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POLICY OF THE OPEN MEETINGS LAW
WHEN DOES THE OPEN MEETINGS LAW APPLY?
The legislature has mandated that the open meetings law be vigorously and liberally enforced
and that public officials comply with both the letter and the spirit of the law.
Definition of Governmental Body
A GOVERNMENTAL BODY is any state or local agency, board, commission, committee, council, department, or public body corporate and politic that has been created by constitution, statute, ordinance, rule or order.
Entities That Are Governmental Bodies
1 . STATE OR LOCAL AGENCIES, BOARDS OR COMMISSIONS CREATED BY STATE CONSTITUTION OR
STATUTE OR BY COUNTY, CITY, VILLAGE OR TOWN ORDINANCE "Rule or order" (above) includes
any directive (formal or informal) creating a governmental body and assigning it duties.
2. GOVERNMENTAL OR QUASI-GOVERNMENTAL CORPORATIONS Whether these come under the
open meetings law is decided on a case by case basis based on six criteria.
3. SUB-UNITS These are separate, smaller entities created by a parent body and composed of members of the parent body. (Groups made up of members and non-members qualify.)
4. STATE LEGISLATURE The open meetings law applies to the senate, assembly, and their committees and sub-units. It does not apply to partisan caucuses.
Entities That Are Not Governmental Bodies
I. GOVERNMENTAL OFFICES HELD BY A SINGLE INDIVIDUAL The open meetings law does not apply to an administrative hearing conducted by one person, for example.
2. BODIES MEETING FOR COLLECTIVE BARGAINING These are excluded from the open meetings law by state statute. However, the attorney-general advises that a body formed for purposes in addition to bargaining give notice when meeting in closed session to form negotiating strategies. Bodies are not allowed to consider the final ratification or approval of a collective bargaining
agreement in closed session.
3. BODIES CREATED BY THE WISCONSIN SUPREME COURT Such groups are not governed by the open meetings law.
4. AD HOC GATHERINGS Such groups, made up of citizens and local officials, are not under the open meetings law unless they have been conferred collective power to act and the number of members is defined in exact enough terms that it is clear that they could determine the course of action of the parent body. A meeting of the employees of a body on a subject within the bodies jurisdiction would be unlikely to be subject to the open meetings law.
Definition of Meeting
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A MEETING is the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power, or duties delegated to the body. If one-half or more of the members are present, the meeting is rebutably presumed to be for those purposes. The term does not include any social or chance gatherings not intended to sidestep the open meetings law.
Requirements for the application of the open meetings law to a gathering:
a) its purpose is to engage in government business and
b) the number present is sufficient to determine the bodies' course of action.
"Business" refers to any formal or informal action (discussion, decision,
information gathering) on matters within the bodies' authority. (This includes merely attending a meeting of another body where something to be later subject to their approval is discussed.)
1 . SIMPLE MAJORITY Bodies operate under majority rule, so a margin of one vote can block or approve a proposal. Therefore, the open meetings law applies whenever one-half or more members meet - whether physically or by telecommunication. Proxy votes may not be used to establish a quorum or conduct business unless the body has previously approved doing so.
2. NEGATIVE QUORUM If a body operates under a two-thirds majority rule, less than one-half of the members could block a proposal. Therefore, the open meetings law would apply when one-third of the members gathered.
3. WALKING QUORUMS This situation exists when a series of the members of a body, each less than a quorum in size, gather and (tacitly or explicitly) agree to act together to reach a quorum. Such quorums are subject to prosecution, since they could produce predetermined outcomes and render the public held meeting a mere formality. (Members also cannot circumvent
compliance by using an agent or surrogate to poll members through individual contacts.)
4. TELEPHONE CONFERENCE CALLS They are within the definition of "meeting". Such calls are legal if means for the public to monitor them are made (such as broadcasting though speakers).
5. ELECTRONIC COMMUNICATION These create special dangers to officials because it is hard to control the number and identity of those who have access to the message. Inadvertent violations can be avoided if messages go to all members and they reply only to the sender.
6. MULTIPLE MEETINGS If a quorum of one body meets with a quorum of another, notice must be given for both bodies. A joint notice may be made by the parent body if it is published in the place usual for the subunit. (An exception allows a sub-unit to meet during a recess or immediately after a meeting of the parent body if they act upon a matter acted upon in the
meeting of the parent body.)
7. BURDEN OF PROOF AS TO EXISTENCE OF A MEETING Members of a body may avoid penalty by establishing that they did not discuss nor act upon business during the gathering. When a person alleges a meeting of less than one-half met in violation, the burden of proof is on the accuser.
WHAT IS REQUIRED IF THE OPEN MEETINGS LAW APPLIES?
The two most basic requirements of the open meetings law are that a governmental body:
1) give advance public notice of each of its meetings, and,
2) conduct all of its business in open session, unless an exemption to the open session requirement applies
Notice must be given to the public, news media if they have requested it, and the official newspaper, if one exists.
The public notice must be posted in one or more places but the Attorney General recommends posting in three places within the jurisdiction of the governmental body.
Contents of Notice
The contents of the notice must include time, date, place and subject matter, including anything intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise the public and the news media thereof. The notice does not need to include the full agenda but the notice should be specific. No categories such
as "other business", "miscellaneous business", "agenda revisions" are allowed. If a member of the body knows he/she wants to bring up something, it needs to be in the notice. "Mayor comments", or "superintendent report" are also too vague.
If a closed session is possible, the notice of it must include the subject matter to be considered. In addition to the specific nature of the business, the exemptions under which a closed session is authorized must also be included. The number of the statute that states the possible exemption from open session must be included.
Time of Notice
Twenty four hour notice of a meeting is required unless it is "impossible or impractical" and then it should be given as soon as possible or at least two hours in advance of the meeting.
A separate notice for each meeting must be given. A single notice that lists all the meetings that a governmental body plans to hold over a given week, month or year does not comply with the law.
Open Session Requirements
The open meeting must be held in a reasonably accessible public place which is open to all citizens at all times. The place should be near the people the governmental body serves. People with functional limitations must be able to get into the room without assistance. The meeting must also be held in a room that is reasonably large enough to hold the expected crowd.
Tape Recording Or Videotaping
Open meetings may be audio taped or video taped by citizens.
Governmental bodies are not required to allow citizen participation at open meetings unless the meeting is a public hearing required by statute. However, governmental bodies may allow citizen participation but may also limit the extent of that participation. If public comment is allowed, the body may discuss but not act on the information presented by the member of the public. Extensive discussion and action on such comment should be held in a properly noticed meeting.
The government body may allow anyone to attend a closed meeting who the body
determines is necessary for the proper consideration of a matter. If the governmental body is a sub-unit (committee) of a parent body, the members of the parent body must be allowed to attend the sub-unit's closed meeting. However, if enough members of the parent body are present to reach a quorum, the meeting must be noticed as a meeting of the parent body.
Minutes of Meetings and Recording of Votes
Open meetings law requires a record be kept of motions and roll call votes at any meeting. Detailed minutes are not required. "Consent agendas" where a body discusses individual items of business under separate agenda items but takes action on all discussed items by adopting a single motion to approve all the items previously discussed, are likely insufficient to satisfy the record keeping requirements.
No secret ballot may be used to determine any election or decision except the election of officers of that body.
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The notice of the meeting must include a closed session if known about in advance. However, a last-minute closed session may be used to discuss an item contained in the notice of an open session.
Every meeting must be convened in open session. A majority vote must occur to convene in closed session. Nature of the business and the specific statutory exemption claimed must be announced in open session.
There are thirteen exemptions to an open session requirement. Following are some of the
most frequently cited:
1. Judicial or quasi-judicial hearings (cases that contemplate a controversy
2. Employment and licensing matters
a. Consideration of dismissal, demotion, discipline, licensing and
b. Consideration of employment, promotion, compensation and
3. Consideration of financial, medical, social or personal information
4. Conducting public business with competitive or bargaining implications
5. Conferring with legal counsel with respect to litigation
The remaining exemptions are cited in Wis. Stat. 19.85(1)
Voting should take place in open session unless doing so would compromise the need for the closed session.
Reconvening in open session after a closed session must be noticed. The time need not be specified if the open session will be immediately after the closed session.
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ENFORCEMENT AND PENALTIES
The Attorney General and the district attorneys have authority to enforce the open meeting law. An Attorney General may enforce the law only after a complaint is filed by an individual. He/she has twenty days to take action; thereafter, an individual may bring an action to enforce the laws
Any member of a governmental body who knowingly attends a meeting held in violation of the open meetings law is subject to a forfeiture of between $25 and $300 for each violation. In addition, any action taken at a meeting held in violation of the open meetings law may be voided by the court. Certain exceptions exist to both of the above sentences.
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