Wisconsin Public Records & Open Meetings Law, Part 4

In October of 2023, , Kirk Strang spoke at the Wisconsin Technical College System’s Legal Issues Conference. The topics he focused on were public records law and open meetings law.

In this series, we’ve shared the details of Kirk’s presentation in an effort to keep Wisconsin school districts up to date on best practices regarding both public records law and open meetings law.

Here’s an overview of the series:

• 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
• Part 3 — Open Meetings Law
  • The basic rules of compliance
• Part 4 — Open Meetings Law
  • Open meetings law myths

Let’s begin our final installment of the series …

Part 4 — Open Meetings Law

OPEN MEETINGS LAW MYTHS

1. “We need to get the meeting notice to the newspaper before their deadline date.”

   There is no legal requirement that meeting notices be published in a local newspaper, even if it is the official newspaper.

   Tradition, good press relations, and effective communications with the public certainly support trying to get notices published in the local newspaper. However, that is a policy issue, not a requirement of law for regular board meetings.

   When publishing notices in the newspaper, make sure to use a disclaimer to advise the public that a final notice for this meeting will be posted no less than 24 hours prior to the meeting or no less than 2 hours prior to the meeting where for good cause such notice is impossible or impractical.

2. “We have to come back into open session to vote, because we aren’t allowed to vote in closed session under the law.”

   As a general rule, a board can vote in closed session on matters that are appropriate and properly noticed for a closed session, except where a statute specifically requires an open session vote (or — in some instances — where it is tactically to the board’s advantage to vote in open session).

   A board should satisfy the following requirements for voting in closed session:

   1. The subject being considered must be appropriate for a closed session.
   2. A proper closed session notice must be provided to the public.
   3. A vote taken in closed session still must be recorded in the closed session minutes.

3. “A board is required to ‘report out’ at the conclusion of a closed session.”

   Any number of governmental bodies believe that, at the end of a closed session, they must return to open session and “report out” on the proceedings that were conducted in closed session.

   Boards observing this custom are often unclear on how much detail they should provide about their closed session once they are “reporting out” in open session. Inevitably, this practice creates some tension between the supposed “reporting out” requirement and the reason for discussing the matter at hand in closed session in the first place, and can actually compromise the closed session by creating an argument that closed session minutes have to be disclosed because of the information disclosed through “reporting out.”

   In any event, these dilemmas are avoidable: reporting out is not a requirement of law.

4. “It doesn’t have to be included in the agenda if it’s not an action item.”

   All matters that will come before the board must be included in the notice (i.e., put on the “agenda”). The public is entitled to know what the board is going to discuss, not just what the board will vote on.

   The goals of the open meetings law include providing access to the public and ensuring that constituents can watch their elected officials at work. Discussion and debate — even without formal action — is central to governmental functions and decision making.

5. “To post notice of a subject for closed session, you have to cite the correct statutory subsection and provide the language of the statute.”

   This might be one of the most common errors committed by public officials. A notice can include the language of the statute but doing so does not meet any requirements of the open meetings law; instead, the language that appears in the notice should identify the subject matter and what will be discussed. The notice should also make reference to the correct statutory subsection.

   In sum, the notice must include the correct citation and a reasonable description of what will be discussed but reiterating the language of the statute does not add anything to our compliance initiatives.

6. “If we made errors in properly noticing something for closed session, we have to take the matter up in open session.”

   Failing to properly notice something for a closed session does not give a governmental body the right to treat that meeting’s corresponding open session as the default meeting, where anything that was not properly noticed for closed will be addressed in open. Open session notices also have to accurately notify the public of the subjects that will be discussed.

   If it isn’t properly noticed under the open meetings law, the governmental body may not be able to discuss it (until it meets the notice requirement).

This brings us to the close of our series on public records and open meetings law. We hope you found the information we presented helpful!