Open Meetings Law FAQ 6

May a village or city clerk be excluded from a closed session?

Both village clerks and city clerks are vested with the statutory duty to attend all meetings of their respective village board or city council and keep a full record of all proceedings thereof. Secs. 61.25(3) and 62.09(11)(b), Stats. The statutory obligation imposed on village clerks and city clerks clearly requires a record of minutes for closed as well as open sessions of governing bodies be kept. However, this statutory obligation should not be construed as an absolute right for clerks to attend a closed session.

The state legislature has limited a governmental body's ability to exclude duly elected or appointed members of that body from any meeting of that body. Wis. Stat. sec.19.89. Similarly, unless contrary rules have been adopted by the governmental body, that section also prohibits a subunit of the governmental body from excluding any member of the governmental body from a meeting of the subunit. However, since a village or city clerk is not an elected or appointed member of their village board or city council, the sec. 19.89 limitations would not apply. Therefore, in the absence of a clear legislative pronouncement prohibiting the exclusion of a village or city clerk from the closed session of their respective governing body, such exclusion is permissible so long as the clerk is not necessary to conduct the business of the governmental body (this determination should not be made without good reason in light of the statutory duty imposed on the clerk to keep minutes and is made by the governing body or subunit as a whole not by any individual member thereof).

As noted, a necessary aspect of a governmental body's business during a closed session is the keeping of minutes. Therefore, if the governmental body excludes the village or city clerk from the closed session (thereby relieving the clerk of the statutory duty to keep a record) it must appoint someone to take minutes in the clerk's absence. This designation should be done before going into the closed session, so that it is clear to the public and the clerk that a particular person has been given the responsibility for taking minutes and it can be made part of the record kept by the clerk.