Wisconsin's open meetings law, enacted in 1976, attempts to
The Attorney General's Office is charged with providing
In meeting that responsibility, my office has decided to
I believe by preventing problems, we can ensure that
Violations of the open meetings law are often
The purpose of this handbook is to offer guidance
In preparing this new edition of the handbook,
Because the handbook is not intended to be a comprehensive
Government officials should direct specific questions to
These attorneys are in the best position to discuss the
Voluntary compliance with the requirements
It is my hope that this handbook will assist the
Jim Doyle Attorney General
1996
TABLE OF CONTENTS
I. POLICY OF THE OPEN MEETINGS LAW II. WHEN DOES THE OPEN MEETINGS LAW APPLY? A. Definition Of "Governmental Body" 1. ENTITIES THAT ARE GOVERNMENTAL BODIES
a. State
or local agencies,
b. Governmental
or quasi-governmental
c. Public service corporations d. Subunits 2. ENTITIES THAT ARE NOT GOVERNMENTAL BODIES
a. Governmental
offices held
b. Bodies
meeting for collective bargaining
c. Bodies
created by the Wisconsin
5. Burden
of proof as to existence of a meeting
III. WHAT IS REQUIRED IF THE OPEN MEETINGS LAW APPLIES? 1. To
whom and how notice must be given
a. In general
2. Tape recording and videotaping 4. Minutes
of meetings and recording of votes
IV. WHEN
IS IT PERMISSIBLE TO CONVENE IN CLOSED SESSION?
1. Judicial or quasi-judicial hearings 2. Employment and licensing matters
a. Consideration of dismissal,
demotion,
b. Consideration of employment,
promotion,
3. Consideration
of financial, medical,
4. Conducting
public business with competitive
5. Conferring
with legal counsel
C. Voting In An Authorized Closed Session D. Procedure For Convening In Closed Session E. Reconvening
In Open Session
V. WHO ENFORCES
THE OPEN MEETINGS LAW
A. Enforcement B. Penalties
WISCONSIN OPEN MEETINGS LAW I. POLICY OF THE OPEN MEETINGS LAW The State of Wisconsin recognizes the importance of having a public informed about governmental affairs. The state's open meetings law declares that: In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.Sec. 19.81(1), Stats. The open meetings law creates a presumption that meetings
State ex rel. Newspapers v. Showers,
135 Wis. 2d 77, 97,
Although there are some exemptions to the open session
The policy of the open meetings law dictates that
"Mere government inconvenience is .
. .
State ex rel. Lynch v. Conta,
The open meetings law explicitly provides that all
This rule of liberal construction applies in all situations,
Sec. 19.81(4), Stats. Public officials
must be ever mindful
The open meetings law applies to every "meeting"
Sec. 19.83, Stats. The terms "meeting" and "governmental body" are defined in
The definition of "governmental body" includes a "state
Sec. 19.82(1), Stats. This provision focuses on the manner in which
Purely advisory bodies created by constitution,
See State v. Swanson, 92 Wis.
2d 310, 317,
The definition includes state or local agencies, boards, commissions and bodies created by the constitution and statutes of the State of Wisconsin, as well as local bodies created by county, city, village or town ordinance. It does not include bodies created solely by federal constitution, statute or rule. State or local bodies created by "rule or order" are also included in the definition. The term "rule or order" has been liberally construed to include any directive, formal or informal, creating a body and assigning it duties. 78 Op. Att'y Gen. 67, 68-69 (1989). This includes directives from governmental bodies, presiding officers of governmental bodies, or certain governmental officials, such as county executives, mayors or heads of a state or local agency, department or division. See 78 Op. Att'y Gen. 67 (1989). The Wisconsin Attorney General has concluded that the following are state or local agencies, boards, commissions or bodies and thus are "governmental bodies" subject to the open meetings law: * An advisory committee appointed by the Natural Resources Board, the Secretary of the Department of Natural Resources, or a District Director, Bureau Director or Property Manager of that department. 78 Op. Att'y Gen. 67 (1989) * A county board of adjustors * A citizen's advisory committee appointed by a county executive * A public inland lake protection and rehabilitation district established by a county or municipality * A planning commission or zoning board of appeal * A library board created by local ordinance * A citizen's advisory group appointed by the mayor * A municipal public utility commission managing a city-owned public electric utility. 65 Op. Att'y Gen. 243 (1976) * A town board, but not an annual town meeting. 66 Op. Att'y Gen. 237 (1977) * A committee appointed by the school superintendent to consider school library materials b. Governmental or quasi-governmental corporations The definition of "governmental body" also includes a "governmental or quasi-governmental corporation," except for the Bradley sports center corporation. Section 19.82(1), Wisconsin Statutes. The term "governmental or quasi-governmental corporation" includes a corporation created directly by the state Legislature or by some other governmental body pursuant to specific statutory authorization or direction. 66 Op. Att'y Gen. 113, 115 (1977). The Attorney General has, for instance, concluded that a volunteer fire department created by town ordinance is a "governmental body" subject to the open meetings law; in contrast, a volunteer fire department created by private citizens is not a "governmental body." 66 Op. Att'y Gen. 113 (1977). The term "quasi-governmental corporation" also includes a corporation that closely resembles a governmental corporation in function, effect or status, even though the corporation was not created directly by a governmental body. 80 Op. Att'y Gen. 129, 135 (1991). There is no clear-cut test for determining whether a particular corporation resembles a governmental corporation closely enough to be considered "quasi-governmental." The fact that a corporation serves a public purpose is not, in itself, sufficient to make a corporation "quasi-governmental." See 66 Op. Att'y Gen. 113, 115 (1977).Nor is the fact that a corporation receives most, if not all, of its funding from public sources. See 80 Op. Att'y Gen. 129, 136 (1991). Thus, in an informal opinion, the Attorney General
Although the corporation served a public purpose and
In a subsequent opinion, however, the Attorney General concluded that the Milwaukee Economic Development Corporation, also a chapter 181 nonstock, nonprofit corporation, created by two private citizens and one city employe, fit within the definition of a "quasi-governmental corporation." 80 Op. Att'y Gen. 129 (1991). The factors the Attorney General considered in reaching that conclusion included: (1) that the corporation's bylaws reserved four of nine directors' positions for specified city officials, (2) that all of the corporation's officers were appointed by the city and (3) that the corporation was housed in city offices, used city equipment and was staffed by city employes. 80 Op. Att'y Gen. 129, 136 (1991). c. Public service corporations The definition of "governmental body" also includes any public purpose corporation as defined in section 181.79(1) of the Wisconsin statutes. Under that section, a public purpose corporation is a corporation organized under chapter 181 of the Wisconsin statutes to provide for a guaranteed student loan program. d. Subunits A "formally constituted sub-unit" of a governmental body is itself a "governmental body" within the definition in section 19.82(1) of the Wisconsin statutes. A sub-unit is a separate, smaller body created by a parent body and composed exclusively of members of the parent body. 74 Op. Att'y Gen. 38, 40 (1985). If, for example, a fifteen member county board appoints a committee consisting of five members of the county board, that committee would be considered a "sub-unit" subject to the open meetings law. This is true despite the fact that the five-person committee would be smaller than a quorum of the county board. Groups that include both members and nonmembers of a parent body are not "sub-units" of the parent body. Such groups may nonetheless fit within the definition of "governmental body." e. State Legislature Generally speaking, the open meetings law applies to the state Legislature, including the senate, assembly and any committees or subunits of those bodies. Sec. 19.87, Stats. The law does not apply to any partisan caucus of the senate or assembly. Sec. 19.87(3), Stats. The open meetings law also does not apply where it conflicts with a rule of the Legislature, senate or assembly. Sec. 19.87(2), Stats. Additional restrictions are set forth in section 19.87 of the Wisconsin statutes. 2. Entities that are not governmental bodies a. Governmental offices held by a single individual Since the term "body" connotes a group of individuals, a governmental office held by a single individual is not a "governmental body" within the meaning of the open meetings law. Thus, the open meetings law does not apply to the office of coroner or to inquests conducted by the coroner. 67 Op. Att'y Gen. 250 (1978). Similarly, the Attorney General has concluded that the open meetings law does not apply to an administrative hearing conducted by an individual hearing examiner. b. Bodies meeting for collective bargaining The definition of "governmental body" explicitly excludes bodies that are formed for or meeting for the purpose of collective bargaining with municipal or state employes under chapter 111 of the Wisconsin statutes. A body formed exclusively for the purpose of collective bargaining is not subject to the open meetings law. Sec. 19.82(1), Stats. A body formed for other purposes, in addition to collective bargaining, is not subject to the open meetings law when conducting collective bargaining. Sec. 19.82(1), Stats. The Attorney General has, however, advised multi-purpose bodies to comply with the open meetings law, including the requirements for convening in closed session, when meeting for the purpose of forming negotiating strategies to be used in collective bargaining. 66 Op. Att'y Gen. 93, 96-97 (1977). The collective bargaining exclusion does not permit anybody to consider the final ratification or approval of a collective bargaining agreement in closed session. Sec. 19.85(3), Stats.
c. Bodies created by the Wisconsin Supreme Court The Wisconsin Supreme Court has held that bodies created by the court, pursuant to its superintending control over the administration of justice, are not governed by the open meetings law. State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 238 N.W.2d 81 (1976). Thus, generally speaking, the open meetings law does not apply to the supreme court or bodies created by the supreme court. In the Lynch case, for example, the supreme court held that the former open meetings law, section 66.77(1), (1973), did not apply to the Wisconsin Judicial Commission, which is responsible for handling misconduct complaints against judges. Similarly, the Attorney General has indicated that the open meetings law does not apply to the Board of Attorneys Professional Responsibility. OAG 67-79 (July 31, 1979) (unpublished opinion). Any entity that fits within the definition of "governmental body" must comply with the requirements of the open meetings law. In most cases, it is readily apparent whether a particular body fits within the definition. On occasion, there is some doubt. Any doubts as to the applicability of the open meetings law should be resolved in favor of complying with the law's requirements. B. Definition Of "Meeting" A "meeting" is defined as: 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. . . . Sec. 19.82(2), Stats. The statute then excepts the following: an inspection of a public works project or highway by a town board; or inspection of a public works project by a town sanitary district; or the supervision, observation, or collection of information about any drain or structure related to a drain by any drainage board. Sec. 19.82(2), Stats. People often assume that the open meetings law applies only to gatherings of one-half or more of the members of a governmental body. That is not the case. The Wisconsin Supreme Court has held that the open meetings law applies whenever a gathering of members of a governmental body satisfies two requirements: (1) there is a purpose to engage in governmental business and (2) the number of members present is sufficient to determine the governmental body's course of action. State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 102, 398 N.W.2d 154 (1987). The first part of the Showers test focuses on the purpose for which the members of the governmental body are gathered. They must be gathered to conduct governmental business. Showers stressed that "governmental business" refers to any formal or informal action, including discussion, decision or information gathering, on matters within the governmental body's realm of authority. Showers, 135 Wis. 2d at 102-03. Thus, in State ex rel. Badke v. Greendale Village Bd., 173 Wis. 2d 553, 572-74, 494 N.W.2d 408 (1993), the Wisconsin Supreme Court held that the village board conducted a "meeting," as defined in the open meetings law, when a quorum of the board regularly attended each plan commission meeting to observe the commission's proceedings on a development plan that was subject to the board's approval. The court stressed that a governmental body is engaged in governmental business when its members gather to simply hear information on a matter within the body's realm of authority. Id. at 573-74. The members need not actually discuss the matter or otherwise interact with one another to be engaged in governmental business. Id. at 574-76. The court also held that the gathering of town board members was not chance or social because a majority of town board members attended plan commission meetings with regularity. Id. at 576
The second part of the Showers test requires that the number of members present be sufficient to determine the governmental body's course of action on the business under consideration. The following addresses some of the most frequently asked questions with respect to whether a gathering constitutes a "meeting" under the open meetings law. 1. Simple majority Typically, governmental bodies operate under a simple majority rule -- that is, a margin of one vote is sufficient for the body to pass or block a proposal. In that instance, under the Showers test and the language in section 19.82(2) of the Wisconsin statutes, the open meetings law applies whenever one-half or more of the members of the governmental body gather to discuss or act on matters within the body's realm of authority. 2. Negative quorums When a governmental body operates under a super majority rule (a two-thirds majority, for example), less than half of the members of the body could block a proposal by agreeing to vote in opposition to the proposal. A group of sufficient size to block a proposal is called a "negative quorum." Showers made clear that the open meetings law applies when such a group gathers for the purpose of conducting governmental business. Showers, 135 Wis. 2d at 101-02. Accordingly, if a governmental body operates under a two-thirds majority rule, the open meetings law applies whenever more than one-third of its members gather to discuss or act on matters within the body's authority. 3. Walking quorums The requirements of the open meetings law also extend
Showers,
quoting
State ex rel. Lynch v. Conta,
In Conta, the supreme court recognized the danger
The court commented that any attempt to avoid the
Conta, 71 Wis. 2d at 687.
Telephone conference calls among members of a
69 Op. Att'y Gen. 143 (1980). Under the Showers test, therefore, the open meetings
(1) is for the purpose of conducting governmental business
(2) involves a sufficient number of members of the body
To comply with the law, a governmental body conducting
This may be accomplished by broadcasting the
A "walking quorum" by telephone is also
5. Burden of proof as to existence of a meeting The presence of members of a governmental body does not,
The law provides, however, that if one-half or more of the
The law also exempts any "social or chance gathering"
Sec. 19.82(2), Stats. Thus, members of a governmental body may overcome the
If, for example, one-half or more of the members of a
The members of the governmental body may overcome the presumption by proving that they did not discuss or act on any business of the body. Where a person alleges that a gathering of less than one-half the members of a governmental body was held in violation of the open meetings law, that person has the burden of proving that the gathering constituted a "meeting" subject to the law. Showers, 135 Wis. 2d at 102. That burden may be satisfied by proving: (1) that the members gathered to conduct governmental business and (2) that there was a sufficient number of members present to determine the body's course of action. Again, it is important to remember that the overriding policy of the open meetings law is to ensure public access to information about governmental affairs. Under the rule of liberally construing the law to ensure this purpose, any doubts as to whether a particular gathering constitutes a "meeting" subject to the open meetings law should be resolved in favor of complying with the provisions of the law. III. WHAT IS REQUIRED IF THE OPEN MEETINGS LAW APPLIES? The two most basic requirements of the open meetings law are that a governmental body: (1) give advance public notice of each of its meetings, and (2) conduct all of its business in open session, unless an exemption to the open session requirement applies. Sec. 19.83, Stats.A. Notice Requirements Section 19.84 of
the Wisconsin statutes, which sets
The chief presiding officer of a governmental body,
(1) the public, (2) any members of the news media who have submitted
(3) the official newspaper, designated pursuant to state
The chief presiding officer may give notice of a meeting
66 Op. Att'y Gen. 93, 95 (1977). As a general rule, the Attorney General has advised posting
Alternatively, the chief presiding officer may give notice
63 Op. Att'y Gen. 509, 510-11 (1974). If the presiding officer gives notice in this manner, he
The chief presiding officer must also give notice of each
Although this notice may be given in writing or by
65 Op. Att'y Gen. 250, 251 (1976).
In addition, the chief presiding officer must give notice to the officially designated newspaper or, if none exists, to a news medium likely to give notice in the area. The governmental body is not required to pay for and the newspaper is not required to publish such notice. 66 Op. Att'y Gen. 230, 231 (1977). Note, however, that the requirement to provide notice to the officially designated newspaper is distinct from the requirement to provide notice to the public. If the chief presiding officer chooses to provide notice to the public by paid publication in a news medium, the officer must ensure that the notice is in fact published. 2. Contents of notice a. In general Every public notice of a meeting must give the "time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof." Sec. 19.84(2), Stats. The notice need not contain a detailed agenda, but because the public is entitled to the fullest and most complete information compatible with the conduct of governmental business, the notice should be specific. This requires that when a member of the governmental body knows in advance of the time notice is given that a matter may come before the body, that matter must be described in the meeting notice. 66 Op. Att'y Gen. 143, 144 (1977). The chief presiding officer of the governmental body is responsible for providing notice, and when he or she is aware of matters which may come before the body, those matters must be included in the meeting notice. 66 Op. Att'y Gen. 68, 70 (1977). In formulating descriptions of the subject matter of a meeting, the chief presiding officer should keep in mind that the public is entitled to the best notice that can be given at the time the notice is prepared. A good rule of thumb is to ask whether a person interested in a specific subject would be aware, upon reading the meeting notice, that the subject might be discussed. General subject matter designations such as "miscellaneous business" should be avoided. One question that arises is whether a governmental body can consider a subject raised by a citizen that is not specifically listed in the meeting's public notice. It is the advice of the Attorney General that a governmental body should refrain from engaging in any information gathering or discussion or from taking any action that would deprive the public of information about the conduct of governmental business. More specifically, the governmental body should limit itself to answering basic questions from the public that do not require discussion or deliberation (questions, for example, regarding when the body will consider the matter raised; how long a particular policy has been in place; when committees meet, etc.) and to placing the matter on a future agenda or referring it to an official or a committee. Another frequently asked question is whether a governmental body may act on a motion for reconsideration of a matter voted on at a previous meeting, if the motion is brought under a general subject matter designation. The Attorney General has advised that a member may move for reconsideration under a general subject matter designation, but that any discussion or action on the motion should be set over to a later meeting for which specific notice of the subject matter of the motion is given. b. Closed session The notice provision in section 19.84(2) of the Wisconsin statutes requires that if the chief presiding officer or the officer's designee knows at the time he or she gives notice of a meeting that a closed session is contemplated, the notice must contain the subject matter to be considered in closed session. The notice must contain the specific nature of the business, as well as the exemption(s) under which the chief presiding officer believes a closed session is authorized. 66 Op. Att'y Gen. at 98. In State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 47, 370 N.W.2d 271 (Ct. App. 1985), the court held that a notice to convene in closed session under section 19.85(1)(b) of the Wisconsin statutes "to conduct a hearing to consider the possible discipline of a public employee" was sufficient.
3. Time of notice The provision in section 19.84(3) of the Wisconsin statutes requires that every public notice of a meeting be given at least twenty-four hours in advance of the meeting, unless "for good cause" such notice is "impossible or impractical." If "good cause" exists, the notice should be given as soon as possible and must be given at least two hours in advance of the meeting. Sec. 19.84(3), Stats. No Wisconsin court decisions or Attorney General opinions discuss what constitutes "good cause" to provide less than twenty-four-hour notice of a meeting. This provision, like all other provisions of the open meetings law, must be construed in favor of providing the public with the fullest and most complete information about governmental affairs as is compatible with the conduct of governmental business. Sec. 19.81(1) and (4), Stats. If there is any doubt whether "good cause" exists, the governmental body should provide the full twenty-four-hour notice. Section 19.84(4) of the Wisconsin statutes provides that separate notice for each meeting of a governmental body must be given at a date and time reasonably close to the meeting date. A single notice that lists all the meetings that a governmental body plans to hold over a given week, month or year does not comply with the notice requirements of the open meetings law. See 63 Op. Att'y Gen. 509, 513 (1974). University of Wisconsin departments and their subunits, as well as the Olympic ice training rink, are exempt from the specific notice requirements in section 19.84(1) - (4), Stats. Those bodies are simply required to provide notice "which is reasonably likely to apprise interested persons, and news media who have filed written requests for such notice." Sec. 19.84(6), Stats. Also exempt from the specific notice requirements are certain meetings of subunits of parent bodies held during or immediately before or after a meeting of the parent body. See sec. 19.84(6), Stats. B. Open Session Requirements
1. Accessibility
In addition to requiring
advance public notice of every
Stats. All business
of any kind, formal or informal,
Sec. 19.83,
Stats. An "open session" is defined
State ex rel. Badke
v. Greendale Village Bd.,
In Badke, for instance,
the Wisconsin Supreme Court
Id. at 561, 563, 581. Whether the requirement
that a meeting be held in
Any doubt as to whether
a meeting facility is large
Sec. 19.82(3), Stats. This provision requires
that state governmental
69 Op. Att'y Gen. 251 (1980). In order to comply
with the spirit of the open
The policy of openness and accessibility favors governmental bodies holding their meetings in public places, such as a municipal hall or school, rather than on private premises. See 67 Op. Att'y Gen. 125, 127 (1978). The law prohibits meetings on private premises that are not open and reasonably accessible to the public. Sec. 19.82(3), Stats. Generally speaking, places such as a private room in a restaurant or a dining room in a private club are not considered "reasonably accessible." A governmental body should meet on private premises only in exceptional cases, where the governmental body has a specific reason for doing so which does not compromise the public's right to information about governmental affairs. The policy of openness and accessibility also requires that governmental bodies hold their meetings at locations proximate to the public they serve. Accordingly, the Attorney General has concluded that a school board meeting held forty miles from the district which the school board served was not "reasonably accessible" within the meaning of the open meetings law. The Attorney General advises that, in order to comply with the "reasonably accessible" requirement, governmental bodies conduct all their meetings at a location within the district they serve, unless there are special circumstances that make it impossible or impractical to do so. 2. Tape recording and videotaping The open meetings law grants citizens the right to attend and observe meetings of governmental bodies that are held in open session. The open meetings law also grants citizens the right to tape record or videotape open session meetings, as long as doing so does not disrupt the meeting. The law explicitly states that a governmental body must make a reasonable effort to accommodate anyone who wants to record, film or photograph an open session meeting, as long as the activity does not interfere with the meeting. Sec. 19.90, Stats. 3. Citizen participation The open meetings law does not grant citizens a right to participate in meetings of a governmental body. There are, however, a number of state statutes which require governmental bodies to hold public hearings on specific matters. See for example, section 65.90(4), Stats. (requiring public hearing before adoption of a municipal budget) and section 66.46(4)(a), Stats. (requiring public hearing before creation of a tax incremental finance district). In the absence of such a statute, the governmental body itself is free to determine whether to allow citizen participation at its meetings. A governmental body does not violate the open meetings law by refusing to permit citizens to speak at its meetings or by limiting the degree to which citizens participate. 4. Minutes of meetings and recording of votes The open meetings law does not require a governmental body to take detailed minutes of its meetings. It does require a governmental body keep a record of the motions and roll call votes at each meeting of the body. Sec. 19.88(3), Stats. The requirement applies to both open and closed session meetings. No secret ballot may be used to determine any election or decision of a governmental body, except the election of officers of a body. Sec. 19.88(1), Stats. For example, a body cannot vote by secret ballot to fill a vacancy on a city council, 65 Op. Att'y Gen. 131 (1976). IV. WHEN IS IT PERMISSIBLE TO CONVENE IN CLOSED SESSION? Every meeting of a governmental body must initially be convened in open session. All business of any kind, formal or informal, must be initiated, discussed and acted upon in open session unless one of the exemptions in section 19.85(1) of the Wisconsin statutes applies. Sec. 19.83, Stats.
A. Authorized Closed Sessions Section 19.85(1) of the Wisconsin statutes contains thirteen exemptions to the open session requirement which permit, but do not require, a governmental body to convene in closed session. Because the law is designed to provide the public with the most complete information possible regarding the affairs of government, exemptions should be strictly construed. State ex rel. Hodge v. Turtle Lake, 180 Wis. 2d 62, 71, 508 N.W.2d 603 (1993). The policy of the open meetings law dictates that the exemptions be invoked sparingly and only where necessary to protect the public interest. If there is any doubt as to whether closure is permitted under a given exemption, the governmental body should hold the meeting in open session. See 74 Op. Att'y Gen. 70, 73 (1985). The following are some of the most frequently cited exemptions. 1. Judicial or quasi-judicial hearings Section 19.85(1)(a) of the Wisconsin statutes authorizes a closed session for "deliberating concerning a case which was the subject of any judicial or quasi-judicial trial or hearing before that governmental body." In order for this exemption to apply, there must be a "case" that is the subject of a quasi-judicial proceeding. State ex rel. Hodge v. Turtle Lake, 180 Wis. 2d at 72. The Wisconsin Supreme Court held that "case" contemplates a controversy among parties that are adverse to one another; it does not include a mere request for a permit. Id. at 74. Examples of governmental bodies that consider "cases" and thus can convene in closed session under section 19.85(1)(a) of the Wisconsin statutes, where appropriate, include the Wisconsin Employment Relations Commission, 68 Op. Att'y Gen. 171 (1979) and a board of adjustment or board of review, see Dolphin v. Board of Review, 70 Wis. 2d 403, 411-13, 234 N.W.2d 277 (1975). 2. Employment and licensing matters a. Consideration of dismissal, demotion, discipline, licensing and tenure Two of the statutory exemptions to the open session requirement relate specifically to employment or licensing of an individual. The first, section 19.85(1)(b) of the Wisconsin statutes, authorizes a closed session for: 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 . . . . . This section explicitly provides that a governmental body may not convene in closed session under this exemption unless the body gives the public employe, person licensed, or faculty member actual notice of any evidentiary hearing and any meeting at which final action may be taken. The notice must state that the person has a right to request that any such hearing or meeting be held in open session. If the person requests an open session, the governmental body may not convene in closed session under section 19.85(1)(b) of the Wisconsin statutes to conduct an evidentiary hearing or take final action. Sec. 19.85(1)(b), Stats. Nothing in section 19.85(1) of the Wisconsin statutes permits a person who is not a member of the governmental body to demand that the body meet in closed session. The Wisconsin Court of Appeals held that a governmental body was not required to comply with a public employe's request that the body convene in closed session to vote on the employe's dismissal. State ex rel. Schaeve v. Van Lare, 125 Wis. 2d at 40 (Ct. App. 1985). b. Consideration of employment, promotion, compensation and performance evaluations The second exemption which relates to employment matters authorizes a closed session for "considering employment, promotion, compensation or performance evaluation data of any public employe over which the governmental body has jurisdiction or exercises responsibility." Sec. 19.85(1)(c), Stats.
The Attorney General has interpreted this exemption to extend to public officers, such as a police chief, who the governmental body has jurisdiction to employ. The Attorney General has also concluded that this exemption is sufficiently broad to authorize convening in closed session to interview and consider applicants for positions of employment. An elected official is not considered a "public employe over which the governmental body has jurisdiction or exercises responsibility." Thus, section 19.85(1)(c) of the Wisconsin statutes does not authorize a county board to convene in closed session to consider appointments of county board members to a county board committee. 76 Op. Att'y Gen. 276 (1987). Similarly, the exemption does not authorize a school board to convene in closed session to select a person to fill a vacancy on the school board. 74 Op. Att'y Gen. 70, 72 (1985). The language of the exemption refers to a "public employe" rather than to positions of employment in general. The apparent purpose of the exemption is to protect individual employes from having their actions and abilities discussed in public, not to protect a governmental body when it discusses general policies that do not involve identifying specific employes. See 80 Op. Att'y Gen. 176, 177-78 (1992). Thus, section 19.85(1)(c) of the Wisconsin statutes authorizes a closed session to discuss the qualifications of and salary to offer a specific applicant but does not authorize a closed session to discuss the qualifications and salary range for the position in general. 80 Op. Att'y Gen. at 178-82. The section authorizes closure to determine increases in compensation for specific employes, 67 Op. Att'y Gen. 117, 118 (1978). Similarly, section 19.85(1)(c) of the Wisconsin statutes authorizes closure to determine which employes to lay off, see 66 Op. Att'y Gen. 211, 213 (1977), but not to determine whether to reduce or increase staffing, in general. 3. Consideration of financial, medical, social or personal information The exemption in section 19.85(1)(f) of the Wisconsin statutes authorizes a closed session for: Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where paragraph 19.85(1)(b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations. An example is where a state employe was alleged to have violated a state law. See Wis. State Journal v. U.W. Platteville, 160 Wis. 2d 31, 38, 465 N.W.2d 266 (Ct. App. 1990). This exemption is not limited to considerations involving public employes. For example, the Attorney General concluded that, in an exceptional case, a school board could convene in closed session under the exemption to interview a candidate to fill a vacancy on the school board if information is expected to damage a reputation, however, the vote should be in open session. 74 Op. Att'y Gen. 70, 72 (1985). At the same time, the Attorney General cautioned that the exemption in section 19.85(1)(f) of the Wisconsin statutes is extremely limited. It applies only where a member of a governmental body has actual knowledge of information that will have a substantial adverse effect on the person mentioned or involved. Moreover, the exemption authorizes closure only for the duration of the discussions about the information specified in section 19.85(1)(f) of the Wisconsin statutes. Thus, the exemption would not authorize a school board to actually appoint a new member to the board in closed session. 74 Op. Att'y Gen. at 72. 4. Conducting public business with competitive or bargaining implications A closed session is authorized for "deliberating or
Sec. 19.85(1)(e), Stats. This exemption is
not limited to deliberating or
For example, the Attorney
General has determined
66 Op. Att'y Gen. 93, 96 (1977). (The opinion advised
that governmental bodies that
Governmental officials must keep in mind, however, that this exemption applies only when "competitive or bargaining reasons require a closed session." Sec. 19.85(1)(e), Stats. 5. Conferring with legal counsel with respect to litigation The exemption in section 19.85(1)(g) of the Wisconsin statutes authorizes a closed session for "conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved." The presence of the governmental body's legal counsel is not, in itself, sufficient reason to authorize closure under this exemption. The exemption applies only if the legal counsel is rendering advice on strategy to adopt for litigation in which the governmental body is or is likely to become involved. There is no clear-cut standard for determining whether a governmental body is "likely" to become involved in litigation. Members of a governmental body should rely on the body's legal counsel for advice on whether litigation is sufficiently "likely" to authorize a closed session under section 19.85(1)(g)of the Wisconsin statutes. 6. Remaining exemptions The remaining exemptions in section 19.85(1) of the Wisconsin statutes authorize closure for: 1. Considering applications for probation or parole, or considering strategy for crime detection or prevention. Sec. 19.85(1)(d), Stats. 2. Specified deliberations by the state council on unemployment compensation and the state council on worker's compensation. Sec. 19.85(1)(ee) and (eg), Stats. 3. Specified deliberations involving the location of a burial site. Sec. 19.85(1)(em), Stats. 4. Consideration of requests for confidential written advice from an ethics board. Sec. 19.85(1)(h), Stats. 5. Considering specified matters related to a business ceasing its operations or laying off employes. Sec. 19.85(1)(i), Stats. 6. Considering specified financial information relating to the support of a nonprofit corporation operating an ice rink owned by the state. Sec. 19.85(1)(j), Stats. [2] B. NOTICE OF CLOSED SESSION The notice provision in section 19.84(2) of the Wisconsin statutes requires that, if the chief presiding officer of a governmental body is aware that a closed session is contemplated at the time he or she gives public notice of the meeting, the notice must contain the subject matter of the closed session. [3] If the chief presiding officer was not aware of a contemplated closed session at the time he or she gave notice of the meeting, that does not foreclose a governmental body from going into closed session under section 19.85(1) of the Wisconsin statutes to discuss an item contained in the notice for the open session. 66 Op. Att'y Gen. 106, 108 (1977). In both cases, a governmental body must follow the procedure set forth in section 19.85(1) of the Wisconsin statutes before going into closed session. [2] For more detailed information on these exemtions, consult the text of section 19.85(1) of the Wisconsin statutes, which appears in Appendix A.
C. Voting In An Authorized Closed Session The Wisconsin Supreme Court has held that section 14.90, Stats. (1959), a predecessor to the current open meetings law, authorized a governmental body to vote in closed session on matters that were the legitimate subject of deliberation in closed session. State ex rel. Cities S. O. Co. v. Bd. of Appeals, 21 Wis. 2d 516, 538, 124 N.W.2d 809 (1963). The supreme court reasoned that "voting is an integral part of deliberating and merely formalizes the result reached in the deliberating process." State ex rel. Cities S. O., 21 Wis. 2d at 539. In State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 53, 370 N.W.2d 271 (Ct. App. 1985), the court of appeals commented on the propriety of voting in closed session under the current open meetings law. The court indicated that a governmental body must vote in open session unless an exemption in section 19.85(1) of the Wisconsin statutes expressly authorizes voting in closed session. Id. The court's statement was not essential to its holding and it is unclear whether the supreme court would adopt a similar interpretation of the current open meetings law. Given this uncertainty, the Attorney General advises that a governmental body vote in open session, unless the vote is clearly an integral part of deliberations authorized to be conducted in closed session under section 19.85(1)of the Wisconsin statutes. Stated another way, a governmental body should vote in open session, unless doing so would compromise the need for the closed session. None of the exemptions in section 19.85(1) of the Wisconsin statutes authorize a governmental body to consider in closed session the ratification or final approval of a collective bargaining agreement negotiated by or for the body. Sec. 19.85(3), Stats.; 81 Op. Att'y Gen. (1994). D. Procedure For Convening In Closed Session Every meeting of a governmental body must initially be convened in open session.
Before convening in closed session, the governmental
If a motion is unanimous, there is no requirement
State ex rel. Schaeve, 125 Wis. 2d at 51. Before the governmental body votes on the motion,
The governmental body must limit its discussion
E. Reconvening In Open Session A governmental body may not commence a meeting,
Sec. 19.85(2), Stats. The notice need not specify the time the governmental
If the notice does specify the time, the body must
V. WHO ENFORCES THE OPEN MEETINGS LAW AND WHAT ARE ITS PENALTIES? A. Enforcement Both the Attorney General and the district attorneys have authority to enforce the open meetings law. Sec. 19.97(1), Stats. In most cases, enforcement at the local level has the greatest chance of success due to the need for intensive factual investigation, the district attorneys' familiarity with the local rules of procedure and the need to assemble witnesses and material evidence. 65 Op. Att'y Gen. Preface at ii (1976). A district attorney has authority to enforce the open meetings law only after an individual files a verified open meetings law complaint with the district attorney. See sec. 19.97(1), Stats. The complaint must be signed by the individual and notarized. If the district attorney refuses to commence an open meetings law enforcement action or otherwise fails to act within twenty days of receiving a complaint, the individual who filed the complaint has a right to bring an action, in the name of the state, to enforce the open meetings law. Sec. 19.97(4), Stats. If the individual prevails, the court is authorized to award the person the actual and necessary costs of prosecution, including reasonable attorney fees. Under certain circumstances, the Attorney General may elect to prosecute complaints involving a matter of statewide concern. B. Penalties Any member of a governmental body who "knowingly" attends a meeting held in violation of the open meetings law, or otherwise violates the law, is subject to a forfeiture of between $25 and $300 for each violation. Sec. 19.96, Stats. Any forfeiture obtained in an action brought by the district attorney is awarded to the county. Sec. 19.97(1), Stats. Any forfeiture obtained in an action brought by the Attorney General or a private citizen is awarded to the state. Sec. 19.97(1), (2) and (4), Stats. The Wisconsin Supreme Court has defined "knowingly" as not only positive knowledge of the illegality of a meeting, but also awareness of the high probability of the meeting's illegality or conscious avoidance or awareness of the illegality. State v. Swanson, 92 Wis. 2d 310, 319, 284 N.W.2d 655 (1979). The court also held that knowledge is not required to impose forfeitures on an individual for violating the open meetings law by means other than attending a meeting held in violation of the law. Examples of "other violations" are failing to give the required public notice of a meeting or failing to follow the procedure for closing a session. State v. Swanson, 92 Wis. 2d at 321. A member of a governmental body who is charged with knowingly attending a meeting held in violation of the law may raise one of two defenses: (1) that the member made or voted in favor of a motion to prevent the violation or (2) that the member's votes on all relevant motions prior to the violation were inconsistent with the cause of the violation. Sec. 19.96, Stats. A governmental body may not reimburse a member for a forfeiture incurred as a result of a violation of the law, unless the enforcement action involved a real issue as to the constitutionality of the open meetings law. 66 Op. Att'y Gen. 226 (1977). Although it is not required to do so, a governmental body may reimburse a member for his or her reasonable attorney fees in defending against an enforcement action and for any plaintiff's attorney fees that the member is ordered to pay. The city attorney may represent city officials in open meetings law enforcement actions. 77 Op. Att'y Gen. 177, 180 (1988). [4] A model complaint appears in Appendix B.
In addition to the forfeiture penalty, section 19.97(3)
A court may award any other appropriate
Sec. 19.97(2), Stats. In enforcement actions seeking forfeitures,
In all other actions, the provisions of the law must
Thus, it is advisable to prosecute forfeiture actions
In this handbook, the Attorney General's Office has
Questions which remain after thorough examination
In addressing such questions, keep in mind
In the rare instance where a question cannot be
Sec. 19.98, Stats.
Sections 19.81 - 19.98, Stats. (1993-94)
SUBCHAPTER V OPEN MEETINGS OF GOVERNMENTAL BODIES 19.81 Declaration of policy. 19.81(1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business. 19.81(2) To implement and ensure the public policy herein expressed, all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law. 19.81(3) In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter. 19.81(4) This subchapter shall be liberally construed to achieve the purposes set forth in this section, and the rule that penal statutes must be strictly construed shall be limited to the enforcement of forfeitures and shall not otherwise apply to actions brought under this subchapter or to interpretations thereof. 19.82 Definitions. As used in this subchapter: 19.82(1) "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 except for the Bradley center sports and entertainment corporation; a local exposition district under subchapter II of chapter 229; any public purpose corporation, as defined in Section 181.79(1); a nonprofit corporation operating the Olympic ice training center under Section 42.11(3); 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 subchapters IV or V of chapter 111. 19.82(2) "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, any gathering of the members of a town board for the purpose specified in Section 60.50(6), any gathering of the commissioners of a town sanitary district for the purpose specified in Section 60.77(5)(k) or any gathering of the members of a drainage board created under section 88.16, 1991 stats., or under Section 88.17, for a purpose specified in Section 88.065(5)(a). 19.82(3) "Open session" means a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times. In the case of a state governmental body, it means a meeting which is held in a building and room thereof which enables access by persons with functional limitations, as defined in Section 101.13(1). 19.83 MEETINGS OF GOVERNMENTAL BODIES. 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.
19.84(2) Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof. 19.84(3) Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting. 19.84(4) Separate public notice shall be given for each meeting of a governmental body at a time and date reasonably proximate to the time and date of the meeting. 19.84(5) and their subunits in any university of Wisconsin system institution or campus and a nonprofit corporation operating the Olympic ice training center under Section 42.11(3) are exempt from the requirements of subsections 19.84(1) to 19.84(4) but shall provide meeting notice which is reasonably likely to apprise interested persons, and news media who have filed written requests for such notice. 19.84(6) Notwithstanding the requirements of Section 19.83 and the requirements of this section, a governmental body which is a formally constituted subunit of a parent governmental body may conduct a meeting without public notice as required by this section during a lawful meeting of the parent governmental body, during a recess in such meeting or immediately after such meeting for the purpose of discussing or acting upon a matter which was the subject of that meeting of the parent governmental body. The presiding officer of the parent governmental body shall publicly announce the time, place and subject matter of the meeting of the subunit in advance at the meeting of the parent body. 19.85 EXEMPTIONS.
No motion to convene in closed session may be
Such announcement shall become part
No business may be taken up at any closed session
A closed session may be held for any of the
The notice shall contain a statement that
This paragraph and paragraph 19.85(1)(f) do not
19.85(1)(em) Deliberating under Section 157.70 if the location of a burial site, as defined in Section 157.70(1)(b), is a subject of the deliberation and if discussing the location in public would be likely to result in disturbance of the burial site. 19.85(1)(f) financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where paragraph 19.85(1)(b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations. 19.85(1)(g) Conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved. 19.85(1)(h) Consideration of requests for confidential written advice from the ethics board under Section 19.46(2), or from any county or municipal ethics board under Section 19.59(5). 19.85(1)(i) Considering any and all matters related to acts by businesses under Section 560.15 which, if discussed in public, could adversely affect the business, its employes or former employes. 19.85(1)(j) Considering financial information relating to the support by a person, other than an authority, of a nonprofit corporation operating the Olympic ice training center under Section 42.11(3), if the information is exempt from disclosure under Section 42.115 or would be so exempt were the information to be contained in a record. In this paragraph, "authority" and "record" have the meanings given under Sections 19.32, 19.85(2). No governmental body may commence a meeting, subsequently convene in closed session and thereafter reconvene again in open session within 12 hours after completion of the closed session, unless public notice of such subsequent 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. 19.85(3) 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 subchapter IV or V of ch. 111 which has been negotiated by such body or on its behalf. 19.86 NOTICE OF COLLECTIVE BARGAINING NEGOTIATIONS. Notwithstanding Section 19.82(1), where notice has been given by either party to a collective bargaining agreement under subchapter IV or V of chapter 111 to reopen such agreement at its expiration date, the employer shall give notice of such contract reopening as provided in Section 19.84(1)(b). If the employer is not a governmental body, notice shall be given by the employer's chief officer or such person's designee. This section does not apply to a nonprofit corporation operating the Olympic ice training center under Section 42.11(3). 19.87 LEGISLATIVE MEETINGS. This subchapter shall apply to all meetings of
|
