81 Op. Att'y Gen. 139 (1994)

OPINION NO. OAG 7-94,
 
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Attorney General Opinions 10 June 1994

Section 19.85(3), Stats., requires that a
governmental body conduct its discussions and
deliberations regarding final ratification
of a collective bargaining agreement
in open session.

Mr. Don B. McNamara, Board of Education
Menomonee Falls School District
N90 W17609 St. Steven's Drive
Menomonee Falls, Wisconsin 53051

Dear Mr. McNamara:

You have asked for my opinion on whether
Section 19.85(3) of the Wisconsin statutes
requires a governmental body to conduct
discussions and deliberations regarding
the final ratification of a collective
bargaining agreement in open session.

Your question came up during a meeting of the
Menomonee Falls Board of Education ("Board").

You report that towards the end of 1993, the
Board had been negotiating changes in three
collective bargaining agreements.

The public notice for the Board's December
13, 1993, meeting stated that it would
convene in closed session under
Section 19.85(1)(e)

"for discussion of negotiations."

You further report that when the members of
the Board arrived at the meeting, they
were told that tentative agreements had
been reached with the three bargaining
units and that all three units had
ratified their agreements.

The Board convened in closed session under
Section 19.85(1)(e) to discuss the events
leading up to the bargaining units
ratifying their agreements.

The Board then reconvened in open session and
voted to ratify the agreements, without
conducting any discussion in open session.

You ask whether Section 19.85(3) required
that the Board conduct its December 13, 1993,
discussions leading up to final ratification
of the agreements in open rather than
closed session.

In my opinion, the answer is yes.

The open meetings law provides that a
governmental body must meet in open
session unless one of the exemptions in
Section 19.85(1) permits a closed
session. See. 19.83, Stats.

 
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The definition of "governmental body" in
Section 19.82(1) excludes a body "formed for
or meeting for the purpose of collective
bargaining" under Chapter 111.

Arguably, meetings to discuss collective
bargaining strategies fit within that
exclusion and thus are not subject
to the open meetings law.

My predecessor has, however, advised that
when a body is meeting to discuss collective
bargaining as well as other business,
the body should notice all subjects
of the meeting in accordance with Section
19.84. 66 Op. Att'y Gen. 93, 96-97 (1977).

Accordingly, in this case, the Board gave
notice that it would convene in closed
session under Section 19.85(1)(e) for

"discussion of negotiations."

Section 19.85(1)(e) permits a closed
session for the purpose of

"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."

The breadth of that exemption, as well as the
exclusion in Section 19.82(1), is limited by
Section 19.85(3) which provides:

"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
Subschapter IV or V of Chapter 111
which has been negotiated by such
body or on its behalf."

I interpret Section 19.85(1)(e) to permit a
governmental body to convene in closed
session to formulate strategy while
engaged in negotiations with a
collective bargaining unit.

I interpret Section 19.85(3) to require that
once a governmental body has reached a
tentative agreement with a collective
bargaining unit, the body must conduct
its deliberations leading up to ratification
of the agreement in open session.

Section 19.85(1)(e) only permits a closed
session when "competitive or bargaining"
reasons require closure.

The obvious purpose of Section 19.85(1)(e) is
to permit a governmental body to meet in
closed session where to do otherwise would
compromise the governmental body's
bargaining position by revealing
its negotiating strategy.

 
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The exemption has therefore been interpreted
to authorize a governmental body to convene
in closed session to formulate negotiating
strategy while engaged in collective
bargaining. 66 Op. Att'y Gen. at 96-97.

Once a governmental body and bargaining unit
have reached a tentative agreement,
however, bargaining ceases.

The question before the governmental body is
no longer what strategy the body should
adopt in order to obtain an agreement
with favorable terms.

The question is whether it is in the public's
interest to ratify the terms as tentatively
agreed to by the parties.

Given that the governmental body is not
actually engaged in negotiations at that
point, it does not appear that "competitive
or bargaining reasons" as that phrase is used
in Section 19.85(1)(e) exist to warrant
discussing the agreement in closed session.

Moreover, the limitation in Section 19.85(3)
against considering the final ratification of
a collective bargaining agreement in closed
session is absolute in its terms.

That Section provides that "nothing" in the
open meetings law shall be construed to
permit a closed session to consider final
ratification of an agreement.

If the language of a statute is unambiguous,
the court must give the words of the statute
their obvious and ordinary meaning, without
resorting to legislative history or
canons of construction.

Dept. of Transp. v. Transp. Comm.,
111 Wis.2d 80, 87-88,
330 N.W.2d 159 (1983).

The language of Section 19.85(3) is not
ambiguous. By its plain terms, Section
19.85(3) prohibits a governmental body
from considering final ratification of a
collective bargaining agreement in closed
session, regardless of the provisions in
Sections 19.82(1) and 19.85(1)(e).

Section 19.85(3) thereby unambiguously
prohibits a body from considering final
ratification in closed session, even if
there are competitive or bargaining
reasons for doing so.

In this case, the Board learned at its
December 13, 1993, meeting that its
bargaining team had reached tentative
agreements with the bargaining units.

After learning that, the Board convened in
closed session to discuss the agreements
and then reconvened in open session to
vote on final ratification of them.

 
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The Board apparently interpreted Section
19.85(3) to require only that the Board
conduct its vote on final ratification
of the agreements in open session.

That is too narrow a reading of Section
19.85(3), which states that nothing in the
open meetings law shall be construed to
authorize a governmental body to
"consider" final ratification of a
collective bargaining agreement
in closed session.

A commonly accepted definition
of "consider" is:

1: to reflect on: think about with
a degree of care or caution . . .

8: to give thought to with a view to
purchasing, accepting, or adopting . . .

2: REFLECT, DELIBERATE, PONDER . . . .

Webster's Third New International Dictionary
483 (1986). The plain language of Section
19.85(3) thereby requires that the
deliberations as well as the final vote on
ratification of a collective bargaining
agreement be conducted in open session.

To the extent my predecessor's opinion in 66
Op. Att'y Gen. 94 suggests otherwise, I must
disagree.

Based on the plain language of Section
19.85(3), I conclude that once a governmental
body has entered into a tentative agreement
with a bargaining unit, the governmental body
must conduct its vote, as well as its
deliberations leading up to the vote
on final ratification of the
agreement in open session.

At that point, a governmental body can no
longer rely on the competitive or bargaining
reasons exemption in Section 19.85(1)(e) to
discuss the agreement in closed session.

My predecessor reached the same conclusion
when interpreting the exemption under the
state's old Anti-Secrecy Law that permitted a
closed session for "conducting . . . public
business which for competitive or bargaining
reasons require closed sessions."

Section 14.90(3)(d), Stats. (1965).

In 54 Op. Att'y Gen. Introduction (1965), my
predecessor applied that provision to wage
negotiations between a school board and its
teachers and concluded that:

"Whether the teacher salary proposals
submitted by the teachers' committee and
the counter proposals made by the school
board are preliminary in nature and for
bargaining reasons need to be discussed in
a closed session is basically a question
of fact to be decided by the school board.

 
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If the board finds that the bargaining
process can best be carried on in private,
the meeting may be closed.

If the board finds no necessity for
bargaining in private, the meeting
should be open to the public.

In any event, when the bargaining period
is past, no final action should be taken
on the teachers' salary schedule until
they are made public and discussed in
an open public meeting." Id. at vi

The Supreme Court cited that opinion
with approval stating that:

An attorney general's opinion
(54 Op. Atty. Gen. (1965),
Introduction, vi) found one of the
exceptions sufficiently broad to cover the
negotiations between a municipality and a
labor organization. However, it is clear
that the formal introduction, deliberation
and adoption by the elected body of the
bargaining recommendations must be at
open meetings. . . . .

The open meeting is the necessary and final
step in the "negotiation" process between
the school board and the majority
teachers' union.

The proposed agreement submitted by the
school board's bargaining committee does not
have to be accepted by the school board.
 

If the recommendations of the committee
automatically were approved by the
school board, then the anti-secrecy law
has been violated and the open meeting
is nothing but a sham.

Board of Sch. Directors of Milwaukee v. WERC,
42 Wis.2d 637, 653,
168 N.W.2d 92 (1969).

The purpose of the open meetings law is to
provide the public with the fullest and most
complete information regarding governmental
affairs as is compatible with the conduct
of governmental business.

 
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The Legislature explicitly provided that the
provisions of the law must be liberally
construed to promote that purpose.

Sec. 19.81(4), Stats.

Interpreting the law to require a
governmental body to conduct its discussions
and deliberations leading up to its vote on
final ratification of a collective bargaining
agreement in open session helps insure that
the public not only has information about
how the members of their local governing
board voted but also the reasons they
gave for doing so.

That information is essential to enable
citizens to make informed decisions about
their elected officials. For all of these
reasons, I conclude that the open meetings
law requires that once a governmental body
has reached a tentative agreement with a
bargaining unit, the body must conduct its
vote, as well as its discussions and
deliberations leading up to the vote
on final ratification of the
agreement in open session.
 

Based on the facts that you have given,
it appears that the Board should have
conducted its December 13, 1993, discussions
and deliberations regarding the three
tentative agreements in open session.

Sincerely,

James E. Doyle Attorney General

JED:MWS:dah


 
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