5-26-26 Plan Commission Packet

CITY OF MENOMONIE PLAN COMMISSION MEETING AGENDA Menomonie City Hall 800 Wilson Avenue 1st Floor, City Council Chambers 7:00pm TUESDAY – May 26, 2026 Page 1 of 1 1. Roll Call. 2. Approval of Minutes – March 30, 2026. 3. Public Comments (agenda items only). 4. New Business: a) Introduction of New Members – discussion only (no action). b) Consider Approval of Collective Investments, LLC’s proposed Certified Survey Map on North Broadway Street – discussion and possible action. c) Consider Contingent Approval of Kwik Trip, Inc.’s proposed Certified Survey Map on Oak Avenue West – discussion and possible action. d) Reminder regarding open meetings – discussion only (no action). 5. Next meeting date – Monday, June 22, 2026 – information only (no action). 6. Adjourn. Notice is hereby given that members of the Common Council may be present at the foregoing meeting to gather information about a subject over which they have decision-making responsibility. This constitutes a meeting of the Common Council pursuant to State ex rel. Badke v. Greendale Village Board, 173 Wis.2d 553, 494 N.W.2d 408 (1993) and must be noticed as such, although the Common Council will not take any formal action at this meeting. NOTE: Upon reasonable notice, efforts will be made to accommodate individuals with disabilities. For additional information or to request the service, contact the City Clerk or the City Administrator at 232-2221. PLEASE CONTACT PAM at (232-2221 x1000) or pwildner@menomonie-wi.gov IF YOU ARE UNABLE TO ATTEND THE MEETING. Plan Commission Meeting Minutes Chairman Jeff Luther called the Plan Commission Meeting to order in the City Hall Council Chambers on Monday March 30, 2026 at 7:00 p.m. 1. Roll Call: Jeff Luther, Cody Gentz, Lowell Prange, Dennis Kropp, Steve Cook, and Dick Martinson. Steve Lindberg was absent. Others Present: Eric Atkinson, David Schofield, David Kowieski, Scott Teigen, Dan Dunbar and Michael Higgins. 2. Approval of Minutes: Kropp moved to approve the January 26, 2026 , Plan Commission minutes. Second by Prange. Motion carried unanimously. 3. Public Comments: a. Teigen spoke in favor of Item #4B. b. Dunbar spoke in favor of Item #4A. c. Higgins spoke in favor of Item #4C. 4. New Business: a. Schofield reviewed the staff report enclosed in the packet regarding Dunn County’s proposed CSM. Much discussion was had . Martinson moved to approve Dunn County’s proposed Certified Survey Map at the intersection of Service Road and Hoffman Street, as presented. Second by Cook. Motion carried unanimously. b. Schofield reviewed the staff report enclosed in the packet regarding Kwik Trip’s proposed CSM. Much discussion was had. Prange moved to approve Kwik Trip’s proposed Certified Survey Map on 3M Drive, as pr esented. Second by Kropp. Motion carried unanimously. c. Schofield reviewed the staff report enclosed in the packet regarding UW-Stout’s proposed Utility easement adjacent to t he Recreation Center. Much discussion was had. Kropp moved to recommend acceptance of UW-Stout’s proposed Utility Easement adjacent to the Recreation Center Expansion Project, as pr esented. Second by Martinson. Motion carried unanimously. d. Schofield indicated that the next Plan Commission meeting would be Monday April 27. No action taken. 5. Gentz moved to adjourn. Second by Cook. Motion carried unanimously. Minutes Recorded by David Schofield MEMORANDUM David Schofield, Director of Public Works dschofield@menomonie-wi.gov 715-232-2221 Ext.1020 1 TO: Chairperson Gentz & Plan Commission FROM: David Schofield, Director of Public Works SUBJECT: Proposed Collective Investments, LLC Certified Survey Map on North Broadway Street DATE: May 26, 2026 Plan Commission Meeting Collective Investments, LLC has submitted the attached proposed Certified Survey Map. In the map, they propose to split Lot 1 of CSM #3077 into Lot 1 and Outlot 1. This property was previously the site of a Denny’s restaurant. A Chipotle restaurant is under construction on Lot 1. Outlot 1 is proposed to be sold to Kwik Trip, Inc. The proposed uses comply with the existing Local Shopping Center (B-3) District zoning. No rezoning is proposed at this time. Lot 1 and Outlot 1 have access to both North Broadway Street and Oak Avenue West by way of an ingress/egress easement. City Staff, with assistance from Cedar Corporation, have reviewed the proposed Certified Survey Map and recommend approval. If the Plan Commission concurs, the appropriate motion would be Approve Collective Investment, LLC’s Proposed Certified Survey Map on North Broadway Street, as presented (simple majority vote). Attachments: • Location Map, Proposed Certified Survey Map Dunn County, WI MEMORANDUM David Schofield, Director of Public Works dschofield@menomonie-wi.gov 715-232-2221 Ext.1020 1 TO: Chairperson Gentz & Plan Commission FROM: David Schofield, Director of Public Works SUBJECT: Proposed Kwik Trip, Inc. Certified Survey Map on Oak Avenue West DATE: May 26, 2026 Plan Commission Meeting Kwik Trip, Inc. has submitted the attached proposed Certified Survey Map. In the map, they propose to merge Lot 1 of CSM #4495 and Outlot 1 of the proposed Collective Investments, LLC CSM into a single lot. Lot 1 of CSM #4495 is the site of an existing Kwik Trip store. Outlot 1 is proposed to be purchased from Collective Investments, LLC. No expansion of the Kwik Trip store is proposed at this time. The existing uses comply with the existing Local Shopping Center (B-3) District zoning. No rezoning is proposed at this time. Lot 1 and Outlot 1 have access to both North Broadway Street and Oak Avenue West by way of an ingress/egress easement. City Staff, with assistance from Cedar Corporation, have reviewed the proposed Certified Survey Map and recommend approval. If the Plan Commission concurs, the appropriate motion would be Approve Kwik Trip, Inc’s Proposed Certified Survey Map on Oak Avenue West, as presented, contingent upon receipt of recording information for the Collective Investments, LLC Certified Survey Map (simple majority vote). Attachments: • Location Map, Proposed Certified Survey Map Dunn County, WI CERTIFIED SURVEY MAP, NUMBER IN THE NE 1/4 OF THE SE 1/4, AND THE SE 1/4 OF THE SE 1/4, SEC. 15, AND THE NW 1/4 OF THE SW 1/4, AND THE SW 1/4 OF THE SW 1/4, SEC. 14, ALL IN TOWNSHIP 28 NORTH, RANGE 13 WEST, CITY OF MENOMONIE, DUNN COUNTY, WISCONSIN BEING ALL OF LOT 1, CSM No. 4495, V. 22 OF CSM’S, P. 95, DOC. No. 632732, AND OUTLOT 1, CSM No. , V. , OF CSM’S, P. , DOC. No. SURVEYOR'S CERTIFICATE: I, PETER J. GARTMANN, PROFESSIONAL LAND SURVEYOR, HEREBY CERTIFY: THAT BY THE DIRECTION OF KWIK TRIP, INC., I HAVE SURVEYED, DIVIDED AND MAPPED THE LAND PARCEL WHICH IS REPRESENTED BY THIS CERTIFIED SURVEY MAP. THAT THE EXTERIOR BOUNDARY OF THE LAND PARCEL SURVEYED AND MAPPED IS AS FOLLOWS: A PARCEL OF LAND LOCATED IN THE NE 1/4 OF THE SE 1/4, AND THE SE 1/4 OF THE SE 1/4, SECTION 15, THE NW 1/4 OF THE SW 1/4, AND THE SW 1/4 OF THE SW 1/4, SECTION 14, ALL IN TOWNSHIP 28 NORTH, RANGE 13 WEST, CITY OF MENOMONIE, DUNN COUNTY, WISCONSIN AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: • BEING ALL OF LOT 1 CSM No. 4495, V. 22 OF CSM’S, P. 95, DOC. No. 63732, AND OUTLOT 1, CSM No. , V. OF CSM’S, P. , DOC. No. THAT THIS CERTIFIED SURVEY MAP IS A CORRECT REPRESENTATION OF THE EXTERIOR BOUNDARY SURVEYED AND DESCRIBED, AND THE DIVISION OF IT. THAT I HAVE FULLY COMPLIED WITH THE PROVISIONS OF SECTION 236.34 OF THE WISCONSIN STATUTES, AE-7 OF THE WISCONSIN ADMINISTRATIVE CODE, AND THE SUBDIVISION REGULATIONS OF THE CITY OF MENOMONIE, DUNN COUNTY, WISCONSIN IN SURVEYING AND MAPPING THE SAME. DATED THIS DAY OF ________ , 2026 PETER J. GARTMANN, P.L.S. NO. 2279 APPROVED: CITY OF MENOMONIE PLAN COMMISSION BY:__________________________________________ CHAIRMAN DATED THIS ______ DAY OF ________________, 2026 VOLUME OF CERTIFIED SURVEY MAPS, PAGE CADD NUMBER: 26045 KT CSM SHEET 2 OF 2 SHEETS OWNER: KWIK TRIP, INC., 1626 OAK STREET LA CROSSE, WI 54603 ABBREVIATIONS: COR. - CORNER CSM. - CERTIFIED SURVEY MAP DOC. - DOCUMENT E. - EAST FND. - FOUND MON. - MONUMENT N. - NORTH No. - NUMBER NE - NORTHEAST NW - NORTHWEST S. - SOUTH SE - SOUTHEAST SEC. - SECTION SQ.FT. - SQUARE FEET SW - SOUTHWEST V. - VOLUME P. - PAGE W.- WEST 244 the Municipality July 2010 W isconsin’s open meeting law applies with equal force to every city and village, regardless of size or other char- acteristics. Because it applies whenever a governmental body conducts the business that it is entrusted with, it is critical that members of local governmental bodies be aware of the open meeting law and understand its requirements. This month’s legal comment provides an overview of the law, as well as a more detailed explanation of some of the law’s key provi- sions. The open meeting law is found in sec- tions 19.81 through 19.98 of the Wis- consin Statutes. The law does not require absolute openness. However, the legislature has declared that the “public is entitled to the fullest and most complete informa- tion regarding the affairs of govern- ment as is compatible with the conduct of governmental business.” 1 To that end, the law requires that all meetings of governmental bodies be preceded by public notice, be held in places reasonably accessible to the public, and be open to all citizens except as otherwise specifically provided. 2 The law authorizes governmental bodies to meet in closed session if the subject matter comes within one of a set num- ber of exemptions set forth in the law. 3 Definitions Are Key to UnDerstAnDing LAw The open meeting law only applies to meetings of a “governmental body” as defined by Wis. Stat. sec. 19.82(1). This definition, together with the defi- nition of “meeting” in sec. 19.82(2), is the key to understanding when the open meeting law applies to a par- ticular gathering of local officials. A “governmental body” includes a “local agency, board, commission, commit- tee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order,” as well as “formally consti- tuted” subunits of any of these bodies. Thus, a common council and village board are obviously subject to the open meeting law, as are municipal commit- tees, boards and commissions. Quasi- governmental bodies are also subject to the open meeting law. 4 Bodies formed for or meeting for the purpose of collective bargaining are specifically excluded from the defini- tion of “governmental body.” 5 A “meeting” is defined as the conven- ing of members of a governmental body for the purpose of exercising the responsibilities vested in that body. A meeting does not include social or chance gatherings that are not intended to avoid the law. When one-half or more of the members of a governmen- tal body are present, a meeting is “re- Legal Comment Understanding and Complying with Wisconsin’s Open Meeting Law By Claire Silverman, Legal Counsel 1. Wis. Stat. sec. 19.81(1). 2. Wis. Stat. secs. 19.81 and 19.83. 3. The exemptions are set forth under sec. 19.85. 4. A private entity is a “quasi-governmental corporation” within the meaning of the open meetings and public records laws if, based on the totality of circumstances, it resembles a governmental corporation in function, effect, or status. Key factors include but are not limited to: (1) the entity’s finances; (2) whether the entity serves a public function; (3) whether it appears to the public to be a government entity; (4) whether the entity is subject to government con- the Municipality July 2010 245 buttably presumed” to be for official purposes.6 In addition to the above two defini- tions, the term “open session” is also important. It is defined as a meeting “which is held in a place reasonably accessible to members of the public and open to all citizens at all times.” 7 The Wisconsin Supreme Court has interpreted this to mean “that a gov- ernmental body must meet in a facility which gives reasonable public access, not total access, and that it may not systematically exclude or arbitrarily refuse admittance to any individual.” 8 when is there A Meeting sUbject to the LAw? The simplistic answer to this ques- tion is, “Whenever a governmental body meets.” Although the application of the open meeting law is usually straightforward, determining whether there is a “meeting” can sometimes be complicated and there are pitfalls for the unwary. The statutory definition of a meeting, which provides that a meeting is pre- sumed if one-half of the members of a governmental body are present at a meeting, may lull officials into a false sense of security. The trouble is that the courts have interpreted the law to apply when there is less than one-half of the body present. In the Showers 9 case, the Wisconsin Supreme Court ruled that the test of whether a meeting occurs is twofold: “First, there must be a purpose to engage in governmental business, be it discussion, decision or information gathering. Second, the number of members present must be sufficient to determine the parent body’s course of action regarding the proposal discussed.” With regard to the second part of the Showers test, the potential of a gath- ering to determine the parent body’s course of action concerning a proposal can be either the affirmative power to pass or the negative power to defeat. Thus, a gathering of less than one-half the members of a body may constitute a meeting if the number of members present constitutes a “negative quo- rum,” (i.e., a sufficient number to block action by the body on a particu- lar issue). For example, when a proposal requires a two-thirds vote of the entire body, such as a budget amendment under Wis. Stat. sec. 65.90(5), if more than one-third of the governmental body members are present at an unnoticed meeting, discussion of that particular proposal would violate the open meet- ing law. This is what happened in the Showers case. Four out of eleven members met privately to discuss a budget matter. The court held that the meeting was illegal because four members constituted a negative quo- rum since they could determine the outcome by voting as a block against the budget change, which required a two-thirds majority vote. The same principle would seem to ap- ply with regard to matters that can be passed by a vote based on the quorum rather than total membership, such as a majority or fraction of a quorum. In such cases, the safest approach to calculating the number of votes neces- sary to block the matter is to subtract from the quorum the number of votes required to pass the measure and then Legal Comment Understanding and Complying with Wisconsin’s Open Meeting Law By Claire Silverman, Legal Counsel trol; and (5) the degree of access that government bodies have to the entity’s records. No one factor is determinative and determinations must be made on a case-by-case basis. State of Wisconsin v. Beaver Dam Area Development Corporation, 2008 WI 90. See Governing Bodies 386 for a more detailed summary of this case. 5. Wis. Stat. sec. 19.82(1). 6. Wis. Stat. sec. 19.82(2). 7. Wis. Stat. sec. 19.82(3). 8. State ex rel. Badke v. Village Bd. of Greendale, 173 Wis.2d 553, 580, 494 N.W.2d 408, 418 (1993). 9. State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d 77, 102, 398 N.W.2d 154, 165 (1987). Open Meeting Law continued on page 246 246 the Municipality July 2010 add one. However, this minimum fig- ure for determining whether the open meeting law is triggered may be lower than the figure obtained if it is as- sumed that more than a quorum will be present at a subsequent meeting on the issue. For example, if a village board has seven members and all attend a meeting, a matter requiring a majority vote may be blocked by four members. But if only four members attend, the matter may be blocked by two. 10 Local officials must also be aware of and avoid what is sometimes called a “walking quorum.” A “walking quo- rum” is a series of gatherings among separate groups of members of a gov- ernmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient num- ber to reach a quorum. 11 A series of gatherings, telephone calls, or e-mails between a small enough number of officers so as not to trigger the law at one specific gathering may constitute an illegal meeting. 12 From the public’s perspective, the danger of the walking quorum is that it may produce a consensus or pre- determined outcome with the result being that the publicly-held meeting is a mere formality without any real discussion or consideration of the issue being conducted in public. The use of a walking quorum to con- duct business is subject to prosecution under the open meeting law. 13 Local officials must use caution when us- ing electronic message technologies. These technologies have the potential to create walking quorums because of the rapid pace of communication and the inability of the sender to control whether and how other members may choose to respond. For this reason, the Attorney General strongly discourages members of governmental bodies from using electronic mail to communicate with other members of the body about matters within the body’s realm of au- thority. 14 The Wisconsin Department of Justice’s 2009 Open Meeting Com- pliance Guide provides as follows: Because the applicability of the open meetings law to such electronic communica - tions depends on the particular way in which a specific mes- sage technology is used, these technologies create special dangers for governmental of- ficials trying to comply with the law. Although two mem - bers 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. More- over, it is quite possible that, through the use of electronic mail, a quorum of a govern- mental body may receive in- formation on a subject within the body’s jurisdiction in an almost real-time basis, just as they would receive it in a phys- ical gathering of the members. Because e-mail is so easy, quick and inexpensive, it is unlikely that govern- mental bodies will be able or willing to refrain from using it completely. However, it is advisable to set proce- dures in place or parameters for the use of e-mail to ensure that its use does not violate the open meeting law. The Attorney General’s Open Meet- ing Compliance Guide suggests that inadvertent violations of the open meetings law through the use of elec- tronic 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 10. A UW law review note criticizes the Showers court for not considering this issue, and recommends that “To be safe, officials will need to hold in public all meetings at which at least a majority of a quorum is present.” 1988 Wis. L. Rev. 827, 851, 856. This is hardly the safe approach where, as in the example in the above text, less than a majority of the quorum can block a matter. Consider also an eleven member village board. A quorum is six and four is thus a majority. So three can defeat a matter if only six are present. 11. Showers, 135 Wis.2d at 92. 12. See Showers, 398 N.W.2d at 161, 164; 1988 Wis. L. Rev. at 846-7, 855; Governing Bodies 339 and 371. 13. State ex rel. Lynch v. Conta, 71 Wis.2d 662, 687, 239 N.W.2d 313 (1976). 14. Wisconsin Department of Justice Open Meeting Compliance Guide (2009), at p. 8 citing Correspondence, October 3, 2000. Legal Comment Open Meeting Law from page 245 the Municipality July 2010 247 reply only to the originator, if at all; and if message recipients are scrupu- lous about minimizing the content and distribution of their replies.” In addition to being careful about the number of members of a particular body that gather to talk about topics pertaining to that body, it is important to be aware that a “meeting” might take place when a sufficient number of members are present at meetings of other governmental bodies. Clearly, planned joint meetings of governmen- tal bodies must be separately noticed by each governmental body planning to attend the joint meeting. But what about situations where members of one governmental body independently attend the meeting of another govern- mental body? In the Badke case, 15 a majority of the village board regularly attended meet- ings of the village plan commission to gather information about subjects over which they had decision-making responsibilities. The Wisconsin Su- preme Court concluded that since the trustees regularly attended plan commission meetings, the gatherings were not chance and therefore should have been noticed as meetings of the village board. Specifically, the Wis- consin Supreme Court held that when one-half or more of the members of a governmental body attend a meeting of another governmental body to gath- er information about a subject over which they have ultimate decision- making responsibility, such a gather- ing is a “meeting” within the meaning of the open meeting law and must be noticed as such, unless the gathering is social or chance. Thus, whenever a majority of the members of one governmental body regularly attend or plan in advance to attend the meeting of another govern- mental body, it is necessary to provide notice that a majority of that body will be attending the meeting of another body for the purpose of observing and gathering information. However, municipalities should avoid routinely placing boilerplate language designed to comply with Badke at the bottom of all committee, commission and board meetings notices. Such a Badke notice should be pro- vided only if: 1) governing body members rou- tinely attend the meetings of a second body, such as a committee or commission; or 2) the chair of the governing body or clerk has been informed or otherwise has reason to believe that governing body members will likely be attending the meeting of the second body. For a further discussion of this issue see Governing Bodies 353. Badke also held that when a quorum of a governing body is present at a meeting of a second governmental 15. Badke, supra, n.7. Legal Comment Open Meeting Law continued on page 250 “ .” The Wisconsin Supreme Court concluded that since the trustees regularly attended plan commission meetings, the gatherings were not chance and therefore should have been noticed as meetings of the village board. 250 the Municipality July 2010 body merely because all of the indi- vidual members of the quorum make up the membership of the second gov- ernmental body, additional notice is not required. 16 Local officials should not place too much reliance on the exception to the definition of a meeting for chance or social gatherings. Remember, that exception is qualified by the tag “not intended to avoid” the law. If a nega- tive quorum (or more) of a body gets together by chance or for a social oc- casion there is no violation of the law unless the discussion turns to matters pertaining to that body, in which case the gathering probably converts to an improper meeting. By now it should be clear that govern- mental body members must be very careful when discussing public body business with other members outside of a properly noticed meeting. The numbers test raises a troubling ques- tion, however, relating to the legality of one-on-one conversations between members outside of a meeting. The obvious problem is that prohibiting person-to-person discussions outside of meetings does not jibe with how government works. Officials need to discuss matters they are working on. In addition, the legislature chose not to make the requirements of the open meeting law automatically applicable whenever two members of a govern- mental body get together. The Wisconsin Supreme Court strong- ly suggested in an earlier case that such one-on-one discussions would be protected by the First Amendment and would not violate the open meet- ing law, but, unfortunately, this was not discussed in the Showers or Badke cases. 17 If governmental body members should arguably violate the law by discussing matters outside of a meeting, a wise course to take would be to make sure that the matter receives an appropri- ate level of discussion at a properly noticed meeting before it is voted on. This may help avoid prosecution and decrease the likelihood that a court will void the action. notice reqUireMent The open meeting law requires that all meetings of a governmental body be preceded by public notice. The presid- ing officer of a governmental body, or that person’s designee (typically the clerk), must give proper notice of a meeting twenty-four hours in advance. If good cause exists and twenty-four- hour notice is impossible or impracti- cal, shorter notice may be given but in no case may the notice be provided less than two hours in advance of the meeting. 18 If the notice is mailed, it must be mailed early enough to allow it to arrive within the statutory time frame. 19 The notice must specify the date, time, place and subject matter of the meet- ing, and any contemplated closed ses- sions must be included. 20 The notice must be in such form as is “reasonably likely to apprise” members of the public and the news media of the time, date, place and subject matter of the meeting. A few years ago,the Wisconsin Su- preme Court overruled State ex rel. H.D. Enterprises II, LLC v. City of Stoughton, which held that general notice of a topic (e.g., licenses) is suf- ficiently specific to comply with the notice requirement in sec. 19.84(2). 21 The Wisconsin Supreme Court stated that the notice requirement in sec. 19.84 is not amenable to a bright line rule but, rather is subject to a “reason- ableness standard.” This reasonable- ness standard requires taking into account the circumstances of the case in determining whether notice is suf- ficient. This includes analyzing such factors as the burden of providing more detailed notice, whether the sub- ject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate. 22 The court further stated: The determination of whether notice is sufficient should be 16. Id. at 417-418. 17. The earlier case is State ex rel. Lynch v. Conta, 71 Wis.2d 662, 239 N.W.2d 313, 331 (1976), and this issue is dis- cussed in Governing Bodies 309, which was published in the July 1987 issue of the Municipality, pp. 262-263. 18. Wis. Stat. sec. 19.84(3). 19. 77 Op. Att’y Gen. 312 (1988). 20. Wis. Stat. sec. 19.84(2). 21. State ex rel. Buswell v. Tomah Area School District, 2007 WI 71 22. Id., 2007 WI 71 para. 28. Legal Comment Open Meeting Law from page 247 the Municipality July 2010 251 based upon what information is available to the officer no- ticing the meeting at the time notice is provided, and based upon what it would be reason- able for the officer to know. Thus, whether there is particu- lar public interest in the subject of a meeting or whether a spe- cific issue within the subject of the meeting will be covered, and how that affects the speci- ficity required, cannot be de- termined from the standpoint of when the meeting actually takes place. Rather, it must be gauged from the standpoint of when the meeting is noticed. 23 League attorneys are often asked whether it is appropriate to rely on broad umbrella clauses such as “old business” or “miscellaneous business” on the agenda to take up unforeseen matters which arise shortly before the scheduled meeting. In most cases, the answer is no. It is best to deal with late-breaking events by amending the notice, with twenty-four hours, or postponing the matter until it can be properly noticed. Minor matters may appropriately be subsumed under broader topics, but matters of particu- lar interest should be given explicit notice. In recent years, the attorney general has taken the view that govern- ing bodies may not rely on a general designation clause in their agenda, such as “other business,” to discuss, receive information or take action on a matter not identified in the notice of that meeting. A related issue is whether governmen- tal bodies may discuss or act on mat- ters raised by citizens during a “public comment” or “citizen participation” portion of a meeting if the subject is not on the agenda. The open meeting law allows governing bodies to des- ignate a period for public comment in the notice of the meeting. 24 During such a designated public comment period, a governmental body may “dis- cuss” information raised by a member of the public. 25 A governmental body may not take action on matters raised during a public comment period if the subject was not on the agenda. Some governing body members have inquired whether they, as members of the public, can bring up items not specifically designated on the agenda under a period of public comment allowed by Wis. Stat. sec. 19.84(2). The answer is no. The limited excep- tion allowing members of the public to bring up items not specifically on the agenda during a period of noticed public comment was intended to allow local governments to be responsive to their constituents and to allow the governing body to receive information from members of the public. It was not intended to allow governing body members to bring up items for discus- sion without placing the items on the agenda. Any such use of the exception by governing bodies in that way will likely be viewed as an attempt to cir- cumvent the notice requirements of the open meeting law. 26 With regard to who must be given notice of a meeting, notice has to be given to any news medium that has requested the notice, and to the of- ficial newspaper or, if there is none, to a newspaper, TV or radio station that is likely to give notice in the area. 27 The open meeting law does not require that the notice actually be published, 28 although it does require that notice be given as required by other specific statutes governing the subject matter (e.g., Wis. Stat. sec. 62.23 (7)(d)2, re- quires a Class 2 notice be published in advance of a proposed rezoning). 29 As an alternative to written notice, tele- phone or other verbal communication to members of the news media is suf- ficient. 30 The law also requires some form of direct notice to the public; this requirement may be met by posting the notice in one, or preferably several, public places. 31 A limited exception to the notice requirement allows subunits of gov- 23. Id., para 32. 24. Wis. Stat. sec. 19.84(2). 25. Wis. Stat. sec. 19.84(2). 26. For additional discussion of this issue see Governing Bodies 361. 27. Wis. Stat. sec. 19.84(1)(b). 28. Martin v. Wray, 473 F. Supp. 1131 (E.D. Wis. 1979); 77 Op. Att’y Gen. 312 (1988). 29. Notice requirements of other statutes must be met in addition to the requirements of the open meeting law. Wis. Stat. sec. 19.84(1)(a). 30. 77 Op. Att’y Gen. 312 (1988). 31. Wis. Stat. sec. 19.84(1)(b); 63 Op. Att’y Gen. 509, 510-11 (1976); 66 Op. Att’y Gen. 93, 95 (1977). Legal Comment Open Meeting Law continued on page 252 252 the Municipality July 2010 ernmental bodies32 to meet during the meeting of the parent body, during a recess, or directly after such meeting, to discuss or act on matters that were the subject of the meeting of the parent body. 33 The presiding officer of the parent body must announce the time, place and subject matter of the subunit meeting in advance at the meeting of the parent body. This announcement must mention any contemplated closed session. 34 No charge may be made for provid- ing notice to meet the requirements of the open meeting law. However, once these notice requirements have been met, charges may be made, under the public records law, for additional notices and supplementary informa- tion. 35 cLoseD sessions Generally, meetings of governmental bodies must be held in open session. However, the law authorizes meetings to be closed if the subject matter falls within one of the specific exemptions set forth in Wis. Stat. sec. 19.85. Note that the general authority to close a meeting is inapplicable where specific authority requires openness, as in the case of hearings before a police and fire commission under Wis. Stat. sec. 62.13(5), and Board of Review meet- ings under sec. 70.46(2m). As a general rule, we recommend us- ing the term “closed” session or meet- 32. The League has opined that statutory boards or commissions, such as a library board, a utility commission and a police and fire commission, are not subunits of a common council or village board, although committees (e.g., a finance committee, a public safety committee) are typically subunits. Governing Bodies 310. 33. Wis. Stat. sec. 19.84(6). 34. 65 Op. Att’y Gen. Preface vi (1976). 35. 77 Op. Att’y Gen. 312 (1988); Governing Bodies 323. Open Meeting Law from page 251 Legal Comment the Municipality July 2010 253 ing instead of “executive” session, which suggests that meetings may be closed whenever the body wishes to take action on a matter. Section 19.85 authorizes closing meet- ings for a number of reasons including the following: 1) deliberating after a quasi-judicial hearing; 2) considering the discipline of an employee or person licensed by the municipality; 3) considering employment, promo- tion, compensation or perfor- mance evaluation data of a public employee; 4) deliberating or negotiating the purchase of public properties, or conducting other business when- ever competitive or bargaining reasons require a closed session; 36 5) considering financial, medical, social, personal history and dis- ciplinary data of specific persons or specific personnel problems which, if discussed in public, would be likely to have a substan- tial adverse effect on the person’s reputation; and 6) conferring with legal counsel with respect to litigation in which the body is involved or is likely to become involved. See Wis. Stat. sec. 19.85(1)(a)-(j), for the specific exemptions. For more de- tailed information on the appropriate use of these exemptions, see Govern- ing Bodies 375. When deciding whether it is appro- priate to hold a particular meeting in closed session, a good rule of thumb is to ask the preliminary question: “Is there a reason why this matter is best discussed privately, other than the de- sire to escape the scrutiny of the public eye or the media?” When closing a meeting is appropriate, it is important to follow the statutory procedures. As mentioned above, closed sessions planned in advance must be specified in the public notice; however, if the closed session was not contemplated, the meeting may still be closed for a valid reason. 37 The body must first convene in open session and vote to go into closed session. Before the vote is taken, the presiding officer must an- nounce the nature of the business to be discussed and the specific statutory provision which authorizes the closed session. The vote of each member must be recorded and preserved. 38 Attendance at the closed session is limited to the body, necessary staff and other officers, such as the clerk and attorney, and any other persons whose presence is necessary for the business at hand. If the meeting is of a subunit of a parent body, such as a committee, the members of the parent body (i.e., the common council or village board) must be allowed to attend the closed session, unless the rules of the parent body provide otherwise. 39 Discussion in the closed session must be limited to the topics for which the meeting was closed. 40 Questions sometimes arise as to whether a member of a governmental body may tape record closed sessions. An individual member of a govern- mental body does not have the right to tape record closed sessions of the governmental body. Although a gov- ernmental body is obliged under sec. 19.90 to make a reasonable effort to accommodate any person desiring to record, film or photograph an open meeting (provided the person does not do so in a disruptive manner), the law does not apply to closed sessions. 41 A governmental body may not recon- vene in open session until twelve hours after completion of the closed session, unless notice of the subsequent open session was given at the same time and in the same manner as the public notice of the meeting held prior to the closed session. 42 36. This exemption was read rather narrowly by the Wisconsin court of appeals in State ex rel Citizens for Responsible Development v. City of Milton, 2007 WI App. 114, 300 Wis.2d 649. 731 N.W.2d 640. For an in-depth summary of that case, see Governing Bodies 380 (the Municipality, May 2007). 37. Wis. Stat. sec. 19.84(2); 66 Op. Att’y Gen. 106 (1977); Governing Bodies 325. 38. Wis. Stat. sec. 19.85(1). These requirements also apply to a closed session of a subunit meeting without notice as pro- vided by sec. 19.84(6). 65 Op. Att’y Gen. Preface vi (1976). 39. Wis. Stat. sec. 19.89. 40. Wis. Stat. sec. 19.85(1). 41. See 66 Op. Att’y Gen. 318 (1977). 42. Wis. Stat. sec. 19.85(2). Legal Comment Open Meeting Law continued on page 254 254 the Municipality July 2010 Legal Comment PenALties AnD reMeDies Violations of the open meeting law may be prosecuted by the district at- torney, the attorney general, or by a private individual, if the district at- torney does not take the case. 43 Gov- ernmental body members who violate the open meeting law are subject to a forfeiture of between $25 and $300; this is a personal liability which may not be reimbursed by the municipal- ity. 44 However, members may very likely obtain reimbursement for costs and attorney fees incurred in defending against prosecutions under the open meeting law. 45 Members may protect themselves from liability by voting in favor of a motion to prevent the viola- tion (e.g., voting against going into an unauthorized closed session). 46 In addition to finding personal liability for violations of the law, a court may also order the violations to cease and void action illegally taken. In order to void action taken in violation of the open meeting law, the court must find that the public interest in enforcing the open meeting law outweighs the public interest in sustaining the validity of the action taken. 47 concLUsion Members of local governmental bodies must understand and comply with the open meeting law. As with other legal matters, officials should consult their municipal attorneys if they have ques- tions. For additional information on Wis- consin’s open meeting law, see the Wisconsin Department of Justice’s Open Meeting Compliance Guide on the Department of Justice’s website <www.doj.state.wi.us>. Another good source of information is the State Bar of Wisconsin, Government Lawyers Division’s Wisconsin Public Records and Open Meeting Handbook which is available from the State Bar for a fee. The Bar’s phone number is (800) 728-7788. Governing Bodies 315R9 43. Stat. sec. 19.97(1), (2) and (4). 44. Wis. Stat. sec. 19.96. 45. Wis. Stat. secs. 62.115, 895.35 and 895.46(1)(a); 77 Op. Att’y Gen. 177 (1988). 46 Wis. Stat. sec. 19.96. 47. Wis. Stat. sec. 19.97(3).