Last October, Kirk Strang spoke at the Wisconsin Technical College System’s Legal Issues Conference on the topics of public records law and open meetings law.
We’re sharing the details of Kirk’s presentation here to help keep Wisconsin school districts up to date on best practices concerning public records and open meetings law.
Thus far in the series we’ve covered the following …
- Part 1 — Public Records Law
- Mandatory posting requirement
- What is a “record?”
- What to do when you receive a records request
- Part 2 — Public Records Law
- Evaluating the records request
- Responding to a public records request
- Communicating the decision
In the final two installments we’ll be covering open meetings law with a focus on:
- Part 3 — The basic rules of compliance
- Part 4 — Open meetings law myths
Part 3 — Open Meetings Law
THE BASIC RULES OF COMPLIANCE
- Meetings of a governmental body must be preceded by public notice.
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24 Hours’ Notice. Give 24 hours’ notice, generally. Give no less than 2 hours’ notice if shorter notice is necessary to avoid prejudice to the college.
The language of the statute requires 24 hours’ notice “unless for good cause such notice is impossible or impractical.” This is and should be treated as more demanding than simply demonstrating that the 24 hours’ notice was impractical; it requires some proof of emergency or exigent circumstances, or that dire consequences would follow from having to meet the 24 hours’ notice requirement.
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Who Gets Notice. Wisconsin statute does not require notice to be posted in a newspaper. Notice must be made to the public using only one of the following methods:
- Posting a notice in at least 3 public places likely to give notice to persons affected;
- Posting a notice in at least one public place likely to give notice to persons affected and placing a notice electronically on the governmental body's website; or
- By paid publication in a news medium likely to give notice to persons affected.
Wis. Stat. § 19.84(1)(b).
- Content of notice. “Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.”
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Subject Matter Requirement.
Each item on the agenda must be identified and described in clear language, such that a reasonable person would be able to tell what the board is going to be discussing by reading the notice.
- This is true regardless of whether an item is scheduled for action or not, or whether the matter will be discussed in open or closed session.
- The subject of the discussion has to be clear, and the specific statutory subsection that justifies closed session discussion must be identified in the notice.
- Reiteration of statutory language is not required. Stating the applicable section and subsections of the statute that apply is required.
- Boilerplate notices that do not provide specific subject matter are illegal.
In determining whether a notice meets the specificity requirements of the Open Meeting Law, the following factors should be considered:
- The burden of providing more detailed notice,
- Whether the subject is of particular public interest, and
- Whether it involves non-routine action that the public would be unlikely to anticipate.
State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804.
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Closed Session Notice.
An appropriate public notice for closed session will provide an accurate citation to the applicable statutory subsection and a description of the subject matter that will be discussed.
The law allows for a measure of generality in closed session notices to preserve the confidentiality of the closed session, but the notice still must be specific enough that a reasonable person, reading the notice, understands what subject will be discussed.
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Minutes.
Both open and closed session minutes should record the actions taken by the board. Thus, the minutes will include the motions and votes on matters that come before the board. Additional information is not necessary and, in my view, isn't appropriate.
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Generally, discussion must be held — and action must be taken — in open session. In addition, all meetings at least begin in open session.
Wis. Stat. § 19.83(1) provides:
- Every meeting of a governmental body shall be preceded by public notice as provided in s. 19.84, and shall be held in open session. At any meeting of a governmental body, all discussion shall be held and all action of any kind, formal or informal, shall be initiated, deliberated upon and acted upon only in open session except as provided in s. 19.85.
- Wis. Stat. § 19.85(1)(a) - (g) provides the general purposes for which a closed session may be held:
- Sub. (c) relates to employment, but is not self explanatory. The board still must identify the specific subject matter of the meeting.
- Sub. (e) relates to competitive or bargaining reasons, and can apply to any number of situations where negotiation is involved.
- Sub. (g) only relates to situations where an attorney is giving oral or written legal advice about litigation the college is, or is likely to become, involved in. There are other subsections that justify speaking confidentially with your attorney.
- Sub. (b) applies to employee termination when there will be an “… evidentiary hearing or meeting …”. That provision also requires that the college advise an employee of their right to have the hearing or meeting held in open session. I tend to give this notice: after talking with the employee or their representative, they usually want a closed session anyway so we can use the notice to document that the option was provided, as required.
- Sub. (d) involves considering “probation or parole or considering strategy for crime prevention and detection.” However, the Attorney General’s Office has advised that this provision can generally be cited for safety planning that requires confidentiality, presumably because so many feared events are crimes as well.
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Board committees.
Any “formally constituted subunit” of a governmental body is itself a governmental body, as defined in Wis. Stat. § 19.82(1). As such, a meeting of the subunit must comply with the Open Meetings Law.
A board committee may be classified as a “subunit” if the committee is “a separate, smaller body created by [the board] and composed exclusively of members of the [board].” The committee does not have to comprise a quorum of the board.
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Social or Chance Gatherings.
A social or chance gathering, which is not intended to circumvent the Open Meetings Law, is not considered a “meeting.”
For example, a campus back-to-school breakfast may be classified as a social gathering. As such, the breakfast is not subject to the notice requirements of the Open Meetings Law. However, the board has the burden to prove that the gathering is a “social or chance gathering,” not a “meeting” under the Open Meetings Law.
Notice of a social or chance gathering is not required. However, there is an advantage to providing notice.
A board may wish to share with the community that a quorum of the board will be present at a social gathering. The notice should advise that the gathering is not a board meeting, and no board matters will be discussed or voted upon.
The notice does not need to meet the typical meeting notice requirements, strictly speaking, when the college is confident that the posting is to provide information but is not necessary to comply with the statute.
This brings us to the end of Part 3 of our series. In Part 4 we’ll continue our discussion on open meetings law, with a focus on open meetings law myths.