May/June 2025 Issue

Also in this issue: Short-Term Rental Regulation – Litigation Uncertainty     |     Court of Appeals Upholds County Board Denial of Rezoning Petition Based on Inconsistency with Town Comprehensive Plan     |     Arrest Record Discrimination Includes Protections for Records of Civil Forfeitures

Oitzinger v. City of Marinette – A Closed Session Cautionary Tale

Jared Walker Smith | 06.05.25

Knowing when and how to properly close a meeting for ​“competitive or bargaining reasons” under Wis. Stat. § 19.85(1)(e) is not always easy. In State ex rel. Oitzinger v. City of Marinette, 2025 WI App 19, 19 N.W.3d 663 (Marinette), the Wisconsin Court of Appeals offers a primer on how to proceed properly when entering closed session in general and when using that exception specifically.

The case involved two separate common council meetings held on successive days to discuss matters related to PFAS contamination in the city’s water supply. On October 6, 2020, the council elected to enter into closed session to discuss an equipment cost donation agreement with a party responsible for the PFAS contamination. On October 7, 2020, the city elected to close the meeting to discuss a consultant’s memo regarding the potential provision of alternative drinking water to the neighboring Town of Peshtigo, whose residents had also been impacted by the PFAS contamination. While both meetings were noticed for closed session, in neither instance was the council provided with any other advance information before entering the closed session.

After the meetings, Alderman Oitzinger alleged that various procedural violations had occurred and filed a complaint with the district attorney before then commencing a lawsuit in circuit court against the city and the common council pursuant to Wis. Stat. § 19.97(4). The circuit court found that the October 6 closed session had been properly held because it involved ongoing negotiations, but it held that the October 7th closed session was illegal because it involved a theoretical future issue that involved no negotiations or bargaining positions in need of protection at the time of the meeting. The decision was appealed and upheld as to the October 7th meeting but reversed as to the October 6th meeting.

The Court of Appeals focused its analysis on the procedural requirements of the competitive bargaining exception under Wis. Stat. § 19.85(1)(e), which provides that closed sessions may be held when “[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session” (the ​“bargaining exemption”, emphasis added by the Court). Marinette at ¶ 24. The Court’s analysis confirms that there are several crucial steps to ensure that a meeting is properly closed and reiterates the limitations on using the bargaining exemption.

First, before entering closed session, the Open Meetings Law (OML) requires that a governing body be sufficiently informed of the reasons necessitating a closed session and establishes a clear record as to why the exemption needs to be invoked. With respect to the October 6th meeting, the Court emphasized that the common council had never seen a draft of the donation agreement, did not engage in any discussion about the agreement in open session, and had no general understanding of the substance of the agreement or status of the negotiations before entering into closed session.

The same was true with the October 7th meeting as the council had never seen the consultant’s memo that was subject of the closed session; did not engage in any discussion before entering into closed session; and was not otherwise provided sufficient information to assess whether a closed session discussion was justified.

Second, a closed session may be held only for those portions of an agenda item that justify an exemption — if the remainder of the discussion of the agenda item could be held in open session, it must be held in open session. The Court found that in both meetings substantive discussions about the nature of the issues could have been held in open session, and the meetings closed once and only if it became clear that aspects of either the donation agreement or water supply alternative would be subject to negotiation.

Third, a closed session may only occur for competitive and bargaining reasons under Wis. Stat. § 19.85(1)(e) when the governing body has ​“no other option” than to enter into closed session and when there are current or certain, and not just hypothetical or possible, negotiations or bargains contemplated. In the Court’s view, this was clearly not the case with either meeting.

With respect to the donation agreement, there was evidence in the record that no further negotiations would occur and that the party with whom negotiations had occurred was fully aware of all the issues surrounding the need for the equipment and the terms of the donation agreement. The mere ​“possibility” that a counteroffer could be made to the responsible party did not justify holding the entire meeting in closed session. Marinette at ¶ 61. Had such a counteroffer been a possibility, the proper procedure would have been for the mayor to provide notice that a possible closed session could become warranted following open session discussion of the negotiated agreement terms.

With respect to the October 7th meeting, the Court acknowledged that there were numerous circumstances surrounding the possibility of providing an alternative water supply to Peshtigo, but the Court found that these were speculative at best — there was no request on the table to negotiate the provision of water to the town and the consultant’s review of these alternatives ​“was never meant to facilitate the Council making any decisions about providing water to Peshtigo.” Id., ¶ 67. The Court reasoned that the ​“public deserved to know” the consultant’s conclusions that the city had paid for. Id., ¶ 70.

In finding that hypothetical negotiations were not a reason for a closed session under the bargaining exemption, the Court compared the bargaining exemption to the language in Wis. Stat. § 19.85(1)(g) that allows conferring with legal counsel with respect to litigation that it is or is likely to become involved in. Id., ¶ 69. The Court reasoned that if hypothetical negotiations were contemplated by the OML, the legislature would have included similar language— but they did not. Id.

Finally, the Court emphasized that the city was not without options. It could have noticed a possible closed session following open session presentation of the consultant’s report. Had the council decided to negotiate with Peshtigo following discussion of the consultant’s report, it could have gone into closed session (if properly noticed). At that point, “[i]t would have been appropriate to use closed sessions to protect those competitive or bargaining interests by developing its negotiation strategy — including acceptable terms, limits, or contingencies — secretly.” Id., ¶ 71.

The Court also noted that while the city had attempted to justify the closed session post hoc by saying that special counsel had discussed some legal liabilities related to the various scenarios, the city had failed to notice the closed session under Wis. Stat. § 19.85(1)(g) — a reminder to always notice each possible exemption that applies to a matter to be discussed in closed session.

Although State ex rel. Oitzinger v. City of Marinette does not blaze any significant new ground in the OML jurisprudence, it stands as a cautionary tale that while a closed session may be convenient or desired, it is not always legally permissible. Even legally permissible closed sessions should be properly convened and limited in scope, and members of public bodies should be sufficiently informed of the need for a closed session prior to being asked to vote to adjourn to one.