Wisconsin Open Meetings Law Compliance Guide​

May 2019 Wisconsin Open Meetings Law Compliance Guide Wisconsin Department of Justice Attorney General Josh Kaul Message from the Office of Open Government It is imperative that we recognize that transparency is the cornerstone of democracy and that citizens cannot hold elected officials accountable in a representative government unless government is performed in the open. The Wisconsin Department of Justice (DOJ) plays an important role in ensuring Wisconsin’s open government laws are properly and faithfully executed by public officials. The Office of Open Government has worked to reduce DOJ’s average public record response times. The office also makes available online a snapshot of all public records requests pending each week, average monthly response times for the office, and responses to public records requests that may be of public interest. DOJ responds to hundreds of inquiries every year concerning issues related to the open meetings law and the public records law, and instructs on open government at dozens of conferences, seminars, and training sessions. In these ways, the Office of Open Government provides resources and services to all state, regional, and local government entities and citizens. Wisconsin’s open government laws promote democracy by ensuring that all state, regional and local governments conduct their business with transparency. Wisconsin citizens have a right to know how their government is spending their tax dollars and exercising the powers granted by the people. This guide is a resource for everyone to understand and exercise their right to access their government. This compliance guide may be accessed, downloaded or printed free of charge from the D OJ website, by visiting https://www.doj.state.wi.us/ . Please share this guide with your constituencies and colleagues. Records custodians and all those who perform public duties are encouraged to contact the Office of Open Government if we can be of assistance. Office of Open Government Paul M. Ferguson, Assistant Attorney General Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707-7857 Public Records/Open Meetings (PROM) Help Line: (608) 267-2220 Disclaimer This guide provides an overview of the law and compiles information provided by DOJ in response to inquiries submitted over the course of several decades. This guide is provided pursuant to Wis. Stat. § 19.98 and does not constitute an informal or formal opinion of the Attorney General pursuant to Wis. Stat. § 165.015(1). This guide does not provide answers to every question that may arise regarding the open meetings law. Although this guide is updated periodically, it reflects the current law as of the date of its publication, and it may be superseded or affected by newer versions and/or changes in the law. This guide does not create an attorney -client relationship. You should consult with an attorney f or specific information and advice when necessary and appropriate. Wisconsin Open Meetings Law Compliance Guide May 2019 Attorney General Josh Kaul Office of Open Government Paul M. Ferguson, Assistant Attorney General Laura A. Heim, Paralegal Ashley M. Hein, Program and Policy Analyst Sarah K. Larson, Assistant Attorney General Chelsea K. Steinke, Paralegal The 2019 edition of the Wisconsin Open Meetings Law Compliance Guide results from the efforts of the Office of Open Government, as well as the following Wisconsin Department of Justice personnel, all of whom are acknowledged and appreciated: Thomas C. Bellavia, Assistant Attorney General Anne M. Bensky, Assistant Attorney General Daniel P. Lennington, Assistant Attorney General Kevin C. Potter, Assistant Attorney General Sandra L. Tarver, Assistant Attorney General Amy Thornton, Law Librarian Amanda J. Welte, Legal Associate i Table of Contents Page POLICY OF THE OPEN MEETINGS LAW .......................................................................................................................... 1 WHEN DOES THE OPEN MEETINGS LAW APPLY? ....................................................................................................... 1 Definition of “Governmental Body” .............................................................................................................................. 1 Entities That Are Governmental Bodies ............................................................................................................... 1 State or Local Agencies, Boards, and Commissions ................................................................................... 2 Governmental or Quasi-Governmental Corporations ............................................................................... 5 State Legislature .............................................................................................................................................. 6 Subunits ............................................................................................................................................................ 6 Entities That Are Not Governmental Bodies ....................................................................................................... 7 Governmental Offices Held by a Single Individual ................................................................................... 7 Bodies Meeting for Collective Bargaining ................................................................................................... 7 Bodies Created by the Wisconsin Supreme Court ...................................................................................... 7 Ad Hoc Gatherings ......................................................................................................................................... 8 Definition of “Meeting” ................................................................................................................................................... 9 The Showers Test ....................................................................................................................................................... 9 The Purpose Requirement ............................................................................................................................. 9 The Numbers Requirement ......................................................................................................................... 10 Convening of Members ......................................................................................................................................... 10 Written Correspondence .............................................................................................................................. 10 Telephone Conference Calls ........................................................................................................................ 11 Electronic Communications ......................................................................................................................... 11 Walking Quorums ................................................................................................................................................. 12 Multiple Meetings .................................................................................................................................................. 12 Burden of Proof as to Existence of a Meeting .................................................................................................... 13 WHAT IS REQUIRED IF THE OPEN MEETINGS LAW APPLIES? ............................................................................... 14 Notice Requirements ..................................................................................................................................................... 14 To Whom and How Notice Must Be Given ....................................................................................................... 14 Contents of Notice ................................................................................................................................................. 15 In General ....................................................................................................................................................... 15 Generic Agenda Items .................................................................................................................................. 17 ii Action Agenda Items .................................................................................................................................... 18 Notice of Closed Sessions............................................................................................................................. 18 Time of Notice ........................................................................................................................................................ 19 Compliance with Notice ....................................................................................................................................... 19 Open Session Requirements ......................................................................................................................................... 20 Accessibility ............................................................................................................................................................ 20 Access for Persons with Disabilities .................................................................................................................... 21 Tape Recording and Videotaping ........................................................................................................................ 21 Citizen Participation .............................................................................................................................................. 22 Ballots, Votes, and Records, Including Meeting Minutes ................................................................................ 22 WHEN IS IT PERMISSIBLE TO CONVENE IN CLOSED SESSION? ............................................................................. 24 Notice of Closed Session ............................................................................................................................................... 24 Procedure for Convening in Closed Session .............................................................................................................. 24 Authorized Closed Sessions ......................................................................................................................................... 25 Judicial or Quasi-Judicial Hearings ..................................................................................................................... 25 Employment and Licensing Matters ................................................................................................................... 25 Consideration of Dismissal, Demotion, Discipline, Licensing, and Tenure.......................................... 25 Consideration of E mployment, Promotion, Compensation, and Performance Evaluations ............................................................................................................................................ 26 Consideration of Financial, Medical, Social, or Personal Information ........................................................... 27 Conducting Public Business with Competitive or Bargaining Implications ................................................. 28 Conferring with Legal Counsel with Respect to Litigation ............................................................................. 29 Remaining Exemptions ......................................................................................................................................... 29 Who May Attend a Closed Session .............................................................................................................................. 29 Voting in an Authorized Closed Session .................................................................................................................... 30 Reconvening in Open Session ...................................................................................................................................... 30 WHO ENFORCES THE OPEN MEETINGS LAW AND WHAT ARE ITS PENALTIES? ............................................ 31 Enforcement .................................................................................................................................................................... 31 Penalties ........................................................................................................................................................................... 32 Interpretation by Attorney General ............................................................................................................................. 33 - 1 - POLICY OF THE OPEN MEETINGS LAW The State of Wisconsin recognizes the importance of having a public informed about governmental affairs. The state’s open meetings law declares that: In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state 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 order to advance this policy, the open meetings law requires that “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwis e expressly provided by law.” 2 There is thus a presumption that meetings of governmental bodies must be held in open session.3 Although there are some exemptions allowing closed sessions in specified circumstances, they are to be invoked sparingly and only where necessary to protect the public interest. The policy of the open meetings law dictates that governmental bodies convene in closed session only where holding an open session would be incompatible with the conduct of governmental affairs. “Mere govern ment inconvenience is . . . no bar to the requirements of the law.” 4 The open meetings law explicitly provides that all of its provisions must be liberally construed to achieve its purposes.5 This rule of liberal construction applies in all situations, except enforcement actions in which forfeitures are sought.6 Public officials must be ever mindful of the policy of openness and the rule of liberal construction in order to ensure compliance with both the letter and spirit of the law. 7 WHEN DOES THE OPEN MEETINGS LAW APPLY? The open meetings law applies to every “meeting” of a “governmental body.” 8 The terms “meeting” and “governmental body” are defined in Wis. Stat. § 19.82(1) and (2). Definition of “Governmental Body” • Entities That Are Governmental Bodies A “governmental body” is defined as: [A] state or local agency, board, commission, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley Center sports and entertainment corporation; a local exposition district under subch. II of ch. 229; a long -term care district 1 Wis. Stat. § 19.81(1). 2 Wis. Stat. § 19.81(2). 3 State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 97, 398 N.W.2d 154 (1987). 4 State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 678, 239 N.W.2d 313 (1976). 5 Wis. Stat. § 19.81(4); State ex rel. Badke v. Vill. Bd. of Greendale, 173 Wis. 2d 553, 570, 494 N.W.2d 408 (1993); State ex rel. Lawton v. Town of Barton, 2005 WI App 16, ¶ 19, 278 Wis. 2d 388, 692 N.W.2d 304 (“The legislature has issued a clear mandate that we are to vigorously and liberally enforce the policy behind the open meetings law.”). 6 Wis. Stat. § 19.81(4). 7 State ex rel. Citizens for Responsible Dev. v. City of Milton, 2007 WI App 114, ¶ 6, 300 Wis. 2d 649, 731 N.W.2d 640 (“The legislature has made the policy choice that, despite the efficiency advantages of secret government, a transparent process is favored.”). 8 Wis. Stat. § 19.83. - 2 - under s. 46.2895; or a formally constituted subunit of any of the foregoing, but excludes any such body or committee or subunit of such body which is formed for or meeting for the purpose of collective bargaining under subch. I, IV, V, or VI of ch. 111. 9 This definition includes multiple parts, the most important of which are discuss ed below. o State or Local Agencies, Boards, and Commissions The definition of “governmental body” includes a “state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order . . . .”10 This list of entities is broad enough to include virtually any collective governmental entity, regardless of what it is labeled. It is important to note that these entities are defined primarily in terms of the manner in which they are created, rather than in terms of the type of authority they possess. Purely advisory bodies are therefore subject to the law, even though they do not possess final decision making power, as long as they are created by constitution, statute, ordinance, rule, or order. 11 The words “constitution,” “statute,” and “ordinance,” as used in the definition of “governmental body,” refer to the constitution and statutes of the State of Wisconsin and to ordinances promulgated by a political subdivision of the state. The definition t hus includes state and local bodies created by Wisconsin’s constitution or statutes, including condemnation commissions created by Wis. Stat. § 32.08, as well as local bodies created by an ordinance of any Wisconsin municipality. It does not, however, incl ude bodies created solely by federal law or by the law of some other sovereign. State and local bodies created by “rule or order” are also included in the definition. The term “rule or order” has been liberally construed to include any directive, formal or informal, creating a body and assigning it duties. 12 This includes directives from governmental bodies, presiding officers of governmental bodies, or certain governmental officials, such as county executives, mayors, or heads of a state or local agency, department, or division.13 Thus, for example, in State ex rel. Krueger v. Appleton Area School District Board of Educ ation, the Wisconsin Supreme Court held that a curriculum committee, “ created by” school board rule and given the delega ted authority to review and select educational materials for the school board’s approval, was subject to open meetings laws. 14  First, it was a “committee” under Wis. Stat. § 19.82(1), not an ad hoc gathering, because it was comprised of a defined membersh ip of individuals selected pursuant to the procedures set forth in the school board’s policy handbook, and its members were empowered to vote on how the school board should exercise its collective authority as a body. 15  Second, it was “created by . . . rule” under Wis. Stat. § 19.82(1), because the school board handbook policy was authorized by school board rule, thereby authorizing and enabling the 9 Wis. Stat. § 19.82(1). 10 Wis. Stat. § 19.82(1). 11 See State v. Swanson, 92 Wis. 2d 310, 317, 284 N.W.2d 655 (1979). 12 78 Op. Att’y Gen. 67, 68–69 (1989). 13 See 78 Op. Att’y Gen. 67. 14 State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., 2017 WI 70, ¶¶ 27–34, 376 Wis. 2d 239, 898 N.W.2d 35. 15 Id. ¶¶ 28-31. - 3 - committee to be created. The sch ool board rule also prescribed the procedures for school district e mployees to follow in reviewing educational materials and presenting them to the school board for approval. Read together, the school board rule and the board- approved handbook policy therefore authorized committees like the one at issue to be created, and also authorized such committees to exercise the school board’s delegated authority over curriculum review for the school district.16  In so holding, the Wisconsin Supreme Court ex plained that it did not matter that two individual district employees decide d to put the rule and handbook policy in motion to form the committee. It also did not matter that neither the school board rule nor the handbook policy had provisions that created or mentioned the committee by name. Nor did it matter that the committee deviated from the handbook’s procedures in making its recommendations to the school board for a specific course’s curriculum. Rather, the dispositive factor was that the school board’s handbook policy authorized such review committees to be creat ed for the purposes of reviewing curriculum materials and making recommendations to the school board for adoption.17 A group organized by its own members pursuant to its own charter, however, is not created by any governmental directive and thus is not a governmental body, even if it is subject to governmental regulation and receives public funding and support. The relat ionship of affiliation between the University of Wisconsin Union and various student clubs thus is not sufficient to make the governing board of such a club a governmental body. 18 The Wisconsin Supreme Court or Wisconsin Attorney General have concluded that the following entities are state or local bodies that are subject to the open meetings law by virtue of having been created by constitution, statute, ordinance, resolution, rule or order:  State or Local Bodies Created by Constitution, Statute, or Ordinance ◊ A municipal public utility managing a city-owned public electrical utility.19 ◊ Departments of formally constituted subunits of the University of Wisconsin system or campus.20 ◊ A town board, but not an annual or special town meeting of town electors. 21 ◊ A county board of zoning adjustment authorized by Wis. Stat § 59.99(3) (1983) (now Wis. Stat. § 59.694(1)).22 ◊ A public inland lake protection and rehabilitation district established by a county or municipality, pursuant to Wis. Stat. §§ 33.21 to 33.27.23 16 Krueger, 2017 WI 70, ¶¶ 32–34, 43. 17 Id. ¶¶ 35–40. 18 Penkalski Correspondence (May 4, 2009). 19 65 Op. Att’y Gen. 243 (1976). 20 66 Op. Att’y Gen. 60 (1977). 21 66 Op. Att’y Gen. 237 (1977). 22 Gaylord Correspondence (June 11, 1984). 23 DuVall Correspondence (Nov. 6, 1986). - 4 -  State or Local Bodies Created by Resolution, Rule, or Order ◊ A committee created by a school board’s policy handbook to review and select education materials for the board’s approval.24 ◊ A committee appointed by the school superintendent to consider school library materials.25 ◊ A citizen’s advisory group appointed by the mayor. 26 ◊ An advisory committee appointed by the Natural Resources Board, the Secretary of the Department of Natural Resources, or a District Director, Bureau Director , or Property Manager of that department.27 ◊ A consortium of school districts created by a contract between districts; a resolution is the equivalent of an order.28 ◊ An industrial agency created by resolution of a county board under Wis. Stat. § 59.57(2).29 ◊ A deed restriction committee created by resolution of a common council. 30 ◊ A school district’s strategic-planning team whose creation was authorized and whose duties were assigned to it by the school board. 31 ◊ A citizen’s advisory committee appointed by a county executive. 32 ◊ An already -existing numerically definable group of employees of a governmental entity, assigned by the entity’s chief administrative officer to prepare recommendations for the entity’s policy -making board, when the group’s meetings include the subject of the chief administrative officer’s directive. 33 ◊ A Criminal Justice Study Commission created by the Wisconsin Department of Justice, the University of Wisconsin Law School, the State Bar of Wisconsin, and the Marquette University Law School.34 ◊ Grant review panels created by a consortium which was established pursuant to an order of the Wisconsin Commissioner of Insurance. 35 24 Krueger, 2017 WI 70, ¶ 27. 25 Staples Correspondence (Feb. 10, 1981). 26 Funkhouser Correspondence (Mar. 17, 1983). 27 78 Op. Att’y Gen. 67. 28 I-10-93 (Oct. 15, 1993). 29 I-22-90 (Apr. 4, 1990). 30 I-34-90 (May 25, 1990). 31 I-29-91 (Oct. 17, 1991). 32 Jacques Correspondence (Jan. 26, 2004). 33 Tylka Correspondence (June 8, 2005). 34 Lichstein Correspondence (Sept. 20, 2005). 35 Katayama Correspondence (Jan. 20, 2006). - 5 - ◊ A joint advisory task force established by a resolution of a Wisconsin town board and a resolution of the legislature of a sovereign Indian tribe. 36 ◊ A University of Wisconsin student government committee, council, representative assembly, or similar collective body that has been created and assigned governmental responsibilities pursuant to Wis. Stat. § 36.09(5).37 o Governmental or Quasi-Governmental Corporations The definition of “governmental body” also includes a “governmental or quasi-governmental corporation,” except for the Bradley sports center corporation. 38 The term “governmental corporation” is not defined in either the statutes or the case law interpreting the statutes. It is clear, however, that a “governmental corporation” must at least include a corporation established for some public purpose and created directly by the state legislature or by some other governmental body pursuant to specific statutory authorization or direction. 39 The term “quasi -governmental corporation” also is not defined in the statutes, but its definition was discussed by the Wisconsin Supreme Court in State v. Beaver Dam Area Development Corp. (“BDADC”).40 In that decision, the court held that a “quasi-governmental corporation” does not have to be created by the government or be per se governmental, but rather is a corporation that significantly resembles a governmental corporation in function, effect, or status.41 The court further held that each case must be decided on its own particular facts, under the totality of the circumstances and set forth a non- exhaustive list of factors to be examined in determining whether a particular corporation sufficiently resembles a governmental corporation to be deemed quasi-governmental, while emphasizing that no single factor is outcome determinative.42 The factors set out by the court in BDADC fall into five basic categories: (1) the extent to which the private corporation is supported by public funds; (2) whether the private corporation serv es a public function and, if so, whether it also has other, private functions; (3) whether the private corporation appears in its public presentations to be a governmental entity; (4) the extent to which the private corporation is subject to governmental control; and (5) the degree of access that government bodies have to the private corporation’s records.43 In adopting this case -specific, multi-factored “function, effect or status” standard, the Wisconsin Supreme Court followed a 1991 Attorney General opi nion.44 Prior to 1991, however, Attorney General opinions on this subject emphasized some of the more formal aspects of 36 I-04-09 (Sept. 28, 2009). 37 I-05-09 (Dec. 17, 2009). 38 Wis. Stat. § 19.82(1). 39 See 66 Op. Att’y Gen. 113, 115 (1977). 40 State v. Beaver Dam Area Dev. Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295. 41 Id. ¶¶ 33–36. 42 Id. ¶¶ 7–8, 63 n.14, 79. 43 Id. ¶ 62. 44 See 80 Op. Att’y Gen. 129 , 135 (1991) (Mil waukee Economic Development Corporation, a Wis. Stat. ch. 181 corporation organized by two private citizens and one city employee, is a quasi -governmental corporation); see also Kowalczyk Correspondence (Mar. 13, 2006) (non -stock, non-profit corporations established for the purpose of providing emergency medical or fire department services for participating municipalities are quasi-governmental corporations). - 6 - quasi-governmental corporations. Those opinions should now be read in light of the BDADC decision.45 In March 2009, the Attorney General issued an informal opinion which analyzed the BDADC decision in greater detail and expressed the view that, out of the numerous factors discussed in that decision, particular weight should be given to whether a corporation serves a public function and has any private functions. 46 When a private corporation contracts to perform certain services for a governmental body, the key considerations in determining whether the corporation becomes quasi- governmental are whether the corporation is performing a portion of the governmental body’s public functions or whether the services provided by the corporation play an integral part in any stage— including the purely deliberative stage—of the governmental body’s decision-making process.47 In January 2019, the Wisconsin Court of Appeals also analyzed the BDADC decision further, and held that, while all the non-exhaustive factors set forth in BDADC are relevant and no one factor is outcome determinative, a “primary consideration” is whether the private corporation is funded exclusively on public tax dollars or interest generated on those dollars.48 o State Legislature Generally speaking, the open meetings law applies to the state l egislature, including the senate, assembly, and any committees or subunits of those bodies.49 The law does not apply to any partisan caucus of the senate or assembly. 50 The open meetings law also does not apply where it conflicts with a rule of the legislature, senate, or assembly. 51 Additional restrictions are set forth in Wis. Stat. § 19.87. o Subunits A “formally constituted subunit” of a governmental body is itself a “governmental body” within the definition in Wis. Stat. § 19.82(1). A subunit is a separate, smaller body created by a parent body and composed exclusively of members of the parent body. 52 If, for example, a fifteen member county board appoints a committee consisting of five members of the county board, that committee would be considered a “subunit” subject to the open meetings law. This is true despite the fact that the five-person committee would be smaller than a quorum of the county board. Even a committee with only two members is considered a “subunit,” as is a committee that is only advisory and that has no power to make binding decisions. 53 Groups that include both members and non-members of a parent body are not “subunits” of the parent body. Such groups nonetheless frequently fit within the definition of a “governmental 45 See 66 Op. Att’y Gen. 113 (volunteer fire department organized under Wis. Stat. ch. 181 is not a quasi -governmental corporation); 73 Op. Att’y Gen. 53 (1984) (Historic Sites Foundation organized under Wis. Stat. ch. 181 is not a quasi -governmental cor poration); 74 Op. Att’y Gen. 38 (corporation established to provide financial support to public broadcasting stations organized under Wis. Stat. ch. 181 is not a quasi-governmental corporation); Geyer Correspondence (Feb. 26, 1987) (Grant County Economic Development Corporation organized by private individuals under Wis. Sta t. ch. 181 is not a quasi -governmental corporation, even though it serves a public purpose and receives more than fifty percent of its funding from public sources). 46 I-02-09 (Mar. 19, 2009). 47 Id. 48 State ex rel. Flynn v. Kemper Ctr., Inc., 2019 WI App 6, ¶¶ 14–16, 385 Wis. 2d 811, 924 N.W.2d 218. 49 Wis. Stat. § 19.87. 50 Wis. Stat. § 19.87(3). 51 Wis. Stat. § 19.87(2). 52 74 Op. Att’y Gen. 38, 40 (1985). 53 Dziki Correspondence (Dec. 12, 2006). - 7 - body”—e.g., as advisory groups to the governmental bodies or government officials that created them. Any entity that fits within the definition of “governmental body” must comply with the requirements of the open meetings law. In most cases, it is readily apparent whether a particular body fits within the definition. On occasion, there is some doubt. Any doubts as to the applicability of the open meetings law should be resolved in favor of complying with the law’s requirements. • Entities That Are Not Governmental Bodies o Governmental Offices Held by a Single Individual The open meetings law does not apply to a governmental department with only a single member.54 Because the term “body” connotes a group of individuals, a governmental office held by a single individual likewise is not a “governmental body” within the meaning of the open meetings law. Thus, the open meetings law does not apply to the office of coroner or to inquests conducted by the coroner.55 Similarly, the Attorney General has concluded that the open meetings law does not apply to an administrative hearing conducted by an individual hearing examiner.56 o Bodies Meeting for Collective Bargaining The definition of “governmental body” explicitly excludes bodies that are formed for or meeting for the purpose of collective bargaining with municipal or state employees under subchapters I, IV, or V of Wis. Stat. ch. 111. A body formed exclusively for the purpose of collective bargaining is not subject to the open meetings law.57 A body formed for other purposes, in addition to collective bargaining, is not subject to the open meetings law when conducting collective bargaining. 58 The Attorney General has, however, advised multi-purpose bodies to comply with the open meetings law, including the requirements for convening in closed session, when meeting for the purpose of forming negotiating strategies to be used in collective bargaining. 59 The collective barga ining exclusion does not permit any body to consider the final ratification or approval of a collective bargaining agreement under subchapters I, IV, or V of Wis. Stat. ch. 111 in closed session. 60 o Bodies Created by the Wisconsin Supreme Court The Wisconsin Supreme Court has held that bodies created by the c ourt, pursuant to its superintending control over the administration of justice, are not governed by the open meetings law.61 Thus, generally speaking, the open meetings law does not apply to the court or bodies created by the court. In the Lynch case, for example, the c ourt held that the former open meetings law, Wis. Stat. § 66.77(1) (1973), did not apply to the Wisconsin Judicial Commission, which is responsible for handling misconduct compl aints against judges. Similarly, the Attorney General has indicated that the open meetings law does not apply to: the Board of Attorneys Professional 54 Plourde v. Habhegger, 2006 WI App 147, 294 Wis. 2d 746, 720 N.W.2d 130. 55 67 Op. Att’y Gen. 250 (1978). 56 Clifford Correspondence (Dec. 2, 1980). 57 Wis. Stat. § 19.82(1). 58 Wis. Stat. § 19.82(1) 59 66 Op. Att’y Gen. 93, 96-97 (1977). 60 Wis. Stat. § 19.85(3). 61 State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 238 N.W.2d 81 (1976). - 8 - Responsibility;62 the Board of Bar Examiners;63 or the monthly judicial administration meetings of circuit court judges, conducted under the authority of the c ourt’s superintending power over the judiciary.64 o Ad Hoc Gatherings Although the definition of a governmental body is broad, some gatherings are too loosely constituted to fit the definition. Thus, Conta holds that the directive that creates the body must also “confer[] collective power and define[] when it exists.”65 Showers adds the further requirement that a “meeting” of a governmental body takes place only if there are a sufficient number of members present to determine the governmental body’s course of action. 66 In order to determine whether a sufficient number of members are present to determine a governmental body’s course of action, the membership of the body must be numerically definable. The Attorney General’s Office thus has concluded that a loosely constituted group of citizens and local officials instituted by the mayor to discuss various issues related to a dam closure was not a governmental body, because no rule or order defined the group’s membership, and no provision existed for the group to exercise collective power.67 The definition of a “governmental body” is only rarely satisfied when groups of a governmental unit’s employees gather on a subject within the unit’s jurisdiction. Thus, for example, the Attorney General concluded that the predecessor of the current open meetings law did not apply when a department head met with some or even all of his or her staff. 68 Similarly, the Attorney General’s Office has advised that the courts would be unlikely to conclude that meetings between the administrators of a governmental agency and the agency’s employees, or bet ween governmental employees and representatives of a governmental contractor were “governmental bodies” subject to the open meetings law. 69 However, where an already -existing numerically definable group of employees of a governmental entity are assigned by the entity’s chief administrative officer to prepare recommendations for the entity’s policy-making board, the group’s meetings with respect to the subject of the directive are subject to the open meetings law. 70 62 OAG 67-79 (July 31, 1979) (unpublished) (the Board of Attorneys Professional Responsibility was the predecessor to the Office of Lawyer Regulation). 63 Kosobucki Correspondence (Sept. 6, 2006). 64 Constantine Correspondence (Feb. 28, 2000). 65 Conta, 71 Wis. 2d at 681. 66 Showers, 135 Wis. 2d at 102. 67 Godlewski Correspondence (Sept. 24, 1998). 68 57 Op. Att’y Gen. 213, 216 (1968). 69 Peplnjak Correspondence (June 8, 1998). 70 Tylka Correspondence (June 8, 2005). - 9 - Definition of “Meeting” A “meeting” is defined as: [T]he 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. If one- half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. The term does not include any social or chance gathering or conference which is not intended to avoid this subchapter . . . .71 The statute then excepts the following: an inspection of a public works project or highway by a town board; or inspection of a public works project by a town sanitary district; or the supervision, observation, or collection of information about any drain or structure related to a drain by any drainage board. 72 • The Showers Test The Wisconsin Supreme Court has held that the above statutory definition of a “meeting” applies whenever a convening of members of a governmental body satisfies two requirements: (1) there is a purpose to engage in governmental business and (2) the number of members present is sufficient to determine the governmental body’s course of action.73 o The Purpose Requirement The first part of the Showers test focuses on the purpose for which the members of the governmental body are gathered. They must be gathered to conduct governmental business. Showers stressed that “governmental business” refers to any formal or informal action, including discussion, d ecision, or information gathering, on matters within the governmental body’s realm of authority. 74 Thus, in Badke,75 the Wisconsin Supreme Court held that the village board conducted a “meeting,” as defined in the open meetings law, when a quorum of the board regularly attended each plan commission meeting to observe the commission’s proceedings on a development plan that was subject to the board’s approval. The c ourt stressed that a governmental body is engaged in governmental business when its members gather to simply hear information on a matter within the body’s realm of authority. 76 The members need not actually discuss the matter or otherwise interact with one another to be engaged in governmental business. 77 The court also held that the gathering of town board members was not chance or social because a majority of town board members attended plan commission meetings with regularity. 78 In contrast, the c ourt of a ppeals concluded in Paulton v. Volkmann ,79 that no meeting occurred where a quorum of school board members attended a gathering of town residents, but did not collect information on a subject the school board had the potential to decide. 71 Wis. Stat. § 19.82(2). 72 Wis. Stat. § 19.82(2). 73 Showers, 135 Wis. 2d at 102. 74 Id. at 102–03. 75 Badke, 173 Wis. 2d at 572–74. 76 Id. at 573–74. 77 Id. at 574–76. 78 Id. at 576. 79 Paulton v. Volkmann, 141 Wis. 2d 370, 375–77, 415 N.W.2d 528 (Ct. App. 1987). - 10 - o The Numbers Requirement The second part of the Showers test requires that the number of members present be sufficient to determine the governmental body’s course of action on the business under consideration. People often assume that this means that the open meetings law applies only to gatherings of a majori ty of the members of a governmental body. That is not the case because the power to control a body’s course of action can refer either to the affirmative power to pass a proposal or the negative power to defeat a proposal. Therefore, a gathering of one- half of the members of a body, or even fewer, may be enough to control a course of action if it is enough to block a proposal. This is called a “negative quorum.” Typically, governmental bodies operate under a simple majority rule in which a margin of one vote is necessary for the body to pass a proposal. Under that approach, exactly one-half of the members of the body constitutes a “negative quorum” because that number against a proposal is enough to prevent the formation of a majority in its favor. Under simple majority rule, therefore, the open meetings law applies whenever one-half or more of the members of the governmental body gather to discuss or act on matters within the body’s realm of authority. The size of a “negative quorum” may be smaller, however, when a governmental body operates under a super majority rule. For example, if a two -thirds majority is required for a body to pass a measure, then any gathering of more than one- third of the body’s members would be enough to control the body’s course of action by blocking the formation of a two- thirds majority. Showers made it clear that the open meetings law applies to such gatherings, as long as the purpose requirement is also satisfied ( i.e., the gathering is for the purpose of conducting governmen tal business).80 If a three-fourths majority is required to pass a measure, then more than one- fourth of the members would constitute a “negative quorum,” etc. • Convening of Members When the members of a governmental body conduct official business while acting separately, without communicating with each other or engaging in other collective action, there is no meeting within the meaning of the open meetings law. 81 Nevertheless, the phrase “convening of members” in Wis. Stat. § 19.82(2) is not limited to situations in which members of a body are simultaneously gathered in the same location, but may also include other situations in which members are able to effectively communicate with each other and to exercise the authority vested in the body, even if they are not physically present together. Whether such a situation qualifies as a “convening of members” under the open meetings law depends on the extent to which the communications in question resemble a face-to-face exchange. o Written Correspondence The circulation of a paper or hard copy memorandum among the members of a governmental body, for example, may involve a largely one-way flow of information, with any exchanges spread out over a considerable period of time and little or no conversation -like interaction among members. Accordingly, the Attorney General has long taken the position that such written communications generally do not constitute a “convening of members” for purposes of the open 80 Showers, 135 Wis. 2d at 101–02. 81 Katayama Correspondence (Jan. 20, 2006). - 11 - meetings law.82 Although the rapid evolution of electronic media has made the distinction between written and oral communication less sharp than it once appeared, it is still unlikely that a Wisconsin court would conclude that the circulation of a document through the postal service, or by other means of paper or hard -copy delivery, could be deemed a “convening” or “gathering” of the members of a governmental body for purposes of the open meetings law. o Telephone Conference Calls A telephone conference call, in contrast, is very similar to an in -person conversation and thus qualifies as a convening of members. 83 Under the Showers test, therefore, the open meetings law applies to any conference call that: (1) is for the purpose of conducting governmental business and (2) involves a sufficient number of members of the body to determine the body’s course of action on the business under consideration. To comply with the law, a governmental body conducting a meeting by telephone conference call must provide the public with an effective means to monitor the conference. This may be accomplished by broadcasting the conference through speak ers located at one or more sites open to the public. 84 o Electronic Communications Written communications transmitted by electronic means, such as email , instant messaging, blogging, or other social media, also may constitute a “convening of members,” depending on how the communication medium is used. Although no Wisconsin court has applied the open meetings law to these kinds of electronic communications, it is likely that the courts will try to determine whether the communications in question are more like an in-person discussion—e.g., a rapid back- and-forth exchange of viewpoints among multiple members —or more like non-electronic written correspondence, which generally does not raise open meetings law concerns. If the communications closely resemble an in -person discussion, then they may constitute a meeting if they involve enough members to control an action by the body. 85 In addressing these questions, courts are likely to consider such factors as the following: (1) the number of participants involved in the communications; (2) the number of communications regarding the subject; (3) the time frame within which the electronic communications occurred; and (4) the extent of the conversation- like interactions reflected in the communications.86 Because the applicability of the open meetings law to such electronic communications depends on the particular way in which a specific message technology is used, these technologies create special dangers for governmental officials trying to comply with th e law. Although two members of a governmental body larger than four members may generally discuss the body’s business without violating the open meetings law, features like “forward” and “reply to all” common in electronic mail programs deprive a sender of control over the number and identity of the recipients who eventually may have access to the sender’s message. Moreover, it is quite possible that, through the use of electronic mail, a quorum of a governmental body may receive information on a subject within the body’s jurisdiction in an almost real-time basis, just as they would receive it in a physical gathering of the members. 82 Merkel Correspondence (Mar. 11, 1993). 83 69 Op. Att’y Gen. 143 (1980). 84 69 Op. Att’y Gen. 143, 145. 85 Krischan Correspondence (Oct. 3, 2000). 86 Schmiege Correspondence (Aug. 22, 2018). - 12 - Inadvertent violations of the open meetings law through the use of electronic communications can be reduced if electronic mail is used principally to transmit information one -way to a body’s membership; if the originator of the message reminds recipients to reply only to the originator, if at all; and if message recipients are scrupulous about minimizing the content and distribution of their replies. Nevertheless, because of the absence of judicial guidance on the subject, and because electronic mail creates the risk that it will be used to carry on private debate and discussion on matters that belong at public meetings subject to public scrutiny, the Attorney General’s Office strongly discourages the members of every governmental body from using electronic mail to communicate about issues within the body’s realm of authority. 87 Members of a governmental body may not decide matters by email voting, even if the result of the vote is later ratified at a properly noticed meeting.88 • Walking Quorums The requirements of the open meetings law also extend to walking quorums. A “walking quorum” is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. 89 In Conta, the court recognized the danger that a walking quorum may produce a predetermined outcome and thus render the publicly -held meeting a mere formality. 90 The court commented that any attempt to avoid the appearance of a “meeting” through use of a walking quorum is subject to prosecuti on under the open meetings law.91 The requirements of the open meetings law thus cannot be circumvented by using an agent or surrogate to poll a quorum of the members of governmental bodies through a series of individual contacts. Such a circumvention “almo st certainly” violates the open meetings law. 92 In contrast, simply keeping track of the votes of less than a negative quorum of the members of a governmental body is “hardly indicative” of a walking quorum.93 The essential feature of a “walking quorum” is the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum. Where there is no such express or tacit agreement, exchanges among separate groups of members may take place without violating the open meetings law. 94 The signing, by members of a body, of a document asking that a subject be placed on the agenda of an upcoming meeting thus does not constitute a “walking quorum” where the signers have not engaged in substantive discussion or agreed on a uniform course of action regarding the proposed subject. 95 In contrast, where a majority of members of a body sign a document that expressly commits them to a future course of action, a court could find a walking quorum violation.96 • Multiple Meetings When a quorum of the members of one governmental body attend a meeting of another governmental body under circumstances where their attendance is not chance or social, in order to gather information or 87 Krischan Correspondence (Oct. 3, 2000); Benson Correspondence (Mar. 12, 2004). 88 I-01-10 (Jan. 25, 2010). 89 Showers, 135 Wis. 2d at 92 (quoting Conta, 71 Wis. 2d at 687). 90 Conta, 71 Wis. 2d at 685–88. 91 Id. at 687. 92 Clifford Correspondence (Apr. 28, 1986) (individual polling of every member is a prohibited walking quorum); Herbst Correspondence (July 16, 2008) (individually polling of a quorum of members is a prohibited walking quorum). 93 State ex rel. Zecchino v. Dane Cty. Bd. of Supervisors, 2018 WI App 19, ¶¶ 11–14, 380 Wis. 2d 453, 909 N.W.2d 203 (individual polling of less than a negative quorum of members is not a prohibited walking quorum). 94 Id. ¶ 10. 95 Kay Correspondence (Apr. 25, 2007); Kittleson Correspondence (June 13, 2007). 96 Huff Correspondence (Jan. 15, 2008) ; see also I-01-10 (Jan. 25, 2010) (use o f email voting to decide matters fits the definition of a “walking quorum” violation of the open meetings law). - 13 - otherwise engage in governmental business regarding a subject over which they have decision -making responsibility, two separate meetings occur, and notice must be given of both meetings. 97 The Attorney General has advised that, despite the “separate public notice” requirement of Wis. Stat. § 19.84(4), a single notice can be used, provided that the notice clearly and plainly indicates that a joint meeting will be held and gives the names of each of the bodies involved, and provided that the notice is published and/or posted in e ach place where meeting notices are generally published or posted for each governmental body involved.98 The kinds of multiple meetings presented in the Badke case, and the separate meeting notices required there, must be distinguished from circumstances where a subunit of a parent body meets during a recess from or immediately following the parent body’s meeting, to discuss or act on a matter that was the subj ect of the parent body’s meeting. In such circumstances, Wis. Stat. § 19.84(6) allows the subunit to meet on that matter without prior public notice. • Burden of Proof as to Existence of a Meeting The presence of members of a governmental body does not, in itself, establish the existence of a “meeting” subject to the open meetings law. The law provides, however, that if one- half or more of the members of a body are present, the gathering is presumed to be a “meeting.”99 The law also exempts any “social or chance gathering” not intended to circumvent the requirements of the open meetings law.100 Thus, where one-half or more of the members of a governmental body rode to a meeting in the same vehicle, the law presumes that the members conducted a “meeting” which was subject to all of the requirements of the open meetings law.101 Similarly, where a majority of members of a common council gathered at a lounge immediately following a common council meeting, a violation of the open meetings law was presumed.102 The members of the governmental body may overcome the presumption by proving that they did not discuss any subject that was within the realm of the body’s authority. 103 Where a person alleges that a gathering of less than one- half the members of a governmental body was held in violation of the open meetings law, that person has the burden of proving that the gathering constituted a “meeting” subject to the law.104 That burden may be satisfied by proving: (1) that the members gathered to conduct governmental business and (2) that there was a sufficient number of members present to determine the body’s course of action. Again, it is important to remember that the overriding policy of the open meetings law is to ensure public access to information about governmental affa irs. Under the rule of liberally construing the law to ensure this purpose, any doubts as to whether a particular gathering constitutes a “meeting” subject to the open meetings law should be resolved in favor of complying with the provisions of the law. 97 Badke, 173 Wis. 2d at 577. 98 Friedman Correspondence (Mar. 4, 2003). 99 Wis. Stat. § 19.82(2). 100 Wis. Stat. § 19.82(2). 101 Karstens Correspondence (July 31, 2008). 102 Dieck Correspondence (Sept. 12, 2007). 103 Id. 104 Showers, 135 Wis. 2d at 102. - 14 - 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.105 Notice Requirements Wisconsin Stat. § 19.84, which sets forth the public notice requirements, specifies when, how, and to whom notice must be given, as well as what information a notice must contain. • To Whom and How Notice Must Be Given The chief presiding officer of a governmental body, or the officer’s designee, must give 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. 106 The chief presiding officer may give notice of a meeting to the public by posting the notice in one or more places likely to be seen by the general public.107 As a general rule, the Attorney General has advised posting notices at three different locations within the jurisdiction that the governmental body serves. 108 Alternatively, the chief presiding officer may give notice to the public by paid publication in a news medium likely to give notice in the jurisdictional area the body serves.109 If the presiding officer gives notice in this manner, he or she must e nsure that the notice is actually published. 110 Meeting notices may also be posted at a governmental body’s website as a supplement to other public notices, but web posting should not be used as a substitute for other methods of notice. 111 Nothing in the open meetings law prevents a governmental body fro m determining that multiple notice methods are necessary to provide adequate public notice of the body’s meetings. 112 If a meeting notice is posted on a governmental body’s website, amendments to the notice should also be posted. 113 The chief presiding officer must also give notice of each meeting to members of the news media who have submitted a written request for notice. 114 Although this notice may be given in writing or by telephone ,115 it is preferable to give notice in writing to help ensure accuracy and so that a record of the notice exists. 116 105 Wis. Stat. § 19.83. 106 Wis. Stat. § 19.84(1)(b). 107 66 Op. Att’y Gen. 93, 95. 108 66 Op. Att’y Gen. 93, 95. 109 63 Op. Att’y Gen. 509, 510–11 (1974). 110 Kaufmann Correspondence (Apr. 24, 2019). 111 Peck Correspondence (Apr. 17, 2006). 112 Skindrud Correspondence (Mar. 12, 2009). 113 Eckert Correspondence (July 25, 2007). 114 Wis. Stat. § 19.84(1)(b); Lawton, 2005 WI App 16, ¶¶ 3–4, 7. 115 65 Op. Att’y Gen. Preface, v–vi (1976). 116 65 Op. Att’y Gen. 250, 251 (1976). - 15 - Governmental bodies cannot charge the news media for providing statutorily required notices of public meetings.117 In addition, the chief presiding officer must give notice to the officially designated newspaper or, if none exists, to a news medium likely to give notice in the area. 118 The governmental body is not required to pay for and the newspaper is not required to publish such notice. 119 Note, however, that the requirement to provide notice to the officially designated newspaper is distinct from the requirement to provide notice to the public. If the chief presiding officer chooses to provide notice to the public by paid publication in a news medium, the officer must ensure that the notice is in fact published. 120 When a specific statute prescribes the type of meeting notice a governmental body must give, the body must comply with the requirements of that statute as well as the notice requirements of the open meetings law.121 However, violations of those other statutory requirements are not redressable under the open meetings law. For example, the open meetings law is not implicated by a municipality’s alleged failure to comply with the public notice requirements of Wis. Stat. ch. 985 when providing published notice of public hearings on proposed tax incremental financing districts. 122 Where a class 1 notice under Wis. Stat. ch. 985 has been published, however, the public notice requirement of the open meetings law is also thereby satisfied.123 • Contents of Notice o In General Every public notice of a meeting must give the “time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.” 124 The chief presiding officer of the governmental body is responsible for providing notice, and when he or she is aware of matters which may come before the body, those matters must be included in the meeting notice.125 The Attorney General’s Office has advised that a chief presiding officer may not avoid liability for a legally deficient meeting notice by assigning to a non -member of the body the responsibility to create and provide a notice that complies with Wis. Stat. § 19.84(2). 126 A frequently recurring question is how specific a subject -matter description in a meeting notice must be. Prior to June 13, 2007, this question was governed by the “bright -line” rule articulated in State ex rel. H.D. Enterprises II, LLC v. City of Stoughton .127 Under that standard, a meeting notice adequately described a subject if it identified “the general topic of items to be discussed” and the simple heading “licenses,” without more, was found sufficient to apprise the public that a city council would reconsider a previous decision to deny a liquor license to a particular local grocery store.128 117 77 Op. Att’y Gen. 312, 313 (1988). 118 Wis. Stat. § 19.84(1)(b); Lawton, 2005 WI App 16, ¶¶ 3–4, 7. 119 66 Op. Att’y Gen. 230, 231 (1977). 120 Kaufmann Correspondence (Apr. 24, 2019). 121 Wis. Stat. § 19.84(1)(a). 122 See Boyle Correspondence (May 4, 2005). 123 Stalle Correspondence (Apr. 10, 2008). 124 Wis. Stat. § 19.84(2). 125 66 Op. Att’y Gen. 68, 70 (1977). 126 Schuh Correspondence (Oct. 17, 2001). 127 State ex rel. H.D. Enters. II, LLC v. City of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999). 128 Id. at 486–87. - 16 - On June 13, 2007, the Wisconsin Supreme Court overruled H.D. Enterprises and announced a new standard to be applied prospectively to all meeting notic es issued after that date. 129 In State ex rel. Buswell v. Tomah Area School District, the court held that a public notice for a closed session for the purpose of “consideration and/or action concerning employment/negotiations with district personnel pursuant to Wis. Stat. § 19.85(1)(c)” was vague, misleading and legally insufficient, where the school board tentatively approved a collective bargaining agreement between it and the teacher’s union. 130 In reaching that conclusion, the c ourt determined that “the pla in meaning of Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and that such a standard strikes the proper balance contemplated in Wis. Stat. §§ 19.81(1) and (4) between the public’s right to information and the government’s need to efficiently conduct its business.”131 This reasonableness standard “requires a case-specific analysis” and “whether notice is sufficiently specific will depend upon what is reasonable under the circumstances.” 132 In making that determination, the factors to be considered include: “[1] the burden of providing more detailed notice, [2] whether the subject is of particular public interest, and [3] whether it involves non-routine action that the public would be unlikely to anticipate.”133 The first factor “balances the policy of providing greater information with the requirement that providing such information be ‘compatible with the conduct of governmental affairs.’ Wis. Stat. § 19.81(1).”134 The determination must be made on a case- by-case basis. 135 “[T]he demands of specificity should not thwart the efficient administration of governmental business.”136 The second factor takes into account “both the number of people interested and the intensity of that interest,” though the level of interest is not dispositive, and must be balanced with other factors on a case-by-case basis.137 The third factor considers “whether the subject of the meeting is routine or novel.” 138 There may be less need for specificity where a meeting subject occurs routinely, because members of the public are more likely to anticipate that the subject will be addressed. 139 “Novel issues may . . . require more specific notice.”140 Whether a meeting notice is reasonable, according to the c ourt, “cannot be determined from the standpoint of when the meeting actually takes place,” but rather must be “based upon what information is available to the officer noticing the meeting at the time the notice is provided, and based upon what it would be reasonable for the officer to know.” 141 Once reasonable notice has been given, “meeting participants would be free to discuss any aspect of the noticed subject matter, as well as issues that are re asonably related to it.” 142 However, “a meeting cannot address topics 129 State ex rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804. 130 Id. ¶¶ 6–7, 37–38, 41. 131 Id. ¶ 3. 132 Id. ¶ 22. 133 Id. ¶ 28. 134 Buswell, 2007 WI 71, ¶ 29. 135 Id. 136 Id. 137 Id. ¶ 30. 138 Id. ¶ 31. 139 Id. 140 Id. 141 Id. ¶ 32. 142 Id. ¶ 34. - 17 - unrelated to the information in the notice.” 143 The Attorney General has similarly advised, in an informal opinion, that if a meeting notice contains a general subject matter designation and a subject that was not specifically noticed comes up at the meeting, a governmental body should refrain from engaging in any information gathering or discussion or from taking any action that would deprive the public of information about the conduct of go vernmental business.144 Whether a meeting notice reasonably apprises the public of the meeting’s subject matter may also depend in part on the surrounding circumstances. A notice that might be adequate, standing alone, may nonetheless fail to provide reaso nable notice if it is accompanied by other statements or actions that expressly contradict it, or if the notice is misleading when considered in the light of long-standing policies of the governmental body.145 In order to draft a meeting notice that compli es with the reasonableness standard, a good rule of thumb will be to ask whether a person interested in a specific subject would be aware, upon reading the notice, that the subject might be discussed. In an unpublished, post-Buswell decision, the court of appeals determined that a meeting notice for a closed session of a school board under Wis. Stat. § 19.85(1)(c) for the purpose of “[d]iscussion of the role, duties, and responsibilities of the [l]ibrary [d]irector and evaluation of job performance and possible action” gave sufficient public notice of the board’s discussion of the discipline and termination of the library director. 146 The court reasoned that, under Buswell , the “sufficiency of the notice will be based on the knowledge of the person posting notice at the time when it is posted.” 147 o Generic Agenda Items Purely generic subject matter designations such as “old business,” “new business,” “miscellaneous business,” “agenda revisions,” or “such other matters as are authorized by law” are insufficient because, standing alone, they identify no particular subjects at all. 148 Similarly, the use of a notice heading that merely refers to an earlier meeting of the governmental body (or of some other body) without identifying any particular subject of discussion is so lacking in informational value that it almost certainly fails to give the public reasonable notice of what the governmental body intends to discuss.149 If such a notice is meant to indicate an intent to simply receive and approve minutes of the designated meeting, it should so indicate and discussion should be limited to whether the minutes accurately reflect the substance of that meeting. 150 Likewise, the Attorney General has advised that the practice of using such designations as “mayor comments,” “alderman comments,” or “staff comments” for the purpose of communicating information on matters within the scope of the governmental body’s authority “is, at best, at the outer edge of lawful practice, and may well cross the line to become unlawful.”151 Because members and officials of governmental bodies have greater opportunities for input into the agenda -setting 143 Id. 144 I-05-93 (Apr. 26, 1993). 145 Linde Correspondence (May 4, 2007); Koss Correspondence (May 30, 2007); Musolf Correspondence (July 13, 2007); Martinson Correspondence (Mar. 2, 2009). 146 State ex rel. Wanninger v. City of Manitowoc Pub. Library Bd. , No. 2011AP1059, 2012 WL 1192048, ¶¶ 19– 21 (Wis. Ct. App. Apr. 11 , 2012) (unpublished). 147 Id. ¶ 21 (citing Buswell, 2007 WI 71, ¶ 32). 148 Becker Correspondence (Nov. 30, 2004); Heupel Correspondence (Aug. 29, 2006). 149 Erickson Correspondence (Apr. 22, 2009). 150 Id. 151 Rude Correspondence (Mar. 5, 2004). - 18 - process than the public has, they should be held to a higher standard of specificity regarding t he subjects they intend to address.152 o Action Agenda Items The Wisconsin Court of Appeals has noted that “Wis. Stat. § 19.84(2) does not expressly require that the notice indicate whether a meeting will be purely deliberative or if action will be taken.” 153 The Buswell decision inferred from this that “adequate notice . . . may not require information about whether a vote on a subject will occur, so long as the subject matter of the vote is adequately specified.”154 Both in Olson and in Buswell , howeve r, the courts reiterated the principle—first recognized in Badke 155—that the information in the notice must be sufficient to alert the public to the importance of the meeting, so that they can make an informed decision whether to attend. 156 The Olson decision thus acknowledged that, in some circumstances, a failure to expressly state whether action will be taken at a meeting could be a violation of the open meetings law. 157 Although the courts have not articulated the specific standard to apply to this question, it appears to follow from Buswell that the test would be whether, under the particular factual circumstances of the case, the notice reasonably alerts the public to the importance of the meeting. 158 Another frequently asked question is whether a governmental body may act on a motion for reconsideration of a matter voted on at a previous meeting, if the motion is brought under a general subject matter designation. The Attorney General has advised that a member may move for reconsideration under a g eneral subject matter designation, but that any discussion or action on the motion should be set over to a later meeting for which specific notice of the subject matter of the motion is given.159 o Notice of Closed Sessions The notice provision in Wis. Stat. § 19.84(2) requires that if the chief presiding officer or the officer’s designee knows at the time he or she gives notice of a meeting that a closed session is contemplated, the notice must contain the subject matter to be considered in closed session. Such notice “must contain enough information for the public to discern whether the subject matter is authorized for closed session under § 19.85(1).”160 The Attorney General has advised that notice of closed sessions must contain the specific nature of the business, as well as the exemption(s) under which the chief presiding officer believes a closed session is authorized. 161 Merely identifying and quoting from a statutory exemption does not reasonably identify any particular su bject that might be taken up thereunder and thus is not adequate notice of a closed session.162 In State ex rel. Schaeve v. Van Lare, the court held that a notice to convene in closed session under Wis. Stat. § 19.85(1)(b) “to conduct a hearing to consider the possible discipline of a public employee” was sufficient. 163 152 Thompson Correspondence (Sept. 3, 2004). 153 State ex rel. Olson v. City of Baraboo Joint Review Bd., 2002 WI App 64, ¶ 15, 252 Wis. 2d 628, 643 N.W.2d 796. 154 Buswell, 2007 WI 71, ¶ 37 n.7. 155 Badke, 173 Wis. 2d at 573-74, 577–78. 156 Buswell, 2007 WI 71, ¶ 26; Olson, 2002 WI App 64, ¶ 15. 157 Olson, 2002 WI App 64, ¶ 15. 158 Herbst Correspondence (July 16, 2008). 159 Bukowski Correspondence (May 5, 1986). 160 Buswell, 2007 WI 71, ¶ 37 n.7. 161 66 Op. Att’y Gen. 93, 98. 162 Weinschenk Correspondence (Dec. 29, 2006); Anderson Correspondence (Feb. 13, 2007). 163 State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 47, 370 N.W.2d 271 (Ct. App. 1985). - 19 - • Time of Notice The provision in Wis. Stat. § 19.84(3) requires that every public notice of a meeting be given at least 24 hours in advance of the meeting, unless “for good cause” such notice is “impossible or impractical.” If “good cause” exists, the notice should be given as soon as possible and must be given at least two hours in advance of the meeting.164 No Wisconsin court decisions or A ttorney General opinions discuss what constitu tes “good cause” to provide less than twenty-four-hour notice of a meeting. This provision, like all other provisions of the open meetings law, must be construed in favor of providing the public with the fullest and most complete information about governme ntal affairs as is compatible with the conduct of governmental business. 165 If there is any doubt whether “good cause” exists, the governmental body should provide the full twenty-four-hour notice. When calculating the twenty-four hour notice period, Wis. S tat. § 990.001(4)(a) requires that Sundays and legal holidays shall be excluded. Posting notice of a Monday meeting on the preceding Sunday is, therefore, inadequate, but posting such notice on the preceding Saturday would suffice, as long as the posting location is open to the public on Saturdays.166 Wisconsin Stat. § 19.84(4) provides that separate notice for each meeting of a governmental body must be given at a date and time reasonably close to the meeting date. 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 notice requirements of the open meetings law. 167 Similarly, a meeting notice that states that a quorum of various town governmental bodies may participate at the same time in a multi -month, on-line discussion of town issues fails to satisfy the “separate notice” requirement. 168 University of Wisconsin departments and their subunits, as well as the Olympic ice training rink, are exempt from the specific notice requirements in Wis. Stat. § 19.84(1)–(4). Those bodies are simply required to provide notice “which is reasonably likely to apprise interested persons, and news media who have filed written requests for such notice.”169 Also exempt from the specific notice requirements are certain meetings of subunits of parent bodies held during or immediately before or after a meeting of the parent body. 170 • Compliance with Notice A governmental body, when conducting a meeting, is free to discuss any aspect of any subject identified in the public notice of that meeting, as well as issues reasonably related to that subject, but may not address any topics that are not reasonably related to the information in the notice. 171 There is no requirement, however, that a governmental body must follow the agenda in the order listed on the meeting notice, unless a particular agenda item has been noticed for a specific time. 172 Nor is a governmental body required to actually discuss every item contained in the public notice. It is re asonable, in appropriate circumstances, for a body to cancel a previously planned discussion or postpone it to a later date. 173 164 Wis. Stat. § 19.84(3). 165 Wis. Stat. § 19.81(1), (4). 166 Caylor Correspondence (Dec. 6, 2007). 167 See 63 Op. Att’y Gen. 509, 513. 168 Connors/Haag Correspondence (May 26, 2009). 169 Wis. Stat. § 19.84(5). 170 See Wis. Stat. § 19.84(6). 171 Buswell, 2007 WI 71, ¶ 34. 172 Stencil Correspondence (Mar. 6, 2008). 173 Black Correspondence (Apr. 22, 2009). - 20 - Open Session Requirements • Accessibility In addition to requiring advance public notice of every meeting of a governmental body, the open meetings law also requires that “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times.” 174 Similarly, an “open session” is defined in Wis. Stat. § 19.82(3) as “a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times.” Every meeting of a governmental body must initially be convened in “open s ession.”175 All business of any kind, formal or informal, must be initiated, discussed, and acted upon in “open session,” unless one of the exemptions set forth in Wis. Stat. § 19.85(1) applies. 176 The requirement that meeting locations be reasonably accessible to the public and open to all citizens at all times means that governmental bodies must hold their meetings in rooms that are reasonably calculated to be large enough to accommodate all citizens who wish to attend the meetings. 177 Absolute access is not, however, required.178 In Badke, for instance, the Wisconsin Supreme Court concluded that a village board meeting that was held in a village hall capable of holding 55–75 people was reasonably accessible, although three members of the public were turned away due to overcrowding. 179 Whether a meeting place is reasonably accessible depends on the facts in each individual case. Any doubt as to whether a meeting facility is large enough to satisfy the requirement should be resolved in favor of holding the meeting in a larger facility. The policy of openness and accessibility favors governmental bodies holding their meetings in public places, such as a municipal hall or school, rather than on private premises. 180 The law prohibits meetings on private premises that are not open and reasonably accessible to the public.181 Generally speaking, places such as a private room in a restaurant or a dining room in a private club are not considered “reasonably accessible.” A governmental body should meet on private premises only in exceptional cases, where the governmental body has a specific reason for doing so which does not compromise the public’s right to information about governmental affairs. The policy of openness and accessibility also requires that governmental bodies hold their meetings at locations near to the public they serve. Accordingly, the Attorney General has concluded that a school board meeting held forty miles from the district which the school board served was not “reasonably accessible” within the meaning of the open meetings law.182 The Attorney General advises that, in order to comply with the “reasonably accessible” requirement, governmental bodies should conduct all their meetings at a location within the territory they serve, unless t here are special circumstances that make it impossible or impractical to do so.183 174 Wis. Stat. § 19.81(2). 175 See Wis. Stat. §§ 19.83, 19.85(1). 176 Wis. Stat. § 19.83. 177 Badke, 173 Wis. 2d at 580–81. 178 Id. 179 Id. at 561, 563, 581. 180 See 67 Op. Att’y Gen. 125, 127 (1978). 181 Wis. Stat. § 19.82(3). 182 Miller Correspondence (May 25, 1977). 183 I-29-91 (Oct. 17, 1991). - 21 - Occasionally, a governmental body may need to leave the place where the meeting began in order to accomplish its business —e.g., inspection of a property or construction projects. The Attorney General’s Office has advised that such off- site business may be conducted consistently with the requirements of the open meetings law, as long as certain precautions are taken. First, the public notice of the meeting must list all of the locations to be visited in the order in which they will be visited. This makes it possible for a member of the public to follow the governmental body to each location or to join the governmental body at any p articular location. Second, each location at which government business is to be conducted must itself be reasonably accessible to the public at all times when such business is taking place. Third, care must be taken to ensure that government business is di scussed only during those times when the members of the body are convened at one of the particular locations for which notice has been given. The members of the governmental body may travel together or separately, but if half or more of them travel together, they may not discuss government business when their vehicle is in motion, because a moving vehicle is not accessible to the public.184 • Access for Persons with Disabilities The public accessibility requirements of the open meetings law have long been interpreted by the Attorney General as meaning that every meeting subject to the law must be held in a location that is “reasonably accessible to all citizens, including those with disabilities.” 185 In selecting a meeting facility that satisfies this requirement, a local governmental body has more leeway than does a state governmental body. For a state body, the facility must have physical characteristics that permit persons with functional limitations to enter, circulate, and leave the facility without assistance.186 In the case of a local governmental body, however, a meeting facility must have physical characteristics that permit persons with functional limitations to enter, circulate, and leave the facility with assistance.187 In order to optimally comply with the spirit of open government, however, local bodies should also, whenever possible, meet in buildings and rooms that are accessible without assistance. The Americans with Disabilities Act and other federal laws governing the rights of persons with disabilities may additionally require governmental bodies to meet accessibility and reasonable accommodation requirements that exceed the requirements imposed by Wisconsin’s open meetings law. For more detailed assistance regarding such matters, both government officials and members of the public are encouraged to consult with their own attorneys or to contact the appropriate federal enforcement authorities. • Tape Recording and Videotaping The open meetings law grants citizens the right to attend and observe meetings of governmental bodies that are held in open session. The open meetings law also grants citizens the right to tape record or videotape open session meetings, as long as doing so does not disrupt the meeting. The law explicitly states that a governmental body must make a reasonable effort to accommodate anyone who wants to record, film, or photograph an open session meeting, as long as the activity does not interfere with the meet ing.188 184 Rappert Correspondence (Apr. 8, 1993); Musolf Correspondence (July 13, 2007). 185 69 Op. Att’y Gen. 251, 252 (1980). 186 See Wis. Stat. §§ 19.82(3), 101.13(1); 69 Op. Att’y Gen. 251, 252. 187 69 Op. Att’y Gen. 251, 253. 188 Wis. Stat. § 19.90. - 22 - In contrast, the open meetings law does not require a governmental body to permit recording of an authorized closed session. 189 If a governmental body wishes to record its own closed meetings, it should arrange for the security of the records to prevent their improper disclosure.190 • Citizen Participation In general, the open meetings law grants citizens the right to attend and observe open session meetings of governmental bodies, but does not require a governmental body to allow members of the public to speak or actively participate in the body’s meeting.191 There are some other state statutes that require governmental bodies to hold public hearings on specified matters. 192 Unless such a statute specifically applies, however, a governmental body is free to determine for itself whether and to what extent it will allow citizen participation at its meetings.193 Although it is not required, the open meetings law does permit a governmental body to set aside a portion of an open meeting as a public comment period. 194 Such a period must be included on the meeting notice. During such a period, the body may receive information from the public and may discuss any matter raised by the public. If a member of the public raises a subject that does not appear on the meeting notice, however, it is advisable to limit the discussion of that subject and to defer any extensive deliberation to a later meeting for which more specific notice can be given. In addition, the body may not take formal action on a subject raised in the public comment period, unless that subject is also identified in the meeting notice.195 • Ballots, Votes, and Records, Including Meeting Minutes No secret ballot may be used to determine any election or decision of a governmental body, except the election of officers of a body. 196 For example, a body cannot vote by secret ballot to fill a vacancy on a city council.197 If a member of a governmental body requests that the vote of each member on a particular matter be recorded, a voice vote or a vote by a show of hands is not permissible unless the vote is unanimous and the minutes reflect who is present for the vote.198 A governmental body may not use email ballots to decide matters, even if the result of the vote is later ratified at a properly noticed meeting. 199 The open meetings law requires a governmental body to create and preserve a record of all motions and roll-call votes at its meetings. 200 This requirement applies to both open and closed sessions. 201 Written minutes are the most common method used to comply with the requirement, but they are not the only permissible method. It can also be satisfied if the motions and roll-call votes are recorded and preserved in some other way, such as on a tape recording. 202 As long as the body creates and preserves a record of all motions and roll -call votes, it is not required by the open meetings law to take more formal or detailed minutes of other aspects o f the meeting. Other statutes outside the open meetings law, however, may 189 66 Op. Att’y Gen. 318, 325 (1977); Maroney Correspondence (Oct. 31, 2006). 190 66 Op. Att’y Gen. 318, 325. 191 Lundquist Correspondence (Oct. 25, 2005). 192 See, e.g., Wis. Stat. §§ 65.90(4) (requiring public hearing before adoption of a municipal budget), 66.1105(4)(a) (requiring public hearing before creation of a tax incremental finance district). 193 Zwieg Correspondence (July 13, 2006); Chiaverotti Correspondence (Sept. 19, 2006). 194 Wis. Stat. §§ 19.83(2), 19.84(2). 195 Sayles Correspondence (Aug. 4, 2017). 196 Wis. Stat. § 19.88(1). 197 65 Op. Att’y Gen. 131 (1976). 198 I-95-89 (Nov. 13, 1989). 199 I-01-10 (Jan. 25, 2010). 200 Wis. Stat. § 19.88(3). 201 De Moya Correspondence (June 17, 2009). 202 I-95-89 (Nov. 13, 1989). - 23 - prescribe particular minute- taking requirements for certain governmental bodies and officials that go beyond what is required by the open meetings law. 203 The open meetings law does n ot specify a timeframe in which a body must create a record of all motions and roll-call votes. In the absence of a specific statutory timeframe, issues can arise. In Journal Times v. City of Racine Board of Police and Fire Commissioners,204 the Racine Board of Police and Fire Commissioners voted on a motion in a closed session meeting, but did not contemporaneously create a record of the motion. Instead, the motion was included in the minutes of the meeting, which were not finished and approved by the Commis sion until three months after the meeting. In a non- party brief, DOJ argued that Wis. Stat. § 19.88(3) should be construed as requiring that a record of all motions must be made at the time of the meeting in question or as soon thereafter as practicable.205 While the court resolved the case on other grounds without deciding this issue, as a best practice, it is advisable that the motions and roll call votes of a meeting of a governmental body be recorded at the time of the meeting or as soon thereafter as practicable. Although Wis. Stat. § 19.88(3) does not indicate how detailed the record of motions and votes should be, the general legislative policy of the open meetings law is that “the public is entitled to the fullest and most complete information reg arding the affairs of government as is compatible with the conduct of governmental business.”206 In light of that policy, it seems clear that a governmental body’s records should provide the public with a reasonably intelligible description of the essential substantive elements of every motion made, who initiated and seconded the motion, the outcome of any vote on the motion, and, if a roll-call vote, how each member voted.207 Nothing in the open meetings law prohibits a body from making decisions by general consent, without a formal vote, but such informal procedures are typically only appropriate for routine procedural matters such as approving the minutes of prior meetings or adjourning. In any event, regardless of whether a decision is made by consensus or by some other method, Wis. Stat. § 19.88(3) still requires the body to create and preserve a meaningful record of that decision.208 “Consent agendas,” whereby a body discusses individual items of business under separate agenda headings, 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 recordkeeping requirements of Wis. Stat. § 19.88(3).209 Wisconsin Stat. § 19.88(3) also provides that meeting records crea ted under that statute —whether for an open or a closed session —must be open to public inspection to the extent prescribed in the state public records law. Because the records law contains no general exemption for records created during a closed session, a custodian must release such items unless the particular record at issue is subject to a specific statutory exemption or the custodian concludes that the harm to the public from its release would outweigh the benefit to the public. 210 There is a strong presum ption under the public records law that release of records is in the public interest. As long as the reasons for convening in closed session continue to exist, however, the custodian may be able to justify not disclosing any information that requires confi dentiality. But the custodian still must separate information that can be made public from that which cannot and must disclose the former, even if the latter can be withheld. In addition, once the underlying purpose for the 203 I-20-89 (Mar. 8, 1989); see, e.g., Wis. Stat. §§ 59.23(2)(a) (county clerk), 60.33(2)(a) (town clerk), 61.25(3) (village clerk), 62.09(11)(b) (city clerk), 62.13(5)(i) (police and fire commission), 66.1001(4)(b) (plan commission), 70.47(7)(bb) (board of review). 204 Journal Times v. City of Racine Bd. of Police & Fire Comm’rs, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563. 205 Non-party Brief of Wisconsin Department of Justice at 6, Journal Times v. City of Racine Bd. of Police & Fire Comm ’rs, 2015 WI 56 (No. 2013AP1715). 206 Wis. Stat. § 19.81(1). 207 De Moya Correspondence (June 17, 2009). 208 Huebscher Correspondence (May 23, 2008). 209 Perlick Correspondence (May 12, 2005). 210 De Moya Correspondence (June 17, 2009). - 24 - closed session ceases to exist, all records of the session must then be provided to any person requesting them.211 WHEN IS IT PERMISSIBLE TO CONVENE IN CLOSED SESSION? Every meeting of a governmental body must initially be convened in open session. All business of any kind, formal or informal, must be initiated, discussed, and acted upon in open session unless one of the exemptions in Wis. Stat. § 19.85(1) applies.212 Notice of Closed Session The notice provision in Wis. Stat. § 19.84(2) requires that, if the chief presiding officer of a governmental body is aware that a closed session is contemplated at the time he or she gives public notice of the meeting, the notice must contain the subject matter of the closed session. If the chief presiding officer was not aware of a contemplated closed session at the time he or she gave notice of the meeting, that does not foreclose a governmental body from going into closed session under Wis. Stat. § 19.85(1) to discuss an item contained in the notice for the open session. 213 In both cases, a governmental body must follow the procedure set forth in Wis. Stat. § 19.85(1) before going into closed session. Procedure for Convening in Closed Session Every meeting of a governmental body must initially be convened in open session. 214 Before convening in closed session, the governmental body must follow the procedure set forth in Wis. Stat. § 19.85(1) which requires that the governmental body pass a motion, by r ecorded majority vote, to convene in closed session. If a motion is unanimous, there is no requirement to record the votes individually.215 Before the governmental body votes on the motion, the chief presiding officer must announce and record in open session the nature of the business to be discussed and the specific statutory exemption which is claimed to authorize the closed session. 216 Stating only the statute section number of the applicable exemption is not sufficient because many exemptions contain more t han one reason for authorizing closure. For example, Wis. Stat. § 19.85(1)(c) allows governmental bodies to use closed sessions to interview candidates for positions of employment, to consider promotions of particular employees, to consider the compensatio n of particular employees, and to conduct employee evaluations —each of which is a different reason that should be identified in the meeting notice and in the motion to convene into closed session. 217 Similarly, merely identifying and quoting from a statutory exemption does not adequately announce what particular part of the governmental body’s business is to be considered under that exemption.218 Enough specificity is needed in describing the subject matter of the contemplated closed meeting to enable the members of the governmental body to intelligently vote on the motion to close the meeting. 219 If several exemptions are relied on to authorize a closed discussion of several subjects, the motion should make it clear which exemptions correspond 211 See 67 Op. Att’y Gen. 117, 119 (1978). 212 Wis. Stat. § 19.83. 213 66 Op. Att’y Gen. 106, 108 (1977). 214 Wis. Stat. §§ 19.83, 19.85(1). 215 Schaeve, 125 Wis. 2d at 51. 216 66 Op. Att’y Gen. 93, 97-98. 217 Reynolds/Kreibich Correspondence (Oct. 23, 2003). 218 Weinschenk Correspondence (Dec. 29, 2006); Anderson Correspondence (Feb. 13, 2007). 219 Heule Correspondence (June 29, 1977); see also Buswell, 2007 WI 71, ¶ 37 n.7. - 25 - to which subjects.220 The governmental body must limit its discussion in closed session to the business specified in the announcement.221 Authorized Closed Sessions Wisconsin Stat. § 19.85(1) contains eleven exemptions to the open session requirement which permit, but do not require, a governmental body to convene in closed session. 222 Because the law is designed to provide the public with the most complete information possible regarding the affairs of government, exemptions should be strictly construed.223 The policy of the open meetings law dictates that the exemptions be invoked sparingly and only where necessary to protect the public interest. If there is any doubt as to whether closure is permitted under a given exemption, the governmental body should hold the meeting i n open session.224 The following are some of the most frequently cited exemptions. • Judicial or Quasi-Judicial Hearings Wisconsin Stat. § 19.85(1)(a) authorizes a closed session for “[d]eliberating concerning a case which was the subject of any judicial or quasi -judicial trial or hearing before that governmental body.” In order for this exemption to apply, there must be a “case” that is the subject of a quasi -judicial proceeding. 225 The Wisconsin Supr eme Court held that the term “case” contemplates a controversy among parties that are adverse to one another; it does not include a mere request for a permit. 226 An example of a governmental body that considers “cases” and thus can convene in closed session under Wis. Stat. § 19.85(1)(a), where appropriate, is the Wisconsin Employment Relations Commission. 227 Bodies that consider zoning appeals, such as boards of zoning appeals and boards of adjustment, may not convene in closed session. 228 The meetings of town, village, and city boards of review regarding appeals of property tax assessments must also be conducted in open session.229 • Employment and Licensing Matters o Consideration of Dismissal, Demotion, Discipline, Licensing, and Tenure Two of the statutory exemptions to the open session requirement relate specifically to employment or licensing of an individual. The first, Wis. Stat. § 19.85(1)(b), authorizes a closed session for: Considering dismissal, demotion, licensing or discipline of any public employee or person licensed by a board or commission or the investigation of charges against such person, or considering the grant or denial of tenure for a university faculty member, and the taking of formal action on any such matter . . . . 220 Brisco Correspondence (Dec. 13, 2005). 221 Wis. Stat. § 19.85(1). 222 Krueger Correspondence (Feb. 13, 2019). 223 State ex rel. Hodge v. Town of Turtle Lake, 180 Wis. 2d 62, 71, 508 N.W.2d 603 (1993); Citizens for Responsible Dev., 2007 WI App 114, ¶ 8. 224 See 74 Op. Att’y Gen. 70, 73 (1985). 225 Hodge, 180 Wis. 2d at 72; cf. State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals of Milwaukee, 21 Wis. 2d 516, 537, 124 N.W.2d 809 (1963) (allowing zoning appeal boards to deliberate in closed session after hearing, decided before the Legislature added the “case” requirement in 1977). 226 Hodge, 180 Wis. 2d at 74. 227 68 Op. Att’y Gen. 171 (1979). 228 Wis. Stat. §§ 59.694 (counties), 60.65(5) (towns), 62.23(7)(e)3. (cities); White Correspondence (May 1, 2009). 229 Wis. Stat. § 70.47(2m). - 26 - If a closed session for such a purpose will include an evidentiary hearing or final action, then the governmental body must give the public employee or licensee actual notice of that closed hearing and/or closed final action. Evidentiary hearings are characterized by the formal examination of charges and by taking testimony and receiving evidence in support or defense of specific charges that may have been made. 230 Such hearings may be required by sta tute, ordinance or rule, by collective bargaining agreement, or by circumstances in which the employee or licensee is the subject of charges that might damage the person’s good name, reputation, honor or integrity, or where the governmental body’s action m ight impose substantial stigma or disability upon the person.231 Where actual notice is required, the notice must state that the person has a right to request that any such evidentiary hearing or final action be conducted in open session. If the person mak es such a request, the governmental body may not conduct an evidentiary hearing or take final action in closed session. The body may, however, convene in closed session under Wis. Stat. § 19.85(1)(b) for the purpose of deliberating about the dismissal, demotion, licensing, discipline, or investigation of charges. Following such closed deliberations, the body may reconvene in open session and take final action related to the person’s employment or license. 232 Nothing in Wis. Stat. § 19.85(1) permits a person who is not a member of the governmental body to demand that the body meet in closed session. The Wisconsin Court of Appeals held that a governmental body was not required to comply with a public employee’s request that the body convene in closed session to vote on the employee’s dismissal.233 o Consideration of Employment, Promotion, Compensation, and Performance Evaluations The second exemption which relates to employment matters authorizes a closed session for “[c]onsidering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.”234 The Attorney General’s Office has interpreted this exemption to extend to public o fficers, such as a police chief, whom the governmental body has jurisdiction to employ.235 The Attorney General’s Office has also concluded that this exemption is sufficiently broad to authorize convening in closed session to interview and consider applicants for positions of employment.236 An elected official is not considered a “public employee over which the governmental body has jurisdiction or exercises responsibility.”237 Thus, Wis. Stat. § 19.85(1)(c) does not authorize a county board to convene in closed session to consider appointments of county board members to a county board committee.238 230 66 Op. Att’y Gen. 211, 214 (1977). 231 Id. 232 See State ex rel. Epping v. City of Neillsville Common Council, 218 Wis. 2d 516, 581 N.W.2d 548 (Ct. App. 1998); Johnson Correspondence (Feb. 27, 2009). 233 Schaeve, 125 Wis. 2d at 40. 234 Wis. Stat. § 19.85(1)(c). 235 Caturia Correspondence (Sept. 20, 1982). 236 Id. 237 Wis. Stat. § 19.85(1)(c). 238 76 Op. Att’y Gen. 276 (1987). - 27 - The language of the exemption refers to a “public employee” rather than to posit ions of employment in general. The apparent purpose of the exemption is to protect individual employees from having their actions and abilities discussed in public and to protect governmental bodies “from potential lawsuits resulting from open discussion o f sensitive information.” 239 It is not the purpose of the exemption to protect a governmental body when it discusses general policies that do not involve identifying specific employees. 240 Thus, Wis. Stat. § 19.85(1)(c) authorizes a closed session to discuss the qualifications of and salary to offer a specific applicant but does not authorize a closed session to discuss the qualifications and salary range for the position in general. 241 The section authorizes closure to determine increases in compensation for specific employees. 242 Similarly, Wis. Stat. § 19.85(1)(c) authorizes closure to determine which employees to lay off, or whether to non- renew an employee’s contract at the expiration of the contract term ,243 but not to determine whether to reduce or increase staffing, in general. • Consideration of Financial, Medical, Social, or Personal Information The exemption in Wis. Stat. § 19.85(1)(f) authorizes a closed session for: Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations. An example is where a state employee was alleged to have violated a state law. 244 This exemption is not limited to considerations involving public employees. For example, the Attorney General concluded that, in an exceptional case, a school board could convene in closed session under the exemption to interview a candidate to fill a vacancy on the school board if information is expected to damage a reputation, however, the vote should be in open session.245 At the same time, the Attorney General cautioned that the exemption in Wis. Stat. § 19.85(1)(f) is extremely limited. It applies only where a member of a governmental body has actual knowledge of information that will have a substantial adverse effect on the person mentioned or involved. Moreover, the exemption authorizes closure only for the duration of the discussions about the information specified in Wis. Stat. § 19.85(1)(f). Thus, the exemption would not authorize a school board to actually appoint a new member to the board in closed session.246 239 Oshkosh Nw. Co. v. Oshkosh Library Bd., 125 Wis. 2d 480, 486, 373 N.W.2d 459 (Ct. App. 1985). 240 See 80 Op. Att’y Gen. 176, 177–78 (1992). See also Buswell, 2007 WI 71, ¶ 37 (noting that Wis. Stat. § 19.85(1)(c) “provides for closed sessions for considering matters related to individual employees”). 241 80 Op. Att’y Gen. 176, 178–82. 242 67 Op. Att’y Gen. 117, 118. 243 See 66 Op. Att’y Gen. 211, 213. 244 See Wis. State Journal v. Univ. of Wis.-Platteville, 160 Wis. 2d 31, 38, 465 N.W.2d 266 (Ct. App. 1990). 245 74 Op. Att’y Gen. 70, 72. 246 Id. - 28 - • Conducting Public Business with Competitive or Bargaining Implications A closed session is authorized for “[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.”247 This exemption is not limited to deliberating or negotiating the purchase of public property or the investing of public funds. For example, the Attorney General has determined that the exemption authorized a school board to convene in closed session to develop negotiating strategies for collective bargaining. 248 Governmental officials must keep in mind, however, that this exemption applies only when “competitive or bargaining reasons require a closed session.” 249 The exemption is restrictive rather than expansive. 250 When a governmental body seeks to convene in closed session under Wis. Stat. § 19.85(1)(e), the burden is on the body to show that competitive or bargaining interests require closure. 251 An announcement of a contemplated closed session under Wis. Stat. § 19.85(1)(e) that provides only a conclusory assertion that the subject of the session will involve competitive or bargaining issues is inadequate because it does not reflect how the proposed discussion would implicate the competitive or bargaining interests of the body or the body’s basis for concluding that the subject falls within the exemption.252 The use of the word “require” in Wis. Stat. § 19.85(1)(e) limits that exemption to situations in which competitive or bargaining reasons leave a governmental body with no option other than to close the meeting.253 On the facts as presented in Citizens for Responsible Development, the c ourt thus found that a desire or request for confidentiality by a private developer engaged in negotiations with a city was not sufficient to justify a closed session for competitive or bargaining reasons. 254 Nor did the fear that public statements might attract the attention of potential private competitors for the developer justify closure under this exemption, because the court found that such competition would be likel y to benefit, rather than harm, the city’s competitive or bargaining interests.255 Similarly, holding closed meetings about ongoing negotiations between the city and private parties would not prevent those parties from seeking a better deal elsewhere. The possibility of such competition, therefore, also did not justify closure under Wis. Stat. § 19.85(1)(e). 256 The exemption did, however, allow the city to close those portions of its meetings that would reveal its negotiation strategy or the price it planned to offer for a purchase of property, but it could not close other parts of the meetings.257 The competitive or bargaining interests to be protected by a closed session under Wis. Stat. § 19.85(1)(e) do not have to be shared by every member of the body or by ev ery municipality participating in an intergovernmental body.258 Consistent with the above emphasis on the word “require” in Wis. Stat. § 19.85(1)(e), the Attorney General has advised that mere inconvenience, delay, embarrassment, frustration, or even speculation as to the probability of success would be an insufficient basis to close a meeting. 259 Competitive or bargaining reasons permit a closed session where the discussion will directly and substantially affect negotiations with 247 Wis. Stat. § 19.85(1)(e). 248 66 Op. Att’y Gen. 93, 96 (the opinion advised that governmental bodies that are not formed exclusively for collective bargaining comply with the open meetings law when meeting for the purpose of developing negotiating strategy). 249 Wis. Stat. § 19.85(1)(e). 250 Citizens for Responsible Dev., 2007 WI App 114, ¶¶ 6–8. 251 Id. ¶ 10. 252 Wirth/Lamoreaux Correspondence (May 30, 2007). 253 Citizens for Responsible Dev., 2007 WI App 114, ¶ 14. 254 Id. ¶¶ 13–14. 255 Id. ¶ 14 n.6. 256 Id. ¶¶ 15–16. 257 Id. ¶ 19. 258 State ex rel. Herro v. Vill. of McFarland, 2007 WI App 172, ¶¶ 16–19, 303 Wis. 2d 749, 737 N.W.2d 55. 259 Gempeler Correspondence (Feb. 12, 1979). - 29 - a third party, but not where the discussions might be one of several factors that indirectly influence the outcome of those negotiations.260 The meetings of a governmental body also may not be closed in a blanket manner merely because they may at times involve competitive or bargaining issues, but rather may only be closed on those occasions when t he particular meeting is going to involve discussion which, if held in open session, would harm the competitive or bargaining interests at issue. 261 Once a governmental body’s bargaining team has reached a tentative agreement, the discussion whether the body should ratify the agreement should be conducted in open session. 262 • Conferring with Legal Counsel with Respect to Litigation The exemption in Wis. Stat. § 19.85(1)(g) authorizes a closed session for “[c]onferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved.” The presence of the governmental body’s legal counsel is not, in itself, sufficient reason to authorize closure under this exemption. The exemption applies only if the legal counsel is rendering advice on strategy to adopt for litigation in which the governmental body is or is likely to become involved. There is no clear-cut standard for determining whether a governmental body is “likely” to become involved in litigation. Members of a governmental body should rely on the body’s legal counsel for advice on whether litigation is sufficiently “likely” to authorize a closed session under Wis . Stat. § 19.85(1)(g). • Remaining Exemptions The remaining exemptions in Wis. Stat. § 19.85(1) authorize closure for: 1. Considering applications for probation or parole, or considering strategy for crime detection or prevention.263 2. Specified deliberations by the state council on unemployment insurance and the state council on worker’s compensation.264 3. Specified deliberations involving the location of a burial site. 265 4. Consideration of requests for confidential written advice from the government accountability board or from any county or municipal ethics board. 266 Who May Attend a Closed Session A frequently asked question concerns who may attend the closed session meetings of a governmental body. In general, the open meetings law gives wide discretion to a governmental body to admit into a closed session anyone whose presence the body determines is necessary for the consideration of the matter that is the subject of the 260 Henderson Correspondence (Mar. 24, 1992). 261 I-04-09 (Sept. 28, 2009). 262 81 Op. Att’y Gen. 139, 141 (1994). 263 Wis. Stat. § 19.85(1)(d). 264 Wis. Stat. § 19.85(1)(ee), (eg). 265 Wis. Stat. § 19.85(1)(em). 266 Wis. Stat. § 19.85(1)(h). - 30 - meeting.267 If the governmental body is a subunit of a parent body, the subunit must allow members of the parent body to attend its open session and closed session meetings, unless the rules of the parent body or subunit provide otherwise.268 Where enough non-members of a subunit attend the subunit’s meetings that a quorum of the parent body is present, a meeting of the parent body occurs, and the notice requirements of Wis. Stat. § 19.84 apply. 269 Voting in an Authorized Closed Session The Wisconsin Supreme Court has held that Wis. Stat. § 14.90 (1959), a predecessor to the current open meetings law, authorized a governmental body to vote in closed session on matters that were the legitimate subject of deliberation in closed ses sion.270 The court reasoned that “voting is an integral part of deliberating and merely formalizes the result reached in the deliberating process.” 271 In Schaeve,272 the Wisconsin Court of Appeals commented on the propriety of voting in closed session under the current open meetings law. The court indicated that a governmental body must vote in open session unless an exemption in Wis. Stat. § 19.85(1) expressly authorizes voting in closed session. 273 The court’s statement was not essential to its holding and it is unclear whether the supreme court would adopt a similar interpretation of the current open meetings law. Given this uncertainty, the Attorney General advises that a governmental body vote in open session, unless the vote is clearly an integral part of deliberations authorized to be conducted in closed session under Wis. Stat. § 19.85(1). Stated another way, a governmental body should vote in open session, unless doing so would compromise the need for the closed session. 274 None of the exemptions in Wis. Stat. § 19.85(1) authorize a governmental body to consider in closed session the ratification or final approval of a collective bargaining agreement negotiated by or for the body. 275 Reconvening in Open Session A governmental body may not commence a meeting, convene in closed session, and subsequently reconvene in open session within 12 hours after completion of a closed session, unless public notice of the subsequent open session is given “at the same time and i n the same manner” as the public notice of the prior open session. 276 The notice need not specify the time the governmental body expects to reconvene in open session if the body plans to reconvene immediately following the closed session. If the notice does specify the time, the body must wait until that time to reconvene in open session. When a governmental body reconvenes in open session following a closed session, the presiding officer has a duty to open the door of the meeting room and inform any members of the public present that the session is open.277 267 Schuh Correspondence (Dec. 15, 1988). 268 Wis. Stat. § 19.89. 269 Badke, 173 Wis. 2d at 579. 270 Cities Serv. Oil Co., 21 Wis. 2d at 538. 271 Id. at 539. 272 Schaeve, 125 Wis. 2d at 53. 273 Schaeve, 125 Wis. 2d at 53. 274 Accord Epping, 218 Wis. 2d at 524 n.4 (even if deliberations were conducted in an unlawful closed session, a subsequent vote taken in open session could not be voided). 275 Wis. Stat. § 19.85(3); 81 Op. Att’y Gen. 139. 276 Wis. Stat. § 19.85(2). 277 Claybaugh Correspondence (Feb. 16, 2006). - 31 - WHO ENFORCES THE OPEN MEETINGS LAW AND WHAT ARE ITS PENALTIES? Enforcement Both the Attorney General and the district attorneys have authority to enforce the open meetings law. 278 In most cases, enforcement at the local level has the greatest chance of success due to the need for intensive factual investigation, the district attorneys’ familiarity with the local rules of procedure, and the need to assemble witnesses and material ev idence.279 Under certain circumstances, the Attorney General may elect to prosecute complaints involving a matter of statewide concern. A district attorney has authority to enforce the open meetings law only after an individual files a verified open meetings law complaint with the district attorney.280 Actions to enforce the open meetings law are exempt from the notice of claim requirements of Wis. Stat. § 893.80. 281 The verified complaint must be signed by the individual and notarized and should include available information that will be helpful to investigators, such as: identifying the governmental body and any members thereof alleged to have violated the law; describing the factual circumstances of the alleged violations; identifying witnesses with relevant evidence; and identifying any relevant documentary evidence. The district attorney has broad discretion to determine whether a verified complaint should be prosecuted.282 An enforcement action brought by a district attorney or by the Attorney General must be commenced within two years after the cause of action accrues or be barred. 283 Proceedings to enforce the open meetings law are civil actions subject to the rul es of civil procedure, rather than criminal procedure, and governed by the ordinary civil standard of proof, rather than a heightened standard of proof such as would apply in a criminal or quasi -criminal proceeding. Accordingly, enforcement of the open meetings law does not involve such practices as arrest, posting bond, entering criminal -type pleas, or any other aspects of criminal procedure. Rather, an open meetings law enforcement action is commenced like any civil action by filing and serving a summons and complaint. In addition, the open meetings law cannot be enforced by the issuance of a citation, in the way that other civil forfeitures are often enforced, because citation procedures are inconsistent with the statutorily-mandated verified complaint procedure.284 If the district attorney refuses to commence an open meetings law enforcement action or otherwise fails to act within 20 days of receiving a complaint, the individual who filed the complaint has a right to bring an action, in the name of the state, to enforce the open meetings law.285 Although an individual may not bring a private enforcement action prior to the expiration of the district attorney’s twenty-day review period, the district attorney may still commence an action even though more than 20 days have passed. It is not uncommon for the review and investigation of open meetings complaints to take longer than 20 days. Court proceedings brought by private relators to enforce the open meetings law must be commenced within two years after the cause of action accrues, or the proceedings will be barred.286 If a private relator brings an enforcement action and prevails, the court is authorized to grant broad relief, including a declaration that the law was violated, 278 Wis. Stat. § 19.97(1). 279 65 Op. Att’y Gen. Preface, ii. 280 See Wis. Stat. § 19.97(1). 281 E-Z Roll Off, LLC v. Cty. of Oneida , 2011 WI 71, ¶ 21, 335 Wis. 2d 720, 800 N.W.2d 421 (citing State ex rel. Auchinleck v. Town of LaGrange , 200 Wis. 2d 585, 597, 547 N.W.2d 587 (1996)). 282 State v. Karpinski, 92 Wis. 2d 599, 607, 285 N.W.2d 729 (1979). 283 See Wis. Stat. § 893.93(2)(a). 284 Zwieg Correspondence (Mar. 10, 2005). 285 Lawton, 2005 WI App 16, ¶ 15; Wis. Stat. § 19.97(4); see also Fabyan v. Achtenhagen, 2002 WI App 214, ¶¶ 10-13, 257 Wis. 2d 310, 652 N.W.2d 649 (complaint under Wis. Stat. § 19.97 must be brought in the name of and on behalf of the state; i.e., the caption must bear the title “State ex rel.” or the court lacks competency to proceed). 286 Wis. Stat. § 893.93(2)(a); State ex rel. Leung v. City of Lake Geneva, 2003 WI App 129, ¶ 6, 265 Wis. 2d 674, 666 N.W.2d 104. - 32 - civil forfeitures where appropriate, and the award of the actual and necessary costs of prosecution, including reasonable attorney fees.287 Attorney fees will be awarded under this provision where such an award will provide an incentive to other private parties to similarly vindicate the public’s rights to open government and will deter governmental bodies from skirting the open meetings law.288 Relief for alleged violat ions of the open meetings law cannot be sought under the public records law . In Journal Times,289 the plaintiff newspaper brought a mandamus action under Wis. Stat. § 19.37(2)(a), claiming, in part, that the defendant c ommission, by not contemporaneously creating a record of a motion at a closed- session meeting, had violated the requirement in Wis. Stat. § 19.88(3) of the open meetings law that all motions and roll call votes must be recorded, preserved, and open to public inspection to t he extent required by the public records law. The court held, in part, that the newspaper could not seek relief under the public records law for the alleged violation of the open meetings law.290 Penalties Any member of a governmental body who “knowingly” attends a meeting held in violation of the open meetings law, or otherwise violates the law, is subject to a forfeiture of between $25 and $300 for each violation. 291 Any forfeiture obtained in an action brought by the district attorney is awarded to the county.292 Any forfeiture obtained in an action brought by the Attorney General or a private citizen is awarded to the state. 293 The Wisconsin Supreme Court has defined “knowingly” as not only positive knowledge of the illegality of a meeting, but also awareness of the high probability of the meeting’s illegality or conscious avoidance of awareness of the illegality. 294 The court also held that knowledge is not required to impose forfeitures on an individual for violating the open meetings law by means other than attending a meeting held in violation of the law. Examples of “other violations” are failing to give the required public notice of a meeting or failing to follow the procedure for closing a session.295 A member of a governmental body who is charged with knowingly attending a meeting held in violation of the law may raise one of two defenses: (1) that the member made or voted in favor of a motion to prevent the violation or (2) that the member’s votes on all relevant motions prior to the viola tion were inconsistent with the cause of the violation.296 A member who is charged with a violation other than knowingly attending a meeting held in violation of the law may be permitted to raise the additional statutory defense that the member did not act in his or her official capacity. In addition, in Swanson,297 and Hodge,298 the Wisconsin Supreme Court intimated that a member of a governmental body can avoid liability if he or she can factually prove that he or she relied, in good faith and in an open and 287 Wis. Stat. § 19.97(4). 288 Buswell, 2007 WI 71, ¶ 54. 289 Journal Times, 2015 WI 56. 290 Id. ¶ 51. 291 Wis. Stat. § 19.96. 292 Wis. Stat. § 19.97(1). 293 Wis. Stat. § 19.97(1), (2), (4). 294 Swanson, 92 Wis. 2d at 319. 295 Id. at 321. 296 Wis. Stat. § 19.96. 297 Swanson, 92 Wis. 2d at 319. 298 Hodge, 180 Wis. 2d at 80. - 33 - unconcealed manner, on the advice of counsel whose statutory duties include the rendering of legal opinions as to the actions of the body.299 A governmental body may not reimburse a member for a forfeiture incurred as a result of a violation of the law, unless the enforcement action involved a real issue as to the constitutionality of the open meetings law.300 Although it is not required to do so, a governmental body may reimburse a member for his or her reasonable attorney fees in defending against an enforcement action and for any plaintiff’s attorney fees that the member is ordered to pay. The city attorney may represent city officials in open meetings law enforcement actions. 301 In addition to the forfeiture penalty, Wis. Stat. § 19.97(3) provides that a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action. Thus, in Hodge,302 the court voided the town board’s denial of a permit, taken after an unauthorized closed session deliberation about whether to grant or deny the permit. 303 A court may award any other appropriate legal or equitable relief, including declaratory and injunctive relief. 304 In enforcement actions seeking forfeitures, the provisions of the open meetings law must be narrowly construed due to the penal nature of forfeiture. In all other actions, the provisions of the law must be liberally construed to ensure the public’s right to “the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.” 305 Thus, it is advisable to prosecute forfeiture acti ons separately from actions seeking other types of relief under the open meetings law. Interpretation by Attorney General In addition to the methods of enforcement discussed above, the Attorney General also has express statutory authority to respond to requests for advice from any person as to the applicability of the open meetings and public records laws.306 This differs from other areas of law, in which the Attorney General is only authorized to give legal opinions or advice to specified governmental officials and agencies. Because the Legislature has expressly authorized the Attorney General to interpret the open meetings law, the Wisconsin Supreme Court has acknowledged that the Attorney General’s opinions in this area should be given substantial weight. 307 Citizens with questions about matters outside the scope of the open meetings and public records laws should seek assistance from a private attorney. Citizens and public officials with questions about the open meetings law or the public reco rds law are advised to first consult the applicable statutes, the corresponding discussions in this compliance guide and in DOJ’s Public Records Law Compliance Guide, court decisions, and prior Attorney General 299 See State v. Tereschko, No. 00-3290, 2001 WL 537491, ¶¶ 9–10 (Wis. Ct. App. May 22, 2001) (unpublished) (declining to find a knowing violation where school board members relied on the advice of counsel in going into closed session); State v. Davis, 63 Wis. 2d 75, 82, 216 N.W.2d 31 (1974) (interpreting Wis. Stat. § 946.13(1) (private interest in public contract)); cf. Journal/Sentinel, Inc. v. Shorewood Sch. Bd., 186 Wis. 2d 443, 452–55, 521 N.W.2d 165 (Ct. App. 1994) (school board may not avoid duty to provide public records by delegating the creation and custody of the record to its attorneys). 300 66 Op. Att’y Gen. 226 (1977). 301 77 Op. Att’y Gen. 177, 180 (1988). 302 Hodge, 180 Wis. 2d at 75–76. 303 Cf. State ex rel. Ozanne v. Fitzgerald , 2011 WI 43, ¶ 13, 334 Wis. 2d 70, 798 N.W.2d 436 (supreme court did not void a statute adopted by the legislature because a legislative committee did not comply with notice requirements of the open meetings law ); Epping, 218 Wis. 2d at 524 n.4 (arguably unlawful closed session deliberation does not provide basis for voiding subsequent open session vote); State ex rel. Ward v. Town of Nashville, No. 00-0973, 2001 WL 881704, ¶ 30 (Wis. Ct. App. Aug. 7, 2001) (unpublished) (declining to void an agreement made in open session, where the agreement was the product of three years of unlawfully closed meetings). 304 Wis. Stat. § 19.97(2). 305 Wis. Stat. § 19.81(1), (4). 306 Wis. Stat. §§ 19.39, 19.98. 307 BDADC, 2008 WI 90, ¶¶ 37, 44–45. See also Krueger, 2017 WI 70, ¶ 39 (adopting the Attorney General’s opinion that, under open meetings law, a committee is created whenever a government body, by rule, “authorizes the committee and assigns the duties and functions of the committee” (quoting 78 Op. Att’y Gen. 67, 69)) . - 34 - opinions and to confer with their own private or governmental attorneys. In the rare instances where a question cannot be resolved in this manner, a written request for advice may be made to DOJ. In submitting such requests, it should be remembered that DOJ cannot conduct factual investigations, resolve disputed issues of fact, or make definitive determinations on fact -specific issues. Any response will thus be based solely on the information provided. Appendix A Open Meetings Law Wis. Stat. §§ 19.81–19.98 Updated 17−18 Wis. Stats. 30 19.62 GENERAL DUTIES OF PUBLIC OFFICIALS Updated 2017−18 W is. Stats. Published and certified under s. 35.18. May 11, 2019. 2017−18 Wisconsin Statutes updated through 2019 Wis. Act 5 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 21, 2019. Published and certified under s. 35.18. Changes effective after May 11, 2019, are designated by NOTES. (Published 5−1 1−19) (3) “Matching program” means the computerized comparison of information in one records series to information in another records series for use by an authority or a federal agency to estab- lish or verify an individual’s eligibility for any right, privilege or benefit or to recoup payments or delinquent debts under programs of an authority or federal agency. (5) “Personally identifiable information” means information that can be associated with a particular individual through one or more identifiers or other information or circumstances. (6) “Record” has the meaning specified in s. 19.32 (2). (7) “Records series” means records that are arranged under a manual or automated filing system, or are kept together as a unit, because they relate to a particular subject, result from the same activity or have a particular form. (8) “State authority” means an authority that is a state elected official, agency, board, commission, committee, council, depart- ment or public body corporate and politic created by constitution, statute, rule or order; a state governmental or quasi−governmental corporation; the supreme court or court of appeals; or the assem- bly or senate. History: 1991 a. 39; 1993 a. 215; 1995 a. 27; 1997 a. 79; 2001 a. 16; 2007 a. 20. 19.65 Rules of conduct; employee training; and secu- rity. An authority shall do all of the following: (1) Develop rules of conduct for its employees who are involved in collecting, maintaining, using, providing access to, sharing or archiving personally identifiable information. (2) Ensure that the persons identified in sub. (1) know their duties and responsibilities relating to protecting personal privacy, including applicable state and federal laws. History: 1991 a. 39. 19.67 Data collection. (1) COLLECTION FROM DATA SUBJECT OR VERIFICATION. An authority that maintains personally identifi- able information that may result in an adverse determination about any individual’s rights, benefits or privileges shall, to the greatest extent practicable, do at least one of the following: (a) Collect the information directly from the individual. (b) Verify the information, if collected from another person. History: 1991 a. 39. 19.68 Collection of personally identifiable information from Internet users. No state authority that maintains an Inter- net site may use that site to obtain personally identifiable informa- tion from any person who visits that site without the consent of the person from whom the information is obtained. This section does not apply to acquisition of Internet protocol addresses. History: 2001 a. 16. 19.69 Computer matching. (1) MATCHING SPECIFICATION. A state authority may not use or allow the use of personally identi- fiable information maintained by the state authority in a match under a matching program, or provide personally identifiable information for use in a match under a matching program, unless the state authority has specified in writing all of the following for the matching program: (a) The purpose and legal authority for the matching program. (b) The justification for the program and the anticipated results, including an estimate of any savings. (c) A description of the information that will be matched. (2) COPY TO PUBLIC RECORDS BOARD. A state authority that prepares a written specification of a matching program under sub. (1) shall provide to the public records board a copy of the specifi- cation and any subsequent revision of the specification within 30 days after the state authority prepares the specification or the revi- sion. (3) NOTICE OF ADVERSE ACTION. (a) Except as provided under par. (b), a state authority may not take an adverse action against an individual as a result of information produced by a matching program until after the state authority has notified the individual, in writing, of the proposed action. (b) A state authority may grant an exception to par. (a) if it finds that the information in the records series is sufficiently reliable. (4) NONAPPLICABILITY . This section does not apply to any matching program established between the secretary of trans - portation and the commissioner of the federal social security administration pursuant to an agreement specified under s. 85.61 (2). History: 1991 a. 39, 269; 1995 a. 27; 2003 a. 265. 19.70 Rights of data subject to challenge; authority corrections. (1) Except as provided under sub. (2), an individ- ual or person authorized by the individual may challenge the accu- racy of a record containing personally identifiable information pertaining to the individual that is maintained by an authority if the individual is authorized to inspect the record under s. 19.35 (1) (a) or (am) and the individual notifies the authority, in writing, of the challenge. After receiving the notice, the authority shall do one of the following: (a) Concur with the challenge and correct the information. (b) Deny the challenge, notify the individual or person autho- rized by the individual of the denial and allow the individual or person authorized by the individual to file a concise statement set- ting forth the reasons for the individual’s disagreement with the disputed portion of the record. A state authority that denies a chal- lenge shall also notify the individual or person authorized by the individual of the reasons for the denial. (2) This section does not apply to any of the following records: (a) Any record transferred to an archival depository under s. 16.61 (13). (b) Any record pertaining to an individual if a specific state statute or federal law governs challenges to the accuracy of the record. History: 1991 a. 269 ss. 27d, 27e, 35am, 37am, 39am; 2013 a. 171 s. 16; Stats. 2013 s. 19.70. 19.71 Sale of names or addresses. An authority may not sell or rent a record containing an individual’s name or address of residence, unless specifically authorized by state law. The collec- tion of fees under s. 19.35 (3) is not a sale or rental under this sec- tion. History: 1991 a. 39. 19.77 Summary of case law and attorney general opin- ions. Annually, the attorney general shall summarize case law and attorney general opinions relating to due process and other legal issues involving the collection, maintenance, use, provision of access to, sharing or archiving of personally identifiable infor- mation by authorities. The attorney general shall provide the sum- mary, at no charge, to interested persons. History: 1991 a. 39. 19.80 Penalties. (2) EMPLOYEE DISCIPLINE. Any person employed by an authority who violates this subchapter may be discharged or suspended without pay. (3) PENALTIES. (a) Any person who willfully collects, dis- closes or maintains personally identifiable information in viola- tion of federal or state law may be required to forfeit not more than $500 for each violation. (b) Any person who willfully requests or obtains personally identifiable information from an authority under false pretenses may be required to forfeit not more than $500 for each violation. History: 1991 a. 39, 269. SUBCHAPTER V OPEN MEETINGS OF GOVERNMENTAL BODIES 19.81 Declaration of policy. (1) In recognition of the fact that a representative government of the American type is depen- GENERAL DUTIES OF PUBLIC OFFICIALS 19.8231 Updated 17−18 Wis. Stats. Updated 2017−18 W is. Stats. Published and certified under s. 35.18. May 11, 2019. 2017−18 Wisconsin Statutes updated through 2019 Wis. Act 5 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 21, 2019. Published and certified under s. 35.18. Changes effective after May 11, 2019, are designated by NOTES. (Published 5−1 1−19) dent upon an informed electorate, it is declared to be the policy of this state 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. (2) To implement and ensure the public policy herein expressed, all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless oth- erwise expressly provided by law. (3) In conformance with article IV, section 10, of the constitu- tion, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter. (4) This subchapter shall be liberally construed to achieve the purposes set forth in this section, and the rule that penal statutes must be strictly construed shall be limited to the enforcement of forfeitures and shall not otherwise apply to actions brought under this subchapter or to interpretations thereof. History: 1975 c. 426; 1983 a. 192. NOTE: The following annotations relate to s. 66.77, repealed by Chapter 426, laws of 1975. Subsequent to the presentation of evidence by the taxpayer , a board of review’ s consideration of testimony by the village assessor at an executive session was con- trary to the open meeting law. Although it was permissible for the board to convene a closed session for the purpose of deliberating after a quasi−judicial hearing, the pro- ceedings did not constitute mere deliberations but were a continuation of the quasi− judicial hearing without the presence of or notice to the objecting taxpayer. Dolphin v. Butler Board of Review, 70 Wis. 2d 403, 234 N.W.2d 277 (1975). The open meeting law is not applicable to the judicial commission. State ex rel. Lynch v. Dancey, 71 Wis. 2d 287, 238 N.W.2d 81 (1976). A regular open meeting, held subsequent to a closed meeting on another subject, does not constitute a reconvened open meeting when there was no prior open meeting on that day. 58 Atty. Gen. 41. Consideration of a resolution is a formal action of an administrative or minor gov- erning body and when taken in proper closed session, the resolution and result of the vote must be made available for public inspection, pursuant to s. 19.21, absent a spe- cific showing that the public interest would be adversely affected. 60 Atty. Gen. 9. Joint apprenticeship committees, appointed pursuant to W is. Adm. Code provi - sions, are governmental bodies and subject to the requirements of the open meeting law. 63 Atty. Gen. 363. V oting procedures employed by worker’s compensation and unemployment advi- sory councils that utilized adjournment of public meeting for purposes of having members representing employers and members representing employees or workers to separately meet in closed caucuses and to vote as a block on reconvening was con- trary to the open records law. 63 Atty. Gen. 414. A governmental body can call closed sessions for proper purposes without giving notice to members of the news media who have filed written requests. 63 Atty. Gen. 470. The meaning of “communication” is discussed with reference to giving the public and news media members adequate notice. 63 Atty. Gen. 509. The posting in the governor’s office of agenda of future investment board meetings is not sufficient communication to the public or the news media who have filed a writ- ten request for notice. 63 Atty. Gen. 549. A county board may not utilize an unidentified paper ballot in voting to appoint a county highway commissioner, but may vote by ayes and nays or show of hands at an open session if some member does not require the vote to be taken in such manner that the vote of each member may be ascertained and recorded. 63 Atty. Gen. 569. NOTE: The following annotations refer to ss. 19.81 to 19.98. When the city of Milwaukee and a private non−profit festival organization incor- porated the open meetings law into a contract, the contract allowed public enforce- ment of the contractual provisions concerning open meetings. Journal/Sentinel, Inc. v. Pleva, 155 Wis. 2d 704, 456 N.W.2d 359 (1990). Sub. (2) requires that a meeting be held in a facility that gives reasonable public access, not total access. No person may be systematically excluded or arbitrarily refused admittance. State ex rel. Badke v. Greendale Village Bd. 173 Wis. 2d 553, 494 N.W.2d 408 (1993). This subchapter is discussed. 65 Atty. Gen. preface. Public notice requirements for meetings of a city district school board under this subchapter and s. 120.48, 1983 stats., are discussed. 66 Atty. Gen. 93. A volunteer fire department organized as a nonprofit corporation under s. 213.05 is not subject to the open meeting law. 66 Atty. Gen. 113. Anyone has the right to tape−record an open meeting of a governmental body pro- vided the meeting is not thereby physically disrupted. 66 Atty. Gen. 318. The open meeting law does not apply to a coroner’s inquest. 67 Atty. Gen. 250. The open meeting law does not apply if the common council hears a grievance under a collective bargaining agreement. 67 Atty. Gen. 276. The application of the open meeting law to the duties of WERC is discussed. 68 Atty. Gen. 171. A senate committee meeting was probably held in violation of the open meetings law although there was never any intention prior to the gathering to attempt to debate any matter of policy, to reach agreement on differences, to make any decisions on any bill or part thereof, to take any votes, or to resolve substantive differences. Quorum gatherings should be presumed to be in violation of the law, due to a quorum’s ability to thereafter call, compose and control by vote a formal meeting of a governmental body. 71 Atty. Gen. 63. Nonstock corporations created by statute as bodies politic clearly fall within the term “governmental body” as defined in the open meetings law and are subject to the provisions of the open meetings law. Nonstock corporations that were not created by the legislature or by rule, but were created by private citizens are not bodies politic and not governmental bodies. 73 Atty. Gen. 53. Understanding Wisconsin’s open meeting law. Harvey, WBB September 1980. Getting the Best of Both Worlds: Open Government and Economic Development. Westerberg. Wis. Law. Feb. 2009. An Intro to Understanding Wisconsin’s Open Meetings Law. Block. Wis. Law. Dec. 2015. 19.82 Definitions. As used in this subchapter: (1) “Governmental body” means a state or local agency , board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordi - nance, rule or order; a governmental or quasi−governmental cor - poration except for the Bradley center sports and entertainment corporation; a local exposition district under subch. II of ch. 229; a long−term care district under s. 46.2895; or a formally consti - tuted subunit of any of the foregoing, but excludes any such body or committee or subunit of such body which is formed for or meet- ing for the purpose of collective bargaining under subch. I, IV, or V of ch. 111. (2) “Meeting” means the convening of members of a govern- mental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one−half or more of the members of a governmental body are pres- ent, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties dele - gated to or vested in the body . The term does not include any social or chance gathering or conference which is not intended to avoid this subchapter , any gathering of the members of a town board for the purpose specified in s. 60.50 (6), any gathering of the commissioners of a town sanitary district for the purpose specified in s. 60.77 (5) (k), or any gathering of the members of a drainage board created under s. 88.16, 1991 stats., or under s. 88.17, for a purpose specified in s. 88.065 (5) (a). (3) “Open session” means a meeting which is held in a place reasonably accessible to members of the public and open to all cit- izens at all times. In the case of a state governmental body , it means a meeting which is held in a building and room thereof which enables access by persons with functional limitations, as defined in s. 101.13 (1). History: 1975 c. 426; 1977 c. 364, 447; 1985 a. 26, 29, 332; 1987 a. 305; 1993 a. 215, 263, 456, 491; 1995 a. 27, 185; 1997 a. 79; 1999 a. 9; 2007 a. 20, 96; 2009 a. 28; 2011 a. 10. A “meeting” under sub. (2) was found although the governmental body was not empowered to exercise the final powers of its parent body. State v. Swanson, 92 Wis. 2d 310, 284 N.W.2d 655 (1979). A “meeting” under sub. (2) was found when members met with a purpose to engage in government business and the number of members present was sufficient to deter- mine the parent body’s course of action regarding the proposal discussed. State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987). The open meetings law is not meant to apply to single−member governmental bod- ies. Sub. (2) speaks of a meeting of the members, plural, implying there must be at least two members of a governmental body. Plourde v. Berends, 2006 WI App 147, 294 Wis. 2d 746, 720 N.W.2d 130, 05−2106 . When a quorum of a governmental body attends the meeting of another govern- mental body when any one of the members is not also a member of the second body, the gathering is a “meeting,” unless the gathering is social or by chance. State ex rel. Badke v. Greendale Village Board, 173 Wis. 2d 553, 494 N.W.2d 408 (1993). A corporation is quasi−governmental if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status, requiring a case− by−case analysis. Here, a primary consideration was that the body was funded exclu- sively by public tax dollars or interest thereon. Additionally, its office was located in the municipal building, it was listed on the city Web site, the city provided it with clerical support and office supplies, all its assets revert to the city if it ceases to exist, its books are open for city inspection, the mayor and another city official are directors, and it had no clients other than the city. State v. Beaver Dam Area Development Cor- poration, 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295, 06−0662 . A particular group of members of the government compose a governmental body if there is a constitution, statute, ordinance, rule, or order conferring collective power and defining when it exists. To cause a body to exist, the relevant directive must con- fer upon it the collective responsibilities, authority, power, or duties necessary to a governmental body’s existence under the open meetings law. The creation of a gov- ernmental body is not triggered merely by any deliberate meetings involving govern- mental business between 2 or more officials. Loosely organized, ad hoc gatherings of government employees, without more, do not constitute governmental bodies. Rather, an entity must exist that has the power to take collective action that the mem- bers could not take individually. Krueger v. Appleton Area School District Board of Education, 2017 WI 70, 376 Wis. 2d 239, 898 N.W.2d 35, 15−0231 . Updated 17−18 Wis. Stats. 32 19.82 GENERAL DUTIES OF PUBLIC OFFICIALS Updated 2017−18 W is. Stats. Published and certified under s. 35.18. May 11, 2019. 2017−18 Wisconsin Statutes updated through 2019 Wis. Act 5 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 21, 2019. Published and certified under s. 35.18. Changes effective after May 11, 2019, are designated by NOTES. (Published 5−1 1−19) When a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are cre- ated by rule under sub. (1) and the open meetings law applies to them. Here, a school board provided that the review of educational materials should be done according to the board−approved handbook. The handbook, in turn, authorized the formation of committees with a defined membership and the power to review educational materi- als and make formal recommendations for board approval. Because the committee in question was formed as one of these committees, pursuant to the authority dele- gated from the board by rule and the handbook, it was created by rule and therefore was a “governmental body” under sub. (1). Krueger v. Appleton Area School District Board of Education, 2017 WI 70, 376 Wis. 2d 239, 898 N.W.2d 35, 15−0231 . Under Showers, 135 Wis. 2d 77, the open meetings law may apply to a walking quorum. A walking quorum is a series of gatherings among separate groups of mem- bers of a governmental body, each less than quorum size, who agree, tacitly or explic- itly, to act uniformly in sufficient number to reach a quorum. To establish a walking quorum, a plaintiff must prove that members of a governmental body purposefully engaged in discussions of governmental business and that the discussions were held between a sufficient number of members so as to affect the vote. Zecchino v. Dane County, 2018 WI App 19, 380 Wis. 2d 453, 909 N.W.2d 203, 17−0002 . A municipal public utility commission managing a city owned public electric util- ity is a governmental body under sub. (1). 65 Atty. Gen. 243. A “private conference” under s. 1 18.22 (3), on nonrenewal of a teacher’s contract is a “meeting” within s. 19.82 (2). 66 Atty . Gen. 211. A private home may qualify as a meeting place under sub. (3). 67 Atty. Gen. 125. A telephone conference call involving members of governmental body is a “meet- ing” that must be reasonably accessible to the public and public notice must be given. 69 Atty. Gen. 143. A “quasi−governmental corporation” in sub. (1) includes private corporations that closely resemble governmental corporations in function, ef fect, or status. 80 Atty. Gen. 129. Election canvassing boards operating under ss. 7.51, 7.53, and 7.60 are govern - mental bodies subject to the open meetings law — including the public notice, open session, and reasonable public access requirements — when they convene for the pur- pose of carrying out their statutory canvassing activities, but not when they are gath- ered only as individual inspectors fulfilling administrative duties. OAG 5−14 . 19.83 Meetings of governmental bodies. (1) Every meeting of a governmental body shall be preceded by public notice as provided in s. 19.84, and shall be held in open session. At any meeting of a governmental body , all discussion shall be held and all action of any kind, formal or informal, shall be initi- ated, deliberated upon and acted upon only in open session except as provided in s. 19.85. (2) During a period of public comment under s. 19.84 (2), a governmental body may discuss any matter raised by the public. History: 1975 c. 426; 1997 a. 123. When a quorum of a governmental body attends the meeting of another govern- mental body when any one of the members is not also a member of the second body, the gathering is a “meeting,” unless the gathering is social or by chance. State ex rel. Badke v. Greendale Village Board, 173 Wis. 2d 553, 494 N.W.2d 408 (1993). 19.84 Public notice. (1) Public notice of all meetings of a governmental body shall be given in the following manner: (a) As required by any other statutes; and (b) By communication from the chief presiding of ficer of a governmental body or such person’ s designee to the public, to those news media who have filed a written request for such notice, and to the official newspaper designated under ss. 985.04, 985.05 and 985.06 or, if none exists, to a news medium likely to give notice in the area. (2) Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meet- ing, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof. The public notice of a meeting of a governmental body may provide for a period of public comment, during which the body may receive information from members of the public. (3) Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting. (4) Separate public notice shall be given for each meeting of a governmental body at a time and date reasonably proximate to the time and date of the meeting. (5) Departments and their subunits in any University of Wis- consin System institution or campus are exempt from the require- ments of subs. (1) to (4) but shall provide meeting notice which is reasonably likely to apprise interested persons, and news media who have filed written requests for such notice. (6) Notwithstanding the requirements of s. 19.83 and the requirements of this section, a governmental body which is a for- mally constituted subunit of a parent governmental body may con- duct a meeting without public notice as required by this section during a lawful meeting of the parent governmental body, during a recess in such meeting or immediately after such meeting for the purpose of discussing or acting upon a matter which was the sub- ject of that meeting of the parent governmental body. The presid- ing of ficer of the parent governmental body shall publicly announce the time, place and subject matter of the meeting of the subunit in advance at the meeting of the parent body. History: 1975 c. 426; 1987 a. 305; 1993 a. 215; 1997 a. 123; 2007 a. 20. There is no requirement in this section that the notice provided be exactly correct in every detail. State ex rel. Olson v. City of Baraboo Joint Review Board, 2002 WI App 64, 252 Wis. 2d 628, 643 N.W.2d 796, 01−0201 . Sub. (2) does not expressly require that the notice indicate whether a meeting will be purely deliberative or if action will be taken. The notice must alert the public of the importance of the meeting. Although a failure to expressly state whether action will be taken could be a violation, the importance of knowing whether a vote would be taken is diminished when no input from the audience is allowed or required. State ex rel. Olson v. City of Baraboo Joint Review Board, 2002 WI App 64, 252 Wis. 2d 628, 643 N.W.2d 796, 01−0201 . Sub. (2) sets forth a reasonableness standard for determining whether notice of a meeting is sufficient that strikes the proper balance between the public’s right to infor- mation and the government’s need to efficiently conduct its business. The standard requires taking into account the circumstances of the case, which includes analyzing such factors as the burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non−routine action that the pub- lic would be unlikely to anticipate. Buswell v. Tomah Area School District, 2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804, 05−2998 . The supreme court declined to review the validity of the procedure used to give notice of a joint legislative committee on conference alleged to violate the sub. (3) 24−hour notice requirement. The court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments and will not intermeddle in what it views, in the absence of constitu- tional directives to the contrary, to be purely legislative concerns. Ozanne v. Fitzger- ald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, 11−0613 . Under sub. (1) (b), a written request for notice of meetings of a governmental body should be filed with the chief presiding of ficer or designee and a separate written request should be filed with each specific governmental body. 65 Atty. Gen. 166. The method of giving notice pursuant to sub. (1) is discussed. 65 Atty. Gen. 250. The specificity of notice required by a governmental body is discussed. 66 Atty. Gen. 143, 195. The requirements of notice given to newspapers under this section is discussed. 66 Atty. Gen. 230. A town board, but not an annual town meeting, is a “governmental body” within the meaning of the open meetings law. 66 Atty. Gen. 237. News media who have filed written requests for notices of public meetings cannot be charged fees by governmental bodies for communication of the notices. 77 Atty. Gen. 312. A newspaper is not obligated to print a notice received under sub. (1) (b), nor is governmental body obligated to pay for publication. Martin v. Wray, 473 F. Supp. 1131 (1979). 19.85 Exemptions. (1) Any meeting of a governmental body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section. The motion shall be carried by a majority vote in such manner that the vote of each member is ascertained and recorded in the minutes. No motion to convene in closed session may be adopted unless the chief presiding officer announces to those pres- ent at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. Such announcement shall become part of the record of the meeting. No business may be taken up at any closed session except that which relates to mat- ters contained in the chief presiding officer’s announcement of the closed session. A closed session may be held for any of the fol- lowing purposes: (a) Deliberating concerning a case which was the subject of any judicial or quasi−judicial trial or hearing before that govern- mental body. (b) Considering dismissal, demotion, licensing or discipline of any public employee or person licensed by a board or commission or the investigation of charges against such person, or considering the grant or denial of tenure for a university faculty member, and the taking of formal action on any such matter; provided that the faculty member or other public employee or person licensed is GENERAL DUTIES OF PUBLIC OFFICIALS 19.8633 Updated 17−18 Wis. Stats. Updated 2017−18 W is. Stats. Published and certified under s. 35.18. May 11, 2019. 2017−18 Wisconsin Statutes updated through 2019 Wis. Act 5 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 21, 2019. Published and certified under s. 35.18. Changes effective after May 11, 2019, are designated by NOTES. (Published 5−1 1−19) given actual notice of any evidentiary hearing which may be held prior to final action being taken and of any meeting at which final action may be taken. The notice shall contain a statement that the person has the right to demand that the evidentiary hearing or meeting be held in open session. This paragraph and par. (f) do not apply to any such evidentiary hearing or meeting where the employee or person licensed requests that an open session be held. (c) Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibil - ity. (d) Except as provided in s. 304.06 (1) (eg) and by rule promul- gated under s. 304.06 (1) (em), considering specific applications of probation, extended supervision or parole, or considering strat- egy for crime detection or prevention. (e) Deliberating or negotiating the purchasing of public prop- erties, the investing of public funds, or conducting other specified public business, whenever competitive or bar gaining reasons require a closed session. (ee) Deliberating by the council on unemployment insurance in a meeting at which all employer members of the council or all employee members of the council are excluded. (eg) Deliberating by the council on worker’s compensation in a meeting at which all employer members of the council or all employee members of the council are excluded. (em) Deliberating under s. 157.70 if the location of a burial site, as defined in s. 157.70 (1) (b), is a subject of the deliberation and if discussing the location in public would be likely to result in disturbance of the burial site. (f) Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of char ges against specific persons except where par . (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histo- ries or data, or involved in such problems or investigations. (g) Conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved. (h) Consideration of requests for confidential written advice from the elections commission under s. 5.05 (6a) or the ethics commission under s. 19.46 (2), or from any county or municipal ethics board under s. 19.59 (5). (2) No governmental body may commence a meeting, subse- quently convene in closed session and thereafter reconvene again in open session within 12 hours after completion of the closed ses- sion, unless public notice of such subsequent open session was given at the same time and in the same manner as the public notice of the meeting convened prior to the closed session. (3) Nothing in this subchapter shall be construed to authorize a governmental body to consider at a meeting in closed session the final ratification or approval of a collective bargaining agreement under subch. I, IV, or V of ch. 111 which has been negotiated by such body or on its behalf. History: 1975 c. 426; 1977 c. 260; 1983 a. 84; 1985 a. 316; 1987 a. 38, 305; 1989 a. 64; 1991 a. 39; 1993 a. 97, 215; 1995 a. 27; 1997 a. 39, 237, 283; 1999 a. 32; 2007 a. 1, 20; 2009 a. 28; 2011 a. 10, 32; 2015 a. 118. Although a meeting was properly closed, in order to refuse inspection of records of the meeting, the custodian was required by s. 19.35 (1) (a) to state specific and suf- ficient public policy reasons why the public interest in nondisclosure outweighed the public’s right of inspection. Oshkosh Northwestern Co. v. Oshkosh Library Board, 125 Wis. 2d 480, 373 N.W.2d 459 (Ct. App. 1985). The balance between protection of reputation under sub. (1) (f) and the public inter- est in openness is discussed. Wis. State Journal v. UW−Platteville, 160 Wis. 2d 31, 465 N.W.2d 266 (Ct. App. 1990). See also Pangman v. Stigler, 161 Wis. 2d 828, 468 N.W.2d 784 (Ct. App. 1991). A “case” under sub. (1) (a) contemplates an adversarial proceeding. It does not connote the mere application for and granting of a permit. Hodge v. Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993). A closed session to discuss an employee’s dismissal was properly held under sub. (1) (b) and did not require notice to the employee under sub. (1) (b) when no eviden- tiary hearing or final action took place in the closed session. State ex rel. Epping v. City of Neillsville, 218 Wis. 2d 516, 581 N.W.2d 548 (Ct. App. 1998), 97−0403 . The exception under sub. (1) (e) must be strictly construed. A private entity’ s desire for confidentiality does not permit a closed meeting. A governing body’s belief that secret meetings will produce cost savings does not justify closing the door to pub- lic scrutiny. Providing contingencies allowing for future public input was insuf fi- cient. Because legitimate concerns were present for portions of some of the meetings does not mean the entirety of the meetings fell within the narrow exception under sub. (1) (e). Citizens for Responsible Development v. City of Milton, 2007 WI App 114, 300 Wis. 2d 649, 731 N.W.2d 640, 06−0427 . Section 19.35 (1) (a) does not mandate that, when a meeting is closed under this section, all records created for or presented at the meeting are exempt from disclo - sure. The court must still apply the balancing test articulated in Linzmeyer, 2002 WI 84, 254 Wis. 2d 306. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06−1 143. Nothing in sub. (1) (e) suggests that a reason for going into closed session must be shared by each municipality participating in an inter governmental body. It is not inconsistent with the open meetings law for a body to move into closed session under sub. (1) (e) when the bargaining position to be protected is not shared by every mem- ber of the body. Once a vote passes to go into closed session, the reason for requesting the vote becomes the reason of the entire body. Herro v. Village of McFarland, 2007 WI App 172, 303 Wis. 2d 749, 737 N.W.2d 55, 06−1929 . In allowing governmental bodies to conduct closed sessions in limited circum - stances, this section does not create a blanket privilege shielding closed session con- tents from discovery. There is no implicit or explicit confidentiality mandate. A closed meeting is not synonymous with a meeting that, by definition, entails a privi- lege exempting its contents from discovery. Sands v. The Whitnall School District, 2008 WI 89, 312 Wis. 2d 1, 754 N.W.2d 439, 05−1026 . Boards of review cannot rely on the exemptions in sub. (1) to close any meeting in view of the explicit requirements in s. 70.47 (2m). 65 Atty. Gen. 162. A university subunit may discuss promotions not relating to tenure, merit increases, and property purchase recommendations in closed session. 66 Atty. Gen. 60. Neither sub. (1) (c) nor (f) authorizes a school board to make actual appointments of a new member in closed session. 74 Atty. Gen. 70. A county board chairperson and committee are not authorized by sub. (1) (c) to meet in closed session to discuss appointments to county board committees. In appro- priate circumstances, sub. (1) (f) would authorize closed sessions. 76 Atty. Gen. 276. Sub. (1) (c) does not permit closed sessions to consider employment, compensa- tion, promotion, or performance evaluation policies to be applied to a position of employment in general. 80 Atty. Gen. 176. A governmental body may convene in closed session to formulate collective bar- gaining strategy, but sub. (3) requires that deliberations leading to ratification of a ten- tative agreement with a bargaining unit, as well as the ratification vote, must be held in open session. 81 Atty. Gen. 139. “Evidentiary hearing” as used in sub. (1) (b), means a formal examination of accu- sations by receiving testimony or other forms of evidence that may be relevant to the dismissal, demotion, licensing, or discipline of any public employee or person cov- ered by that section. A council that considered a mayor ’s accusations against an employee in closed session without giving the employee prior notice violated the requirement of actual notice to the employee. Campana v. City of Greenfield, 38 F. Supp. 2d 1043 (1999). Closed Session, Open Book: Sifting the Sands Case. Bach. Wis. Law. Oct. 2009. 19.851 Closed sessions by ethics or elections com - mission. (1) Prior to convening under this section or under s. 19.85 (1), the ethics commission and the elections commission shall vote to convene in closed session in the manner provided in s. 19.85 (1). The ethics commission shall identify the specific rea- son or reasons under sub. (2) and s. 19.85 (1) (a) to (h) for conven- ing in closed session. The elections commission shall identify the specific reason or reasons under s. 19.85 (1) (a) to (h) for conven- ing in closed session. No business may be conducted by the ethics commission or the elections commission at any closed session under this section except that which relates to the purposes of the session as authorized in this section or as authorized in s. 19.85 (1). (2) The commission shall hold each meeting of the com - mission for the purpose of deliberating concerning an investiga - tion of any violation of the law under the jurisdiction of the com- mission in closed session under this section. History: 2007 a. 1; 2015 a. 118. 19.86 Notice of collective bargaining negotiations. Notwithstanding s. 19.82 (1) , where notice has been given by either party to a collective bargaining agreement under subch. I, IV, or V of ch. 111 to reopen such agreement at its expiration date, the employer shall give notice of such contract reopening as pro- vided in s. 19.84 (1) (b). If the employer is not a governmental Updated 17−18 Wis. Stats. 34 19.86 GENERAL DUTIES OF PUBLIC OFFICIALS Updated 2017−18 W is. Stats. Published and certified under s. 35.18. May 11, 2019. 2017−18 Wisconsin Statutes updated through 2019 Wis. Act 5 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on April 21, 2019. Published and certified under s. 35.18. Changes effective after May 11, 2019, are designated by NOTES. (Published 5−1 1−19) body, notice shall be given by the employer’s chief officer or such person’s designee. History: 1975 c. 426; 1987 a. 305; 1993 a. 215; 1995 a. 27; 2007 a. 20; 2009 a. 28; 2011 a. 10. 19.87 Legislative meetings. This subchapter shall apply to all meetings of the senate and assembly and the committees, sub- committees and other subunits thereof, except that: (1) Section 19.84 shall not apply to any meeting of the legisla- ture or a subunit thereof called solely for the purpose of scheduling business before the legislative body; or adopting resolutions of which the sole purpose is scheduling business before the senate or the assembly. (2) No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule. (3) No provision of this subchapter shall apply to any partisan caucus of the senate or any partisan caucus of the assembly, except as provided by legislative rule. (4) Meetings of the senate or assembly committee on or ga- nization under s. 71.78 (4) (c) or 77.61 (5) (b) 3. shall be closed to the public. History: 1975 c. 426; 1977 c. 418; 1987 a. 312 s. 17. Former open meetings law, s. 66.74 (4) (g), 1973 stats., that excepted “partisan cau- cuses of the members” of the state legislature from coverage of the law applied to a closed meeting of the members of one political party on a legislative committee to discuss a bill. The contention that this exception was only intended to apply to the partisan caucuses of the whole houses would have been supportable if the exception were simply for “partisan caucuses of the state legislature” rather than partisan cau - cuses of members of the state legislature. State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976). In contrast to former s. 66.74 (4) (g), 1973 stats., sub. (3) applies to partisan cau- cuses of the houses, rather than to caucuses of members of the houses. State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987). 19.88 Ballots, votes and records. (1) Unless otherwise specifically provided by statute, no secret ballot may be utilized to determine any election or other decision of a governmental body except the election of the officers of such body in any meet- ing. (2) Except as provided in sub. (1) in the case of officers, any member of a governmental body may require that a vote be taken at any meeting in such manner that the vote of each member is ascertained and recorded. (3) The motions and roll call votes of each meeting of a gov- ernmental body shall be recorded, preserved and open to public inspection to the extent prescribed in subch. II of ch. 19. History: 1975 c. 426; 1981 c. 335 s. 26. The plaintiff newspaper argued that sub. (3), which requires “the motions and roll call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection,” in turn, required the defendant commission to record and disclose the information the newspaper requested under the open records law. The newspaper could not seek relief under the public records law for the commission’ s alleged violation of the open meetings law and could not recover reasonable attorney fees, damages, and other actual costs under s. 19.37 (2) for an alleged violation of the open meetings law. The Journal Times v. City of Racine Board of Police and Fire Commissioners, 2015 WI 56, 362 Wis. 2d 577, 866 N.W.2d 563, 13−1715 . Under sub. (1), a common council may not vote to fill a vacancy on the common council by secret ballot. 65 Atty. Gen. 131. 19.89 Exclusion of members. No duly elected or appointed member of a governmental body may be excluded from any meet- ing of such body. Unless the rules of a governmental body provide to the contrary, no member of the body may be excluded from any meeting of a subunit of that governmental body. History: 1975 c. 426. 19.90 Use of equipment in open session. Whenever a governmental body holds a meeting in open session, the body shall make a reasonable effort to accommodate any person desir- ing to record, film or photograph the meeting. This section does not permit recording, filming or photographing such a meeting in a manner that interferes with the conduct of the meeting or the rights of the participants. History: 1977 c. 322. 19.96 Penalty. Any member of a governmental body who knowingly attends a meeting of such body held in violation of this subchapter, or who, in his or her official capacity, otherwise vio- lates this subchapter by some act or omission shall forfeit without reimbursement not less than $25 nor more than $300 for each such violation. No member of a governmental body is liable under this subchapter on account of his or her attendance at a meeting held in violation of this subchapter if he or she makes or votes in favor of a motion to prevent the violation from occurring, or if, before the violation occurs, his or her votes on all relevant motions were inconsistent with all those circumstances which cause the viola - tion. History: 1975 c. 426. The state need not prove specific intent to violate the Open Meetings Law. State v. Swanson, 92 Wis. 2d 310, 284 N.W.2d 655 (1979). 19.97 Enforcement. (1) This subchapter shall be enforced in the name and on behalf of the state by the attorney general or, upon the verified complaint of any person, by the district attorney of any county wherein a violation may occur. In actions brought by the attorney general, the court shall award any forfeiture recov- ered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfei- ture recovered together with reasonable costs to the county. (2) In addition and supplementary to the remedy provided in s. 19.96, the attorney general or the district attorney may com - mence an action, separately or in conjunction with an action brought under s. 19.96, to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circum - stances. (3) Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However , any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforce- ment of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken. (4) If the district attorney refuses or otherwise fails to com - mence an action to enforce this subchapter within 20 days after receiving a verified complaint, the person making such complaint may bring an action under subs. (1) to (3) on his or her relation in the name, and on behalf, of the state. In such actions, the court may award actual and necessary costs of prosecution, including reasonable attorney fees to the relator if he or she prevails, but any forfeiture recovered shall be paid to the state. (5) Sections 893.80 and 893.82 do not apply to actions com- menced under this section. History: 1975 c. 426; 1981 c. 289; 1995 a. 158. Judicial Council Note, 1981: Reference in sub. (2) to a “writ” of mandamus has been removed because that remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613−A] Awards of attorney fees are to be at a rate applicable to private attorneys. A court may review the reasonableness of the hours and hourly rate char ged, including the rates for similar services in the area, and may in addition consider the peculiar facts of the case and the responsible party’s ability to pay. Hodge v. Town of Turtle Lake, 190 Wis. 2d 181, 526 N.W.2d 784 (Ct. App. 1994). Actions brought under the open meetings and open records laws are exempt form the notice provisions of s. 893.80. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996), 94−2809 . Failure to bring an action under this section on behalf of the state is fatal and deprives the court of competency to proceed. Fabyan v. Achtenhagen, 2002 WI App 214, 257 Wis. 2d. 310, 652 N.W.2d 649, 01−3298 . Complaints under the open meetings law are not brought in the individual capacity of the plaintiff but on behalf of the state, subject to the 2−year statute of limitations under s. 893.93 (2). Leung v. City of Lake Geneva, 2003 WI App 129, 265 Wis. 2d 674, 666 N.W.2d 104, 02−2747 . When a town board’s action was voided by the court due to lack of statutory author- ity, an action for enforcement under sub. (4) by an individual as a private attorney gen- eral on behalf of the state against individual board members for a violation of the open meetings law that would subject the individual board members to civil forfeitures was not rendered moot. Lawton v. Town of Barton, 2005 WI App 16, 278 Wis. 2d 388, 692 N.W.2d 304, 04−0659 19.98 Interpretation by attorney general. Any person may request advice from the attorney general as to the applicabil- ity of this subchapter under any circumstances. History: 1975 c. 426. Appendix B Open Meetings Law Complaint Form–SAMPLE VERIFIED OPEN MEETINGS LAW COMPLAINT Now comes the complainant ___________________________ and as and for a verified complaint pursuant to Wis. Stat. §§ 19.96 and 19.97, alleges and complains as follows: 1. That s/he is a resident of the _____ _________ [town, village, city] of _____ , Wisconsin, and that his or her Post Office Address is ______________________________________ [street, avenue, etc.], ______ [city], Wisconsin ________ [zip]. 2. That __________ [name of member or chief presiding officer] whose Post Office Address is ______________________________________ [street, avenue, etc.], [city], Wisconsin ____ [zip] was on the day of 20 , a _____ [member or chief presiding officer] of ______________________________________ [designate official title of governmental body] and that such ______________________________________ [board, council, commission or committee] is a governmental body within the meaning of Wis. Stat. § 19.82(1). 3. That _______________________ [name of member or chief presiding officer] on the __ day of _______________________ , 20 , at County of ___ , Wisconsin, knowingly attended a meeting of said governmental body held in violation of Wis. Stat. § 19.96 and ______________________________________ [cite other applicable section(s)], or otherwise violated those sections in that [set out every act or omission constituting the offense charged]: 4. That ______________________________________ [name of member or chief presiding officer] is thereby subject to the penalties prescribed in Wis. Stat. § 19.96. 5. That the following witnesses can testify to said acts or omissions: Name Address Telephone _____________________________ _____________________________________ ______________ __________________ _____________________________ ___________________________________________________ _________ _________ _____________________________ ___________________________________________________ _______________ ___ _____________________________ ___________________________________________________ _______________ ___ _____________________________ ___________________________________________________ ________________ __ 6. That the following documentary evidence of said acts or omissions is avail able: ___________________________________________________________________________________________________. 7. That this complaint is made to the District Attorney for __________ County under the provisions of Wis. Stat. § 19.97, and that the district attorney may bring an action to recover the forfeiture provided in Wis. Stat § 19.96. WHEREFORE, complainant prays that the District Attorney for __________ County, Wisconsin, timely institute an action against _______________________ [name of member or chief presiding officer] to recover the forfeiture provided in Wis. Stat. § 19.96, together with reasonable costs and disbursements as provided by law. STATE OF WISCONSIN ) ) ss. COUNTY OF ________________ ) __________ __________________ being first duly sworn on oath deposes and says that s/ he is the above-named complainant, that s/he has read the foregoing complaint and that, based on his or her knowledge, the contents of the complaint are true. ___________________________________________ COMPLAINANT Subscribed and sworn to before me this ____ day of ___________, 20___. _____________________________ Notary Public, State of Wisconsin My Commission: ______________