Two current members and one former member of the Boulder Junction Town Board are asking the Vilas County circuit court to dismiss charges that they violated the state's open-meetings law in September 2016.
In May, Vilas County district attorney Martha Milanowski filed the complaint against town chairman Dennis Reuss, supervisor Denny McGann, and former supervisor Dennis Duke, who served on the board at the time of the alleged infraction. Duke's term has since ended.
The town board was also named collectively as an entity in the complaint.
On July 3, attorney Gregory Harrold filed a basic and skeletal two-page answer to the complaint, making some counter allegations and asking for the charges to be dismissed.
Each of the three defendants has retained Harrold as their individual attorney in the case; Steve Garbowicz is the attorney of record for the town board as an entity.
Milanowski filed the complaint for an alleged infraction related to a Sept. 8, 2016, closed session to discuss "employee compensation," after which they approved an $8,700 payout to town clerk Kendra Moraczewski, "per policy," according to the meeting minutes.
The Lakeland Times filed a complaint with Milanowski's office, asserting that the payout did not follow town policy and the closed session during which the town board discussed the payout appeared to have been illegal, not least because the open-meetings law exemption for discussing public-employee compensation does not include elected officials.
In her complaint, Milanowski is asking the court for declaratory relief by stating that the town violated the open-meetings law. She is also asking for public disclosure of the discussion and decision made in closed session, that the court void any actions taken by the board in the closed session, and each member of the board pay forfeitures for the violation.
According to the complaint, the closed session went on for more than two hours, finally adjourning at 12:25 p.m.
"Upon returning to open session, a motion was made by McGann and seconded by Duke, 'to compensate clerk/treasurer for paid time off (sick/vacation) days earned but not used per policy,'" the complaint states, quoting the meeting minutes. "Said minutes from the Sept. 8, 2016, meeting state that a voice vote was conducted and that the motion was unanimously carried."
The complaint observes that the town's clerk/treasurer position is an elected one and the nature of compensation for town elected officials is governed by state statutes. The compensation can be by annual salary or by per diem payments, or a combination of the two.
In addition, the complaint states, compensation of elective town offices must be established prior to the latest date and time for filing nomination papers for the office, and no change may then be made in that compensation as it applies to the current term of office.
What's more, the complaint states, the position of town clerk/treasurer does not qualify as a "public employee over which the governmental body has jurisdiction," the statutory exemption the town board cited as the reason it could convene a closed session.
And all that adds up to a significant violation, the complaint alleges.
While Harrold's initial answer to the charges does not provide much detail on the counter-allegations, the defendants appear to be contesting the central allegation of the open-meetings infraction; namely, that, as an elected position, the town clerk/treasurer does not qualify as "a public employee over which the governmental body has jurisdiction," per state statute 19.85(1), which grants closed sessions for discussing the compensation of those employees.
For example, Milanowski's complaint refers to town ordinance #2-1996 and says it states in section 5 "that the town clerk/treasurer position is an elected position," but Harrold contends that Milanowski cherry-picked the ordinance's language.
"Answering paragraph 13, affirmatively allege that the Ordinance speaks for itself and that the Ordinance must be read in its entire form rather than selectively referring to parts thereof," the answer states. "Deny that the language of the Ordinance in Section 5 states 'that the town clerk/treasurer position is an elected position.'"
Here's what the ordinance actually states: "In addition to statutory duties and obligations for the town clerk/treasurer, this ordinance shall further define the general rules and requirements of the Town of Boulder Junction for that position."
After a paragraph about an allowance for a deputy clerk and provisions for disbursements, bookkeeping, audits, and other related matters, the ordinance then addressed the elected nature of the job.
"It is understood that, while this position is an elected one, the duties that include office administration and service to the public are ones that must be coordinated and communicated with the town board's involvement," the ordinance states.
Such duties of a town clerk are anticipated by the statutes, however, which make it a clerk's statutory duty to "(p)erform all other duties required by law, ordinance or lawful direction of the town meeting or town board."
Harrold's answer also takes issue with Milanowski's claim that state statute 60.32(2) exclusively governs the compensation of elective town offices. Harrold maintains that the "issue of compensation for elective town offices is governed by several statutes," not limited to that cited by Milanowski.
Harrold does not specifically mention those other statutes; however, other statutes do mention the compensation of elective town offices. For example, the town board may set the compensation of elected officers, but only if delegated the authority to do so by electors at the annual town meeting.
In addition, an elected town officer who is a town clerk, a town treasurer, or an officer serving in a combined office of town clerk and town treasurer may also serve as a town employee and may be paid an hourly wage in addition to elective compensation, if the amount totals no more than $15,000 each year.
Again, though, that compensation must be set by electors at the town meeting, or the town meeting must have formally delegated that authority to the town board.
Compensation of town officers is mentioned in several other places in the statutes.
Whatever the actual defense and outcome of the open meetings complaint - if found guilty, a judge could void all action taken related to the closed session, or not - there remains the question of the payout's legitimacy in the first place.
Reuss acknowledged at the town's April annual meeting that the $8,700 payout to town clerk Kendra Moraczewski, ostensibly for accrued sick and vacation days, was improper. He said the money would be repaid.
He also acknowledged that no budget amendment had been made by the board to allow for the payout, but said no amendment had been necessary because it was going to be paid back.
As Vilas County sheriff Joe Fath observed in a March 3 incident report on the complaint filed by The Times, neither the town clerk nor another employee receiving a smaller payment met the town policy's criteria for a payout.
"According to the town code, these employees were entitled to no payout, raising the serious issue of whether the town misallocated tax dollars in improper compensation," Fath wrote.
For one thing, Fath observed, the town clerk was paid for accumulated sick time, a payout the town allows only after an employee has accumulated sick time exceeding 60 days.
"The clerk had only accumulated 58 days, equal to the $8,700 payout, based on the hourly rate for the clerk," he wrote.
For another thing, he continued, the payout can be only for days in excess of 60 days once the 60 days have been accumulated, per the plain language of the town code.
"To be paid for 58 days of accumulated sick time, the clerk would have had to accumulate 118 sick days," Fath wrote. "The clerk had only accumulated 41 days."
Thus, he concluded, under the town code, the clerk was not eligible to receive any payout for sick time, and it was the same thing for the other employee.
Richard Moore is the author of The New Bossism of the American Left and can be reached at www.rmmoore1.com.