66 Op. Att'y Gen. 211 (1977)
 
 
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OPINION NO. OAG 60-77,

Wisconsin Attorney General Opinions

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19 July 1977

CAPTION:

Anti-Secrecy,
Contracts;
Open Meeting,
Schools And School Districts;
Teachers;

          "Private conference" held under
Section 118.22(3), Stats., on nonrenewal of
teacher's contract is a "meeting" within
Section 19.82(2), Stats., and school board
could hold closed session under Section
19.85(1)(c), Stats., although specific notice
to teacher under Section 19.85(1)(b) would
have to be given where nonrenewal was based
on charges and teacher would have right to
require open meeting where evidentiary
hearing was held or before final action or
nonrenewal where charges were involved.

JAMES F. CLARK, Legal Counsel
Wisconsin Association of School Boards

You asked what effect Subchapter IV of
Chapter 19, Stats., entitled "Open Meetings
of Governmental Bodies," has on the
provisions of Section 118.22(3), Stats.

Section 118.22(3), Stats., provides:

 
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118.22(3  At least 15 days prior to giving
          written notice of refusal to renew
          a teacher's contract for the
          ensuing school year, the employing
          board shall inform the teacher by
          preliminary notice in writing that
          the board is considering nonrenewal
          of the teacher's contract and that,
          if the teacher files a request
          therefor with the board within
          five days after receiving the
          preliminary notice,the teacher
          has the right to a private
          conference with the board
          prior to being given written
          notice of refusal to
          renew his contract.

Specifically you ask the following questions:

Question 1:    Is the "private conference"
               a "meeting" within Section
               19.82(2), stats.?"

Subchapter IV of Chapter 19, Stats., applies
to every "governmental body" defined by
Section 19.82(1), Stats., holding "meetings"
as defined by Section 19.82(2),Stats.

Section 118.22(3),Stats., grants the teacher
a right to a private conference with the
"board," not merely a conference with a
representative of the board.

A school board convening under Section
118.22(3), Stats., is holding a meeting
"for the purpose of exercising the
responsibilities, authority, power
or duties delegated to or vested
in the body" (Section 19.82(2), Stats.),
and therefore, is subject to the provisions
of Subchapter IV of Chapter 19, Stats.

Question 2:    If so, is the proper purpose
               for convening the "private
               conference" in closed session
               the consideration of
               employment under Section
               19.85(1)(c), stats., or the
               consideration of dismissal
               under Section 19.85(1)(b)?
 

Please note that the Wisconsin Supreme Court
has characterized "nonrenewal" as not
re-hiring, while "dismissal" means to
remove from employment, as by discharge.

Hortonville Education Association v. Joint
School District No. 1,
66 Wis.2d 469, 481 (1975);

Richards v. Board of Education,
58 Wis.2d 444, 460b (1973); and
Millar v. Joint School District,
2 Wis.2d 303, 312 (1957)."

The first stage in the usual nonrenewal case
is properly a matter for a closed session
under Section 19.85(1)(c), Stats. [fn1]

 
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The board should give notice of the meeting
with the agenda item that the board will
convene in closed session, pursuant to
Section 19.85(1)(c), Stats., to consider the
nonrenewal of teacher contract or contracts.

The procedure for convening in closed session
in Section 19.85(1), Stats., should be
followed.  Names need not be given and no
notice need be given, at this stage, to
individuals involved.

where no charges have been made which will be
investigated, Nonrenewal is "Considering
employment" and it is proper to consider
performance evaluation data.

The board can determine which teacher
contracts it tentatively intends not be
renewed in closed session.

The second stage of nonrenewal proceedings is
the procedure under Section 118.22(3)
involving notice to the individual teacher
and an opportunity for a private conference.

Notice of this conference must be given
under Section 118.22(3), Stats.,
to the individual teacher.
 

The teacher has a right to a private
conference before there is any final
determination of nonrenewal and before
written notice of nonrenewal is given.

Nonrenewal not based on charges is not
dismissal in the usual sense.

Hortonville Ed Association v.
Joint School District Number One,
66 Wis.2d 469, 481, 225 N.W.2d 658 (1975).

When a school board proceeds under Section
118.22, Stats., to consider the renewal of a
contract of a nontenured teacher, it is
considering an employment relation,
and a "hearing" is not required unless
charges are made which damage his or her
good name, reputation, honor or integrity
or when refusal to reemploy imposes stigma
or other disability.

Richards v. Board of Education,
58 Wis.2d 444,
206 N.W.2d 597 (1973).

The question remains, however, whether the
word "dismissal" in Section 19.85(1)(b)
should be given a broader meaning allowing
the teacher in a private conference to decide
under Section 19.85(1)(b) whether the meeting
should be open to the public.

The plain language of Section 118.22(3),
Stats., does not grant a right to a hearing,
but rather to a private conference.

Our courts have said that a
nonrenewal is not a dismissal.

Consequently I am of the opinion that notice
is properly given under Section 19.85(1)(c)
and that a teacher does not have a right to
turn such private conference into an open
meeting unless the test for damage or
disability set forth in
Richards, supra, is met.

 
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Question 3: Under what circumstances or
            occurrences, if any, are the
            provisions of Section 19.85(1)(b)
            regarding an "evidentiary
            hearing" applicable to the
            "private conference" ?

If a nonrenewal is preceded by charges which
might damage the good name, reputation, honor
or integrity of a teacher or where nonrenewal
may impose substantial stigma or other
disability, a board should initially give
notice of the meeting with an agenda item
that it intends to go into closed session
under both Subsections 19.85(1)(b) and
19.85(1)(c) of 19.85(1), Stats.

Subsection 19.85(1)(b) is involved where the
board is to investigate "charges against such
person" and although nonrenewal may not be
dismissal, it borders on discipline where
serious charges are concerned, especially
where the charges involve reputation, etc.,
as above.

The individual would not have to have
personal notice of the initial closed
session (although I would recommend such
notice), but would have to have actual notice
of any closed session which consisted of an
evidentiary hearing, or at which final action
of nonrenewal were to be taken so that he or
she could exercise the right to have such
evidentiary hearing or meeting held
in open session.

I consider the words "evidentiary hearing" as
meaning a formal examination of charges by
the receiving of testimony from interested
persons, irrespective of whether oaths are
administered, and receiving evidence in
support or in defense of specific charges
which may have been made.

Where an evidentiary hearing is held, the
parties are entitled to seasonably know the
charges and claims preferred, have a right to
meet such charges or claims by competent
evidence, and the right to be heard by
counsel upon the probative force of evidence
adduced and upon the law applicable thereto.

BCL:RJV

fn1] Section 19.85(1)(c) permits closed
     sessions for the purpose of

    "Considering employment, promotion,
     compensation or performance evaluation
     data of any public employe over which
     the governmental body has jurisdiction
     or exercises responsibility."

 
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