are published because the legislature is
   not in session?

With regard to your first question, since
there appears to be no specific requirement
that notice of the hearing be published in
the legislative hearing bulletin, an error in
that published notice would not necessarily
defeat the jurisdiction of the committee to
suspend rules solely on the basis of
testimony received at such a hearing

Whether such a hearing was "public" within
the meaning of Section 13.56(2) would seem to
depend on a determination as to whether the
other forms of notice provided were
sufficiently effective under the particular
circumstances to apprise interested parties
of the hearing in advance

It would, therefore, be advisable always to
employ several forms of notice concurrently
in order to minimize the possible effect of
an error in any one particular form of
notice.

With regard to the second and third
situations you pose, your inability to use
hearing bulletins would not prevent you from
employing such forms of notice as posting
notice on the legislative bulletin boards,
informing representatives of the news media
of the hearing, and contacting parties having
an obvious interest in the subject matter of
the hearing.

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You might consider serving notice of the
hearing on representatives of the news media
and interested parties in the same manner as
you serve notice of the hearing on the
members of the committee.

In conclusion, I wish to reiterate that in
the absence of a statute or committee rules
setting out the notice procedures for public
hearings held under Section 13.56(2), I
cannot prescribe specific notice requirements
for each set of circumstances which may occur

Whether the notice given in any particular
situation is sufficient will often have to be
judged after the fact

Obviously, no form of notice is completely
adequate to ensure that all parties having a
potential interest in the subject matter of
the hearing will be timely advised

However, by tailoring the various forms of
notice discussed herein to the particular
circumstances of each hearing, and by using
several forms concurrently, it is my opinion
that the committee can take a significant
step toward ensuring that its hearings are
truly "public" within both the letter and
spirit of the law.

RWW:WCW

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