Damakant Jayshi

After nearly an hour of discussion which at times turned heated, the Wausau School District’s Board of Education on Monday added a new provision that aims to prevent Board members from speaking during public comments period, interpreting doing so as a violation of the state Open Meetings Law.

The new provision, first introduced by Board President Pat McKee and amended by Treasurer Lance Trollop, passed by a 7-2 margin and will be added to the manual guiding public comments of the Board meeting. Although the new provision avoids directly preventing a Board member from using public comments phase to speak as a resident, the language makes clear the potential consequences of doing so.

“Board members participating as speakers during a period of public comment may violate Wisconsin’s Open Meetings Law,” said Trollop, reading his amendment. “A Board member who participates as a speaker during a period of public comment does so at their own peril under the law and without the endorsement of the Board’s members or the board as a whole. In addition, any statements made by a Board member participating as a speaker during a period of public comments do not necessarily represent the position of the Board’s members, or the Board as a whole and shall in no event be binding on the Board.”

The McKee version that appeared on the agenda for the Board meeting on Monday as well as in a statement released by the WSD before the meeting had aimed to prohibit Board members altogether from participating as speakers. Trollop, who is an attorney, said if the provision prohibited members from using the public comments phase, there was no point in mentioning what the members could or could not do. Rather, he opined, his version protected other members of the Board from any legal consequences arising out of a member participating in public comments.

Legal counsel Kirk Strang, whose opinion appeared on the agenda to discuss the policy, said his understanding of the language of Wisconsin’s Open Meetings Law prevented members of the school Board – who are governmental body – in the role of public. Doing so was a violation of the Open Meetings Law, he said, adding the Board could even do away with allowing public comments at all. Trollop agreed with that interpretation.

The Open Meetings Law leaves it to the discretion of the governmental body, like a school Board, to determine whether public can be allowed to speak during open sessions.

“Although it is not required, the open meetings law does permit a governmental body to set aside a portion of an open meeting as a public comment period, said the WI Open Meetings Law Compliance Guide under ‘Citizen Participation’ (page 22).

Board member Jane Rusch disagreed, saying the two attorneys she spoke with said Board members could speak during the public comments period. She did not share details. Rusch has said that the majority on Board have repeatedly prevented her proposals from even appearing on the agenda for discussion, thus effectively silencing her.

“This is very political, said Rusch, who has spoken during the public comments twice since August. “The majority of this board does not want to discuss COVID. I am not asking to talk about something frivolous. I have asked every week to put COVID on the agenda just so we can have an inkling about what’s going on in the district, what’s going on in the community. It never makes it on the agenda. So my only way to talk to my Board then and let them know how I feel is to take public comment.”

The Board, which appears to have been reluctant to officially discuss COVID-19 and ignored guidance by public health institutions, finally did so on September 20 and made changes to mitigation strategies.

James Bouche, the vice president of the Board, said there was a benefit in discussing the public speaking issue and answering the questions that the topic has raised so as to move forward. He disagreed with one of Strang’s earlier suggestions – that the Board could do away public comments under Open Meetings Law if it so wished.

“I believe in public comments,” Bouche said. “I think it is imperative that they tell us what they believe because how else we are going to find out?”

McKee sought Strang’s opinion a week before Board member Jane Rusch spoke at the Education/Operations Committee meeting on Aug. 23. Rusch alluded it was a waste of taxpayer’s money in an attempt to silence her and deny her First Amendment rights, a charge McKee has denied.

Member Ka Lo, while siding with Rusch on her right to use public comments period, said the episode arose because of the “interpersonal relationship” between McKee and Rusch. Lo added the rift between the two went back a long time, even before McKee became the Board’s president, and was unfairly involving other members in their dispute.

“You are really putting us in a bad spot here,” Lo said. “To have us speak here and make these rule changes based on interpersonal relationship that has nothing to do with the school board as a whole…it is ridiculous.”

Her motion to dismiss the new provision on public comments, backed by Rusch, was defeated by a voice vote.

Earlier, during public comments, Bruce Grau, took issues regarding a “Board member” who responded to his remarks during a September 27 meeting on a potnetial salary increase for the Board members. However, the item only mentioned renewal of Board members’ salary, not an increase. McKee pointed that out soon after Grau spoke.

Rusch had objected to McKee’s response later during that meeting.

Grau said he has been attacked because of his comments, adding that the public should have the freedom to speak without the fear of retaliation.

“I have most recently been subject to a violation of this decorum,” he said, noting that a person was allowed to direct comments at him. He also objected to the Board trying to “clarify” public comments policy instead of taking measures to allow public to exercise their First Amendment rights without fear.

Damakant Jayshi is a reporter for Wausau Pilot & Review. He is also a corps member with Report for America, an initiative of GroundTruth Project that places journalists into local newsrooms. Reach him at damakant@wausaupilotandreview.com.