Sunshine week sheds light on government transparency
March 16 marks the official start of Sunshine Week. While we could all use a break from the frigid temperatures, unfortunately, Sunshine Week has nothing to do with weather. With the motto “Open government is good government,” the week is a nationwide effort to focus on transparency at all levels of government. In Wisconsin, two major safeguards ensure that the actions of local governments are open to public scrutiny. They are the open meetings and public records laws. During each Sunshine Week, I try to write about some aspect of open government. Last year I focused on a couple of Wisconsin Supreme Court decisions interpreting the public records law, so I chose the open meetings law for this year's column.
With limited exceptions, state law requires that “meetings” of “governmental bodies” be open to the public. The first step in achieving compliance with the law is to determine what constitutes a governmental body. In the case of county boards, common councils and school boards, the answer is obvious. Elected governing bodies are covered by the law. What is not widely known, however, is that many other groups can be subject to the law, as well. Any board, commission, committee or similar group established by statute, ordinance, rule or order can constitute a governmental body under the law. Therefore, while the town board fits the definition, so, too, can the citizens' advisory group appointed by the village president.
The next step in the analysis is to determine what constitutes a meeting under the law. We all would agree that the monthly county board meeting fits this definition. To prevent “unofficial” meetings from taking place before noticed meetings and similar behind-the-scenes decision-making, the law defines the term “meeting” broadly. A meeting takes place under the law whenever members of a governmental body convene for the purpose of exercising responsibilities, authority, power or duties vested in the body. Because it can be difficult to prove exactly what was being discussed outside of the public's view, the law shifts the burden of proof. Whenever one-half or more of the members of a governmental body are present, a rebuttable presumption is created that a meeting is taking place.
Once it is determined that a governmental body is meeting, a number of steps must be taken to comply with the law. Notice must be given at least 24 hours in advance of the meeting, unless, for a good cause, it is impossible or impractical to provide. Then at least two hours' notice must be given. I have never recommended convening a meeting with less than 24-hour notice. While I'm sure that some dire circumstance could occur that would warrant holding a meeting on such short notice, I have yet to see one. The vast majority of business that local government needs to conduct can wait for one day until adequate notice has been provided.
Meeting notices are typically posted in one or more public places and provided to the media. In addition to listing obvious items, such as the time, date and place of the meeting, the notice must describe the subjects that will be discussed in such form as is reasonably likely to apprise members of the public and the news media thereof. With changing technology, many governmental bodies are posting meeting notices on their websites. While this may be good practice, the law does not yet allow web posting as a substitute for other statutorily prescribed methods of providing notice.
There are exceptions to the open meetings law. Collective bargaining is excluded from the statute; however, final ratification of union contracts must take place in open session. Additionally, the statutes provide other circumstances when the public can lawfully be excluded from a meeting. One example is to confer “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 law recognizes that it wouldn't make sense to discuss legal strategy when an adverse party to the action could be sitting in the room taking notes. Likewise, a closed session is permitted when negotiating the purchase of public properties or when conducting business that requires secrecy due to competitive or bargaining reasons. If a board was prepared to pay up to $20,000 for a parcel of land, but hoped that staff could negotiate a better deal on the purchase, it would be absurd to give that instruction in a public meeting.
The open meetings law is fairly straightforward, although officials and the public need to be diligent to ensure that local government is truly transparent. One problem that I see, too often, is agendas that describe discussion items generically. The purpose of posting agendas is to provide notice to anyone who might be interested in attending the meeting. An agenda topic of “licensing issues” is very different than “revoking the liquor license for Dave's Bar and Grill.” As the owner of Dave's Bar and Grill, I wouldn't even think of attending a meeting that contained the first agenda item. I would be camped out at city hall, however, if the second description appeared. Both meeting notices are technically correct, but if the aim of the common council is to revoke my liquor license, then the more detailed description is the one that should be used.
Sunshine Week has its own webpage and provides tips to citizens to test various governments for transparency, including reviewing official websites and filing records requests. You can find the web page at www.sunshineweek.org.
Dave Bretl is the Walworth County administrator. Contact him at (262) 741-4357 or visit www.co.walworth.wi.us.