In recognition of the fact that a representative government is dependent on an informed electorate, it has long been the policy in Wisconsin that “the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.”1 In furtherance of this policy, all meetings of state and local governmental bodies must be held in public places that are reasonably accessible to members of the public at all times, unless otherwise expressly provided by law.2
While this concept seems fairly straightforward, there is a great deal of nuance surrounding when the Open Meetings Law applies, who it applies to, and how to effectively comply with its requirements. All government lawyers should have at least a passing familiarity with the Open Meetings Law. To that end, this article explains some of the issues with which lawyers will most frequently be confronted when advising their clients on how to comply with Wisconsin’s Open Meetings Law.
Entities That Are Governmental Bodies
The Open Meetings Law only applies to “governmental bodies.” The Wisconsin Statutes define a governmental body as any “state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order.”3
As a general rule of thumb, when attempting to determine whether an entity is a governmental body, how the entity is created matters more than what kind of authority, if any, it possesses. For example, a purely advisory board, with no final decision-making power, may be subject to the Open Meetings Law depending on how the board was created.4
While it is reasonably obvious when an entity is created by constitution, statute, or ordinance, it can be more difficult to determine if the entity was created by rule or order. The Wisconsin Attorney General, who has been authorized by the Legislature to interpret the Open Meetings Law, has advised that the phrase “rule or order” should be liberally construed to include any directive, formal or informal, creating a body and assigning it duties.5 This includes directives not only from formal governmental bodies, but also from certain governmental officials, such as county executives, mayors, or heads of a state or local agency, department, or division.6
Factors to be considered when determining whether a governmental body is created by rule or order include whether 1) there are a definable number of members in the body; 2) the members exercise collective power; and 3) there is a definition of when that collective power exists. The Attorney General has advised that when there is no collective power and definition of when that power exists, the entity is probably not a governmental body subject to the Open Meetings Law.7
Governmental or quasi-governmental corporations can be governmental bodies.8 For purposes of the Open Meetings Law, a quasi-governmental corporation is defined as an entity that, based on the totality of the circumstances, resembles a governmental corporation in function, effect, or status.9
Factors to consider when determining whether an entity is a quasi-governmental corporation include 1) where the entity obtains its funding; 2) whether it serves a public function; 3) whether it appears to be a government entity; 4) whether it is subject to government control; and 5) the degree of access the government has to the entity’s records.10
Gatherings That Are “Meetings”
The Open Meetings Law applies only to “meetings.” A meeting is defined in the Wisconsin Statutes as a “convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.”11 The Wisconsin Supreme Court has held that the Open Meetings Law applies to gatherings of members of a governmental body when there is a purpose to engage in governmental business, and when the number of members present is sufficient to determine the governmental body’s course of action.12 These criteria are often referred to as the “purpose requirement” and the “numbers requirement.”
The purpose requirement refers to what the governmental body intends to do. If a governmental body meets to discuss an issue, make a decision, or gather information about a subject related to a governmental body’s realm of authority, the purpose of the gathering is to conduct governmental business.13 A social or chance gathering at which governmental business is not discussed does not satisfy the purpose requirement. However, if at least one-half the members of a governmental body are present, there is a rebuttable presumption that the members have met to engage in governmental business.14
The Open Meetings Law applies to gatherings of members of a governmental body when there is a purpose to engage in governmental business, and when the number of members present is sufficient to determine the governmental body’s course of action.
The numbers requirement refers to whether there are enough members of a governmental body present to determine a body’s course of action. A quorum occurs when there are enough members present to take an action. A negative quorum occurs when there are enough members present to defeat an action. If a quorum or a negative quorum of members is present, the numbers requirement has been satisfied. Walking quorums (separate groups of members of a governmental body, each less than a quorum, who agree to act as a quorum) will fulfill the numbers requirement as well.15
Conference Calls. The Attorney General has opined that telephone conference calls may be subject to the Open Meetings Law.16 If governmental business is to be discussed, and if there is a quorum or negative quorum of members of a governmental body on the call, then the call is subject to the Open Meetings Law. Notice must be provided, and the public must be provided with a means to monitor the call. This can be accomplished by broadcasting the call through speakers at a location open to the public.17
Wisconsin Public Records and Open Meetings Handbook
When you or a client wants to make a public records request or attend a governmental meeting, turn to The Wisconsin Public Records and Open Meetings Handbook, coauthored by Peter Block and Melanie Rutledge, now retired from the Milwaukee City Attorney’s Office. The Handbook, from State Bar of Wisconsin PINNACLE®, contains dozens of citations to Wisconsin appellate decisions, Wisconsin statutes, formal and informal Wisconsin Attorney General opinions, and Wisconsin Department of Justice handbooks.
For more information or to order The Wisconsin Public Records and Open Meetings Handbook.
Email and Instant Messages. The Attorney General has advised that email conversations may be subject to the Open Meetings Law, depending on “(1) the number of participants involved in the communication; (2) the number of communications regarding the subject; (3) the time frame within which the electronic communication occurred; and (4) the extent of the conversation-like interactions reflected in the communications.”18 The determination of whether email implicates the Open Meetings Law depends on whether the email exchange more closely resembles a correspondence or a conversation.19
As for instant messages, the Attorney General has advised that instant messaging is “very analogous to conference call communication. All participants in the communication are present in the communication environment at the same time.”20 To the extent that email conversations or instant messages are determined to be meetings, the communications would be in violation of the Open Meetings Law unless they were properly noticed and the public had a way to monitor the communications. Allowing the public to view the emails and messages from a centrally located computer would likely satisfy the monitoring requirement.21
Notice Requirements
Contents. If a gathering is determined to be a meeting and the entity that is meeting is a governmental body, the meeting must be preceded by a notice setting forth the meeting’s time, date, place, and subject matter, in a form likely to apprise members of the public and news media of the noticed items.22 How detailed and specific a meeting notice must be depends on what is “reasonably specific under the circumstances.”23 What is reasonable depends on the following: 1) the burden of providing a more detailed notice; 2) whether the subject of the meeting is of particular importance to the public; and 3) if there would be any nonroutine actions that the public would be unlikely to anticipate.24
Notice of any contemplated closed session must be included as well. The notice must set forth the specific statutory exception to the Open Meetings Law under which a closed session is authorized, and, unless the governmental body is planning to convene in closed session to receive legal advice from counsel related to litigation that the body is or is likely to become involved in, the notice must also contain enough information for the public to discern whether the subject matter is truly authorized for closed session.25 If the closed session is to be followed by an open session, the notice must include notification that the body plans to reconvene in open session.26
Whether email implicates the Open Meetings Law depends on whether the email exchange more closely resembles a correspondence or a conversation.
If simultaneous meetings are occurring, both meetings must also be noticed.27 A simultaneous meeting occurs when a quorum of one governmental body knowingly attends a meeting of one of its subunits, or a different governmental body, to gather information. In such a scenario, two meetings are occurring: the meeting of the subunit and the meeting to gather information.
Providers and Recipients of Notice. The chief presiding officer of a governmental body, or the officer’s designee, is responsible for giving notice of each meeting of the body to 1) the public, 2) any members of the news media who have submitted a written request for notice, and 3) the official newspaper designated pursuant to state statute, or, if none exists, a news medium likely to give notice in the area.28
Notice to the public can be accomplished by posting the notice in places likely to be seen by the general public. The Attorney General recommends posting notices in at least three different locations within the jurisdiction that the body serves.29 Notice may alternatively be given by paid publication in a news medium likely to give notice in the jurisdictional area the governmental body serves.30 The Attorney General has opined that a governmental body can provide notice to the public through an official website; however, such notice cannot be used as a substitute for the other posted notices required to be given to the public.31
Notice to the members of the news media who have submitted a written request may be given in writing or by telephone.32 Governmental bodies cannot charge the news media for providing notice pursuant to this statutory requirement.33
Although notice must be given to any officially designated newspaper, the governmental body is not required to pay for, and the newspaper is not required to publish, the notice.34 The requirement to provide notice to the officially designated newspaper is distinct from the requirement to provide notice to the public. Accordingly, governmental bodies should be aware that even though it is not required that the notice be published to comply with the officially designated newspaper requirement, it is required that the notice be published if the governmental body is choosing to comply with the notice to the public requirement by publishing the notice in a news medium likely to be viewed by the public.35
Timing of Notice. Every public notice of a meeting must be given at least 24 hours, excluding Sundays and legal holidays, before the meeting, unless good cause exists that makes such notice impossible or impractical.36 If good cause exists, notice may be given less than 24 hours before the meeting, so long as notice is still provided at least two hours before the meeting.
What constitutes “good cause” has not, as yet, been analyzed by any Wisconsin court decisions or by the Attorney General. However, the Attorney General has advised that if there is any doubt whether good cause exists, the governmental body should provide the full 24 hours’ notice.37
Permissible Open Meeting Locations
Open meetings must be held in a facility open to the public that provides reasonable, but not necessarily total, access. Governmental bodies must hold their meetings in rooms that are reasonably calculated to be large enough to accommodate all members of the public who wish to attend the meetings.38
What is reasonable is a fact-specific analysis. Generally, a governmental body should conduct its meetings at locations within the districts it serves, unless special circumstances make it impossible or impractical to do so.39 Meetings should be held in public places; however, the Attorney General has advised that a meeting can be held on private premises in exceptional cases, when there is a specific reason for doing so that does not compromise the public’s right to information about governmental affairs.40
Convening in Closed Session
Every meeting of a governmental body must be held in open session, unless one or more of 11 exceptions authorized in the statutes applies.41 To convene in closed session, a motion must be made and voted on, and carried by a majority vote. No business may be taken up during any closed session except that which relates to the matter specifically noticed to be discussed in closed session.42
The Attorney General has advised that a body has wide discretion over whom to admit into closed session, so long as a determination has been made that the admittee’s presence is necessary for the consideration of the subject of the meeting.43 However, bodies should be cautious of who they allow to sit in on closed-session deliberations in a judicial or quasi-judicial case before the body. In at least one instance, the Wisconsin Court of Appeals vacated a body’s ruling based on who the body admitted to the deliberations. InState ex rel. Heil v. Green Bay Police & Fire Commission, the commission allowed the mayor’s liaison to sit in on its deliberations after a disciplinary hearing. The plaintiff in the hearing was a disciplined police officer. The court of appeals determined that because the chief of police, who disciplined the officer, and the liaison were both employees of the mayor, the liaison “effectively was a representative of one of the parties” and that “the liaison’s mere presence … gave a sufficient appearance of impropriety to taint the entire proceedings.”44
Personal Recording of Open Meetings
As long as the recording does not disrupt the meeting, members of the public are allowed to record or film open-session meetings. A governmental body must make a reasonable effort to accommodate any person who wants to record, film, or take photographs during the meeting, so long as there is no interference with the conduct of the meeting or the rights of the participants.45
The Attorney General has advised that the Open Meetings Law does not require a governmental body to permit recording of an authorized closed session.46 If a governmental body does choose to record an authorized closed session, it should be aware that the recording is not automatically exempt from disclosure under the Public Records Law.
Public Comment
Unless required by another statute, the governmental body is free to determine whether to allow public member participation at its meetings. The body can refuse to permit members of the public to speak, or may limit the degree to which they can comment, without violating the Open Meetings Law.47 Members of the public have the right to attend and observe open-session meetings, but there is no right under the Open Meetings Law to also actively participate in the meetings.48
Conclusion
While this article does not cover all of the intricacies of the Open Meetings Law, it should serve as an effective primer for attorneys who need to know the basics of Wisconsin’s Open Meetings Law. In cases in which a more detailed reading of the law is required, additional case law and Attorney General opinions may provide guidance. A more detailed analysis of the Open Meetings Law can be found in The Wisconsin Public Records and Open Meetings Handbook, published by State Bar of Wisconsin PINNACLE™, and in the Attorney General’s Wisconsin Open Meetings Law Compliance Guide.
Endnotes
1 Wis. Stat. § 19.81(1).
2 Wis. Stat. §19.81(2) (emphasis added).
3 Wis. Stat. § 19.82(1) (emphasis added).
4 79 Wis. Op. Att’y Gen. 67, 69-70 (1989).
5 State v. Beaver Dam Area Dev. Corp., 2008 WI 90,¶37, 44-45, 312 Wis. 2d 84, 752 N.W.2d 295; 78 Wis. Op. Att’y Gen. 67, 68-69 (1989).
6 78 Wis. Op. Att’y Gen. 67, 69-70 (1989).
7 Informal Correspondence from Wis. Att’y Gen. to Mr. James G. Godlewski (Sept. 24, 1998).
8 Wis. Stat. § 19.82(1).
9 Beaver Dam Area Dev. Corp., 2008 WI 90,¶9, 312 Wis. 2d 84.
10 Id.¶62.
11 Wis. Stat. § 19.82(2).
12 State ex rel. Newspapers Inc. v. Showers, 135 Wis. 2d 77, 102, 398 N.W.2d 154 (1987).
13 State ex rel. Badke v. Village Bd., 173 Wis. 2d 553, 571-74, 494 N.W.2d 408 (1993).
14 Wis. Stat. § 19.82(2).
15 Showers, 135 Wis. 2d at 92.
16 69 Wis. Op. Att’y Gen. 143 (1980).
17 Id. at 146.
18 Informal Correspondence from Wis. Att’y Gen. to Mr. Tom Krischan (Oct. 3, 2000).
19 Informal Correspondence from Wis. Att’y Gen. to Mr. Dan Bensen (March 12, 2004).
20 Informal Correspondence from Wis. Att’y Gen. to Mr. Tom Krischan (Oct. 3, 2000).
21 Id.
22 Wis. Stat. § 19.84(2).
23 State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, ¶ 22, 301 Wis. 2d 178, 732 N.W.2d 804.
24 Id. ¶ 28.
25 Id. ¶ 27.
26 Wis. Stat. § 19.85(2).
27 Badke, 173 Wis. 2d at 576.
28 Wis. Stat. § 19.84(1)(b).
29 66 Wis. Op. Att’y Gen. 93, 95 (1977).
30 63 Wis. Op. Att’y Gen 509, 510-11 (1974).
31 Informal Correspondence from Wis. Att’y Gen. to Mr. Greg Peck (April 17, 2006).
32 65 Wis. Op. Att’y Gen. Preface, v-vi (1976).
33 77 Wis. Op. Att’y Gen. 312, 313 (1988).
34 66 Wis. Op. Att’y Gen. 230, 231 (1977); see also Martin v. Wray, 473 F. Supp. 1131 (E.D. Wis. 1979).
35 Wis. Dep’t of Justice, Wisconsin Open Meetings Law Compliance Guide 13 (Nov. 2015).
36 Wis. Stat. §§ 19.84(3), 990.001(4)(a).
37 Wisconsin Open Meetings Law, supra note 35, at 18.
38 Badke, 173 Wis. 2d at 581.
39 Informal Correspondence from Wis. Att’y Gen. to Mr. Clarence L. Sherrod (Oct. 17, 1991).
40 67 Wis. Op. Att’y Gen. 125, 127 (1987); Wisconsin Open Meetings Law, supra note 35, at 19.
41 Wis. Stat. § 19.83(1).
42 Wis. Stat. § 19.85(1).
43 Wisconsin Open Meetings Law, supra note 35, at 28.
44 State ex rel. Heil v. Green Bay Police & Fire Comm’n, 2002 WI App 228, ¶¶ 16-17, 256 Wis. 2d 1008, 652 N.W.2d 118.
45 Wis. Stat. § 19.90.
46 66 Wis. Op. Att’y Gen. 318, 325 (1977); Informal Correspondence from Wis. Att’y Gen. to Mr. Thomas A. Maroney (Oct. 31, 2006).
47 Informal Wis. Op. Att’y Gen. (I-5-93. April 26, 1993); Informal Correspondence from Wis. Att’y Gen. to Mr. Darwin L. Zweig (July 13, 2006).
48 Informal Correspondence from Wis. Att’y Gen. to Marjorie Lundquist (Oct. 25, 2005).
