66 Op. Att'y Gen. 60 (1977)
 
66 OAG 60  61  62  63  64

OPINION NO. OAG 17-77,

Wisconsin Attorney General Opinions

23 February 1977

Anti-Secrecy;
Ballots,
Collective Bargaining;
Elections,
Open Meeting;
Public Officials,
Regents, Board Of;
Salaries And Wages,
State University System;
University,
Votes And Voting;

University subunit may discuss promotions not
relating to tenure, merit increases and
property purchase recommendations
in closed session.

NEWTOL PRESS, President Wisconsin Conference
American Association of University Professors

Pursuant to Section 19.98, Stats., you
request my advice with respect to
applicability of provisions of the
open meeting law to meetings of departments
or formally constituted subunits of the
University of Wisconsin system.

This opinion assumes that some governmental
body within the meaning of Section 19.82(1),
Stats., is involved in each of the questions
you pose.

It is my opinion that departments or formally
constituted subunits of the University of
Wisconsin system or campus are governmental
bodies within the meaning of Section
19.82(1), Stats., as created by Chapter 426,
Laws of 1975, and are subject to the open
meeting law although they are exempt from
giving the notice required by Sections
19.84(1) to 19.84(4), Stats.

 
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However, they must give the notice required
by Section 19.84(5), Stats., the public
notice required by Section 19.85(1), Stats.,
and the individual notice required by Section
19.85(1)(b), Stats., where applicable.

(1)  Are considerations of recommendations of
     promotions not related to tenure covered
     under exemptions?"

The answer is yes. Section 19.85(1)(b),
Stats., permits a closed session where grant
or denial of tenure for a university faculty
member is involved and requires actual notice
to the person under consideration before any
evidentiary hearing is held or before final
action on grant or denial.

Grant of tenure may be considered a
promotion for certain purposes.

However, Section 19.85(1)(c), Stats., would
apply to promotions not involving a grant or
denial of tenure and provides:

19.85(1)(c)    Considering employment,
               promotion, compensation or
               performance evaluation data of
               any public employe over which
               the governmental body has
               jurisdiction or exercises
               responsibility.

(2)  Are considerations of merit salary
     increase recommendations covered
     under exemptions?"

A closed meeting could be held for such
purpose under Section 19.85(1)(c), Stats.,
since consideration of merit salary
increase recommendations is
clearly the consideration of

"compensation . . of . . a public employe."

(3)  Are meetings of Departmental Committees
     that consider the purchasing of capital
     equipment, or plans for building
     remodeling or construction, covered
     under exemptions?

If the committee is formally constituted, the
exemption in Section 19.85(1)(e), Stats.,
would apply to purchases the committee has
power to recommend or delegated power to
consummate.
 

Whether the exemption would apply to plans
for remodeling or construction would depend
on existence of competitive or bargaining
reasons which require a closed session.

 
66 OAG 60  61  62  63  64

Section 19.85(1)(e), Stats., allows the
convening of a closed session for the purpose
of:

19.85(1)(e)    Deliberating or negotiating
               the purchasing of public
               properties, the investing of
               public funds, or conducting
               other specified public
               business, whenever competitive
               or bargaining reasons require
               a closed session.

(4)  Is the law applicable to votes to
     recommend where the power of the
     committee is so limited and the final
     power is vested in administrators or
     the Board of Regents?"

The answer is yes, subject to the
qualifications discussed below.

     Section 19.83, Stats., provides that: .
     . . .

     At any meeting of a governmental body,
     all discussion shall be held and all
     action of any kind, formal or informal,
     shall be initiated, deliberated upon and
     acted upon only in open session except
     as provided in Section 19.85.

     A vote may be taken in closed session if
     the vote is an integral part of the
     purpose for which the closed session was
     properly called. However, final approval
     of collective bargaining agreements must
     be taken in open session.

     Section 19.85(3). Stats.

(5)  In each of the items above, must
     the vote of each participant be
     "ascertained and recorded" ?
 

The answer is no, except as noted below.

The vote of each member must be ascertained,
recorded and record preserved where a
governmental body votes to convene
in closed session.

Section 19.85(1), Stats., provides in part:

19.85(1)  Any meeting of a governmental body,
          upon motion duly made and carried,
          may be convened in closed session
          under one or more of the exemptions
          provided in this section. The
          motion shall be carried by a
          majority vote in such manner
          that the vote of each member is
          ascertained and recorded in the
          minutes . . .

Where a statute does not require voting in a
form that the vote of each member can be
ascertained and recorded, or where no member
demands the vote be taken in that manner,
voting may be viva voce or by hand.

 
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Section 19.88, Stats., provided:
Ballots, votes and records.

19.88(1)  Unless otherwise specifically
          provided by statute, no secret
          ballot may be utilized to determine
          any election or other decision of
          a governmental body except the
          election of the officers of
          such body in any meeting.

19.88(2)  Except as provided in subsection
          19.88(1) in the case of officers,
          any member of a governmental body
          may require that a vote be taken at
          any meeting in such manner that the
          vote of each member is ascertained
          and recorded.

19.88(3)  The motions and roll call votes of
          each meeting of a governmental body
          shall be recorded, preserved and
          open to public inspection to the
          extent prescribed in Section 19.21.

(6)  Some offices that are filled by
     appointment require (or are
     traditionally preceded by)
     an advisory ballot.

     Must advisory ballots be recorded?"

Under Section 19.88(1), Stats., most secret
advisory ballots are prohibited unless
some statute permits them.

Depending on the context, an advisory ballot
may or may not be a decision of a
governmental body.

I am informed that institutions within the
University of Wisconsin System have faculty
rules that provide for advisory votes on
appointive offices such as department
chairperson.

The vote may or may not be
taken at a meeting.

This advisory vote is transmitted
directly to the dean.

Where an advisory vote is required or
permitted and the voters happen to be a group
which also constitutes a governmental body
and the body itself does not make the
appointment or take further action the
advisory vote can be taken by secret ballot
because the action is neither an election
(the ballot being advisory) or a decision
(the ballot being a tally of individual
preferences and not a departmental
recommendation). [fn1]

However, there may be circumstances where an
advisory ballot is called for as a
recommendation from the governmental body.

In such cases I am of the opinion that a
paper ballot may be used if it utilizes the
name or other identifying mark of the member
casting the same. If used, such ballots
must be made of record and preserved.

 
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If an advisory vote is by roll call, it must
be recorded. See Sections 16.80(2)(a),
19.21(1), 19.21(2), 19.88(3), Stats.

Section 19.88(3), Stats., provides:

     The motions and roll call votes of each
     meeting of a governmental body shall be
     recorded, preserved and open to public
     inspection to the extent prescribed in
     Section 19.21.

Bronson La Follette

BCL: RJV

[fn1]

Such a result is consistent with the intent
of the law in appointments cases such as
departmental chairman.

If the department elected the chairman, that
vote could be taken by secret ballot under
Section 19.88(1), Stats., which provides
an exception for "the election of the
officers of such body in any meeting.
 
 
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