67 Op. Att'y Gen. 117 (1978)
 
67 OAG 117  118  119  120

OPINION NO. OAG 24-78,

Wisconsin Attorney General Opinions

21 April 1978

Collective Bargaining;
Open Meeting,
Public Records;
Public Utilities;
Salaries And Wages;

Where Water and Light Commission has power to
fix compensation of employes, it may meet in
closed session to discuss and vote upon
increases for non-union employes.

A record must be made of motions and
roll-call votes at open and closed meetings.

Such record is open to inspection and copying
subject to sec. 19.21, Stats., and common-law
limitations with respect thereto.

WILLIAM R. HEATH, Editor, The Marshfield
News-Herald City of Marshfield

Pursuant to sec. 19.98, Stats., you request
advice with respect to the Wisconsin open
meeting law.

You state that the Marshfield Water and Light
Commission held a duly noticed meeting on
January 9, 1978, and voted to go into closed
session "to discuss union negotiations and
non-union and supervisory wage increases."

Wage increases for non-union personnel were
approved at the closed session, but the
record of such approval was not made public
until nearly 24 hours after the vote was
taken when the minutes of the Commission
were approved by the Marshfield Common
Council at its regular meeting.

In 65 Op. Att'y Gen. 243 (1976), it was
stated that a municipal public utility
commission managing a city-owned public
utility pursuant to sec. 66.068, Stats., was
a governmental body under sec. 19.82 (1),
Stats., and that its meetings were
subject to sec. 19.81-19.98, Stats.

Part of the difficulty in handling your
questions is the extent to which the Common
Council of the City of Marshfield has
delegated power to the Water and Light
Commission to fix the salaries and
wages of employes of the utility.

For the purposes of this opinion, it is
assumed that such Commission has the power
to "employ and fix the compensation of such
subordinates as shall be necessary" in
accordance with the provisions of
Section 66.068 (3), Stats.

 
67 OAG 117  118  119  120

Your first question is whether the
Commission, when duly convened in closed
session for the purpose of considering wage
increases for non-union employes, can vote
to approve increases in closed session.

I am of the opinion that it can vote
in the closed session.

Pursuant to Section 19.85(1)(C), Stats., a
governmental body which has given the
required notice can convene in closed
session 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.

Whereas the singular of public employe is
used, the singular includes the plural.
See Section 990.001(1), Stats.

Increases in the compensation of more than
one employe could therefore be "considered"
in closed session.

We are not concerned with the final
ratification or approval of a collective
bargaining agreement. Where such an agreement
is involved, final ratification or approval
must be accomplished in open session by
reason of Section 19.85(3), Stats.

A governmental body generally may take final
action and vote in closed session where the
vote is an integral part of the deliberation
process.

In State ex rel. Cities S. O. Co. v. Bd. of
Appeals, 21 Wis.2d 516, 124 N.W.2d 809
(1963), the court was dealing with former
Section 14.90, Stats. (1959),
which provided in part:

     (2)  . . . No formal action of any kind
          shall be introduced, deliberated
          upon or adopted at any closed
          executive session or closed
          meeting of any such body.

     (3)  Nothing herein contained shall
          prevent executive or closed
          sessions for purposes
          of:
               (a)  Deliberating after
                    judicial or
                    quasi-judicial trial
                    or hearing.

The court held that after hearing a zoning
appeal in public, the board of appeals could
convene in closed session to "deliberate" and
could vote in closed session, as it was an
integral part of the deliberation process,
and that the Board need not reconvene
in open session to announce its result.

 
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I am of the opinion that if the utility
Commission has power to increase compensation
of non-union employes, a court would hold
that it could consider increases in closed
session and could vote in closed session to
finalize its action.

Your second question is whether the vote
should be available immediately after the
meeting.  Whereas I am of the opinion that
the result in most cases should be announced
as soon as possible, there may be grounds for
withholding for some period of time.

State ex rel. Cities S. O. Co., supra,
indicates that under prior law no immediate
announcement or reconvening into open session
was required. Under present law a body could
not reconvene into open session after closed
session within twelve hours unless notice of
such intention to reconvene in open session
was given at the same time and in the same
manner as the public notice of the meeting
convened prior to the closed session.

Section 19.85(2), Stats.

This would not preclude the presiding officer
from making an announcement to anyone present
or from issuing a news release after the
closed session terminated.

Whether there must be disclosure of the vote
depends in part on whether the reason for
convening into closed session continues.
Section 19.88(3), Stats., is applicable to
open and closed sessions and 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.

Under Section 19.21(2), Stats., the right to
inspect and copy is limited in certain
respects, including "with proper care, during
office hours and subject to such orders or
regulations as the custodian thereof
prescribes."

Your letter does not disclose whether there
was a deliberate withholding of the record of
the motions and votes or whether there was a
mere delay in disclosure because of a lack of
a demand to see the record.

If it was the former, I am not aware of any
sufficient reason to justify a 24-hour delay.

 
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In other situations where competitive or
bargaining reasons may continue or where
detection of crime is currently involved or
where disclosure of financial, medical,
social histories or disciplinary data of
specific persons would have substantial
adverse effect upon the reputation of any
person referred to, the custodian may refuse
disclosure where specific reason is given.

The person seeking inspection may then
institute an action in mandamus to test
the reason.

See

63 Op. Att'y Gen. 400 (1974).

BCL:RJV
 
 
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