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http://www.jsonline.com/news/state/jan03/108348.aspDoing the public's business in privateGovernments' big decisions often shrouded in closed meetings, vague noticesBy DAN BENSON
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Big plans, but if village residents wanted to speak their mind on the issue, the only public notification they were given was a Village Board agenda item in March that read: "property purchase recommendation - Dorothy Friess."
Peter Habel was so concerned about the lack of public information that he sought and won a seat on the Village Board, saying even his wife - a plan commissioner in the village - didn't know what was happening.
More and more, observers say, the public's business, both big and small, is being conducted behind closed doors or under the veil of vague or misleading public agenda notices.
Doing the public's business in private is "part and parcel" of a general decline in government ethics that has resulted in scandals in Madison and Milwaukee, according to Mordecai Lee, associate professor of government affairs at the University of Wisconsin-Milwaukee's School of Continuing Education. He was involved in helping strengthen the open meetings law as a state legislator in the 1970s.
"Hardly a meeting goes by in local government any longer that doesn't include some portion that's closed to the public," Lee said. "There's a kind of pernicious mood that comes out of a closed meeting - how much easier it is to do business" out of view of a prying public.
Delafield Ald. Linda Kuklinski was looking for an easier way to do the public's business when she privately contacted other aldermen in November to discuss how they should vote at an upcoming Common Council meeting.
"We should be having those individual discussions on controversial items, as well as everything to do with the budget, prior to the meeting," she later declared, defending her actions, which may have been illegal.
And in September, Cedarburg School Board members met in closed session to discuss "bidding aspects" related to building an elementary school addition to cost around $700,000.
After the meeting, Superintendent Daryl Herrick told a reporter that board members had used the meeting to privately reach consensus on a series of motions they would take at the next public board meeting.
"We wanted to sit down and pull this together so we could be clean in front of the community," Herrick said.
Waukesha County District Attorney Paul Bucher said his office investigated more than two dozen open meetings complaints in 2002, up from the usual 15 or so he sees each year.
"It's taking up quite a bit of my time," Bucher said.
His office is investigating a potential open meeting violation by Town of Merton supervisors who admittedly voted in closed session to pay $3,400 to a public relations firm. The firm's job was to tell town residents about an advisory referendum on a border dispute with Hartland - something they voted against Dec. 3 by a margin of more than 2-to-1.
When reporters for the Milwaukee Journal Sentinel suspect a violation of the meetings law, they are apt to contact James Pepelnjak, legal counsel for Journal Communications Inc., the newspaper's corporate parent.
He estimates he dealt with "at least three times" the normal number of open meetings complaints in 2002.
"We're seeing more and more communities give to us what appears to be an unjustifiable reason to go into closed session to deliberate and sometimes pass ordinances without a full, fair, public debate on the matter," he said.
Sandra George, executive director of the Wisconsin Newspaper Association, said her organization has "a nice big file" on open government complaints sent to her by member newspapers around the state.
One of the most recent to cross her desk involved supervisors in the Town of Gibson near Manitowoc who met in a pickup truck to discuss a road project.
Madison lawyer Bob Dreps, who often represents WNA members in open government cases, is also concerned.
For instance, the City of Green Bay has been negotiating since February 2001 to sell water to nine suburbs, with discussions held entirely in closed session.
"I can't think of another issue of such importance to the public that has been so secret for so long," Dreps said.
In New Berlin, Ald. Paul Gallagher filed an open meetings complaint in October against his city's Park and Recreation Commission - of which he is a member - when commissioners voted to go into closed session to discuss a property purchase and avoid a potentially messy debate in public.
In the complaint, Gallagher quoted one commissioner as saying, "If we go into open session, people will line up at the podium and ask questions, and we will be here all night."
Kate Lawton, a local government specialist with UW-Extension in Madison, leads workshops on the law for local government officials.
"I can look over an audience, and I can tell that some of them haven't been doing it the right way. You can see the 'Oh no!' come over their faces," she said.
Some meeting law violations commonly involve insufficient notice, or agendas that don't clearly state, or even omit, what is to be discussed.
"Too many bodies have standard agendas meeting after meeting after meeting. You have no idea what they are talking about," lawyer Dreps said.
"It's not rocket science" to publish an accurate and informative agenda, Bucher added. "I ask officials, 'Put yourself in a reasonable person's position. If I were to read the notice, would I know what the topic is?' "
The law allows officials to meet privately to consider negotiations on buying or selling land, investing funds or "conducting other specified public business, whenever competitive or bargaining reasons require a closed session."
"The key word in the statute is the word require," Dreps said. "Is it required they meet in closed session?"
In May, officials in the city of Cedarburg and the Town of Cedarburg wanted to hammer out a shared services agreement and scheduled a closed meeting, with officials citing the law's competitive bargaining exemption.
They planned to reach consensus privately, then rubber-stamp the agreement in open session without discussion, avoiding a "media circus" of two reporters, as Town Chairman Jerry Voigt put it.
But officials canceled the meeting after the state attorney general's office said it wasn't required that the meeting be held in closed session and would probably be illegal.
Officials can close a meeting to talk about sensitive employee matters. But the law is clear that the subject must be an individual, not employees in general, the attorney general's office says.
Nonetheless, State Fair Board directors met Dec. 16 in closed session to discuss the general issue of cutting full-time staff members.
After reading about the meeting in a newspaper, Assistant Attorney General Bruce Olsen contacted the state Department of Administration, which oversees the board, to alert them to the problem.
Closed meetings, even when justified, leave voters and taxpayers in the dark and make it easy for officials to circumvent the spirit, if not the letter, of open government, experts say.
"I don't doubt there are violations every night" committed by officials meeting in closed session around the state, Dreps said. "Once the doors are closed, it's easy to go beyond the limits of the law."
Some observers say local government bodies often develop a habit of violating the law because of the inattention of the legal authorities, the news media or the public.
"If no one goes to meetings, no one knows if an open meeting law is violated," lawyer John Macy said. He's a partner with Arenz, Molter, Macy & Riffle, which represents more than three dozen government bodies in southeast Wisconsin.
Around the state, where Macy teaches workshops on open meetings compliance, scrutiny from small local newspapers is often less intense than in the Milwaukee metro area, he said.
"You'd be amazed at the questions I get" around the state from officials. "I can't help wonder, where are the (media) watchdogs?" he said.
Lee, the UWM professor, said "a government meeting without a reporter is a de facto closed meeting."
County district attorneys are charged with prosecuting open meeting violations. But most "look for resolution instead of prosecution," Dreps said.
Bucher, who is regarded as one of the more aggressive in the state on open meetings complaints, agrees.
"I really don't like to prosecute," unless a group has been warned a number of times previously, Bucher said.
High turnover of officials, requiring constant training, is one reason open meetings compliance is a problem, Dreps said.
"These governmental bodies don't have that clear an understanding because there is not much training," he said.
Dreps also faulted the legal advice government officials sometimes get from their municipal attorneys.
"The lawyers they turn to don't always approach it with the attitude the statute commands. They're looking for reasons for closing meetings. That completely interferes with the intention of the open meetings law," Dreps said.
Pepelnjak said without public access to meetings and records, many of the scandals that dominated last year's headlines would not have come to light.
Those include the state Legislative caucus scandal, the Milwaukee County pension scandal, sexual harassment allegations against Mayor John O. Norquist, and abuse claims made against Roman Catholic priests.
Pepelnjak said average citizens can be most effective at combating abuses of the open meetings law. "Citizens of these different communities should contact their representatives whenever there are closed sessions scheduled for reasons that don't appear to be justifiable," he said.
Journal Sentinel writers Anne Davis and Peter Maller contributed to this report.
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Hardly a meeting goes by in local government any longer that doesn't include some portion that's closed to the
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