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STATE EX REL. SCHAEVE v. VAN LARE,

125 Wis.2d 40 (Ct.App. 1985)

370 N.W.2d 271




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STATE of Wisconsin EX REL.
Carol M. SCHAEVE,

                 Petitioner-Appellant,[fn]



v.



Esther VAN LARE,

James F. Young,

Maureen Kelly and

Steven Schellin, members,

Elmbrook Board of Education, Respondents.




Court of Appeals  No. 84-1731. Submitted on briefs February 18, 1985                           Decided May 15, 1985. [fn] Petition to review denied.
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APPEAL from a judgment of the circuit court

for Waukesha county:



WILLIS J. ZICK, Judge.  Affirmed.



For the petitioner-appellant, the cause was submitted

on the pro se briefs of Carol M. Schaeve, of Wauwatosa.



For the respondents, the cause was submitted on the brief

of Mark F. Vetter of Davis & Kuelthau, S.C., of Milwaukee.



Before Scott, C.J., Brown, P.J., and Nettesheim, J.



NETTESHEIM, J.



Carol M. Schaeve appeals from a judgment dismissing her

complaint, which alleged several violations of Wisconsin's

Open Meetings Law by the Elmbrook Board of Education.[fn1]



Because we conclude that the circuit court properly applied

the Open Meetings Law, we affirm its judgment.



On March 16, 1982, the superintendent of the Elmbrook School

District sent Schaeve a letter which advised that the

superintendent was recommending her dismissal

as a teacher in the school district.



The letter further indicated that an evidentiary hearing

on the recommendation would be held on March 23, 1982.



The letter also advised Schaeve that the hearing would be in

closed session unless Schaeve requested an open session.





For reasons not clearly apparent from the record,

the hearing did not commence on March 23.
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However, during a telephone conference on May 5, between

the attorneys for the Board and Schaeve, it was agreed that

the evidentiary hearing would be held in closed session.



This agreement was confirmed by the attorney for the Board

in a letter sent to Schaeve's attorney the same day.



This same letter rescheduled the commencement

of the hearing for May 10.



This letter, however, did not again inform Schaeve

of her right to have the hearing held in open session.



Pursuant to this agreement, the Board held the evidentiary

hearings in closed sessions on May 10, June 7, 8, 9 and 14, 1982.



A public notice was posted for each hearing.



Prior to each hearing, the board members unanimously

voted to convene in closed session.



Following the conclusion of the evidentiary hearings, public

notice was given informing that the Board would meet in closed

session, pursuant to sec. 19.85(1)(a), Stats., for purposes of

deliberation following the conclusion of a hearing.



The notice also indicated that after its deliberations, the

Board would convene in open session to announce its decision.



Immediately following deliberations in this closed session,

the Board convened in open session and voted to terminate

Schaeve's teaching contract.



Schaeve then commenced this action in the circuit court after

the district attorney refused to prosecute the Board for the

violations of the Open Meetings Law alleged by Schaeve.[fn2]



She requested that the Board's actions be voided and that

forfeitures be assessed against certain board members.



The circuit court granted summary judgment as to all

but one alleged violation in Schaeve's complaint.[fn3]
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An evidentiary hearing on this remaining issue was held

to determine whether Schaeve was entitled to actual notice

of the Board's July 14, 1982 meeting and if so,

whether she received actual notice.[fn4]



The circuit court dismissed this alleged violation on its merits.



Schaeve appeals pro se.



Schaeve claims that the Board violated the Open Meetings Law by

failing to



(1)  give proper notice of all meetings

     held in regard to her dismissal;



(2)  refer to the specific statutory exemption under

     which the closed session was held on June 7, 1982;



(3)  announce with specificity the nature of the business

     to be considered in the closed sessions held

     on June 8, 9 and 14, 1982;



(4)  record the individual votes of Board members upon a

     motion at each hearing to convene in closed session, and



(5)  give Schaeve actual notice of the July 14, 1982 meeting,

     indicating that she had a right to request a closed session

     when the Board voted on her dismissal.
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All of the issues raised by Schaeve require application

of the Open Meetings Law, secs. 19.81-19.98, Stats.



The application of a statute to a particular set of

facts is a question of law.



Maxey v. Redevelopment Authority, 120 Wis.2d 13, 18,

                       353 N.W.2d 812, 815 (Ct. App. 1984).



As such, we owe no deference to the trial court's determination.



First National Leasing Corp. v. City of Madison,

81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).



Sufficiency of Actual Notice and Public Notice



We first consider Schaeve's claim that the Board failed

to give proper notice of the evidentiary hearings.



It is not clear whether Schaeve challenges the adequacy of the

actual notice provided pursuant to Section 29.85(1)(b), Stats.

or the adequacy of the public notices posted prior to each

evidentiary hearing, pursuant to Section 19.83, Stats.



In any event, we conclude that both notices given by the Board

complied with the requirements of the Open Meetings Law.



Every meeting of a governmental body must be preceded by

public notice and must be held in open session unless

an exemption under Section 19.85, Stats., applies.



Sec. 19.83, Stats. Section 19.84(2), Stats., sets

forth the components of a public notice.



These include the time, date, place and subject matter

of the meeting, including any subject intended

to be considered in closed session.



Exemptions to the requirement of open sessions

are listed in Section 19.85, Stats.



Where a governmental body considers the dismissal,

demotion, licensing, or discipline of a public employee,

a closed session may be held.



Section 19.85(1)(b).



When a closed session is held under Section 19.85(1)(b),

the public employee involved is entitled to actual notice

of any evidentiary hearing which is held prior

to final action being taken.
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This notice must inform the employee of the right to

demand that the evidentiary hearing be held in open session.



Section 19.85 (1)(b).



The Board properly gave Schaeve actual notice of the

evidentiary hearings that began on May 10, 1982.



The letter sent to Schaeve on March 16, 1982 by the

superintendent of the school district informed Schaeve that

the first evidentiary hearing would be held on March 23.



The letter also informed Schaeve of her right to

demand that the hearing be held in open session.



The subsequent telephone conference of May 5 between the parties'

attorneys resulted in an agreement to hold the evidentiary

hearings in closed sessions.



A same day letter to Schaeve's attorney from the Board's

attorney confirmed this agreement and rescheduled

the initial hearing for May 10.



This served as actual notice to Schaeve.



Although the May 5 letter did not again recite Schaeve's fight to

demand an open session, Schaeve had been apprised of that right

in the March 16 letter and, through her attorney, had decided

at the May 5 conference call not to exercise the right.



Under these facts, the Board was not required to repeat

in its May 5 letter the right to demand an open session.





As the circuit court noted, such a requirement

would be "meaningless machinations."



Such information would not have benefited Schaeve because

she had already decided not to exercise her right.



Reading the two letters together, we conclude that Schaeve was

given actual notice of the May 10 meeting and was properly

informed of her right to demand an open session.



We therefore reject Schaeve's argument that the actual

notice she received was inadequate or improper.
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Schaeve further argues that the public notices did not

contain enough specific information to adequately

inform the public and thereby failed

to comply with Section 19.84, Stats.



We disagree.



Section 19.84(2), Stats., requires that a public notice set forth

the time, date, place and subject matter of a meeting, including

any subject to be considered in closed session, in such form as

is likely to reasonably apprise members of the public.



Each public notice given prior to the hearings held

on May 10, June 7, 8, 9 and 14, 1982, set forth

the time, date and place for the meeting.



In addition, each notice indicated that once the meeting was

called to order, the chief presiding officer would announce

the Board's intention to convene in closed session under

Section 19.85(1)(b), Stats.,



     "to conduct a hearing to consider the

      possible discipline of a public employee."



This information was specific enough to apprise members

of the public as to the subject matter of the hearing.



We find no requirement in the statute that the subject matter

of a meeting must be explained with any more specificity.



Schaeve suggests that the public notices should have

informed the public that Schaeve had a right to

demand that the hearings be held in open session.



We disagree.



Section 29.84, Stats, which requires certain information

in a public notice, imposes no such requirement.



A statement that the public employee may demand an

open session is only required in the actual notice

given to the public employee.



See Section 29.85(2)(b), Stats.



Only the public employee who is the object of the

proceedings is given the power to transform

a closed hearing into an open hearing.



The failure of the public notice to recite Schaeve's right

to demand an open session did not violate the statute.



We conclude that the public notice given prior to

each hearing complied with the Open Meetings Law.
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Failure to State Statutory Exception



The next issue is whether the Board violated the Open Meetings

Law by failing to state the specific statutory exemption

under which the June 7 closed session was held.



While this failure was not in strict compliance with the

Open Meetings Law, we nonetheless agree with the trial court

that this failure did not rise to the level of a violation.



Before a motion to convene into closed session is adopted,

Section 19.85 Stats., requires the chief presiding officer

to state the statutory exemption under which a closed

session is authorized.



This requirement assures the public that here is

a legitimate reason for convening in closed session.



We should construe a statute, however, not only by its

exact words, but also by its apparent general purpose.



Dielectric Corp. v. Labor & Industry Review Commission,

111 Wis.2d 270, 277, 330 N.W.2d 606, 610(Ct. App. 1983).



Furthermore, the spirit of a statute should govern over

the literal or technical meaning of the language used.



City of Madison v. Town of Fitchburg, 112 Wis.2d 224, 236,

                           332 N.W.2d 782, 787 (1983).



The legislature has declared,

as a matter of policy,



     "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."



Section 19.81, Stats.



By listing exemptions to the requirements of open sessions,

the legislature has indicated the matters which arise in

the conduct of governmental business to which the public

may not be entitled full and complete information.



See Section 19.85, Stats.
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We conclude, as did the circuit court, that the intent of

the Open Meetings Law was not violated by the failure of

the chief presiding officer to state the statutory exemption

under which the Board intended to convene in closed session.



The legislature has indicated that the public's right to

full and complete information may not be compatible with

the conduct of governmental business when the dismissal

of a public employee is considered.



Under such circumstances, a closed session is permitted.



See Section 19.85(1)(b), Stats.



A meeting held in the spirit of the legislature's intent

is a valid meeting.



See Karol v. Board of Education Trustees, 593 P.2d 649,

                                          651 (Ariz. 1979).



These hearings involved the possible dismissal of Schaeve, a

public employee, and could properly be held in closed session.



See Section 19.85(1)(b), Stats.[fn5]



The hearings on Schaeve's termination took place on five separate

nights, May 10, June 7, 8, 9 and 14, 1982.



With the exception of the June 7 hearing, the chief presiding

officer cited, at the beginning of each hearing,

the statutory exemption which authorized the

Board to convene in closed session.



The statement at the beginning of the June 7 meeting was

admittedly deficient and did not adhere to the

strict requirements of Section 19.85(1).



We note, however, that before calling for a motion to convene

into closed session, the chief presiding officer referred to

the public notice which was posted for the June 7 meeting.



That public notice, which complied with the requirements of

Section 19.84(2), Stats., stated the statutory exemption under

which the Board intended to convene in closed session.





By reference to the public notice, the public was

informed of the statutory exemption under which

the Board intended to convene in closed session.
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Under the facts of this case, therefore, we conclude that

the Board complied with the intent of the Open Meetings Law.



The deviation from the strict requirements of the statute did not

compromise the public's right to full and complete information.



The purpose of the statute was not thwarted by

this technical failure.



Failure to Announce Nature of Business



Schaeve next argues that the Board violated the Open Meetings Law

by its failure to announce with specificity the nature of the

business to be considered in the closed sessions

held on June 8, 9 and 14, 1982.



Again, while this failure was not in strict compliance with the

Open Meetings Law, we nonetheless agree with the trial court

that it did not rise to the level of a violation.



Section 19.85(1), Stats., provides that a motion to convene in

closed session may not be adopted unless the chief presiding

officer announces to those present the nature of the business

to be considered in closed session. Only business which relates

to matters contained in such an announcement may

be considered during the closed session.



The closed session was held in regard to a subject

clearly exempt from the open session requirement.



As previously noted, when such a matter is considered, the

public's right to full and complete information may not.



be compatible with the conduct of government business.



Furthermore, at the beginning of the June 8, 9 and 14 meetings,

the chief presiding officer referred to the

public notices posted prior to each meeting.



Each public notice indicated that the Board intended to convene

in closed session "to conduct a hearing to consider the possible

discipline of a public employee."



By reference to the public notice, the public was informed

of the nature of the business the Board intended

to consider in closed session.
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As a result, the public received the information to

which it was entitled under the Open Meetings Law.



Here also, the purpose of the statute was not

thwarted by this technical failure.



Failure to Record Individual Votes on Closure Motion



Schaeve also argues that the Board violated the Open Meetings Law

by failing to record the vote of each Board member upon a motion

at each meeting to convene into closed session.



We conclude that the Board properly recorded

the votes and did not violate the statute.



Section 19.85(1), Stats., sets forth the procedure by

which a meeting may be convened in closed session.



A motion to do so is required, and the motion must be carried

by a majority vote "in such manner that the vote of each

member is ascertained and recorded in the minutes." Id.



The vote on the motion to convene into closed session

on June 8, 9 and 14 was unanimous and was so

noted by the chief presiding officer.



We reject Schaeve's argument that under such circumstances

it is necessary to ascertain and record the

individual vote of the Board members.



Noting that a vote is unanimous ascertains and

records the vote of each member.



That is all Section 19.85(1), Stats., requires.



We therefore find no violation of Section 19.85(1).[fn6]
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Right to Notice of a Deliberative Proceeding



Schaeve next argues that she was entitled to actual

notice of the July 14, 1982 meeting.



We disagree and conclude that the Board

complied with the statute.[fn7]



Where a governmental body deliberates concerning a case which was

the subject of any judicial or quasi-judicial trial or hearing

before that governmental body, the meeting is exempted

from the open meetings rule.



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



There is no requirement in Section 19.85(1)(a) involving

deliberative proceedings, as distinguished from Section

19.85(1)(b) involving evidentiary proceedings,

that actual notice be given.



Rather, the public notice provisions of secs. 19.83 and 19.84,

Stats. apply.



Here, a public notice of the July 14 meeting was given,

indicating that after calling the meeting to order,

a motion to convene into closed session under

Section 19.85(1)(a), Stats., would be entertained.



The notice also indicated that the Board intended to reconvene in

open session after its deliberation to announce its decision.



The notice therefore complied with the

requirements of Section 19.84(2), Stats.
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Public Employee's Right to Closure



Finally, Schaeve claims she had a right to demand a closed

session when the Board voted on her dismissal.



We disagree.



All meetings of governmental bodies must be held in open

session unless exempted under Section 19.85, Stats.



These exemptions expressly limit the conduct

of governmental bodies in closed session.



None of the exemptions listed in Section 19.85 expressly permits

the Board to vote on any matter in closed session.



If an exemption does not apply, then the general

rule of holding open sessions applies.



Because none of the exemptions apply to voting on a matter,

we conclude that it was proper for the Board

to vote in open session.



There is no provision under Section 19.85, Stats., which allows

a person who is not a member of the governmental body

to demand or request a closed session.



The legislature has empowered the governmental unit,

not a citizen, to close meetings.



See State ex rel. Bilder v. Township of Delavan,

112 Wis.2d 539, 558, 334 N.W.2d 252, 262 (1983).



We therefore reject Schaeve's argument that she had a right to

demand a closed session when the Board voted on her dismissal.



By the Court.  Judgment affirmed.



[fn1] This appeal is confined to the technical application

      of the Open Meetings Law and does not consider the

      merits of the Board's ultimate decision to

      terminate Schaeve's teaching contract.



[fn2] The district attorney noted that Schaeve was

      well-represented by counsel at all meetings

      and that any technical violations that

      occurred did not have a detrimental

      effect upon her.



      The district attorney also noted that

      Schaeve waited eighteen months to

      lodge her complaint, by which time

      a new school board was elected.



[fn3] We question the circuit court's use of

      summary judgment to adjudicate the

      forfeiture aspects of this case.



      While forfeiture actions are essentially civil,

      see City of Neenah v. Alsteen, 30 Wis.2d 596, 599-600,

      142 N.W.2d 232, 235 (1966), it sometimes can be an

      oversimplification to treat forfeiture actions

      in such a fashion.



      See id. at 598, 142 N.W.2d at 234;

      City of Milwaukee v. Wuky, 26 Wis.2d 555, 562,

                                133 N.W.2d 356, 360 (1965).



      Thus, forfeiture actions require the entry of criminal-type

      pleas and the taking of criminal-type verdicts, (Wuky), and

      application of the middle burden of proof where the

      violation also constitutes a crime.



      City of Madison v. Geier, 27 Wis.2d 687,

                               135 N.W.2d 761 (1965).



      Procedural due process also requires that the affected

      individual be given a meaningful opportunity

      to present his case.



      Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976).



      We question whether such opportunity exists

      in a summary judgment format.



      In any event, Schaeve raises none of these issues

      on appeal and consented to the summary

      judgment procedure in the trial court.



[fn4] Essentially, this "evidentiary hearing"

      was a trial before the court.



[fn5] Schaeve does not challenge the actual closing

      of the session on this subject matter.



[fn6] Schaeve argues that it is impossible to determine

      whether a majority vote is obtained or whether a

      quorum is present unless the vote of each

      Board member is individually recorded.



      We find nothing in the record to suggest that

      a quorum was not present when the motions to

      convene into closed session were voted upon.



      Absent such evidence in the record, we presume

      the proceedings complied with the statute's

      requirement that a majority vote be

      obtained to convene in closed session.



      See In re School District No. 5, 42 Wis.2d 264, 271,

                                      166 N.W.2d 160, 163 (1969);



      Joint School District No. 1 v. Joint County School

      Committee, 26 Wis.2d 580, 583, 133 N.W.2d 317, 319 (1965).



[fn7] The circuit court did not reach the issue of whether a

      meeting held under Section 19.85(1)(a), Stats.,

      requires actual notice.



      Rather, it assumed that actual notice was required

      and found that Schaeve received actual notice

      of the meeting held on July 14.



      This finding is not clearly erroneous.



      See Section 805.17(2), Stats.



      Schaeve's attorney testified that at the conclusion

      of the June 14 meeting, the date on which the Board

      would deliberate and decide on Schaeve's dismissal

      was discussed.



      The attorney indicated that he and Schaeve discussed

      the fact that the Board would meet on July 14 and 15

      for the purpose of deliberating and making a decision.



      The circuit court properly found, therefore, that

      Schaeve received actual notice of the July 14

      meeting and we affirm the finding.
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OTHER DECISIONS AND OPINIONS