Guest Column: A case study in open meetings law

in Opinion

By Keene Winters

Legal technicalities can make people’s eyes glaze-over. Fortunately, this is about legal common sense. It is my belief that anyone who reads this piece will share my opinion that the Wausau City Council violated the Wisconsin Open Meetings Law in its May 8th meeting notice.

Keene Winters served two terms on the Wausau City Council from April 2012 to April 2016. (Photo credit: Life Touch)

Wisconsin requires that all governmental business be properly noticed and that meetings be open to the public. The latter has a handful of narrowly defined exemptions while the former does not. Open meetings are an important check and balance on the activities of governmental bodies. It gives the public the right to know what is going on, the option to participate and the opportunity to challenge false or misleading information being used to drive governmental decisions. Open meetings keep people honest.

One of the exemptions that allows a governmental body to close a meeting is for consultation with an attorney about prospective or actual litigation. The reason for the exemption is that if a governmental body had to plan a legal strategy or weigh its options in an open meeting, the opposing party could listen in. That would put the taxpayers’ representatives at a disadvantage in pursuing or defending against a legal action. Consequently, the public has a greater interest in having legal strategy meetings closed.

In sum, the rules are reasonably straightforward. The presumption is that all governmental business should be conducted in open meetings unless it would actually harm the public interest. Regardless of whether the meeting is open or closed, the public still deserves clear notice about what business is being taken up. It’s common sense.

With all this in mind, let’s look at the Wausau Common Council’s May 8th agenda.  It contained the following:

CLOSED SESSION pursuant to Wis. Stat. Section 19.85(1)(g) Conferring with legal council for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved regarding the RiverLife Villages (Phase I) project.

Remember, the public has a right to know what business is being acted upon. Reading this notice, can you tell who is suing who or for what reason? Is Wausau being sued or is it suing someone? The agenda item is vague and not reasonably specific as the law requires.

To further illustrate the point, we can fill in some hypothetical details. Say, for example, the RiverLife Villages project general contractor sent a letter to the city saying the developer had not paid them and apprising the city of their intent to file a lien on the property. In this particular development, the city chose to own and lease the land—something I argued against in a previous op-ed. So, the lien will be on the city’s land.

In this example, the fact that legal action is being brought by the general contractor for non-payment should be in the notice. It is the only way the public could have a reasonable understanding of what is going on.

Some of us predicted this would wind up in litigation. However, embarrassment to city officials is not a reason to keep information from the public. The person or entity initiating the legal action already knows what he or she is doing and why. The opposing party learns nothing new from the inclusion of these specifics in the meeting notice.

The open meeting exemption referenced by the city covers the discussion of legal strategy only. It is not a blank check to keep the public in the dark about what is going on. The city should not be conducting closed-door proceedings about unspecified legal action affecting the RiverLife Villages project.

If someone can give me a good reason why citizens should be kept in the dark about who is suing who and why, I am willing to listen. But, I strongly doubt that a case can be made that it is in the public interest for city officials to keep their missteps under wraps.

Editor’s note: The views of our readers and guest columnists are independent of this newspaper and do not necessarily reflect the views of Wausau Pilot and Review. Opposing views are welcome. To submit a letter, email or mail to P.O. Box 532, Wausau, Wis., 54402-0532.