66 Op. Att'y Gen. 93 (1977)
 
66 OAG 93 94 95 96 97 98 99

OPINION NO. OAG 26-77,

Wisconsin Attorney General Opinions

Anti-Secrecy;
Collective Bargaining;
Education, Board Of;
Open Meeting;
Schools And School Districts;

Discussion of public notice
requirements for meetings of city district
school board under Sections 19.81-19.98
and Section 120.48, Stats.

 
66 OAG 93 94 95 96 97 98 99

MARSHALL H. BOYD, District Administrator
Portage Public Schools

Pursuant to Section 19.98, Stats., you
request my advice on a number of questions
relating to the open meeting law as created
by Chapter 426, Laws of 1975.

I will answer the questions you pose on the
basis of the facts stated in your request.

However, since it appears that you are
seeking advice to aid the school board in the
proper conduct of its meetings, I suggest
that the board seek and rely on the advice of
its attorney who, in most cases, is in the
best position to render legal advice in view
of all of the special circumstances existing
for each case.

Your letter states that a "city district
Board of Education" is involved, and this
opinion assumes that it is a city school
district operating under Subchapter 11
of Chapter 120, Stats.

(1)  Under 19.84(1)(a) does a regular or
     special meeting of a city district Board
     of Education require posting of notices
     as well as newspaper and radio notices?
     If so, would the front door of the
     school constitute a reasonable public
     place and how many places are required?"

     Section 19.84(1)(a) and 19.84(1)(b),
     Stats., provides:

19.84(1)       Public notice of all meetings
               of a governmental shall be
               given in the following manner:

19.84(1)(a)    As required by any other
               statutes; and

19.84(1)(b)    By communication front the
               chief presiding officer of a
               governmental body or such
               person's designee to the
               public, to those news media
               who have filed a written
               request for such notice,
               and to the official newspaper
               designated under Sections
               985.04, 985.05 and 985.06 or,
               if none exists, to a news
               medium likely to give notice
               in the area.

Section 120.48(1), Stats.,
as amended by Chapter 426,
Laws of 1975, provides:

120.48(1) The school board in a city school
          district shall hold regular monthly
          meetings at such times as it
          prescribes by rule.

          Special meetings may be held under
          rules adopted by the school board.

          The school board shall inform the
          public of its regular monthly
          meetings, either by publication of
          a class 1 notice, under Chapter
          985, with the specific exception
          that insertion thereof need not be
          at least one week before the
          meeting, or by other means which
          may include posting.

          All school board meetings shall be
          open to the public except as
          provided in Subchapter IV of
          Chapter 19 and except that the
          public shall be excluded from
          a hearing before the school board
          on charges against an employe,
          if requested by the employe
          against whom the charges
          are proffered.

 
66 OAG 93 94 95 96 97 98 99

There must be compliance with the provisions
of both Subsections 19.84(1)(a) and
19.84(1)(b) of Section 19.84, Stats.
 

I am enclosing a copy of an opinion,
63 OAG 509 (1974), which is concerned with
the meaning of the word "communication,"
which was also used under former
Section 66.77(2)(e), Stats.

In reading that opinion you should note
that the provisions of present Section
19.84(1)(b), Stats., are more extensive than
those of former Section 66.77(2)(e), Stats.

Posting is not required by Subsections
19.84(1)(a) or (1)(b)
of Section 19.84, Stats.

Posting may be a means of informing the
public of regular or special meetings or as a
supplement to the publication of a class 1
notice for a city school district
regular monthly meeting.

See Section 120.48, Stats. The front door of
the school, if reasonably accessible to the
public, would constitute a proper place for
posting of notices.

The statutes do not specify a number of
places where posting must occur.

Since neither Section 19.84(1) nor Section
120.48, Stats., require publication of a
notice in a newspaper, the provisions of
Section 985.02(2), Stats., which require,
when posting is elected in place of
publication, posting in "at least three
public places likely to give notice to
persons affected" are not applicable.

However, three public places would be a
prudent number to utilize. Where posting is
to be relied upon, the number of places used
might well vary depending on the size of the
district, the number and location of schools
and the place or places the board customarily
holds its meetings.

(2)  Is the Board limited to agenda items or
     can it revise or add to the agenda if
     that step is included as an agenda item,
     i.e. "agenda revisions"?

 
66 OAG 93 94 95 96 97 98 99

The board is not necessarily limited to
agenda items. The use of an agenda item
entitled "agenda revisions" is minimal
compliance with the law unless it
represents a subterfuge to avoid the law.

However, this practice should be avoided.
Where members know specific items in advance
of the meeting, they should be communicated
to the presiding officer who should give
notice of the supplemental agenda in the
manner described above.

Matters of importance or of wide interest
should be postponed until more specific
notice can be given. See 66 OAG 68 (1977).

Section 19.84(2), Stats., refers to the
content of the required notice:

19.84(2)  Every public notice of a meeting of
          a governmental body shall set forth
          the time, date, place and subject
          matter of the meeting, including
          that intended for consideration at
          any contemplated closed session, in
          such form as is reasonably likely
          to apprise members of the public
          and the news media thereof.

The notice should be as specific and
informative as possible.

See discussion at 63 OAG 509, 511 (1971) and
66 OAG 68 (1977).

(3)  Under 19.85 (1)(e) are negotiation
     strategies and topics for consideration
     by the Board allowable under this
     sub-section or does "bargaining reasons"
     refer to purchase of properties,
     investments, and other specified public
     business?

Where a board is meeting for the purpose of
collective bargaining under Subchapter IV or
V of Chapter 111, it is not a "governmental
body" within the meaning of Section 19.82(1)
Stats., and a board would not have to comply
with the public notice requirements of
Section 19.84, Stats., when meeting
for those purposes.

The open session, required for final
ratification or approval of a collective
bargaining agreement would be subject
to the notice requirements.

See Section 19.85(3), Stats. However,
a city district school board must also
comply with the notice requirements of
Section 120.48 Stats.

Thus, where collective bargaining strategies
are to be discussed at a regular meeting the
board would have to comply with any public
notice requirements contained in its rules
applicable to special meetings, open or
closed.

It is my opinion that a board could meet in
closed session for the purpose of forming
negotiation strategies.

 
66 OAG 93 94 95 96 97 98 99

I recommend, however, that the board give
notice of a meeting as prescribed by Sections
19.84(1)(a), (b) and (2), Stats., specifying
that an open meeting will be held for the
purpose of taking a vote to convene in closed
session for the purpose of discussing labor
negotiation strategies citing the exemptions
in Section 19.85(1)(C) and (e), Stats.

The exemption in Section 19.85(1)(e),
Stats., provides:

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.

It is my opinion that the last two phrases
are not limited to situations involving
the purchasing of public properties
or the investing of public funds.

(4)  Can a city district school board vote to
     preliminarily approve bargaining
     proposals in closed session without
     violating Section 19.85(3), Stats.?
 

I am of the opinion that it can.

A governmental body can vote to take action
on matters discussed at a closed session
if such action is an integral part of
the reason for which the permitted
closed session was convened.

Some consensus is necessary, where closed
sessions are utilized, before an open meeting
duly noticed is convened. Members could,
of course, change their votes at the
open session when the matters of
final ratification or approval
were before the board.

Section 19.85(3), Stats., provides:

19.85(3)  Nothing in this subchapter shall
          be construed to authorize a
          governmental body to consider at a
          meeting in closed session the final
          ratification or approval of a
          collective bargaining agreement
          under Subchapter IV or V of
          Chapter 111 which has been
          negotiated by such body
          or on its behalf.
 

I construe this section as requiring an open
session, duly convened on notice, for the
purpose of taking final action, whether
it be in the form of final ratification
or final approval.

(5)  Closed session notice. Does naming the
     subject (i.e. purchase of property,
     public fund investment) satisfy the
     statute or must statutory reference
     such as Wis. Stat. 19.85(1)(e)
     be included as part of the
     agenda reference?

 
66 OAG 93 94 95 96 97 98 99

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.

          No motion to convene in closed
          session may be adopted unless
          the chief presiding officer
          announces to those present at the
          meeting at which such motion is
          made, the nature of the business to
          be considered at such closed
          session, and the specific exemption
          or exemptions under this subsection
          by which such closed session is
          claimed to be authorized.

          Such announcement shall become part
          of the record of the meeting.

          No business may be taken up any
          closed session except that which
          relates to matters contained in
          the chief presiding officer's
          announcement of the closed session.

I am of the opinion that stating the
general subject of the closed
session is not sufficient.

There should be specific reference to
the specific statutory exemption
which is being relied upon as set
forth in Section 19.85(1), Stats.

Where an open session is convened into closed
session Section 19.85(1), Stats., requires
the chief presiding officer to announce to
those present the nature of the business to
be considered at the closed session and the
specific exemption or exemptions in the
subsection by which the closed session
is claimed to be authorized.

Procedure requires similar reference where
notice of a contemplated closed session is
given under Section 19.84(2), Stats.

I am also of the opinion that a closed
session cannot be held prior to an open
session or as the first order of business.
A governmental body can reconvene into open
session if notice of such subsequent open
session is given as required by Section
19.85(2), Stats. Section 19.83, Stats.,
provides:

19.83     Meetings of governmental bodies.

          Every meeting of a governmental
          body shall be preceded by public
          notice as provided in Section
          19.84, and shall he held
          in open session.
 

          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.

 
66 OAG 93 94 95 96 97 98 99

Section 19.85(2), Stats., quoted above,
requires that notice be given of the
subject matter,

     including that intended for
     consideration at any contemplated closed
     session, in such form as is reasonably
     likely to apprise members of the
     public and the news media thereof.

This provision is to be construed in
pari materia with Section 19.85(1), Stats.,
which contains provisions as to the
specificity of the notice to be
given where an action is taken
in open session to reconvene
as a closed session.

These provisions require reference to the
specific exemption or exemptions relied upon.

Bronson C. La Follette

BCL:RJV
 
 
66 OAG 93 94 95 96 97 98 99