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.
TJ Mertz, a board member until he lost a re-election bid last month, didn’t recall administrators asking board members specifically how they planned to vote in an open meeting, but “I do recall myself and other board members giving feedback that indicated how you would vote on something.”
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.
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That hardly matters, Ms. Burke. The possibility exists that enough of these small-group meetings could be held to reach a quorum tacitly. The individual board members might not indicate how they will vote in the “board briefings,” but the superintendent can tally indications of support or disapproval in her or his head through a succession of such meetings, enabling the superintendent to get a feel for whether an initiative has majority support on the board, meaning the deliberations will have taken place in private instead of in public.
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.”
New Madison School Board member Ali Muldrow told the State Journal that if board members were to cover all the ground covered in private briefings in public meetings, “that would be like a 7-hour meeting.”
If the length of Madison School Board meetings is the concern, then the board should start its meetings earlier in the day.
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.