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Walking quorum decision to be appealed

April 15, 2020 by Richard Moore

The general manager of The Lakeland Times and Northwoods River News said this week she will appeal a decision by an Oneida County circuit court judge to dismiss an open-meetings complaint filed against Rhinelander mayor Chris Frederickson and four Rhinelander city council members.

In the complaint, general manager Heather Holmes — and The Lakeland Times in a prior complaint — contended that the mayor and council members conducted a series of personal communications, email messages, in-person meetings, and communications leading effectively to the writing and signing of a letter of reprimand to city council president George Kirby, all of which amounted to an illegal walking quorum concerning governmental business without public notice.

In January, circuit judge Michael Bloom disagreed, saying Holmes had failed to prove that the contents of the letter referred to “governmental business” or that the letter manifested an agreement among the defendants to take some uniform course of action relative to a proposition that would require a formal vote by the common council, all of which he said was required to prove a walking quorum.

“The subject letter does not discuss or allude to any potential action that would require the vote of the common council to implement,” Bloom wrote in his decision.

The lawsuit stemmed from a January 30 letter signed by Frederickson and council members Andrew Larson, David Holt, Steve Sauer, and Ryan Rossing and sent to Kirby. In the letter, the officials questioned Kirby’s leadership, suggesting that he resign “given recent events” and promising a forthcoming conversation that “may be uncomfortable.”

The officials also concluded that Kirby’s conduct at a January council meeting did “not reflect the level of leadership” they were looking for from a seasoned, experienced elected official and suggested that he resign “given recent events.”

Holmes filed the complaint in circuit court after Oneida County district attorney Michael Schiek declined to prosecute a similar complaint by Lakeland Times and Northwoods River News publisher Gregg Walker. Holmes first resubmitted the allegation to Schiek as a verified, or notarized, complaint. 

After the district attorney declined for a second time to prosecute, the lawsuit was filed.

This week, after the appeal was announced, Walker said Bloom’s decision could not be allowed to stand because it would rewrite the state’s open meetings law and destroy a large part of its foundation.

“If allowed to stand, judge Bloom’s decision significantly narrows the scope of the law,” Walker said. “It legitimizes walking quorums, encourages officials to avoid putting controversial topics on agendas for public discussion, and expands what officials can do when quorums are actually gathered in one place.”

Walker said the decision would enable and tempt government officials across the state to use informal communications and sub-quorum-sized meetings to engage in private government actions outside the view of the public.

“Much of what was illegal before is legal now, so long as this decision stands,” he said. “Judge Bloom has effectively privatized much of the public’s business.”


The reasons for appeal

In his decision, Bloom, citing two court decisions known as Conta and Showers, determined that a walking quorum can occur only if it involves a proposition requiring a formal vote before a governmental body, and that the letter the council members sent contemplated no such proposal.

Case law has established two necessary elements for an open meetings violation — there must be a purpose to engage in governmental business, be it discussion, decision, or information gathering; and the number of members present must be sufficient to determine the parent body’s course of action regarding the proposal discussed.

The standards are even higher for a walking quorum violation, that is, proof is required that a sufficient number of members reached an explicit or tacit agreement to act uniformly relative to some form of “governmental business.”

In the decision, Bloom quoted Showers to make his point: “When a group of governmental officials gather to engage in formal or informal government business and that group has the potential to determine the outcome of the proposal or proposals being discussed, the public, absent an exception found within the law, has the right to know — fully — the deliberations of that group.” 

In Bloom’s view, that language requires that the proposals being discussed require a formal vote by the governing body.

“Implicit in this reasoning is that the discussions or activity at an alleged ‘meeting’ or ‘series of gatherings’ — a ‘walking quorum’ — must involve some proposition that will ultimately require a formal vote of the governmental body in order to implement,” Bloom wrote. “The sufficient numbers prong of the Showers test and the ‘walking quorum’ test both require that the number of members present at the meeting or involved in the series of gatherings be sufficient to determine the governmental body’s course of action on the subject proposition.”

Walker and Holmes disagree, saying the language Bloom quotes directly contradicts his logic.

That is to say, the Showers decision expressly states that a violation can occur when a majority of the body gathers to engage in either “formal or informal government business” without proper public notice. That begs a question, they say: What can possibly constitute illegal informal government business if the government business being discussed must be formal to be illegal?

Indeed, in Bloom’s decision, informal government business doesn’t exist, that is to say, Bloom believes that by definition governmental business involves formality, as he makes clear in laying out the questions of the case: “The questions are: 1) whether the suggestion implicates “governmental business” (i.e. some proposition requiring a formal vote by the Common Council to implement); and 2) whether the suggestion manifests an agreement among the defendants to take some uniform course of action relative to such business.”

Bloom’s belief that a formal vote is an essential element of governmental business would also seem to fly in the face of language in the Showers decision that “there must be a purpose to engage in governmental business, be it discussion, decision or information gathering.” 

That language would seem to suggest that mere discussion of governmental matters constitutes governmental business, in addition to formal voting and making a “decision.” But in his ruling the judge tried to square that apparent inconsistency by claiming that mere discussion of a government matter only becomes governmental business in certain situations, that is, in situations requiring a formal vote.

“However, Wisconsin’s Open Meetings Law does not address officials convening to discuss governmental ‘topics,’” Bloom wrote. “Wisconsin’s Open Meetings Law does not address officials convening to discuss matters that may be of ‘public and governmental interest.’ Wisconsin’s Open Meetings Law addresses officials convening to discuss governmental business, consistent with the definition of ‘meeting’ set forth in sec. 19.82(2), Stats. As will be discussed more thoroughly in the next section of this decision, nothing in the subject letter indicates an intention on the part of the signatories to take any formal action ….”

Simply put, in Bloom’s view, government officials can gather — either as an outright quorum or in a series of sub-quorum meetings — to discuss any government topic or any matter of public and government interest so long as there is no intention to pursue a formal vote on those matters.

But, Walker and Holmes contend, Bloom reads more into the Showers language than is there because Showers never explicitly says that proposals discussed when officials gather must involve a formal vote. Indeed, they assert, the logic of the language suggests that when a group of officials gathers to even informally discuss government topics within the governing body’s realm of jurisdiction, as well as options for action, “the public, absent an exception found within the law has the right to know — fully — the deliberations of that group.”

Bloom’s view would seem to suggest that majorities or even entire governing bodies could act in private so long as no formal vote was being considered. For example, could a majority of the Oneida County board convene to discuss the future of the highway department — including the possibility of a new facility — so long as no formal vote was proposed, or no specific proposal discussed? Could an entire town board privately compose, sign, and send a letter to Congress, affixing their official titles and districts next to their names — as those signing the Kirby letter did — opposing wolf delisting or the impeachment of the president simply because the members decided to do so without taking the matter to a vote as an official town policy?

According to Walker and Holmes, the appeal will argue that the public has the right to know about such deliberations, and the public has the right to know about officially signed letters staking our positions on topics related to the governing body’s jurisdiction, whether it is about highway departments, or wolf management, or about the job evaluation of a council president by a majority of the city council and its mayor.

Otherwise, they say, government officials at all levels will be incentivized to not bring important public matters before governing bodies for a vote because, if they withhold doing so, they can gather in private to discuss those matters and even take action. Such cannot possibly be the intent of the open meetings law, Walker and Holmes contend.


Conta

In his decision, Bloom does find language in another court case, known as Conta, that refers to the need for a formal vote by a governing body to trigger a violation.

Indeed, Bloom targeted the plaintiff’s own language in her brief opposing the defendants’ motion to dismiss when the brief quoted Conta as follows: “[q]uorum gatherings should be presumed to be in violation of the law, due to a quorum’s ability to thereafter call, compose and control by vote [emphasis added] a formal meeting of a governmental body.”

To Bloom, the words “by vote” are critical.

“This necessarily requires that the subject of the alleged meeting or series of discussions involve some form of proposed action that would require a formal vote of the governmental body in order to implement,” Bloom wrote.

However, in the newspapers’ view, Bloom omits vital information from his reading of the Conta case that renders his viewpoint null and void. While Conta does say that “the appearance of a quorum could be avoided by separate meetings of two or more groups, each less than quorum size, who agree through mutual representatives to act and vote uniformly,” it also says that the appearance of a quorum could be avoided in another, less formal way.

According to Conta, the deception could also be orchestrated “by a decision by a group of less than quorum size which has the tacit agreement and acquiescence of other members sufficient to reach a quorum.”

In that independent clause there is no mention of a vote, only of a decision by a small group (such as two council members and the mayor discussing and editing and signing a letter to Kirby) who then attained the tacit agreement and acquiescence of other members (two other council members acquiescing in signing the letter) sufficient to reach a quorum.

“Such elaborate arrangements, if factually discovered, are an available target for the prosecutor under the simple quorum rule,” the Conta decision states.

Moreover, Walker and Holmes argue, Bloom’s decision narrowing the scope of “governmental business” only to those proposals requiring a formal vote conflicts with the state Department of Justice’s view of public business, which in its training sessions on transparency defines governmental business in much broader terms.

“‘Conducting governmental business’ is an expansive concept that is not limited to formal or final decision making,” the DOJ training states, expressly contradicting Bloom. “‘Conducting governmental business’ includes: preliminary decisions, discussion, information gathering.”

Indeed, in pursuing the appeal, Walker believes Bloom is significantly narrowing the scope of the open meetings law contrary to the intent of the Legislature.

“Until now, as DOJ training makes clear, governmental business applied to informal actions and information gatherings and discussion of any government matter within the jurisdiction of a governing body, not just those matters for which a formal vote is pending,” he said.

Walker cites the DOJ open meetings compliance manual, which interprets Showers’s definition of governmental business as “any formal or informal action, including discussion, decision or information gathering, on matters within the governmental body’s realm of authority.”

In other words, Walker said, discussion and information gathering and other actions don’t become government business only when they are actually put on an agenda for discussion and possible action but when they involve any matter that is within a governing body’s realm of jurisdiction — both broad matters that might conceivably come before the body for discussion and action in more specific form and those that should go before the body for discussion and action.

Walker said that was exactly the situation in the walking quorum case — a letter by the council majority and the mayor effectively censuring Kirby’s conduct and suggesting he resign should have come before the board, he said.

“The public had a right to know that a council majority and the mayor was condemning the council president and effectively calling for his resignation,” Walker said. “That they decided not to bring their conclusions to the board in public session should not and cannot relieve them of their legal responsibility to do so.”

Such a decision rewrites the law, Walker said.

“Prior to judge Bloom’s decision, such actions and even informal discussions were considered the people’s business, as they should be,” he said. “Now, unless an actual vote is looming, judge Bloom has severed all that from the open meetings requirements. That cannot possibly comport with the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government.”


Acting uniformly

In addition, Walker took issue with Bloom’s conclusion that the letter did not represent any agreement by the defendants to take any proposed action, or did anything more than ask questions.

“The letter does not specifically request or demand that Kirby do anything,” Bloom wrote. “The letter does not threaten Kirby. The letter does not indicate that, unless Kirby does some act desired by the defendants, the defendants will take some stated course of action against Kirby. The letter merely asks Kirby to ponder his role as council president in light of the events at the January 28 meeting. In the court’s judgment, provocative though it may be, the suggestion in the letter that Kirby ponder ‘not continuing’ as council president does not implicate ‘governmental business’ insofar as it does not get at any proposition that would require a formal vote by the common council to implement.”

Bloom also noted that the words ‘reprimand and ‘censure’ never appear in the letter.

But Walker said Bloom’s view is flawed because the letter itself was the uniform action taken.

“The decision implicating government business was the decision to compose, sign, and send the letter in the first place, with all the defendants identifying themselves officially by signing the letter as council members with their district numbers,” Walker said.

Walker also said the letter did far more than ask questions, as Bloom contended, but rendered a judgment of Kirby’s performance as council president, writing that Kirby’s conduct “does not reflect the level of leadership we are looking for from a seasoned, experienced elected official, such as yourself.”

“The word ‘reprimand’ does not have to be used for there to be a reprimand, just as one would not have to use the word ‘praise’ to actually praise someone’s work by calling it commendable,” he said. “Call it a reprimand, censure, or job evaluation, a majority of the council is rebuking the council president, and they go on to suggest he resign. That’s a discussion that the public has a right to be involved in. It’s a no-brainer.”

Again, Walker said, it was a letter containing a discussion that should have been on an agenda, as should have been the decision to send the letter.

“The common council has the ultimate authority over the council president,” he said. “Thus, the public is entitled to discussions about matters involving their judgment of the council president’s conduct. Yet, the defendants admittedly decided to act in private to avoid that public discussion.” 

And that’s an absurd outcome, Walker said.

“According to the judge, they can’t legally pre-determine in private the outcome of a public vote, but if they just refuse to schedule a public vote, they can indeed determine that very same action in private,” he said. “Somehow, in judge Bloom’s mind, they can avoid breaking the open meetings law by breaking the open meetings law.”

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.


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