68 Op. Att'y Gen. 171 (1979)
 
68 OAG 171 172 173 174 175 176 177 178 179

OPINION NO. OAG 63-79,

Wisconsin Attorney General Opinions

10 July 1979

Open Meeting;
Wisconsin Employment Relations Commission;
Words And Phrases;

Application of Subchapter IV, Chapter 19,
Stats. (1975), to Subchapters I, III, IV
and V of Chapter 111, Stats., discussed
in relation to duties of the Wisconsin
Employment Relations Commission.

MORRIS SLAVNEY, Chairman
Wisconsin Employment Relations Commission

You ask whether Subchapter IV, Chapter 19,
Stats. (1975), entitled "Open Meetings of
Governmental Bodies" applies to certain
meetings held by the Wisconsin Employment
Relations Commission (WERC).

The WERC is a three-person commission
appointed by the Governor and confirmed by
the state Senate for the purpose of
administering Subchapters I, III, IV and V of
Chapter 111, Stats. Secs. 15.58 and 15.581,
Stats. Chapter 111, Stats., and the stated
subchapters therein provide generally that
WERC's duties are to aid in the resolution of
labor disputes.

Under Subchapter I, the Commission acts as a
quasi-judicial body, hearing and deciding
labor disputes based on written complaints
and answers. Under Subchapters IV and V, the
Commission administers the municipal and
state employment relations acts which provide
for collective bargaining between public
employes and public agencies.

 
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Section 19.83, Stats., states that:

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

The WERC is a "governmental body." Section
19.82 (1), Stats., provides as follows:

     "Governmental body" means a state or
     local agency, board, commission,
     committee, council, department or
     public body corporate and politic
     created by constitution, statute,
     ordinance, rule or order; a governmental
     or quasi-governmental corporation; or a
     formally constituted subunit of any of
     the foregoing, but excludes any such
     body or committee or subunit of such
     body which is formed for or meeting for
     the purpose of collective bargaining
     under Subchapter IV or V of Chapter 111.

Meeting" is defined in Section 19.82 (2),
Stats., as follows:

     "Meeting" means the convening of members
     of a governmental body for the purpose
     of exercising the responsibilities,
     authority, power or duties delegated
     to or vested in the body.

     If one-half or more of the members of a
     governmental body are present, the
     meeting is rebuttably presumed
     to be for the purpose of exercising
     the responsibilities, authority,
     power or duties delegated to
     or vested in the body.

     The term does not include any social or
     chance gathering or conference which is
     not intended to avoid this subchapter.

Subchapter IV, Chapter 19, Stats. (1975),
replaced Section 66.77, Stats. (1973),
applicable to open meetings
of governmental bodies.

Subchapter IV, Chapter 19, Stats. (1975),
made a significant change for
purposes of this opinion.

That is, the statutes require notice of both
open meetings of governmental bodies and
contemplated closed sessions thereof.

Closed sessions are also to be convened
only upon proper announcement and
vote of the governmental body.

Secs. 19.83, 19.84 and 19.85, Stats.

 
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You state:

     In respect to the commission's exercise
     of its quasi-judicial function,
     frequently one of the commissioners
     is assigned to do an in-depth study of
     the transcript of the hearing, to
     research the law, and to prepare a
     proposed decision affirming, reversing
     or modifying the examiner's findings of
     fact, conclusions of law and order.

     In the course of his study the
     commissioner often wishes to try out
     an idea about the case with another
     commissioner, or the other commissioner,
     knowing about the case, may ask how
     the case looks and the researching
     commissioner may respond with his
     general impressions or tentative
     thoughts at that stage of his
     research subject, of course, to
     his further study and review.

     This level of discourse generally is at
     one of two levels:

     (a)  "brainstorming," or simply
          student-like inquiry into another's
          opinion as to the applicable law;
          and

     (b)  deliberating on the correct
          result in the case for the
          purpose of helping the researching
          commissioner to think out his
          position prior to the meeting
          at which he will present his
          recommendation and its reasons
          for thorough commission discussion,
          deliberation and action.

The commission poses these questions:

1.   Is either such brainstorming or
     preliminary deliberation a meeting?

2.   If a commissioner asks the researching
     commissioner his thoughts on the case,
     has there been a meeting? Is there a
     meeting if the question is answered?

The general state policy underlying the open
meetings law is to insure the public

     the fullest and most complete
     information regarding the affairs of
     government as is compatible with the
     conduct of governmental business.

Section 19.81 (1), Stats.

Such general legislative declaration provides
some assistance in applying the specific
provisions of the law.

Conversations of individual commissioners
concerning business of your agency may be
in terms so non-specific, incidental or
peripheral or otherwise so removed from the
crucial decision/policy-making functions
delegated to or vested in the Commission as
to require the conclusion that such
conferences do not reasonably fall
within the intent of the law.

As was recognized by our court in
State ex rel. Lynch v. Conta,
71 Wis.2d 662, 683-684,
239 N.W.2d 313 (1976),
which interpreted exemption language in
Section 66.77, Stats. (1973), similar
to that emphasized in
Section 19.82 (2), Stats., above:

 
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Reading this language with the preceding
statements that the public is entitled
to the fullest information

     "as is compatible with the
      conduct of governmental affairs
      and the transaction of
      governmental business,"

the drafters acknowledged that members of
government organizations frequently interact
and socialize with their fellow workers.

Comment, 45 Miss.
L. J. 1151, 1167-1170 (1974).

Conversations on actual or potential
government business are bound to occur.

To declare that such discussions must proceed
only after public notice and in a publicly
accessible place would be not only impossible
of enforcement but ludicrous if attempted.

A serious question of deprivation of
privacy would also be potential.

The clear intent of the law is to distinguish
between informal and occasional
"brainstorming" which are not "meetings"
and discussions which actually lead to
a conclusion which are "meetings."

Discussions in such depth, detail, or scope
as to render the later formal meeting a
charade with a pre-determined outcome
are prohibited.

The words "intended to avoid this subchapter"
are to be given some meaning in interpreting
the law as they were in Conta.

In this regard, Conta is again helpful in
interpreting Subchapter IV, Chapter 19,
Stats., as it applies to such
activities of the WERC.

The revision of our open meeting law when
forfeiture was added as a sanction also
included the addition of conferences

     "designed to evade the law."

The establishment that such occurred,
for prosecution purposes, is
obviously a question of fact.

Circumstances themselves, however, may
dictate that evasion is being designed.

If every member of a governmental body is
present at a conference and any of the broad
activity that composes governmental activity
as defined in Section 66.77(3), Stats., is
undertaken,a question of evasion is posed;
the members are exposing themselves to
the jeopardy of a prosecution.

A chance gathering would not justify
governmental activity being intentionally
conducted, unless an emergency or other
difficulties (other than that engendered
by open session compliance) made
such action necessary.

A planned conference of the whole offers no
such exigent excuse. Likewise, when a
majority and thus a quorum gather, it
is a rare occasion which can justify
any action without open session compliance
and therefore not be considered an evasion
of the law.

 
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Quorum gatherings should be presumed to be
in violation of the law, due to a quorum's
ability to thereafter call, compose and
control by vote a formal meeting of a
governmental body. . . . . . . . . .

When the members of a governmental body
gather in sufficient numbers to compose a
quorum, and then intentionally expose
themselves to the decision-making process
on business of their parent body   by the
receipt of evidence, advisory testimony,
and the views of each other   an evasion
of the law is evidenced.

Some occurrence at the session may
forge an open or silent agreement.

When the whole competent body convenes,
this persuasive matter may or may not be
presented in its entirety to the public.

Yet that persuasive occurrence may compel
an automatic decision through the votes
of the conference participants.

The likelihood that the public and those
members of the governmental body excluded
from the private conference may never be
exposed to the actual controlling rationale
of a government decision thus defines such
private quorum conferences as normally an
evasion of the law.

The possibility that a decision could
be influenced dictates that compliance
with the law be met.

(71 Wis.2d 685-686; emphasis added.)

In my opinion, the circumstances you have
generally described in reference to your
first and second questions could fit
the definition of the term "meeting,"
in Section 19.82(2), Stats., in
some instances and not in others.

The determination depends on the nature,
scope, and details of the matters discussed
as well as the intent of the Commissioners.

Discussions or brainstorming of a tentative
nature preliminary to focusing on a specific
outcome and which are not intended to evade
the law are, in my opinion, not covered by
the law.

While this test may be difficult to apply in
practice, it is suggested by the law itself,
and is not unlike the various tests which
are applied by the courts to determine,
for example, whether police suspicion
has so focused on a suspect that he need
be given Miranda warnings or whether there is
probable cause to believe that evidence may
be found in a particular place or on a
particular person.

 
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The general standard can be stated; the
specific application turns on the facts.

Here a court would look to the intent of the
Commissioners and the actual nature and
detail of the discussions as the court did in
Conta with the burden, because a quorum is
rebuttably presumed to constitute a meeting,
resting with the Commissioners to show lack
of intent to evade the law and lack of a
final action or determination.

The character of later debate and discussion
is certainly an item of circumstantial
evidence which would be considered by
a court in reviewing your actions.

Meetings require notice under Sections 19.83,
19.84 and 19.85, Stats., although such
meetings could be further convened in closed
session, under one or more exemptions,
including Section 19.85(1)(a), Stats., as
amended by Chapter 260, Laws of 1977, which
permits closed sessions for "Deliberating
concerning a case which was the subject of
any judicial or quasi-judicial trial or
hearing before that governmental body."

You state:

     In respect to the commission's exercise
     of its mediation function, it always is
     necessary to assign a mediator to
     attempt resolution of a particular
     dispute, and the commission seeks
     to assign the person who by skill
     and experience is best suited to
     gain the trust of the parties and
     contribute to a resolution.

     Further, the commissioners themselves
     frequently need to discuss with each
     other the progress of bargaining talks
     and whether present mediation techniques
     are working or whether a different
     approach is required.

The commission poses these questions:

3.   Is all discourse between the
     commissioners as to which of
     its staff should be assigned
     to mediate a particular
     dispute a meeting?

4.   Is all discourse between commissioners
     as to the correct mediation techniques
     for resolving a particular dispute
     a meeting?

Most of my remarks in response to your first
two questions are equally applicable here.

Quite clearly, it is impossible to state
categorically that "all discourse" would
necessarily result in a meeting under
the open meetings law.

Where the Commission itself makes mediation
assignments, whether the person be a staff
member or some other person, it exercises a
statutory function within the definition of
"meeting" under Section 19.82 (2), Stats.

See Sections 111.11(1) and 111.87, Stats.

 
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Where the assignment decision is made by
the chairman, discussion of the question
would not involve a meeting.

See answer to questions 6 and 7, infra.

Where the discussion of mediation techniques
involves policy determinations which require
joint consideration by the Commission, a
meeting rather than a chance gathering
or "conference which is not intended
to avoid this subchapter" is involved
and requires proper notification.

You state:

     In respect to its responsibility to
     respond to inquiries from the general
     public, the commission regularly
     receives telephone calls and letters
     from citizens concerned about matters
     affecting their employment.

     The response given may involve one
     commissioner consulting another to
     receive approval of the response he is
     making, as where there may be some
     ambiguity as to the application of
     commission policy. The commission
     poses this question:

5.   Is all discourse between commissioners
     as to the response to be made to a
     citizen inquiry a meeting?

The "conferences" you describe normally would
not have the status of meetings, as defined
by Section 19.82(2), Stats., unless the
request or its response would require
action by the Commission.

Action by the full Commission may be
particularly appropriate where the inquiry
raises a policy question not previously
addressed and decided so that the response
necessarily requires policy development.

See Conta case, supra.

You state:

In their employer capacity the commissioners
are responsible to evaluate employes.

The process of forming an opinion occurs over
a period of time, of course, and frequently
one commissioner will pass a judgmental
remark on an employe to another commissioner.

This kind of remark may occur in a chance
social gathering, such as during a morning
coffee break; or it may occur during or after
a quasi-judicial deliberation concerning a
particular staff member's findings of fact,
conclusions of law and order; or it may occur
during or after review of a particular
staff member's success or lack thereof
in seeking to bring about a labor
settlement through mediation.

 
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In addition, the commission must hire people
on occasion and, to that end, the
commissioners interview applicants
for employment.

The questions posed are these:

6.   Is a value judgment of an employe
     made by one commissioner to
     another a meeting?

7.   Is an interview with a job applicant
     and the commissioners a meeting?

Individual personnel matters, as opposed to
the establishment of general personnel
policies, involve "administrative duties"
vested in the chairman of the Commission by
Section 15.06(4), Stats., which provides:

     CHAIRMAN; ADMINISTRATIVE DUTIES.

     The administrative duties of each
     commission shall be vested in its
     chairman, to be administered by him
     under the statutes and rules of the
     commission and subject to the policies
     established by the commission.

The evaluation of employes and the
interview of applicants for employment are
"administrative duties" of the chairman,
though they may be delegated to the
other Commission members.

See 64 Op. Att'y Gen. 33, 36 (1975).

If no delegation of these administrative
duties takes place, the chairman could
discuss such matters with the other
commissioners, individually, without such
conference resulting in a meeting.

But if these duties have been delegated to
the other Commission members so that the
Commission must consider and act on such
matters jointly, a meeting requiring
proper notification normally results.

Such a meeting could be further convened
in closed session in many instances
under one or more exceptions, including
Sections 19.85(1) (b), (c) or (f), Stats.

BCL:JCM

 
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