Did officials violate open meetings laws?
Developer files complaint in Walworth County
May 26, 2010 | 09:29 AM
|CLOSED SESSION MAY HAVE BEEN ILLEGAL
One of the more specific open meetings complaints being made against the city by Geneva Ridge Joint Venture is the Oct. 6 special closed session meeting.
According to a complaint filed with the Walworth County District Attorney's Office, Geneva Ridge is asking for an investigation and action be taken on behalf of the state of Wisconsin regarding the alleged open meetings violations. Geneva Ridge attorneys are requesting that action be taken within 20 days of the complaint which is dated May 13.
Specifically, the complaint cites an Oct. 6 special closed session meeting in which some of the defendants were supposed to confer with legal counsel regarding the litigation "in the Mirbeau lawsuit." Those defendants listed on the notice included Todd Krause, Tom Spellman, Gary Dunham, Don Tolar, Mary Jo Fesenmaier, Bill Chesen, Arleen Krohn, Penny Roehrer, Larry Magee and Frank Marsala.
The meeting was posted as a public notice and according to the complaint, efforts were made by Geneva Ridge to obtain minutes and any other information from the meeting. However, when the April 13 public records request was made, City Clerk Diana Dykstra said she had no knowledge of the meeting taking place.
Late last week, Dykstra said she had no minutes from the meeting on record. But, after a more thorough search of her records and the city's front desk room reservation calendar, she did confirm the meeting occurred. Through an e-mail search, Dykstra revealed correspondence between her and attorney Amy Doyle, who is representing some of the city official defendants including Spellman, Fesenmaier, Krohn and Roehrer, in the developer's lawsuit. Dykstra said her e-mail confirms that Doyle wrote to her requesting the meeting and provided the wording for the notice.
Dykstra further stated that neither she or any other city staff attended the meeting. According to the public notice, the meeting was never in open session and roll call was not taken. Last week, she provided this information and an explanation to the attorneys for Geneva Ridge.
According to Geneva Ridge's complaint, "convening and holding a closed session meeting of the City Council without first convening in open session, passing a motion by majority vote to convene into closed session, and then reconvening into open session to vote on any matter discussed in closed session" violates state statutes.
The meeting in question occurred after Chesen's suspensions of Spellman, Fesenmaier, Roehrer and Krohn.|
Apparently attorneys working on the lawsuit for Geneva Ridge Joint Venture have been busy lately.
Last week, just before filing in federal court an amended complaint regarding its $99 million lawsuit against the city, Geneva Ridge Joint Venture filed a complaint with the Walworth County District Attorney's Office alleging numerous open meetings law violations by the city of Lake Geneva and its officials.
Geneva Ridge — also known as Hummel — annexed to the city in early 2005 and proposed three different development plans for the property formerly located in Linn Township. None of the plans — including a venture that involved New York-based Mirbeau of Geneva Lake to include a 100-room inn, spa and winery — received final approval from city officials. Subsequently, both Geneva Ridge and Mirbeau have filed lawsuits against the city.
Geneva Ridge Joint Venture attorneys state in their complaint that private meetings were held between certain city officials and special interest groups, that officials improperly communicated by e-mail among themselves and with others concerning opposition to their development and that private, ex parte meetings were held. They claim the instances were all violations of Wisconsin Open Meetings law.
The open meetings complaint lists the defendants as the city of Lake Geneva, Gary Dunham, Arleen Krohn, Tom Spellman, Bill Chesen, Todd Krause, Mary Jo Fesenmaier, Penny Roehrer, Don Tolar, Frank Marsala and Plan Commissioners Don Rutkowski, Al Kupsik, Tom Hartz, Matt Kuehl and Dennis Lyon.
The complaint specifies a private meeting between Friends of Geneva Lake, a political action group opposed to the development according to Geneva Ridge, and some city officials met on or about Dec. 10, 2007. Other specific references include "individual respondents" holding private meetings between themselves and others regarding Geneva Ridge's requests to rezone and develop the property.
The city's Smart Growth planning process also was questioned in the complaint. Geneva Ridge contends that the decision to reconsider its property was made in private and violated open meetings laws. Geneva Ridge also states the final decision to change the property's designation, which limited potential development, was a "substantial" modification and required notice to Geneva Ridge and another public hearing.
The 11-page complaint also cites an Oct. 6 closed session meeting that was never convened in open session, which they state is a violation of Wisconsin statute.
"Upon information and belief, through closed door meetings and back hall conversations, the individual respondents intentionally undermined the process of fair, factual and objective decision making in government in the city, instead forcing illicit, behind the scenes agreements with political action committees, affluent property owners, and others, to prevent the orderly and permissible development of the property.
"To assure this outcome, the individual respondents, individually and collectively, ignored, avoided and violated applicable city ordinances and laws of the state of Wisconsin, including Wisconsin's open meetings law, effectively rendering city government in Lake Geneva a tool of special interest groups and personal agendas."
Geneva Ridge is asking the Walworth County District Attorney to investigate the matter and commence action on behalf of the state to enforce open meetings laws.
On May 13, Geneva Ridge filed in U.S. Eastern District Court their first amended complaint against the city. The 61-page document lists nine claims, explanations and references to information from e-mails between city officials. The lengthy discovery process for the lawsuit produced information from e-mails, computer hard drive scans and depositions of city elected officials. Geneva Ridge attorneys did not have some of that information when the initial suit was filed in October 2009.
In federal court, Geneva Ridge is claiming the city is in violation of equal protection under federal and state constitutions; retaliation in violation of First Amendment rights; conspiracy to retaliate in violation of First Amendment rights; declaratory judgement voiding denial of zoning amendment; declaratory judgement voiding adoption of comprehensive plan; mandamus, damages, punitive damages and attorney fees under open records laws; violation of open meetings laws; taking under the Wisconsin Constitution and conspiracy to defraud.