What is open meetings law?
Open meetings law requires all meetings of all state and local governmental bodies be publicly held in places reasonably accessible to the public and open to all citizens at all times, unless otherwise provided by law.
Advanced public meeting notices require information must be sufficient to alert the public to the importance of the meeting so that the public can make an informed decision whether to attend, and, if a closed session is contemplated, the notice must contain the subject matter to be considered in closed session.
A government body, when conducting a meeting, is free to discuss any aspect of any subject identified in the public notice of that meeting, as well as issues reasonably related to that subject, but may not address any topics that are not reasonably related to the information in the notice.
The open meeting law requires a governmental body to create and preserve a record of all motions and roll-call votes at its meetings. This requirement applies to both open and closed sessions.
The nature of the business and the specific statutory exemption that is claimed to authorize the closed session are announced and recorded in open session prior to convening in closed session. The government body must limit its discussion in closed session to the business specified in the announcement.
A governmental body vote should occur in open session, unless doing so would compromise the need for the closed session.
Open meeting law enforcement
Both the Attorney General and the district attorneys have authority to enforce the open meetings law. A district attorney has authority to enforce the open meetings law only after an individual files a verified meetings law complaint with the district attorney.
Proceedings to enforce the open meetings law are civil actions subject to the rules of civil procedure, rather than criminal procedure, and governed by the ordinary civil standard of proof.
Open meetings law enforcement action is commenced like any civil action by filing and serving a summons and complaint.
- From Wisconsin DOJ Open Meetings Law compliance guide, August 2010.
Any member of a governmental body who knowingly attends a meeting held in violation of the open meetings law, or otherwise violates the law, is subject to a forfeiture of between $25 and $300 for each violation.
The complaint stems from a city Salary and Personnel Committee meeting that took place Sept. 10, 2013, specifically regarding a closed portion of that meeting, during which a city employee, then-Director of Utilities Alan Eckstein, was fired.
Committee members attending the closed session, according to the official minutes, included aldermen Brooke Bauman, Charles Schuringa, Chris Beer and Louis Armstrong. Minutes show Alderman Reid Stangel and City Attorney Rex Ewald also attended. Assistant City Administrator Martin Shanks recorded the minutes.
The minutes also recorded Mayor Bill Ross, City Administrator Phil Rath and Eckstein were among those in attendance at the beginning of the open meeting, and would have been allowed to attend the closed session.
Eckstein claims the committee went beyond the scope of its publicized agenda that included a discussion that he intended to be about a complaint he had filed with the city.
The agenda specified that the meeting had a closed session for two reasons.
One purpose was to discuss an AFSCME union labor grievance; therefore, the session was closed under Wis. Stats. 19.85(1)(e), "for deliberating or negotiating ... whenever competitive or bargaining reasons required a closed session."
The second issue was for "preliminary consideration of employee issues addressed by Utility Director."
That issue was given a closed session permitted under Wis. Stats. 1985 (1)(c) for considering employment, promotion, compensation or performance evaluation data of any public employee over which the city has jurisdiction.
Eckstein said the reason for the September closed session was for him to discuss his repeated complaints since early February 2013 of harassment centered on a rumor and allegations of an "inappropriate relationship" with another city employee, which were being created and spread by an unidentified person or persons employed by the city. Such conduct would be a violation of the city's harassment policy.
Eckstein also expected to discuss an agreement he wanted the city to sign, which included the city reimbursing his attorney fees, as well as issuing a letter to his spouse stating the investigation concluded the rumor was "unfounded and without any basis in fact" and a scrubbing of all reference to an alleged improper relationship from his city records, except those of Attorney Ewald.
In a letter to Eckstein's attorney, Aaron Halstead, Madison, dated August 21, 2013, City Attorney Rex Ewald stated the city had pursued the city's interest in its investigation as far as possible, and made the decision to end the investigation.
In his complaint to D.A. Luhman dated Oct. 24, Eckstein contends the meeting notice failed to provide him or any member of the public notice that the committee might or would consider taking action affecting his employment at its closed session. Furthermore, by the agenda's wording, nobody of the public would be "reasonably likely" to be apprised of such action, he added.
Eckstein further argues that the phrases "employee issues" and "preliminary consideration" fail completely to address the committee's consideration of his employment status or any final decision for termination.
Eckstein stated he advised the committee on Sept. 10 that he intended to file a complaint with the Wisconsin Equalization Right Division if he and the city were not able to reach a satisfactory resolution to his February complaint about the rumors and allegations against him.
But he claims the committee continued its discussion after he left the room and, before adjourning, made the decision to fire him.
Committee minutes show City Attorney Ewald, who would have advised the committee if it were stepping beyond the limits of the open meeting laws, had joined the meeting as the committee first went into closed session.
Eckstein said a letter issued to him from the city's legal counsel on Sept. 11 advised him that, if he did not resign by 8 a.m. Sept. 13, his employment would be deemed terminated as of midnight Sept. 12. Eckstein refused to resign.
He was further directed not to report to work for the balance of Sept. 11 or on Sept. 12; though, he would be paid through Sept. 12. He was also told he was "not authorized to enter on any City property without my express prior approval."
That letter, signed by City Administrator Phil Rath, noted that the Salary and Personnel Committee found it "abundantly clear" that Eckstein was "obviously unhappy with the city" and that the professional relationship between Eckstein and the City was "irreparably damaged."
The Common Council took up the issue of Eckstein's employment termination on Sept. 17 and voted unanimously to go into closed session.
The council went into closed session, under two subparagraphs different than those used by the committee for state statutes regarding open meetings - subparagraph (f) allowed for the consideration of personal histories, disciplinary data of a specific person, specific personnel problems or the investigation of charges against specific persons, and subparagraph (g) allowed the council to confer in private with its legal counsel.
The meeting agenda also specifically noted the council would confer with legal counsel regarding possible litigation that might result from terminating Eckstein.
Upon coming out of closed session, the council voted 5-4 on the motion by Charles Schuringa and seconded by Louis Armstrong to ratify the decision of the Salary and Personnel Committee to terminate Alan Eckstein.
The Council meeting minutes recorded that, prior to voting, Alderman Michael Boyce commented "that he objected to the form of the agenda item and that there have been a number of issues and that he has strong concerns."
Boyce later clarified his statement to The Monroe Times, saying "there's a number of issues that remain unaddressed and I have strong concerns about them."
The meeting records showed Tom Miller, Michael Boyce, Jeff Newcomer and Chris Beer voted against the motion. Brooke Bauman, Tyler Schultz, Louis Armstrong, Reid Stangel and Charles Schuringa voted to ratify the termination. Mayor Bill Ross did not vote.
One alderman, who asked not to be identified, said the Council was advised by legal counsel during its closed session that ratifying the committee's decision would help protect the city against future legal charges in the termination decision.
Official city minutes of the Salary and Personnel Committee meeting on Sept. 10 does not record the votes of the members, if there was a vote, to terminate Eckstein. The committee adjourned from its closed session and did not go back into open session, according to the meeting minutes.