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July/August 2017 Issue

Also in this issue: Wisconsin Supreme Court Expands Fair Dealership Law to Municipalities     |     Conditional Use Zoning Law in Flux     |     Limitations on Interior Property Inspections for Property Tax Assessments     |     Supreme Court Decides Wisconsin Regulatory Takings Case     |     County’s Courthouse Access Policy Violated First Amendment

Wisconsin Supreme Court Addresses Open Meetings Law And Committees

On June 29, 2017, the Wisconsin Supreme Court decided that a school district’s Communication Arts I Review Committee (Review Committee) was a governmental body subject to Wisconsin’s Open Meetings Law. The Court specifically held that “[w]here a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are ‘created by … rule’ under [Wis. Stat.] § 19.82(1), and the open meetings law applies to them.” (Krueger v. Appleton Area School District Board of Education, 2017 WI 70).

While this case dealt with a school district, the decision is applicable to all units of government that may have committees or may use committees, subcommittees, or other groups in a similar manner or under similar authority.

There has always existed a tension between the stated policy in the Open Meetings Law that “the public is entitled to the fullest and most complete information regarding the affairs of government” and the countervailing concern that the law must be construed “as is compatible with the conduct of governmental business.” The court noted that the “mere inconvenience” of complying with the Open Meetings Law does not exempt a body from the law.

This is the first Supreme Court decision addressing the issue of when a “committee” meets the definition of a “governmental body” under the Open Meetings Law. The decision focused heavily on the definition of a “governmental body.”

Governmental Body Two-Part Test: When deciding if an entity is a governmental body one should look at: (1) The form it takes; and (2) The source of its existence in a constitution, statute, ordinance, rule, or order. Whether an entity is a “governmental body” is not determined by examining the purpose behind its formation or by the subject matter of its meetings.

Definition Of “Rule”: For purposes of the Open Meetings Law, a “rule” includes any authoritative, prescribed direction for conduct, such as the regulations governing procedure in a governmental body. The recognition by the Supreme Court that the term “rule” should be given a common, ordinary, and accepted meaning undoubtedly encompasses entities created by board policy or other board action, including board approval of entities presented to it via handbooks.

The Essential Elements That An Entity Must Take In Order To Be A Governmental Body Are: (1) A defined membership; and (2) Collective responsibilities, authority, power, and duties vested in the body as a whole, distinct from the individual members.

In this case, the fact the Review Committee had a defined membership was critical because without a defined membership it would not be possible to determine whether a sufficient number of members were assembled to constitute a “meeting” of the body and a necessary characteristic of a governmental body is that collective power has been conferred upon it. The Handbook did not name the members of the Review Committee, but established the framework under which the administration selected regular members for the specific committee.

Ad Hoc Gatherings Not Covered: The Court noted a creation of a governmental body is not triggered merely by “any deliberate meetings involving governmental business between two or more officials.” Loosely organized, ad hoc gatherings of governmental employees, without more, do not constitute governmental bodies. For example, the Court noted a meeting between the head of a department and the entire staff of a department was not covered by the Open Meetings Law because the staff did not constitute a body. Rather, an entity must exist that has the power to take collective action that the members could not take individually.

Distinction: The fact that an entity calls itself a committee, keeps minutes, records attendance, and records votes is informative with respect to the determination of a governmental body, but not dispositive.

Distinction In This Case And This Fact Setting: It was the Board’s Rule and Board-approved Handbook that provided the legal authority for the Review Committee to exist in this case and set forth the Review Committee’s duties and functions, not a directive from either of the administrators who coordinated the formation of the Review Committee. The Board had passed a specific policy dealing with curriculum review committees. The Review Committee in this case used a “modified process” where it followed most, but not all, of the steps and procedures laid out in the Board Policy and Handbook. The Court held that, despite these modifications, in reality, the Review Committee derived its authority and functions from the Board Rule and Handbook and, because of that, it constituted a governmental body.

Reminder: The Open Meetings Law applies to every “meeting” of a “governmental body.” Wis. Stat. § 19.83. A “meeting” is defined as the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power, or duties delegated to or vested in the body. Wis. Stat., § 19.82(2). The Wisconsin Supreme Court has held that the definition of a “meeting” applies whenever a convening of members of a governmental body satisfies two requirements: (1) There is a purpose to engage in governmental business; and (2) the number of members present is sufficient to determine the governmental body’s course of action. State ex. rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77 (1987).

Takeaways: While this decision does not provide all the guidance many had hoped for, it does delineate certain principles municipal entities should follow. Municipal entities may wish to re-evaluate their use of committees based on whether they constitute governmental bodies. Not every committee or group of employees will be a governmental body subject to the Open Meetings Law. However, if a committee has a defined membership and is charged with collective responsibilities, authority, power, and duties (by statute, rule, etc.), it is likely to be a governmental body, and the requirements of the Open Meetings Law should be followed. This includes giving proper notice of where and when a committee is gathering, recordkeeping, public access, and identifying any closed session issues that might be appropriate. Committees or its members may not be as familiar with meeting structure and formalities. Municipal entities may wish to provide more formal guidance for committees so that they are fully compliant with the Open Meetings Law.

— Douglas E. Witte

This newsletter is published and distributed for informational pur- poses only. It does not offer legal advice with respect to particular situations, and does not purport to be a complete treatment of the legal issues surrounding any topic. Because your situation may differ from those described in this Newsletter, you should not rely solely on this information in making legal decisions.

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