80 Op. Att'y Gen. 176 (1992)
 
80 OAG 176 177 178 179 180 181 182 183

OPINION NO. OAG 5-92,

Wisconsin Attorney General Opinions

25 February 1992

Open Meeting;

The exemption in Section 19.85(1)(c), Stats.,
of the open meetings law only authorizes a
governmental body to convene in closed
session to consider employment, compensation,
promotion or performance evaluation of a
specific public employe or employes.

The purpose of the exemption is to protect
the public employe who is being considered,
not to protect the governmental body.

The exemption does not permit a governmental
body to convene in closed session to consider
employment, compensation, promotion or
performance evaluation policies to apply to a
position of employment in general, but may
permit a governmental body to convene in
closed session to apply those general
policies to a specific employe or employes.

RAYMOND L. PELRINE, District Attorney Eau
Claire County

You have requested my interpretation of
Section 19.85(1)(c), Stats., of the state's
open meetings law.

You report that the city manager for the city
of Eau Claire recently announced his
resignation.

Thereafter, the city council held a meeting
at which it convened in closed session.

The public notice of the meeting stated that
the common council would convene in closed
session "to consider the employment and
compensation of a public employee, namely,
the City Manager . . . pursuant to Section
19.85(1)(c) of the Wisconsin Statutes."

You report that the minutes from the closed
session revealed that the city council
discussed the qualifications and salary for
the position of city manager in general, not
the qualifications of or salary to offer any
particular applicant or applicants.

You request my opinion on whether the city
council properly convened in closed session
under Section 19.85(1)(c) for that purpose.

I am of the opinion that the city council did
not properly convene in closed session
because I interpret the exemption in Section
19.85(1)(c) to be limited to considerations
of employment, compensation, promotion and
performance evaluations of a specific employe
or employes, not considerations pertaining
to employment, compensation, promotion and
performance evaluation policies to apply
to a position of employment in general.

 
80 OAG 176 177 178 179 180 181 182 183

The purpose of interpreting a statute is
to discern the Legislature's intent.

The primary source of the Legislature's
intent is the language of the statute itself.

If the language is ambiguous, it is
permissible to discern the legislative intent
by looking to the language of the statute in
relation to its scope, history, context,
subject matter and object intended to be
accomplished.

Wis. Environmental Decade v.
Public Service Comm.,
81 Wis.2d 344, 350,
260 N.W.2d 712 (1978).

The language of Section 19.85(1)(c)
permits a governmental body to 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."

The Section refers to a public employe, as
opposed to a position of public employment.

The predecessor to the current open meetings
law contained a similar provision.

Section 14.90(3)(b), Stats. (1959),
permitted a closed session for:

     Considering employment, dismissal,
     promotion, demotion, compensation,
     licensing or discipline of any public
     employe or person licensed by a state
     board or commission or the investigation
     of charges against such person, unless
     an open meeting is requested by the
     employe or person charged, investigated
     or otherwise under discussion.

In a

SYNOPSIS OF OPINIONS INVOLVING
ANTI-SECRECY LAW, published in

49 Op. Att'y Gen. v (1960),

the attorney general concluded that the above
exception does not apply where personnel or
management policies are discussed generally.

 
80 OAG 176 177 178 179 180 181 182 183

The purpose of the exception is to protect a
particular employe who is being considered or
discussed and not to protect the public
agency involved. . . . The mere fact that
items of public policy or future personnel
relations are to be discussed is not a
sufficient reason for a secret meeting.

It is, in fact, a reason for
holding an open meeting.

Id. at viii.

The attorney general went on to state that
the Section "is not to be used for the
concealment of information or to prevent
employes as a group from knowing what
personnel or compensation policies are
being considered by a governmental body."

Id. at x.

The attorney general further stated:

     Similarly we have said that a meeting to
     discuss generally the salaries for
     teachers should be open to the public.
     The provisions of Section 14.90(3)(b),
     which provide that there may be closed
     executive sessions, refer to individual
     cases and do not give the right to a
     public body to close the meeting
     where salary schedules in general
     are being discussed.

     Id. at xi.

The Legislature has amended the
open meetings law six times since
publication of the attorney general's
SYNOPSIS OF OPINIONS INVOLVING ANTI-SECRECY
LAW. Chapter 297, Laws of 1973;
Chapter 426, Laws of 1975;

1983 Wisconsin Act 84;
1985 Wisconsin Act 26,  Section 6;
1985 Wisconsin Act 29,  Section 153m;
1987 Wisconsin Act 305, Sections 2-5.

The personnel exemption was amended
by Chapter 297, Laws of 1973.

In that law, the state Legislature split the
exemption in Section 14.90(3)(b), renumbered
to Section 66.77(3)(b), into the two
exemptions which appear in Section 19.85(1)
of the current open meetings law:

19.85(1)(b)

Considering dismissal, demotion, licensing or
discipline of any public employe or person
licensed by a board or commission or the
investigation of charges against such person,
or considering the grant or denial of tenure
for a university faculty member, and the
taking of formal action on any such matter;
provided that the faculty member or other
public employe or person licensed is given
actual notice of any evidentiary hearing
which may be held prior to final action
being taken and of any meeting at
which final action may be taken.

 
80 OAG 176 177 178 179 180 181 182 183

The notice shall contain a statement
that the person has the right to demand
that the evidentiary hearing or meeting
be held in open session.

This paragraph and paragraph 19.85(1)(f) do
not apply to any such evidentiary hearing or
meeting where the employe or person licensed
requests that an open session be held.

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.

The purpose of the amendment was to "clarify
that preliminary discussions of personnel
problems may be held at closed session
without notice to the effected employe(s)."

Analysis by the
Legislative Reference Bureau, LRB 10637/5
(June 1976 special session).

Section 19.85(1)(b) allows closing
a meeting when a governmental body is
    "considering dismissal, demotion,
     licensing or discipline of any public
     employe or person licensed"

but provides

    "the notice shall contain a statement
     that the person has the right to
     demand that the evidentiary hearing
     or meeting be held in open session.

That wording makes clear that the term
"public employe" in Section 19.85(1)(b)
refers to "a person."

There is nothing to indicate that the
Legislature intended that the same
term in Section 19.85(1)(c) be
interpreted differently.

In Chapter 426, Laws of 1975, the Legislature
also exempted collective bargaining sessions
from the requirements of the open meetings
law.

See Section 19.82(1), Stats. The Legislature
did not enact a similar exemption for salary
negotiations involving nonunion employes.

 
80 OAG 176 177 178 179 180 181 182 183

The Legislature has amended the open meetings
law several times, but made no change in the
law in response to the attorney general's
interpretation that the personnel exemption
is limited to consideration of employment,
compensation, promotion and performance
evaluations of a specific employe or
employes, not consideration of employment
policies to apply to a position of employment
in general.

That interpretation must, therefore, be
regarded as presumptively correct.

See
Staples v. Glienke,
142 Wis.2d 19, 28,
416 N.W.2d 920 (Ct.App. 1987);

Wisconsin Valley Imp. Co. v.
Public Serv. Comm.,
9 Wis.2d 606, 617,
101 N.W.2d 798 (1960).

The interpretation is consistent with
the purpose of the open meetings law.

The purpose is to ensure that
the public has 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.

The law explicitly provides that its terms
must be liberally construed in favor of
ensuring the public has access to information
about the affairs of its government.

The law requires that a governmental body
conduct all of its business in open session,
unless an exemption in Section 19.85(1)
expressly permits the governmental body to
conduct the business in closed session.

See
State ex rel. Schaeve v. Van Lare,
125 Wis.2d 40, 53,
370 N.W.2d 271 (Ct.App. 1985).

There can be no doubt that the public has a
right to information about the qualifications
that a governmental body is seeking in
applicants for positions of public employment
and about the general salary range that a
governmental body will apply to positions of
employment.

To interpret Section 19.85(1)(c) to permit a
governmental body to convene in closed
session when considering such matters,
without discussing an individual employe or
employes, would create a virtually limitless
exemption, permitting a governmental body to
set all of its general policies related to
the hiring, compensation and evaluation of
its public employes behind closed doors.

 
80 OAG 176 177 178 179 180 181 182 183

Thus, in order to protect the public's right
to information about the conduct of
governmental business, the personnel
exemption must be narrowly construed
to apply only when a governmental body is
discussing the employment, promotion,
compensation or performance evaluation
of a specific employe or employes.

This proposition is widely recognized
in other states that have enacted
an open meetings law.

No state has enacted a law that specifically
allows a governmental body to go into closed
session to consider general policies to apply
to a group or class of employes.

Oakes, The Personnel Matters Exception
to the Mississippi Open Meetings Act
A Cloud Over The Sunshine Law,

7 Miss. College L. Rev. 181, 188.

    "A general rule is that personnel
     exceptions apply to specific
     individuals and not to groups
     or classes of employees.

     Discussions of personnel questions
     involving general policy towards a
     group or class of employees,
     without reference to an individual
     employee, fall outside the provisions
     of every personnel exception."

Id. at 190-91 (quoting the National
Association of Attorneys General, Open
Meetings: Exceptions to State Laws (1979)).

For all of the above reasons, I conclude that
Section 19.85(1)(c) only authorizes a
governmental body to convene in closed
session to consider the employment,
promotion, compensation or performance
evaluation of a specific employe or employes.

"Employe" for purposes of that Section
includes applicants for public employment.

Wisconsin Open Meetings Law, a Statutory
Summary and a Digest of Opinions of the
Attorney General, July 31, 1979 at 37.

The Section does not, however, authorize
a closed session to consider employment
policies to apply to a position of
employment in general.

With specific reference to the facts
underlying your request for advice, it is my
opinion that Section 19.85(1)(c) does not
authorize a closed session to discuss the
qualifications a governmental body is looking
for in candidates for a position of public
employment or the general salary scale to
apply to a position of employment.

 
80 OAG 176 177 178 179 180 181 182 183

If a governmental body is considering a
single salary to offer, regardless of the
experience or qualifications of the job
applicant, the governmental body must
do so in open session.

If the governmental body is considering a
range of salaries to offer, based on the
qualifications and experience of an
applicant, the governmental body must
establish the range in open session
but may convene in closed session
to discuss what salary to offer a
specific applicant or applicants.

JED:MWS

 
80 OAG 176 177 178 179 180 181 182 183