Governing Bodies

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315R6.Presents an overview of the Open Meetings Law, secs. 19.81 to 19.98, Stats. Revises May 1996 Legal Comment. 4/30/00.

315R7. Revises June 2000 legal comment. Provides an overview of the open meeting law and its requirements of notice and accessibility. Highlights statutory definitions of "governmental body" and "meeting" and discusses case law that cautions of walking and negative quorums. Provides brief overview of when closed sessions are authorized, and penalty and enforcement provisions. 3/4/05.

315R8. Revises April 2005 legal comment. Provides an overview of the open meeting law and its requirements of notice and accessibility. Highlights statutory definitions of “governmental body” and “meeting” and discusses case law that cautions of walking and negative quorums. Provides brief overview of when closed sessions are authorized, and penalty and enforcement provisions. 5/30/07.

315R9. Revises July 2007 legal comment. Provides an overview of the open meeting law and its requirements of notice and accessibility. Highlights statutory definitions of “governmental body” and “meeting” and discusses case law that cautions of walking and negative quorums. Provides brief overview of when closed sessions are authorized, and penalty and enforcement provisions. 5/30/10.

315R10. Revises July 2010 legal comment. Provides an overview of the open meeting law and its requirements of notice and accessibility. Highlights statutory definitions of “governmental body” and “meeting” and discusses case law that cautions of walking and negative quorums. Provides brief overview of when closed sessions are authorized, and penalty and enforcement provisions. 6/30/14.
 
335R1. A municipal governing body may determine the residency of its members since village boards and common councils have the power to judge the qualification of their members. Wis. Stat. secs. 61.32 and 62.11(3)(a). 10/29/04.

346-R1. General discussion of quorum and voting requirements and the effect of various situations like vacancies, disqualification for conflict of interest, and abstentions on these requirements. 10/31/06.

351. Discusses when municipalities are required to conduct legislative type public hearings and reviews the purposes for holding such hearings. Also discusses a number of procedural guidelines municipalities may want to adopt to ensure that public hearings are fairly and efficiently conducted. 5/30/97.

351R1. Discusses the difference between legislative and quasi-judicial hearings and their purpose and contains partial list of statutes requiring that hearings be held. Discusses providing notice and suggests some procedural guidelines that municipalities may want to adopt to ensure that public hearings  are fairly and efficiently conducted. 7/30/10.

352. Where governing body mistakenly voted to fill council vacancy by secret ballot, but then members' votes were later ascertained and recorded it is not necessary to have another vote. A technical violation of the open meeting law does not render the action invalid. Rather, any action taken at a meeting of a governmental body held in violation of the open meeting law "is voidable, upon action brought by the attorney general or the district attorney of the county where the violation occurred." Sec. 19.97(3), Stats. In order to declare an action void, a court must first find that the public interest in enforcing the open meeting law outweighs any public interest which there may be in sustaining the validity of the action taken. Id. 7/22/97

353. Municipalities should avoid routinely placing at the bottom of all committee, commission and board meetings boilerplate language designed to comply with State ex rel. Badke v. Greendale Village Board, 173 Wis.2d 553, 494 N.W.2d 408 (1993), which announces that one-half or more of the members of the governing body may attend the committee, commission or board meeting for information gathering purposes. Such a Badke notice should be provided only if: (1) governing body members routinely attend the meetings of a second body, such as a committee or commission; or (2) the chair of the governing body or clerk has been informed or otherwise has reason to believe that governing body members will likely be attending the meeting of the second body. 9/30/97.

354. Discusses reconsideration, rescission and renewal of motions under Robert's Rules of Order. 9/30/97.

354R1. Discusses reconsideration, rescission and renewal of motions under Robert's Rules of Order Newly Revised and revises and updates Governing Bodies 354. 1/31/10.

355. In general, there is little guidance on parliamentary procedure in the state statutes. Municipal governing bodies are authorized, however, to adopt rules of parliamentary procedure to guide their meetings and actions. See, for example, sec. 66.11(3)(e), Stats. A municipal governing body may, but need not, elect to be guided by Robert's Rules of Order. 9/30/97.

355R1. In general, state statutes provide little guidance on parliamentary procedure. Municipal governing bodies may adopt rules of parliamentary procedure to guide their meetings and actions. This legal comment briefly reviews Robert's Rules of Order Newly Revised and mentions some other alternatives.  Revises and updates Governing Bodies 355. 1/31/10.

356. The requirement in sec. 19.85(1)(b), Stats., that governmental bodies provide personal notice to a public employee who is the subject of a meeting applies only if the governmental body intends to conduct an evidentiary hearing or take final action on a disciplinary matter concerning the employee. Therefore, a common council may meet in closed session, without complying with the personal notice requirement in paragraph (b), to discuss disciplinary problems concerning a city employee and whether to file charges against the employee with the city's civil service commission. 2/27/98.

357. Where common council's rules of procedure explicitly state that the vote on suspension of the rules shall be by roll call vote, "[u]nless unanimous consent is given," council's practice of adopting motion to suspend the rules by unanimous consent unless a council member objects, is perfectly proper and lawful. Robert's Rules of Order Newly Revised also recognizes that a motion to suspend the rules, while requiring an extraordinary vote, may be adopted by unanimous (also known as general) consent. See sec. 25, Robert's Rules of Order Newly Revised . 3/11/98.

358. Employees are only entitled to actual notice under sec. 19.85(1)(b), Stats., that they have the right to demand a meeting concerning them be held in open session when the meeting involves an evidentiary hearing (a hearing involving the taking of testimony and the receipt of evidence) or when final action might be taken in closed session. State ex rel. Epping v. City of Neillsville, Case No. 97-0403 (Wis. Ct. App. 4/2/98) (publication recommended). 4/30/98.

359. Concludes that despite sec. 62.09(11)(b), Stats., which provides that the city clerk shall attend the meetings of the council and keep a full recording of its proceedings, a common council may exclude the clerk from a closed session where the clerk is the subject of discussion provided the council or the mayor appoints someone to take minutes in the clerk's absence. Section 19.89, Stats., only prohibits the exclusion of members of the governmental body and although the clerk is a city officer under sec. 62.09(1), only the alderpersons and mayor are members of the common council. Sec. 62.11(1), Stats. 10/30/98.

360. Concludes that neither sec. 19.85(1)(e), Wis. Stats., relating to competitive or bargaining reasons, nor any of the other closed meeting exemptions under sec. 19.85(1), Wis. Stats., allow a joint planning committee made up of town and village representatives to meet in a closed session to develop a border agreement. 1/29/99.

361. The Open Meeting law requires that all meetings of governmental bodies be preceded by public notice setting forth the time, date, place and subject matter of the meeting. The limited exceptions under secs. 19.83(2) and 19.84(2), Stats., which allow a governmental body to receive information from members of the public if the public notice of the meeting designates a period of public comment and to discuss any matter raised by the public during such a period, was not intended for use by governing body members and any such use would likely be seen as an attempt to circumvent the Open Meeting law's notice requirements. Also discusses governing body's ability to prevent abuses by adopting local rules to limit public comments to subjects on agenda or limiting amount of time that speakers will be given. 1/29/99.

362. A member of a governmental body does not have the right to tape record closed sessions of the governmental body. Although a governmental body is obliged under sec. 19.90 of the Wisconsin statutes to make a reasonable effort to accommodate any person desiring to record, film or photograph an open meeting (provided the person does not do so in a disruptive manner), the law does not apply to closed sessions. See 66 Op. Att'y Gen. 318 (1977). 6/24/99.

363. Summarizes State ex rel. Blonien v. Carl, No. 98-0911 (Wis. Ct. App. June 15, 1999), an unpublished per curiam decision of the court of appeals which concluded that the public notice of a meeting of the West Milwaukee Village Board was specific enough to apprise members of the public of the subject matter of the meeting and therefore satisfied the requirements of sec. 19.84(2), Wis. Stats. 6/30/99.

364. Concludes that common council's practice of approving or disapproving the minutes of commission and committee meetings at its regular monthly meeting has no legal effect or consequence. 7/21/99.

365. League legal staff has concluded in a previous opinion, Governing Bodies 320, that nothing in state statutory or case law prevents a municipal governing body from allowing a member who is not physically present at a meeting to participate in the meeting by speaker phone. While there may be some arguments supporting a conclusion that municipal governing bodies may adopt a rule of procedure allowing a member who is not physically present at a meeting to vote by proxy, by mail or by e-mail, the better view is that deliberative bodies like common councils and village boards cannot or should not adopt rules allowing members to vote by proxy, by mail or by e-mail. 7/30/99.

366. Section 19.88(1), Stats., which prohibits governmental bodies from using secret ballots except to elect officers of the body, prohibits a common council from using a secret ballot to fill a vacancy in the office of mayor. The mayor is a member of the common council under sec. 62.11(2), Stats., and is not an officer of the council. See 65 Op. Att'y Gen. 131 (1976). If written ballots are used, each alderperson must write his or her name on the ballot. 8/6/99.

367. Reviews State ex rel. H.D. Enterprises II, LLC v. City of Stoughton, No. 98-3112 (Wis. Ct. App. September 16, 1999) (not recommended for publication), in which a divided court of appeals concluded that the general agenda item "licenses" in the public notice of a common council meeting provided adequate subject matter notice under the open meetings law that the council would reconsider the denial of a liquor license to a particular applicant. 9/30/99.

368. Provides the answers to a number of recent telephone inquiries received by the League's legal staff, including the conclusion that when a particular measure must be enacted by a majority, three-fourths or two-thirds vote of all the members of the common council, such as a budget change, the mayor is included in calculating the total membership of the council and thus the number of votes necessary to take the action only if the mayor actually votes due to a tie. Section 62.11(1), Stats., and Seelig v. City of Ripon, 237 Wis. 533 (1941). 1/31/00.

369. Discusses oaths of office, bonds, time of taking office, de facto officers, vacancies and other spring organizational and transitional issues affecting new municipal officers and bodies. 2/29/00.

369R. Discusses oaths of office, bonds, time of taking office, de facto officers, vacancies and other spring organizational and transitional issues affecting new municipal officers and bodies. 2/27/04.

369R2. Discusses oaths of office, bonds, time of taking office, de facto officers, vacancies and other spring organizational and transitional issues affecting new municipal officers and bodies. 2/28/07.

369R3. Discusses oaths of office, bonds, time of taking office, de facto officers, vacancies and other spring organizational and transitional issues affecting new municipal officers and bodies. 2/28/13.

370. Municipal governing bodies may, without violating the First Amendment's Establishment Clause, open their meetings with an invocation or prayer. Marsh v. Chambers, 463 U.S. 783 (1983). The prayer must be nonsectarian and ecumenical in nature. Governing bodies may reject proposed prayers that promote or disparage any particular religion or belief. 7/31/00.

371. Use of e-mail by sufficient number of members of governmental body can result in violation of open meeting law. 12/29/00.

372. A legislative body's self-imposed procedures regarding committee assignments are a question of policy for legislative, not judicial, determination. A legislature, even a municipal one, should control its own procedures. Oliveira v. City of Milwaukee, 2000 WI 27, reversing 2000 WI App. 49, 233 Wis.2d 532, 608 N.W.2d 419. 4/30/01.

373. Discusses the requirements for recording the proceedings of governing bodies and other governmental bodies, commonly referred to as minutes, and attempts to provide answers to questions that frequently arise in this area. 12/31/01.

373 R1. Discusses the requirements for recording the proceedings of governing bodies and other governmental bodies, commonly referred to as minutes, and attempts to provide answers to questions that frequently arise in this area. 1/30/09.

374. Although Wisconsin's open meeting law requires that all meetings of governmental bodies be preceded by public notice, it does not require that the notice of the meeting be published. Notice must be given as required by any other statute (sometimes these other statutes require publication), and must also be given to the public, to the official newspaper or, if none exists, to a news medium likely to give notice in the area, and to any news media that have filed a written request for such notice. 4/8/02.

375. This legal comment focuses on closed sessions under Wisconsin's open meeting law. In particular, it addresses the procedure for going into closed session, when a closed session is authorized, who can attend or be excluded from a closed session, what records must be kept relating to closed sessions, the legality of voting in closed session, and other questions that arise with regard to closed sessions. 9/30/02.

375 R-1. Legal comment focuses on closed sessions under Wisconsin’s open meeting law. In particular, it addresses the procedure for going into closed session, when a closed session is authorized, who can attend or be excluded from a closed session, what records must be kept relating to closed sessions, the legality of voting in closed session, and other questions that arise with regard to closed sessions. 7/31/14.

376. Neither a city council nor a mayor have authority to limit the period of investigative suspension or involuntary administrative leave imposed by a police chief, fire chief or police and fire commission pursuant to their sec. 62.13(5)(b), Stats., authority. However, if a mayor, police chief or fire chief has general administrative authority to impose such leave, its exercise may be limited by the city council or mayor. 12/31/02.

377. Informal AG opinion dated March 5, 2004 explains that the practice of allowing broad agenda items like "staff comments," "alderman comments," and "mayor comments" without any description of subject matter is "at best, at the outer edge of lawful practice, and may well cross the line to become unlawful" under Wisconsin's open meeting law. Municipalities should discontinue this practice. 4/30/04.

378. Existing federal and state case law does not support the proposition that all legislative prayer is constitutional and, instead, is properly read to prohibit sectarian legislative prayer. Hinrichs v. Bosma, Case Nos. 05-4604 and 05-4781, __ F. 3d __, (7th Cir., March 1, 2006). 3/31/06.

379. The plain language of Wis. Stat. 19.85(c) and the public policy need for candid governmental agency discussion establish an implicit privilege of nondisclosure which prevents a government employee who was discussed during the session from using discovery to learn the substance of the closed session meeting discussion about the employee. Sands v. Whitnall School Dist., 2007 WI App 3, 298 Wis.2d 534, 728 N.W.2d 15. 12/31/06.

380. While a private entity's request for confidentiality might provide a reason for a government to desire holding closed meetings, that request does not require the government to hold closed meetings to preserve the government's competitive or bargaining interests as demanded by Wis. Stat. 19.85(1)(e). State of Wisconsin ex rel. Citizens for Responsible Development v. City of Milton, 2007 WI App 114, 731 N.W.2d 640, 2007 WI App 114. 3/31/07.

381. A City's fear of losing a proposed ethanol plant to competition from another municipality does not justify a closed session under 19.85(1)(e) where there is no indication that holding closed meetings can deter the plant developers from seeking a better financial package from some other municipality. State of Wisconsin ex rel. Citizens for Responsible Development v. City of Milton, 2007 WL 704506, Appeal No. 2006 AP 427 (Ct. App. Mar. 8, 2007). 3/31/07.

382. A closed session for purposes of suppressing interest from other potential purchasers in  land desired by a municipality for development does not justify a closed session under 19.85(1)(e) since the seller is not required to keep the negotiations confidential and the seller is reasonably motivated by a desire to receive the best price for it. State of Wisconsin ex rel. Citizens for Responsible Development v. City of Milton, 2007 WI App 114, 731 N.W.2d 640, 2007 WI App 114. 3/31/07.

383. Developing a negotiation strategy or deciding on a price to offer for a piece of land is an example of what is contemplated by the 19.85(1)(e) closed meeting exception. State of Wisconsin ex rel. Citizens for Responsible Development v. City of Milton, 2007 WL 704506, Appeal No. 2006 AP 427. 3/31/07.

384. Whether notice is specific enough to “reasonably apprise” the public and the media under Wis. Stat. sec. 19.84(2) regarding what subject matter will be dealt with at meeting is subject to a reasonableness standard which strikes a balance between the public's right to information and the government's need to efficiently conduct its business. Whether notice is reasonable depends on the particular circumstances and must be analyzed on a case-by-case basis. Considerations include (1) balancing the burden of providing more detailed notice; (2) whether the subject of the meeting is of particular interest; and (3) whether it involves non-routine action that the public would be unlikely to anticipate. The analysis is based on what the public officer noticing the meeting knows, or reasonably should know, at the time the notice is provided.The reasonableness standard announced in this case applies only prospectively. State ex rel. Buswell v. Tomah Area School District, 2007 WI. 71 732 N.W.2d 804, overruling State ex rel. H.D. Enterprises, Inc. v. City of Stoughton, 230 Wis.2d 480, 602 N.W.2d 72 (Ct. App. 1999). 6/30/07.

385. Provides good practice guidelines for public comment at meetings of local government bodies. By John Stephens and A. Fleming Bell, II. 6/30/97 (reprinted 6/20/08).

386. A private entity is a “quasi-governmental corporation” within the meaning of the open meetings and public records laws if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status. Key factors include but are not limited to: (1) the entity’s finances; (2) whether the entity serves a public function; (3) whether it appears to the public to be a government entity; (4) whether the entity is subject to government control; and (5) the degree of access that government bodies have to the entity’s records. No one factor is determinative and determinations must be made on a case-by-case basis. State of Wisconsin v. Beaver Dam Area Development Corporation, 2008 WI 90. 7/31/08.

387. Wisconsin does not recognize a “deliberative process privilege” and there is no privilege implicit in Wis. Stat. 19.85 (open meeting law exemptions) which would shield the contents of a governmental body’s closed session from a discovery request made pursuant to Wis. Stat. sec. 804.01 during litigation. Thus, school district was required to answer interrogatories filed by ex-employee attempting to discover substance of closed session communications pertaining to whether or not to renew her contract. Sands v. Whitnall School District, 2008 WI 89, rev’g 2007 WI App. 3. 7/31/08.

388. Open Meetings. Municipal committee’s email voting practices which constitute the conduct of governmental business almost certainly violated open meeting law notice and accessibility requirements where such action was not preceded by any notice and did not provide opportunity for public observation of the process. Informal Opinion of Wis. Att’y Gen. to Ms. Stephanie Jones, OAG I-01-10 (January 25, 2010). 1/31/10.

389. Open Meetings. “Purely generic subject matter designations in meeting notices, such as ‘old business,’ ‘new business,’ ‘miscellaneous business,’ ‘agenda revisions,’ or ‘such other matters as are authorized by law,’ are legally insufficient because they identify no particular subjects at all.” Informal Opinion of Wis. Att’y Gen. to Ms. Stephanie Jones, OAG I-01-10 (January 25, 2010). 1/31/10.

390. Emails that are created or maintained by government employees on government-owned computer systems but which are purely personal in nature, have no connection to the government’s functions and evince no violation of law or policy,  are not subject to disclosure under the Wisconsin Public Records Law. Personal e-mails used as evidence by an employer in a disciplinary matter or to investigate misuse of government resources by an employee are records under the public records law and may be subject to disclosure. Where emails are personal in part and also have some connection with the government function, the custodian may need to redact the personal content and release the portion connected to the government function. Schill v. Wisconsin Rapids School District, 2010 WI 86. 7/30/10.

391. Comment reviews possible sources of authority for agenda control by mayors, village presidents or other presiding officers of local government bodies and concludes: 1)the Wisconsin Open Meetings Law requirement that the presiding officer or designee thereof provide notice of a governmental body meeting, Wis. Stat. sec. 19.84(1)(b), does not vest the presiding officer or the designee with power to set the agenda of the body because the plain meaning of the statute only empowers the presiding officer/designee to describe the agenda, not set it; 2) the statutory provisions designating mayors and village presidents as a presiding officer of the city council and village board respectively, Wis. Stat. secs. 62.09(8)(b), 61.24, 61.32 do not give either official authority to set the agenda for their city council or village board because the plain language of the provisions only grant authority to act during a meeting of the body; 3) Roberts Rules of Order Newly Revised (10th ed.) do not vest a presiding officer with power to set the agenda for a body or assembly since the rules do not explicitly or implicitly direct such activity by a presiding officer and they specifically provide at least two methods for the body and its members to determine the agenda, and; 4) a city council or village board may grant some agenda control authority respectively to a mayor or village president but may not give such officer discretionary authority to determine the subject matter of a city council or village board agenda because such action would be an impermissible delegation of legislative power. 8/31/10.

392. The common council is a legislative, policy-making body and may not, by simple directive or order, countermand lawful orders of the mayor as chief executive that relate to the day-to-day operations of the city. However, where the council exercises its legislative authority by establishing new general policy, the mayor is then required to exercise his or her executive authority within the bounds of the policy established. Thus, where the mayor had instructed department heads, including the fire chief to eliminate overtime unless urgent or necessary and the fire department had used the amount appropriated as a line-item in the city budget for fire department overtime, the council could not, by simple order, instruct the fire chief to not take action to reduce overtime and to maintain current staffing levels. 5/19/14.

393. Legal comment summarizes the U.S. Supreme Court’s decision in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) which held that local governments can engage in the historical practice of opening meetings with prayer, and prayers can be sectarian and in the language of the prayer giver’s religion. However, prayer opportunities should be used to recognize the solemnity of the occasion and not to proselytize or advance any one religion, or to disparage any other, faith or belief. A government that incorporates prayer as part of its meeting may not intentionally exclude or discriminate against any religions. As long as a government maintains a policy of nondiscrimination, the Constitution does not require a municipality to search beyond its borders in an effort to achieve religious balancing. Comment includes Carmel, Indiana City Attorney Doug Haney’s suggested best practices for municipalities which incorporate legislative prayers into government meetings for ensuring that prayer practices don’t violate the First Amendment’s Establishment Clause. 10/31/14.

394. Article highlights legal issues associated with the use of smart phones, tablets, laptops and other electronic devices by local officials that arise under the Wisconsin Open Meetings Law, Wisconsin Public Records Law and due or fair process requirements. 4/30/15.

395. Article summarizes basic parliamentary procedure steps for making a motion, amending a motion, voting and other procedures that protect member’s rights to participate. 4/30/15.

395R1. Article summarizes basic parliamentary procedure steps for making a motion, amending a motion, voting, and other procedures that protect a member's right to participate.  The full text is printed in the Municipality magazine, June 2017. 

396. While a common council is empowered to employ special counsel pursuant to Wis. Stat. sec. 62.09(12)(g), this authority is limited to circumstances involving a specific disagreement, strife or litigation where a city attorney cannot or should not act and does not authorize a city council to hire an independent attorney to advise a city council or sub-units or members thereof on all law business that comes before it/them.

397. Legal Comment reviews State ex rel. Badke v. Greendale Village Bd., 173 Wis.2d 553, 494 N.W.2d 408 (1993) and correspondence from DOJ’s Office of Open Government to Winnebago County which concludes that it is necessary to provide notice under the open meetings law when more than half of a governmental body attends the meeting of another body that is not subject to the open meeting law, assuming the subject of the meeting is within the responsibilities of that governmental body and the meeting is neither social nor chance. 02/28/2017