Wisconsn Open Meeting
Compliance Guide - FOI
Get hard copy from DOJ
by requests to Jim Doyle
See also Public Records Law Enforcement Records  seminar notes:
Sections 19.81 - .98

 
TOP Table ii  1  2 3  4  5 6  7  8 9  10 11 12  13 14 15  home

Wisconsin's open meetings law, enacted in 1976, attempts to
promote openness in government and to provide Wisconsin
citizens with an opportunity to observe and educate
themselves about their government's operation.

The Attorney General's Office is charged with providing
advice regarding the applicability of the law.

In meeting that responsibility, my office has decided to
focus primarily on the prevention of violations
rather than on remedial sanctions.

I believe by preventing problems, we can ensure that
Wisconsin's policy of openness in government is achieved.

Violations of the open meetings law are often
unintentional and stem from people who do
not know the requirements of the law.

The purpose of this handbook is to offer guidance
to government officials on their duties and
responsibilities, and to provide information
to the public on its rights under the law.

In preparing this new edition of the handbook,
my office has tried to answer commonly asked
questions and to provide a general
overview of the law.

Because the handbook is not intended to be a comprehensive
interpretation of the law, users should keep
in mind that it is only a basic guide.

Government officials should direct specific questions to
the attorneys advising their governmental bodies.

These attorneys are in the best position to discuss the
application of the law to the particular facts
concerning your meetings.

Voluntary compliance with the requirements
of the open meetings law is essential to
maintaining a democratic form of government.

It is my hope that this handbook will assist the
public and governmental officials in that effort.

Jim Doyle       Attorney General           1996

 
TOP Table  i  ii  1  2 3 4  5 6 7  8 9 10 11  12 13 14  15 home

TABLE OF CONTENTS
 
Contents of Page 1

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,
                  Boards and commissions
 
 
Contents of Page 2

             b.   Governmental or quasi-governmental
                  Corporations
 
Contents of Page 3

               c.   Public service corporations

               d.   Subunits

               e.   State Legislature

          2. ENTITIES THAT ARE NOT GOVERNMENTAL BODIES

               a.   Governmental offices held
                   by a single individual

               b.   Bodies meeting for collective bargaining
 
Contents of Page 4

               c.   Bodies created by the Wisconsin
                   Supreme Court

     B.   DEFINITION OF "MEETING"
 
Contents of Page 5

        1.  Simple majority

        2.  Negative quorums

        3.  Walking quorums

        4.  Telephone conference calls

        5.  Burden of proof as to existence of a meeting
 
Contents of Page 6

 

III. WHAT IS REQUIRED IF THE OPEN MEETINGS LAW APPLIES?

     A. Notice Requirements

        1.  To whom and how notice must be given
 
Contents of Page 7

        2.  CONTENTS OF NOTICE

            a. In general

            b. Closed session
 
Contents of Page 8

        3.  Time of notice

     B. OPEN SESSION REQUIREMENTS

        1.  Accessibility
 
Contents of Page 9

        2.  Tape recording and videotaping

        3.  Citizen participation

        4.  Minutes of meetings and recording of votes

 
TOP Table ii  1  2 3  4  5 6  7  8 9  10 11 12  13 14 15  home

IV.  WHEN IS IT PERMISSIBLE TO CONVENE IN CLOSED SESSION?
 
Contents of Page 10

     A. Authorized Closed Sessions

        1.  Judicial or quasi-judicial hearings

        2.  Employment and licensing matters

            a. Consideration of dismissal, demotion,
              Discipline, licensing and tenure.

            b. Consideration of employment, promotion,
              Compensation and performance evaluations
 
Contents of Page 11

        3.  Consideration of financial, medical,
           Social or personal information

        4.  Conducting public business with competitive
           or bargaining implications
 
Contents of Page 12

        5.  Conferring with legal counsel
           with respect to litigation

        6.  Remaining exemptions

    B.  Notice Of Closed Session
 
Contents of Page 13

    C.  Voting In An Authorized Closed Session

    D.  Procedure For Convening In Closed Session

    E.  Reconvening In Open Session
 
Contents of Page 14

V.  WHO ENFORCES THE OPEN MEETINGS LAW
    AND WHAT ARE ITS PENALTIES?

    A.  Enforcement

    B.  Penalties
 
Contents of Page 15

CONCLUSION

 
TOP Table ii  1  2 3  4  5 6  7  8 9  10 11 12  13 14 15  home

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
of governmental bodies must be held in open session.

State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 97,
                                     398 N.W.2d 154 (1987).

Although there are some exemptions to the open session
requirement, those exemptions are to be invoked sparingly
and only where necessary to protect the public interest.

The policy of the open meetings law dictates that
governmental bodies convene in closed session only
where holding an open session would be incompatible
with the conduct of governmental affairs.

     "Mere government inconvenience is . . .
      no bar to the requirements of the law."

State ex rel. Lynch v. Conta,
71 Wis. 2d 662, 678,
239 N.W.2d 313 (1976).

The open meetings law explicitly provides that all
of its provisions must be liberally construed
to achieve its purposes.

This rule of liberal construction applies in all situations,
except enforcement actions in which forfeitures are sought.

Sec. 19.81(4), Stats. Public officials must be ever mindful
of the policy of openness and the rule of liberal
construction in order to ensure compliance with
both the letter and spirit of the law.

II.  WHEN DOES THE OPEN MEETINGS LAW APPLY?

The open meetings law applies to every "meeting"
of a "governmental body."

Sec. 19.83, Stats.

The terms "meeting" and "governmental body" are defined in
section 19.82(1) and (2) of the Wisconsin statutes. [1]

A. Definition Of "Governmental Body"

     1. Entities that are governmental bodies

          a. State or local agencies,
             boards and commissions

The definition of "governmental body" includes a "state
or local agency, board, commission, committee, council,
department or public body corporate and politic created
by constitution, statute, ordinance, rule or order."

Sec. 19.82(1), Stats.

This provision focuses on the manner in which
a body was created, rather than on the type
of authority the body possesses.

Purely advisory bodies created by constitution,
statute, ordinance, rule or order are therefore
subject to the open meetings law.

See State v. Swanson,  92 Wis. 2d 310, 317,
                      284 N.W.2d 655 (1979).

[1]   The text of these, and all other, sections of
      the open meetings law appears in Appendix A.

 
TOP Table ii  1  2  3  4  5 6  7  8 9  10 11 12  13 14 15  home

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
considered whether the Grant County Economic Development
Corporation, a chapter 181 nonstock, nonprofit corporation
created by private individuals, was a "quasi-governmental
corporation" subject to the open meetings law.

Although the corporation served a public purpose and
received more than fifty percent of its funding from
public sources, the Attorney General concluded that
it was not "quasi-governmental" within the meaning
of the open meetings law.


 
TOP Table ii  1 2  3  4  5 6  7  8 9  10 11 12  13 14 15  home

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.

 
TOP Table ii  1 2  3  4  5 6  7  8 9  10 11 12  13 14 15  home


    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

 
TOP Table ii  1 2  3  4  5  6  7  8 9  10 11 12  13 14 15  home
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
to walking quorums. A "walking quorum" is a series of
gatherings among separate groups of members of a
governmental body, each less than quorum size,
who agree, tacitly or explicitly, to act uniformly in
sufficient number to reach a quorum.

Showers,
135 Wis. 2d at 92,

quoting
 

State ex rel. Lynch v. Conta,
71 Wis. 2d 662, 687,
239 N.W.2d 313 (1976).

In Conta, the supreme court recognized the danger
that a walking quorum may produce a predetermined
outcome and thus render the publicly-held meeting
a mere formality.
Conta, 71 Wis. 2d at 685-88.

The court commented that any attempt to avoid the
appearance of a "meeting" through use of a walking
quorum is subject to prosecution under
the open meetings law.

Conta, 71 Wis. 2d at 687.

   4.  Telephone conference calls

Telephone conference calls among members of a
governmental body fit within the definition
of "meeting" subject to the open meetings law.

69 Op. Att'y Gen. 143 (1980).

Under the Showers test, therefore, the open meetings
law applies to any conference call that:

(1) is for the purpose of conducting governmental business
    and

(2) involves a sufficient number of members of the body
    to determine the body's course of action on
    the business under consideration.

To comply with the law, a governmental body conducting
a meeting by telephone conference call must provide the
public with an effective means to monitor the conference.

This may be accomplished by broadcasting the
conference through speakers located at one
or more sites open to the public.

69 Op. Att'y Gen. at 145.

A "walking quorum" by telephone is also
governed by the open meetings law.

   5.  Burden of proof as to existence of a meeting

The presence of members of a governmental body does not,
in itself, establish the existence of a "meeting"
subject to the open meetings law.

The law provides, however, that if one-half or more of the
members of a body are present, the gathering is presumed
to be a "meeting." Sec. 19.82(2), Stats.

The law also exempts any "social or chance gathering"
not intended to circumvent the requirements
of the open meetings law.

Sec. 19.82(2), Stats.

Thus, members of a governmental body may overcome the
presumption of a meeting by establishing that they
did not discuss or act on business within the
governmental body's authority.

If, for example, one-half or more of the members of a
governmental body ride to a meeting in the same vehicle,
the law presumes that the members conducted a "meeting"
which was subject to all of the requirements of the
open meetings law.


 
TOP Table ii  1 2  3  4 5  6  7  8 9  10 11 12  13 14 15  home

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
     forth the public notice requirements, specifies when,
     how and to whom notice must be given, as well as
     what information a notice must contain.


          1. To whom and how notice must be given

The chief presiding officer of a governmental body,
or the officer's designee, must give notice of
each meeting of the body to:

(1)  the public,

(2)  any members of the news media who have submitted
     a written request for notice and

(3)  the official newspaper, designated pursuant to state
     statute, or if none exists, to a news medium likely
     to give notice in the area. Sec. 19.84(1), Stats.

The chief presiding officer may give notice of a meeting
to the public by posting the notice in one or more places
likely to be seen by the general public.

66 Op. Att'y Gen. 93, 95 (1977).

As a general rule, the Attorney General has advised posting
notices at three different locations within the jurisdiction
that the governmental body serves. 66 Op. Att'y Gen. at 95.

Alternatively, the chief presiding officer may give notice
to the public by paid publication in a news medium likely
to give notice in the jurisdiction area the body serves.

63 Op. Att'y Gen. 509, 510-11 (1974).

If the presiding officer gives notice in this manner, he
or she must ensure that the notice is actually published.

The chief presiding officer must also give notice of each
meeting to members of the news media who have
submitted a written request for notice.

Although this notice may be given in writing or by
telephone, 65 Op. Att'y Gen. Preface at v-vi (1976),
it is preferable to give notice in writing to help
ensure accuracy and so that a record of the notice exists.

65 Op. Att'y Gen. 250, 251 (1976).


 
TOP Table ii  1 2 3  4 5 6  7  8 9 10 11 12 13 14 15 home

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.

 
TOP Table ii  1 2  3  4 5  6  7  8  9  10 11  12  13 14  15  home


          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
meeting of a governmental body, the open meetings law
also requires that every meeting of a governmental
body initially be convened in "open session."

See secs. 19.83 and 19.85(1),

Stats. All business of any kind, formal or informal,
must be initiated, discussed and acted upon in
open session," unless one of the exemptions set
forth in section 19.85(1) of the Wisconsin
statutes applies.

Sec. 19.83, Stats. An "open session" is defined
in section 19.82(3) of the Wisconsin statutes as
"a meeting which is held in a place reasonably
accessible to members of the public and open to
all citizens at all times." This provision
requires that governmental bodies hold their
meetings in rooms that are reasonably
calculated to be large enough to
accommodate all citizens who wish
to attend the meetings.

State ex rel. Badke v. Greendale Village Bd.,
173 Wis. 2d 553, 580-81,
494 N.W.2d 408 (1993).
Absolute access is not, however, required. Id.

In Badke, for instance, the Wisconsin Supreme Court
concluded that a village board meeting that was
held in a village hall capable of holding 55-75
people was reasonably accessible, although
three members of the public were turned
away due to overcrowding.

Id. at 561, 563, 581.

Whether the requirement that a meeting be held in
a place that is reasonably accessible is met
depends on the facts in each individual case.

Any doubt as to whether a meeting facility is large
enough to satisfy the requirement should be
resolved in favor of holding the meeting
in a larger facility.
In the case of a state governmental body, "open
session" means a building and room that enables
access by persons with functional limitations,
as defined in section 101.13(1) of the
Wisconsin statutes.

Sec. 19.82(3), Stats.

This provision requires that state governmental
bodies hold their meetings in buildings and
rooms that are accessible, without assistance,
to persons with functional limitations.

69 Op. Att'y Gen. 251 (1980).

In order to comply with the spirit of the open
meetings law, local bodies should also,
whenever possible, meet in buildings
and rooms that are accessible
without assistance.

 
TOP Table ii  1 2 3  4 5 6  7 8  9  10 11 12  13 14 15  home

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.

 
TOP Table ii  1 2  3  4 5  6  7 8  9  10  11 12  13  14 15  home


     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.

 
TOP Table ii  1 2  3  4 5  6  7 8  9  10  11  12  13 14 15  home
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
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."
 

Sec. 19.85(1)(e), Stats.

This exemption is not limited to deliberating or
negotiating the purchase of public property
or the investing of public funds.

For example, the Attorney General has determined
that the exemption authorized a school board to
convene in closed session to develop negotiating
strategies for collective bargaining.

66 Op. Att'y Gen. 93, 96 (1977).

(The opinion advised that governmental bodies that
are not formed exclusively for collective bargaining
comply with the open meetings law when meeting for
the purpose of developing negotiating strategy. 


 
TOP Table ii  1 2  3  4 5  6  7 8  9  10 11  12  13 14 15  home

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.


[3]
See section III.A.2.c. of this guide for information
on how to comply with this requirement.


 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14 15  home



     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.


Secs. 19.83 and 19.85(1), Stats.

Before convening in closed session, the governmental
body must follow the procedure set forth in sec. 19.85(1)
of the Wisconsin statutes which requires that the
governmental body pass a motion, by recorded
majority vote, to convene in closed session.

If a motion is unanimous, there is no requirement
to record the votes individually.

State ex rel. Schaeve, 125 Wis. 2d at 51.

Before the governmental body votes on the motion,
the chief presiding officer must announce and
record in open session the nature of the business
to be discussed and the specific statutory
exemption which is claimed to authorize
the closed session.

The governmental body must limit its discussion
in closed session to the business specified
in the announcement.

     E.  Reconvening In Open Session

A governmental body may not commence a meeting,
convene in closed session and subsequently
reconvene in open session within twelve
hours after completion of a closed session,
unless public notice of the subsequent
open session is given "at the same time
and in the same manner" as the public
notice of the prior open session.

Sec. 19.85(2), Stats.

The notice need not specify the time the governmental
body expects to reconvene in open session if the
body plans to reconvene immediately following
the closed session.

If the notice does specify the time, the body must
wait until that time to reconvene in open session.


 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14  15  home





     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.

 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14  15  home

In addition to the forfeiture penalty, section 19.97(3)
of the Wisconsin statutes provides that a court may
void any action taken at a meeting held in violation of
the open meetings law if the court finds that the
interest in enforcing the law outweighs any interest
in maintaining the validity of the action.

A court may award any other appropriate
legal or equitable relief, including
declaratory and injunctive relief.

Sec. 19.97(2), Stats.

In enforcement actions seeking forfeitures,
the provisions of the open meetings law
must be narrowly construed due to
the penal nature of forfeiture.

In all other actions, the provisions of the law must
be liberally construed to ensure the public's right
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) and (4), Stats.

Thus, it is advisable to prosecute forfeiture actions
separately from actions seeking other types of relief
under the open meetings law.


CONCLUSION

In this handbook, the Attorney General's Office has
outlined the provisions of the open meetings law
to serve as an informational resource for members
of the public and government officials.

Questions which remain after thorough examination
of the handbook may be answered by direct
consultation of the open meetings statutes,
case law, opinions of the Attorney General
and by conferring with attorneys
for governmental bodies.

In addressing such questions, keep in mind
the policy of broadly construing the open
meetings law in favor of openness.

In the rare instance where a question cannot be
resolved in this manner, written requests for
advice also may be made to the Attorney
General's Office for an interpretation
of the statutes.

Sec. 19.98, Stats.
 
TOP Table ii  1  2 3  4  5 6  7  8 9  10 11 12  13 14 15  home


APPENDIX A OPEN MEETINGS LAW

Sections 19.81 - 19.98, Stats. (1993-94)
(incorporating changes made by 1995
Wisconsin Acts 158 and 185)
 

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          PUBLIC NOTICE.


19.84(1)
Public notice of all meetings of a governmental
body shall be given in the following manner:


19.84(1)(a)
As required by any other statutes; and


19.84(1)(b)
By communication from the chief presiding officer
of a governmental body or such person's designee
to the public, to those news media who have filed
a written request for such notice, and to the
official newspaper designated under ss. 985.04,
985.05 and 985.06 or, if none exists, to a news
medium likely to give notice in the area.
 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14  15  home



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.


19.85(1)
Any meeting of a governmental body, upon motion
duly made and carried, may be convened in closed
session under one or more of the exemptions
provided in this section. The motion shall
be carried by a majority vote in such manner
that the vote of each member is ascertained
and recorded in the minutes.

No motion to convene in closed session may be
adopted unless the chief presiding officer
announces to those present at the meeting
at which such motion is made, the nature
of the business to be considered at such
closed session, and the specific exemption
or exemptions under this subsection by which
such closed session is claimed to be authorized.

Such announcement shall become part
of the record of the meeting.

No business may be taken up at any closed session
except that which relates to matters contained in
the chief presiding officer's announcement of the
closed session.

A closed session may be held for any of the
following purposes.


19.85(1)(a)
Deliberating concerning a case which was the
subject of any judicial or quasi-judicial trial
or hearing before that governmental body.


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.

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.


19.85(1)(d)
Except as provided by rule promulgated under
Section 304.06(1)(em), considering specific
applications of probation or parole, or
considering strategy for crime
detection or prevention.


19.85(1)(e)
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.


19.85(1)(ee)
Deliberating by the council on unemployment
compensation in a meeting at which all
employer members of the council or all
employe members of the council are excluded.


19.85(1)(eg)
Deliberating by the council on worker's
compensation in a meeting at which all employer
members of the council or all employe members of
the council are excluded.
 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14  15  home



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
the senate and assembly and the committees,
subcommittees and other subunits thereof,
except that:
 


19.87(1)
Section 19.84 shall not apply to any meeting of
the legislature or a subunit thereof called solely
for the purpose of scheduling business before the
legislative body; or adopting resolutions of which
the sole purpose is scheduling business before the
senate or the assembly.


19.87(2)
No provision of this subchapter which conflicts
with a rule of the senate or assembly or joint
rule of the legislature shall apply to a meeting
conducted in compliance with such rule.


19.87(3)
No provision of this subchapter shall apply to any
partisan caucus of the senate or any partisan
caucus of the assembly, except as
provided by legislative rule.


19.87(4)
Meetings of the senate or assembly committee on
organization under Section 71.78(4)(c) or
77.61(5)(b)3 shall be closed to the public.


19.88   BALLOTS, VOTES AND RECORDS.


19.88(1)
Unless otherwise specifically provided by statute,
no secret ballot may be utilized to determine any
election or other decision of a governmental
body except the election of the officers
of such body in any meeting.


19.88(2)
Except as provided in subsection 19.88(1) in the
case of officers, any member of a governmental
body may require that a vote be taken at any
meeting in such manner that the vote of each
member is ascertained and recorded.
 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14  15  home



19.88(3)

The motions and roll call votes of each meeting of

a governmental body shall be recorded, preserved

and open to public inspection to the extent

prescribed in subchapter II of Chapter 19.

19.89    EXCLUSION OF MEMBERS.

No duly elected or appointed member of a governmental
body may be excluded from any meeting of such body.

Unless the rules of a governmental body provide to
the contrary, no member of the body may be
excluded from any meeting of a subunit
of that governmental body.


19.90 USE OF EQUIPMENT IN OPEN SESSION

Whenever a governmental body holds a meeting in open
session, the body shall make a reasonable effort to
accommodate any person desiring to record, film
or photograph the meeting.

This section does not permit recording, filming or
photographing such a meeting in a manner that
interferes with the conduct of the meeting
or the rights of the participants. 



19.96   PENALTY.



Any member of a governmental body who knowingly

attends a meeting of such body held in violation

of this subchapter, or who, in his or her official

capacity, otherwise violates this subchapter by

some act or omission shall forfeit without

reimbursement not less than $25 nor more

than $300 for each such violation.



No member of a governmental body is liable under

this subchapter on account of his or her

attendance at a meeting held in violation

of this subchapter if he or she makes or

votes in favor of a motion to prevent the

violation from occurring, or if, before the

violation occurs, his or her votes on all relevant

motions were inconsistent with all those

circumstances which cause the violation.
 


19.97   ENFORCEMENT.





19.97(1)

This subchapter shall be enforced in the name and

on behalf of the state by the attorney general or,

upon the verified complaint of any person,

by the district attorney of any county

wherein a violation may occur.



In actions brought by the attorney general, the

court shall award any forfeiture recovered

together with reasonable costs to the state;

and in actions brought by the district attorney,

the court shall award any forfeiture recovered

together with reasonable costs to the county.





19.97(2)

addition and supplementary to the remedy

provided in Section 19.96, the attorney general or

the district attorney may commence an action,

separately or in conjunction with an action

brought under Section 19.96, to obtain such

other legal or equitable relief, including

but not limited to mandamus, injunction or

declaratory judgment, as may be appropriate

under the circumstances.


19.97(3)

Any action taken at a meeting of a governmental

body held in violation of this subchapter is

voidable, upon action brought by the attorney

general or the district attorney of the county

wherein the violation occurred. However,

any judgment declaring such action void

shall not be entered unless the court finds,

under the facts of the particular case, that

the public interest in the enforcement of

this subchapter outweighs any public interest

which there may be in sustaining the validity

of the action taken.





19.97(4)

If the district attorney refuses or otherwise

fails to commence an action to enforce this

subchapter within 20 days after receiving

a verified complaint, the person making

such complaint may bring an action

under subsections 19.97(1) to 19.97(3)

on his or her relation in the name,

and on behalf, of the state.



In such actions, the court may award actual and

necessary costs of prosecution, including

reasonable attorney fees to the relator

if he or she prevails, but any

forfeiture recovered shall

be paid to the state.

19.97(5)
Sections 893.80 and 893.82 do not apply
to actions commenced under this section.


19.98   INTERPRETATION BY ATTORNEY GENERAL.

Any person may request advice from the attorney
general as to the applicability of this
subchapter under any circumstances.
 
TOP Table ii  1 2 3  4 5 6  7 8 9  10 11  12  13 14  15  home

INTRODUCTION BY GERHARDT J. STEINKE:
Doyle's Appendix B "Sample Form" appears as derived

from work of former (1965-69, 1974-87)

attorney General La Follette.



Compare and contrast La Follette's work as found in his

(Bronson La Follette's) WISCONSIN OPEN MEETINGS LAW.



Bronson La Follette (unlike Doyle) has many letters

showing his communications to citizens.



See Wisconsin Open Meetings Law (31 July 1979) by

La Follette. A Statutory Summary and a Digest of

Opinions of Attorney General prepared under

leadership of former Attorney General LaFollette.

APPENDIX B



SAMPLE OPEN MEETINGS LAW COMPLAINT FORM

VERIFIED OPEN MEETINGS LAW COMPLAINT 



Now comes the complainant . . . . and as and for a verified

complaint pursuant to sections 19.96 and 19.97, Wis. Stats.,

alleges and complains as follows:



1.



That s/he is a resident of the . . . . [town, village, city]

of . . . . , Wisconsin, and that his or her Post Office



Address is [street, avenue, etc.], Wisconsin . . . . [zip].



2.



That . . . . [name of member or chief presiding officer]

Post Office Address is . . . . [street, avenue, etc.],

. . . . [city], Wisconsin, was on the . . . . day of . . . ,

a . . . . [member or chief presiding officer] of . . . .

[designate official title of governmental body] and that

. . . . [board, council, commission or committee] is a

governmental body within the meaning of section 19.82(1),

Wisconsin Statutes.



3.



. . . . [name of member or chief presiding officer] on

the . . . . day of . . . , at County of . . . . , Wisconsin,

knowingly attended a meeting of said governmental body held

in violation of sections 19.96 and . . . . [cite other

applicable section(s)], Wisconsin Statutes, or otherwise

violated those sections in that [set out every act or

omission constituting the offense charged]:



. . . . . . . . . . . . . . . . . . . . . .



4.



That . . . . [name of member or chief presiding officer] is

thereby subject to the penalties prescribed in sec. 19.96,

Wisconsin Statutes.



5.



That the following witnesses can testify to said acts

or omissions:





Name             Address          Telephone



     . . . . . . . . . . . . . . . . . . . . . .



6.



That the following documentary evidence

of said acts or omissions is available:



. . . . . . . . . . . . . . . . . . . .



7.



That this complaint is made to the District Attorney

for. . County under the provisions of section 19.97,

Wisconsin Statutes, and that the district attorney

may bring an action to recover the forfeiture

provided in Section 19.96, Wisconsin Statutes.





WHEREFORE, complainant prays that the District

Attorney for . . . County, Wisconsin, timely

institute an action against . . . [name of

member or chief presiding officer] to

recover the forfeiture provided in

Section 19.96, Wisconsin Statutes,

together with reasonable costs

and disbursements as provided by law.



STATE OF WISCONSIN) |

                    | ss.

COUNTY OF . . . . . |



. . . . being first duly sworn on oath deposes

and says that s/he is the above-named complainant,

that he has read the foregoing complaint and that,

based on his or her knowledge, the contents of

the complaint are true. . . . . . . . . . . .



COMPLAINANT



Subscribed and sworn to before me

this . . . . day of . . . . 19...



Notary Public, State of Wisconsin

My Commission: . . . . . . . . . .
 
TOP  
MAIL