63 Op. Att'y Gen. 414 (1974)
 
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Wisconsin Attorney General Opinions

27 September 1974

Open Meeting;
Votes And Voting;

Voting procedures employed by Workmen's
Compensation and Unemployment Advisory
Councils which utilize adjournment of public
meeting for purposes of having members
representing employers and members
representing employes or workers to
separately meet in closed caucuses and to
vote as a block on reconvening are contrary
to Sections 66.77 and 15.09(4), (5), Stats.

PHILIP E. LERMAN, Chairman,
Department of Industry,
Labor and Human Relations

You request my opinion whether the procedures
utilized by the Workmen's Compensation
Advisory Council and Unemployment
Compensation Advisory Council referred to
below are in conformity with requirements
of the "Open Meeting Law" as set forth in
Section 66.77, Stats., as amended by
Chapter 297, Laws of 1973.

You state that each council is composed of an
equal number of employer and worker
representatives and is chaired by
an employe of the Department.

The Council on Workmen's Compensation has
three representatives from casualty insurance
companies who are nonvoting members.

Each council is required to submit proposals
for amendment of the respective chapters,
Chapter 102 and Chapter 108, to each session
of the legislature, to give views on pending
legislation to the respective committees of
the legislature and to advise the Department
on the administration of each law.

The councils follow the customary procedure
of conducting a series of public hearings
followed by a series of discussion meetings
and a series of negotiating or bargaining
sessions.

Each of the latter sessions customarily
includes a number of recesses during which
the worker representative members and the
employer representative members meet
separately in closed caucuses with
each "side" traditionally agreeing
on a single position which is
presented to the other,
usually leading to an
eventual "unanimous" agreement.

 
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You state that the chairman provides
information and suggestions but never
exercises the voting power granted under law
and that the representative members do not
vote at the meeting of the full council since
each "side" has one vote in essence and two
votes are required for agreement and action.

It is my opinion that the voting procedures
utilized are improper and contrary to law.

They deprive members of their individual
rights to vote in the governmental body
proper.

In combination with the separate closed
caucuses, the voting procedures deprive
individual members and the public from the
opportunity to hear the discussion of all
members of the governmental body who may wish
to exercise their right of discussion and
deprive them of the right to know how each
member voted on any specific issue.

Whereas each council has an equal number of
members representative of employers and of
employes or workers, the statutes do not
contemplate that they constitute "sides"
or that members representing such
groups should vote as a block.

There must be certain issues on which a
representative of one group might have good
reason for voting in a manner opposed to the
desires of the other members representing
such group.

Section 15.227(3), (4), Stats., provides:

15.227(3) COUNCIL ON
          UNEMPLOYMENT COMPENSATION.

          There is created in the department
          of industry, labor and human
          relations a council on unemployment
          compensation appointed by the
          industry, labor and human relations
          commission to consist of an employe
          of the department of industry,
          labor and human relations who shall
          serve as chairman and of one or
          more representatives of employers
          and an equal number of
          representatives of
          employes.

15.227(4) COUNCIL ON WORKMEN'S COMPENSATION.

          There is created in the department
          ofindustry, labor and human
          relations a council on workmen's
          compensation appointed by the
          industry, labor and human relations
          commission to consist of a member
          or designated employe of the
          industry, labor and relations
          commission as chairman, five
          representatives of employers and
          five representatives of employes.

          The commission shall also appoint
          three representatives of casualty
          insurance companies as nonvoting
          members of the council.

 
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Section 102.14(2), Stats., provides:

102.14(2) The council on workmen's
          compensation shall advise the
          department in carrying out the
          purposes of this chapter.

          Such council shall submit its
          recommendations with respect to
          amendments to this chapter to
          each regular session of the
          legislature and shall report its
          views upon any pending bill
          relating to this chapter to the
          proper legislative committee.

Section 108.14(5)(a), (6), Stats.,
provides in part:

108.14(5)(a)   The council on unemployment
               compensation shall advise the
               department in carrying out the
               purposes of this chapter.

               The council shall submit its
               recommendations with respect
               to amendments of this chapter
               to each regular session of the
               legislature, and shall report
               its views on any pending bill
               relating to this chapter to
               the proper legislative
               committee.

108.14(6)      . . . . The department, with
               the advice and aid of any
               employment councils appointed
               under Subsection 108.14(5)(b)
               and the council on
               unemployment compensation,
               shall take all appropriate
               steps within its means to
               reduce and prevent
               unemployment. . .

Section 15.09, Stats., is the general
statute applicable to councils.

It is clear that the power to act is in the
full body and that each member, except as
otherwise provided by express statute, shall
have the right to vote in such body.

Whereas the councils here are not created
under Section 15.04(3), Stats., Section
15.09(2), Stats., provides that:

15.09(2)  SELECTION OF OFFICERS.

          Unless otherwise provided by law,
          at its first meeting in each year
          every council shall elect a
          chairman, vice chairman and
          secretary from among its members.

          Any officer may be re-elected
          to succeed himself.

          For any council created under the
          general authority of Section
          15.04(3), the constitutional
          officer or secretary heading the
          department or the chief executive
          officer of the independent agency
          in which such council is created
          shall designate an employe of the
          department or independent agency to
          serve as secretary of the council
          and to be a voting member thereof.

 
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I am of the opinion that the departmental
employe designated as chairman of the
respective council under Section 15.227(3),
(4), Stats., not only has the power to vote
but, in some cases, such as in case of a tie,
may have a duty to vote.

Under Section 15.09(3), Stats., a majority
of the members may call a meeting
of the council.

The power to act is in the whole body,
not in individual members or in
representatives from employers or
representatives of employes or workers.

Section 15.09(4), (5), Stats., provides:

15.09(4)  QUORUM.

          A majority of the membership of a
          council constitutes a quorum to do
          business, and a majority of a
          quorum may act in any matter
          within the jurisdiction
          of the council.

15.09(5)  POWERS AND DUTIES.

          A council shall advise the head of
          the department or independent
          agency in which it is created and
          shall function on a continuing
          basis for the study, and
          recommendation of solutions and
          policy alternatives, of the
          problems arising in a specified
          functional area of state
          government.

Section 66.77, Stats., as amended by
Chapter 297, Laws of 1974, provides in part:
 

66.77     OPEN MEETINGS OF
          GOVERNMENTAL BODIES.

66.77(1)  In recognition of the fact that a
          representative government of the
          American type is dependent upon an
          informed electorate, it is declared
          to be the policy of this state that
          the public is entitled to the
          fullest and most complete
          information regarding the affairs
          of government as is compatible with
          the conduct of governmental affairs
          and the transaction ofgovernmental
          business.

          The intent of this section is that
          the term  "meeting" or "session"
          as used in this section shall
          not apply to any social or chance
          gathering or conference not
          designed to avoid this section.
 

66.77(2)  In this section:

66.77(2)(a)    "Closed session" means any
               meeting not an open session.

 
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66.77(2)(b)    "Meeting" means the convening
               of a governmental body in a
               session such that the body is
               vested with authority, power,
               duties or responsibilities
               not vested in the individual
               members.

66.77(2)(c)    "Governmental body' means a
               state or local agency, board,
               commission, committee, council
               or department created by
               constitution, statute,
               ordinance, rule or order;
               a municipal or quasi-municipal
               corporation; or a formally
               constituted subunit of any
               of the foregoing.

66.77(2)(d)    "Open session" means a meeting
               which is held in a place
               reasonably accessible to
               members of the public, which
               is open to all citizens at all
               times, and which has received
               the public notice required by
               statute, if any.

66.77(2)(e)    "Public notice" means
               statutorily required notice,
               if any. If no notice is
               required by statute, it
               means a communication by the
               chief presiding officer of a
               governmental body or his
               designee, to the public and to
               the official municipal or city
               newspaper designated under
               Section 985.05 or 985.06, or
               if none exists, then to
               members of the news media who
               have filed a written request
               for such notice, which
               communication is reasonably
               likely to apprise members of
               the public and of the news
               media of the time, place and
               subject matter of the meeting
               at a time, not less than one
               hour prior to the commencement
               of such meeting, which affords
               them a reasonable opportunity
               to attend.

66.77(3)       Except as provided in
               Subsection 66.77(4), all
               meetings of governmental
               bodies shall be open sessions.

               No discussion of any matter
               shall be held and no action of
               any kind, formal or informal,
               shall be introduced,
               deliberated upon, or adopted
               by a governmental body in
               closed session, except as
               provided in Subsection
               66.77(4).

               Any action taken at a meeting
               held in violation of this
               section shall be voidable.

66.77(4)       A governmental body may
               convene in closed session for
               purposes of:
 

66.77(4)(a)    Deliberating after judicial or
               quasi-judicial trial or
               hearing;

 
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66.77(4)(b)    Considering employment,
               dismissal, promotion,
               demotion, compensation,
               licensing or discipline of any
               public employe or person
               licensed by a state board or
               commission or the
               investigation of charges
               against such person, unless an
               open meeting is requested by
               the employe or person charged,
               investigated or otherwise
               under discussion;

66.77(4)(c)    Probation, parole, crime
               detection and prevention;

66.77(4)(d)    Deliberating or negotiating
               on the purchasing of public
               property, the investing of
               public funds, or conducting
               other public business which
               for competitive or bargaining
               reasons require closed
               sessions;  66.77(4)(e)
               Financial, medical, social
               or personal histories and
               disciplinary data which may
               unduly damage reputations;

66.77(4)(f)    Conferences between any local
               government or committee
               thereof, or administrative
               body, and its attorney
               concerning the legal rights
               and duties of such agency
               with regard to matters within
               its jurisdiction.

66.77(4)(g)    Partisan caucuses of members
               of the state legislature;

66.77(4)(h)    Transacting the business of
               the state legislature,
               pursuant to joint rules or
               rules of the senate or
               assembly, which specifically
               so permit.

66.77(5)       No motion to hold a closed
               session or to adjourn an open
               session into a closed session
               shall be adopted unless the
               chief presiding officer
               announces to those present at
               the meeting at which such
               motion is made 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.

               No governmental body shall
               commence an open session,
               subsequently recess into a
               closed session, and
               subsequently reconvene
               into an open session within a
               12-hour period, unless public
               notice of such subsequent open
               session was given at the same
               time and in the same manner as
               the public notice of the
               initial open meeting.

66.77(6)       Unless otherwise specifically
               provided by statute, no secret
               ballot shall be utilized to
               determine any election or
               other decision of a
               governmental body at any
               meeting, and any member of
               such body may require that a
               vote be taken in such manner
               that the vote of each member
               may be ascertained and
               recorded.

 
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66.77(7)  No duly elected or appointed member
          of a governmental body shall be
          excluded from any meeting of such
          body, or from any closed session of
          a subunit thereof, unless the
          parent body adopts rules to the
          contrary.

66.77(8)  Any member of a governmental body
          who knowingly attends a meeting of
          such body at which a violation of
          this section occurs shall forfeit
          without reimbursement not more than
          $200 for each such violation,
          provided that he shall not be
          liable if he calls for a vote on
          whether the body shall take that
          action constituting such violation,
          or if he is recorded in the minutes
          of the body as  voting against the
          action constituting such
          violation. . . . . . . .

We are dealing with a situation where each
council "meets," within the meaning of
Section 66.77(2)(b), Stats., as a body.

Each council is clearly a "governmental body"
within the meaning of Section 66.77(2)(c),
Stats.

The public notice required by Section
66.77(2)(e), Stats., is a prerequisite
to holding such meeting.

Even if the representatives of employers and
representatives of workers or employes were
"formally constituted subunits," the larger
governmental body could not adjourn for the
purpose of permitting the subunits to meet
unless each subunit had given the public
notice which is required for each meeting.

The respective council could go into
executive session of that body only for
purposes permitted by Section 66.77(4),
Stats.

Under certain circumstances Subsection
66.77(4)(d), Stats., might permit the
respective council to go into
closed session as a body.

Some support for such action can be found
in Section 108.14(7), Stats., by analogy.

The Open Meeting Law does not prevent a
governmental body from adjourning for short
periods for reasonable purposes.

It is not illegal for members to converse in
groups and members may discuss, privately,
positions they wish to take on matters to
come before the body.
 

I am of the opinion, however, that it is
improper for a governmental body other than a
house of the state legislature to adjourn for
the specific purpose of permitting groups
which may have a common interest to go into
separate closed caucuses to determine the
manner in which such group shall vote as a
block on any given issue.

 
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