Sunday, June 5, 2011

When They Get Behind Closed Doors... Time To Talk Transparency.

At the risk of seriously dating ourselves, does anyone recall the Fifth Dimension singing,
"Let the sun shine, let the sunshine in!"

Government is supposed to be by the people, for the people.  At least that is the concept of "open government".  The Sunshine Review (  ) is a great website devoted to keeping government open.  When Johnnie gets behind closed doors, out of the public eye, that's when shenanigans come about.  That's why there needs to be less closed door sessions and more accepting of public input.  How the hell else can our elected "leaders" represent us if they won't hear us in open session?

Many school and municipal boards use a very broad application of Open Meetings Laws exemptions to discuss things behind closed doors which SHOULD be discussed publicly.  Certainly, we all agree that if some employee is being dragged into the 'splainin' room, we the public don't need to be privy to that.  Similarly, we need to protect the privacy of even students being expelled.   But things like raises need to be presented to the public who are going to be asked to pony up their tax dollars to pay for them.

So let's review the rules of the game shall we.

Attorney General J.B. Van Hollen and the Department of Justice have compiled an awesome guide to Wisconsin's Open Meetings Laws.  You can download it here.

Key excerpts are provided here:
What is a meeting?
● The open meetings law applies to every “meeting” of a “governmental body.” Wis. Stat. § 19.83.

● The definition of “governmental body”  is broad enough to include virtually any collective governmental
entity, regardless of what it is labeled.

The Showers test. The 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. Showers, 135 Wis. 2d at 102.  [SP-EYE: is there a quorum?]

What are the Requirements of a Public Meeting
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.

What is Required for Open Session Meetings?
1. Accessibility. “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.” Wis. Stat. § 19.81(2).
2. Access for persons with disabilities.
3. 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.
4. Citizen participation. 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. Wis. Stat. §§ 19.83(2) and 19.84(2). Such a period must be included on the meeting notice.

Though Bales says that is not uncommon for such financial issues to be approved by the board without public discussion, others are uncomfortable with what they see as a lack of transparency.

Public Meetings Require Giving Public Notice
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;  [by posting the notice in one or more places likely to be seen by the general public.]
As a general rule, the Attorney General has advised posting notices at three different locations within the jurisdiction that the governmental body serves.  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. 63 Op. Att’y Gen. 509, 510-11 (1974). If the  presiding officer gives notice in this manner, he or she must ensure that the notice is actually published. 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.

(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. Wis. Stat. § 19.84(1).

What Information must the Public Notice Contain? 
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.” Wis. Stat. § 19.84(2).

How detailed must the Agenda Information Be?
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.  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.
Does "Non-represented Employee Contracts 2010-2011" as an agenda item provide the public with enough information to know that significant raises were being considered? State law requires school districts to either notify staff of non-renewal of contracts, extend their contracts, or renew contracts each year. But that is separate and distinct from the issue of wage increases. Arguably, listing an agenda topic this way--and under a Consent Agenda--, when the intent was to vote on significant raises violates the intent of the Open Meetings Laws.

What About "Closed" Sessions?
Closed sessions “must contain enough information for the public to discern whether the subject matter is authorized for closed session under § 19.85(1).” [ SP-EYE: Establishing a salary range for a position is NOT a valid item for closed session. However, determination of what specific salary to offer a potential candidate for hire is.]

How Much Advanced Notice is Required?
The provision in Wis. Stat. § 19.84(3) requires that every public notice of a meeting be given at least
twenty-four (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. Wis. Stat. § 19.84(3).

Must Votes be recorded?  Are "secret" votes allowed?
● No secret ballot may be used to determine any election or decision of a governmental body, except the
election of officers of a body. Wis. Stat. § 19.88(1).

● The open meetings law requires a governmental body to create and preserve a record of all motions and
roll-call votes at its meetings. Wis. Stat. § 19.88(3).

What Level of Detail is Required for Record of Motions and Voting?
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 regarding the affairs of government as is compatible with the conduct of governmental business.” Wis. Stat. § 19.81(1). 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.

What about "Consent" Agenda Items?
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. Huebscher Correspondence, May 23, 2008. “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). Perlick Correspondence, May 12, 2005.

What Issues are Exempt? (When is it Allowable to hold Closed Sessions)?
● Judicial or quasi-judicial hearings. (e.g., Expulsion hearings)
● Consideration of dismissal, demotion, discipline, licensing, and tenure.
● Consideration of employment, promotion, compensation, and performance evaluations.
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. 80 Op. Att’y Gen. 176, 178-82.  The section authorizes closure to determine increases in compensation for specific employees,
67 Op. Att’y Gen. 117, 118.
Bales said the actual school board discussion on personnel costs took place over several months as part of the board's budget development strategy. Discussing the actual contracts, however, took place in closed session.

Consideration of financial, medical, social, or personal information. (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)
● Conducting public business with competitive or bargaining implications.  Competitive or bargaining reasons permit a closed session where the discussion will directly and substantially affect negotiations with a third party, but not where the discussions might be one of several factors that indirectly influence the outcome of those negotiations.
 Conferring with legal counsel with respect to litigation.

What About Re-Convening in Open Session Following a Closed Session?
A governmental body may not commence a meeting, convene in closed session, and subsequently
reconvene in open session within twelve hours after completion of a closed session, unless public notice of the subsequent open session is given “at the same time and in the same manner” as the public notice of the prior open session. Wis. Stat. § 19.85(2). 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.

"When people got inflamed about it, there was sort of this assumption that that's going to be a conversation at the table in terms of who's going to get what," Bales said. "Honestly, from a board perspective, you do that every year ... It's a part of board work to approve contracts and approve compensation levels. They wouldn't have published a list of names of people and what they're doing." [how could there be public discussion when it was done in closed session?]

This has nothing to do with a decision regarding HIRING a new employee and at what salary, Mr. Bales....this is simply information that you and the Board would prefer that the public not know.

The Department of Justice/Attorney General have also developed a great summary of Open Records requirements which can be obtained here.

What is a "record"?
A record is any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority in connection with official purpose or function of the agency. A record includes handwritten, typed or printed documents; maps and charts; photographs, films and tape recordings; computer tapes and printouts, CDs and optical discs; and electronic records and communication

Electronic records and records produced as the product of a computer program  are subject to the open records law are subject to inspection and copying.  A person can not require creation of a new record by extracting and compiling information from existing records in a new format.  When information is stored in a database, a person can "within reasonable limits" request a data run to obtain the requested information.

Wish I were transparent
You could see right through me
Everything apparent
What I really am

Don't have much to hide
What I have I'll show you
--Pet Shop Boys ["Transparent"]