Wisconsin’s open meetings law exists to ensure that government business, the people’s business, is conducted where the people can watch it happening. The exceptions to it, the instances where a governmental body can act in closed session, are generally limited to contract negotiations and personnel matters. That is as it should be.
As fierce advocates for the concept of “government in sunshine,” we were dismayed recently to read of the Madison School Board tiptoeing awfully close to the line between lawful and unlawful government meetings.
Individually or in pairs, Madison School Board members spend hours each year in private “board briefings” with Superintendent Jennifer Cheatham, discussing matters soon to come before the full board for votes that must be held in public, the Wisconsin State Journal reported on April 29.
Cheatham instituted the briefings after she was hired in 2013, and district administrators and some board members defend the practice.
Under state law, school boards and other local public bodies must have a quorum — typically a majority or more — of members to take official action, and the action they take must occur in publicly noticed meetings.
“Walking quorums,” by contrast, are 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,” according to the attorney general’s office.
They’re illegal because they can “render the publicly held meeting a mere formality,” according to the office.
Mary Burke, a seven-year veteran of the board and its outgoing president, said her experience in the briefings is that members don’t individually agree to act in a uniform way in later meetings of the full board.
That hardly matters. The possibility exists that enough of these small-group meetings could be held to reach a quorum tacitly.
Even if this practice does not violate the letter of the open meetings law, it certainly has the odor of not abiding by the spirit of the law.
Madison’s board briefings raise similar questions as those addressed by the attorney general’s Office of Open Government in a case involving the Green Bay City Council. An alderman there asked the office if a mayor can “hold separate meetings with each of the 12 members of the city council to tout an upcoming agenda of his,” address questions and take up other issues “in a closed-door meeting.”
While Assistant Attorney General Sarah K. Larson cautioned in a March 5 letter that “if the mayor meets with the council members in one-on-one situations for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body, a court may find a prohibited walking quorum” if the members had discussed city business and “have agreed with each other to act in some uniform fashion.”
Wisconsin Freedom of Information Council President Bill Lueders said the practice in Madison and in the Green Bay case “may not clearly violate the law, but it probably should be avoided, so as to not undercut the purpose of the open meetings law, which is to ensure that the deliberative process is public.”
Government meetings — that would include meetings between members of a school district board, however many, and that district’s superintendent — should take place in public, in the open. Government bodies should avoid even the appearance of an effort to circumvent the open meetings law.