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Good timing for Sunshine Week



ED_Dave_Bretl
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Bretl
March 30, 2011 | 07:38 AM
It seemed to be quite a coincidence that one of the biggest cases challenging open government in Wisconsin would be heard during Sunshine Week. The big case, of course, was the open meetings violation filed by Dane County District Attorney Ismael Ozanne challenging the State Senate's approval of portions of the controversial Budget Repair Bill (BRB).

Sunshine Week, surprisingly, isn't one of those "Hallmark Holidays," like "Bosses Day," but rather a national effort to promote open government throughout the United States.

At the time of this writing, at least, Dane County Circuit Court Judge Maryann Sumi temporarily enjoined implementation of the BRB after finding that the District Attorney was likely to succeed on the merits of the case. A competing school of thought says the law is currently "on the books," having been recently published by the state's Legislative Fiscal Bureau.

I really don't know enough about the case in Madison to comment on which side will prevail. I can say with confidence that had any local unit of government proceeded as the Senate had, its members would almost surely have been found guilty of violating the law. State government however, is a different story.

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For years, the state has exempted itself from various provisions of the Open Meetings Law that it requires all other units of government to follow. Wisconsin is not unique in this approach. According to a recent article published by the National Freedom of Information Coalition, University of Missouri School of Journalism, fewer than half of all state legislatures, in our country, hold themselves to the same levels of transparency they prescribe for others.

About the only prediction I will make is that if the Senators prevail, it will be because the procedures they were following somehow supersede the Open Meetings Law. If, on the other hand, they are bound to follow the same rules that apply to local government, look for a "do-over" vote on the BRB before it becomes law.

At least when it comes to local government, Wisconsin law guarantees the public the "most complete information regarding the affairs of government as is compatible with the conduct of governmental business." To that end, the Open Meetings Law states that all meetings of state and local governmental bodies must be publicly held in places reasonably accessible to the public.

While I have seen exceptions during the last 20 years that I have been involved in local government, it has been my experience the vast majority of local elected officials want to comply with the law. Mistakes can happen, from time to time. Additionally, as with any law, there can be grey areas. In general, a number of steps must be analyzed in determining how to comply with the law.

Governmental body. The Open Meetings Law applies to "meetings" of "governmental bodies." Therefore, the first step in the analysis is to determine what constitutes a "governmental body." In the case of county boards, common councils and school boards, the answer is obvious. Elected governing bodies are covered by the law. What is not widely known, however, is that many other groups can be subject to the law. Any board, commission, committee or similar group, established by statute, ordinance, rule or order can constitute a "governmental body" under the law. Therefore, while a town board fits the definition, so, too, can a citizen's advisory group appointed by a village president.

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Meeting. Having defined "governmental body," the next step is to determine what constitutes a "meeting" under the law. We would all agree that the monthly County Board meeting fits this definition. To prevent meetings before official meetings and similar "behind the scenes" decision-making, however, the law defines the term "meeting" broadly. A meeting takes place under the law whenever members of a governmental body convene for the purpose of exercising the responsibilities, authority, power or duties vested in the body. Because it can be difficult to prove what exactly was being discussed the law shifts the burden of proof. Whenever one-half or more of the members of a governmental body are present, a rebuttable presumption is created that a meeting is taking place.

Notice. Once it is determined that a governmental body is meeting, a number of steps must be taken to comply with the law. Notice must be given at least 24 hours in advance of the meeting, unless "for good cause" it is "impossible or impractical" to provide. Then, at least two hours notice must be given. While I knew it was possible, I don't recall ever conducting a meeting with less than 24 hours notice. I always assumed the two-hour provision was for dealing with emergencies like melting nuclear reactors. If nothing else, the litigation in Madison may either confirm or refute my long-held view. Meeting notices are typically posted in one or more public places and provided to the media. In addition to listing the obvious, such as the time, date and place of the meeting, the notice must describe subjects that will be discussed in such form as is "reasonably likely to apprise members of the public and news media thereof." With changing technology, many governmental bodies are posting meeting notices on their websites. While this may be good practice, the law does not yet allow web posting as a substitute for other statutorily prescribed methods of providing notice.

Open government is a right in Wisconsin. For those interested in learning more about the law, the Attorney General has published a comprehensive "Compliance Guide" on the subject. You can find a copy online at http://www.doj.state.wi.us.

The opinions expressed in this column are those of the author and not necessarily those of the Walworth County Board of Supervisors.

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