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April 22, 2018

4/6/2018 7:29:00 AM
In Boulder Junction, a coup d'état, by any other name

In Boulder Junction these days, we know the town board has broken the open-meetings law at least once - it was convicted of illegally discussing the town clerk's compensation in closed session and then paying her $8,700 illegally - but, sadly, that is not even the worst offense that trio of would-be monarchs committed.

That town board and its current iteration are guilty of so much more than breaking the open-meetings law, as bad as that is; they are guilty of the much more egregious sin of swearing allegiance to secrecy and stealth itself. They are guilty of trespassing upon the very soul of open government.

To be sure, open-records laws and open-meetings laws are inextricably related to the spirit of open government. It is a truism that democratic government cannot function without transparency and the free flow of information: An informed electorate is essential to responsible democratic decision-making.

Not to mention that, in a democratic society, the people are the bosses, the decision-makers. The information that accrues to government is the proper property of the people, not of government officials, elected or otherwise.

And that's why those laws are made - to ensure the people maintain access to their intellectual and public property.

So for officials to conduct routine government business behind closed doors, to conduct government business by private negotiations and through communications inaccessible to the public, is to turn their backs on the very people they are elected to serve. It is a coup d'état by any other name.

And that is what has happened time and again with the current regime running the Boulder Junction town government.

Besides the open-meetings conviction (one of those supervisors is no longer on the board), unresolved is a Times' complaint that current supervisors committed the variant of an illegal walking quorum by conducting town business by email among themselves, facilitated by town clerk Kendra Moraczewski.

Specifically, the board determined by internal email it wanted nothing to do with an official town committee to study the clerk-treasurer's position, even though the night before a citizen had publicly asked the town to form such a committee.

Rather than debate that request in public at the time the request was made, supervisors decided to debate and decide the matter privately by email among themselves the very next day. So far, the Vilas County district attorney has sat on that complaint, denying the people of Boulder Junction due process.

And now we have the latest example of imperiousness - the refusal to turn over to The Times a repayment plan proposed by the clerk to repay the $8,700 illegally paid to her. Town chairman Dennis Reuss did not provide a specific statutory reason that the document could be withheld, and we don't believe one exists.

Mr. Reuss did moan about negotiations and potential litigation, but there is no basis for that document to be withheld on those grounds. Exemptions for litigation apply only to competitive negotiations - companies and the like bidding for taxpayer dollars - or collective bargaining, and in any event no litigation is on the table and there is nothing to negotiate.

There is nothing to negotiate because everyone - including the Vilas County court - acknowledges the closed session discussion of the payment was illegal, the vote to pay her is null and void, and the money has to be returned.

End of story. The town has every right to demand the money back or proceed to collection; it can be nice and entertain a proposal by Ms. Moraczewski, but that is not a negotiation.

A negotiation between two parties can only take place when both parties have something they can give and take or withhold: Ms. Moraczewski has nothing she can take or withhold. She can only give the town what she owes it.

Her proposal is not a negotiation; it is a plea.

Most important in that regard, Ms. Moraczewski is an elected official, and the compensation of elected officials - and all matters pertaining to that compensation - are not within the town board's purview. Only town electors have jurisdiction over the compensation of elected officials.

As such, all matters pertaining to this pay out and its repayment, as well as the terms and timeline of that repayment, must be held in open session so town electors can participate and play the role they are supposed to play.

And the public has every right to see any documents pertaining to the pay out and its repayment. If the public had been involved from the very beginning, as it should have been, it's likely nobody would be in the situations they are in today.

There is an argument out there that public officials, especially local public officials, do not really intend to break the law but are poorly trained, as are the corporation counsels who are supposed to advise them.

The laws themselves and the exemptions to them are hard to read and open to interpretation, we hear all the time. So in Boulder Junction, could we really expect the board to know it could not convene in closed session to discuss Ms. Moraczewski's compensation? Can we really expect town supervisors to know about walking quorums and email meetings? Can we reasonably expect Mr. Reuss to know the clerk's record is a public document?

When there are so many facets of an open-records request to consider, local officials are bound to slip up from time to time, according to this argument.

Well, that's a poor excuse for lawbreaking, and we reject it.

Yes, legal language can be complex and form many entangling webs. Yes, there can be as many interpretations of the law as there are words. But there is an easy way to navigate the mine fields.

The truth is, fancy interpretations and hairsplitting definitions are for spinmeisters and politicians. For everybody else, just considering a request using the basic and straightforward principles undergirding our open-government laws will lead the way to light.

That public policy, stated in the statutes, is: "(I)t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them."

In pursuing that policy, the state Department of Justice observes, access is presumed.

Thus, when a matter is in a gray area, public policy dictates the presumption should prevail and the meeting be open or the records released. Only when the need for a closed session or denial of records is crystal clear and unlikely to be challenged by any person using a reasonable balancing test should government deny transparency.

In other words, denials of public records and convening into closed sessions should be rare events that can be easily determined even by local officials.

And that's what's so troubling in Boulder Junction. The first impulse of officials there is to presume secrecy instead of openness. Denial and closed government is a pattern, not a rare exception.

When people are caught breaking the laws, they must be held accountable, but it doesn't stop with lawbreaking. Even when they are not breaking the letter of the law, Boulder Junction officials routinely break the spirit of the law.

Theirs is an imperial arrogance that shows disdain for the people who elect them.

In the case at hand, officials chose not to disclose even the existence of a repayment proposal at a town board meeting, even though they had it in hand. And in his letter of denial to The Times, Mr. Reuss opined that the proposal's confidentiality outweighed the "public's need to know how it will be repaid."

Really? On what grounds? To spare a public official, who chose to run for a public office, from public embarrassment? That's hardly a reason.

And, again, there's no reason for any confidentiality. No negotiation exists. The public has a right to know how Ms. Moraczewski intends to repay the money and to determine whether that is acceptable.

Right now the town clerk and the town board are attempting to conduct official public business regarding the repayment of town funds in private, and quietly among themselves. That is not its statutory right and that is not its jurisdiction, just as it was not when the board decided to make the illegal payment.

It was and is a coup d'état by any other name.

And when town officials refused to discuss a request for a study committee but then decided the matter among themselves the next day, that was not a government operating under the official public policy of this state.

That was a coup d'état by any other name.

The question is, with their love of secrecy, what else are they hiding that they could be discussing openly? That question needs to be asked whether or not the matter might break the letter of the law or merely its spirit.

It's important because the answer goes to the heart of motive. The answer shows whether this town board intends to serve the people, or intends to have the people serve them.

Unfortunately, this town board long ago swore allegiance to secrecy and stealth. Long ago this town board trespassed upon the soul of open government.

Long ago this town board wandered off into darkness, and failed to serve its people.

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