STATE EX REL. SCHAEVE v. VAN LARE,
125 Wis.2d 40 (Ct.App. 1985)
370 N.W.2d 271
41 43 45 47 49 51 53
42 44 46 48 50 52 54
STATE of Wisconsin EX REL.
Carol M. SCHAEVE,
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.
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.
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.
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]
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
(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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
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,
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.
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.
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. Ä 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
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.
|OTHER DECISIONS AND OPINIONS