David Olsen
Commerce and Industry Association
305 South Main Street

Jefferson, WI 53549

Dear Mr. Olsen,

I received your letter of October 9 containing your answer to my question about why the Commerce and Industry Association (CIA) writes a check directly to you for your health insurance benefits as opposed to paying your health care provider directly. You also refused to supply any hard evidence that the amount paid to you is actually used for a specific health insurance premium. You claim that you are not a public official and not subject to open records requirements that would normally allow the public to see this information.

I would like a written explanation of the CIA Board's justification for its choice of this procedure for your benefits. Is there some reason the CIA doesn't write a check directly to your insurer like any other employer would normally do? I would like to see a record that shows that this CIA expenditure is actually being used for the purpose on the memo line of the checks made out to you. I would also like their explanation as to why you are not a public employee.

In a separate but somewhat related matter, I would like to obtain the minutes of the closed sessions of the September 2 CIA meeting. I also renew my prior open records request to have access to the performance evaluations conducted by the CIA.

I assume that you are following the law and are keeping minutes of the matters in closed session as well as open session. At first it was claimed this closed session was to discuss the advice from the CIA's attorney, but this justification was changed after I questioned it. In a September 17 letter to me, CIA President James van Lieshout said that the CIA entered closed session to discuss my open records requests, personnel issues, and the potential for the need to seek the advice of counsel, and that the closed session should have been justified under the personnel exemption.

I question this. I find it a bit of a stretch to claim that discussing an open records request for personnel records is equivalent to the intention of the exemption allowing closed session to conduct personnel matters. I do not believe that the CIA was in compliance with the personnel exemption in Wis. Stat. 19.85(1)(c), which states "Considering employment, promotion, compensation or performance evaluation data of any public employe over which the governmental body has jurisdiction or exercises responsibility." If the CIA was discussing my open records request, or considering seeking counsel, these discussions should have been separated and not conducted in closed session at the same time as the personnel matters. In any case, the minutes of closed session can confirm this.

Given that the CIA's entire staff consists of one person, the Executive Director, and that no other formal evaluation of the CIA's function or performance is available to the public, I maintain that these evaluations are crucial to public's understanding the success or failure of the CIA itself.

I believe there is a prevailing public interest in releasing these evaluations because the Executive Director's performance is synonymous with the performance of the CIA. You supplied me with a blank copy of the performance evaluation form used for 1998. I see nothing in this multiple-choice form that is of a personal or private nature. These evaluation forms are judgements of the CIA's function as carried out by its sole staff member, as conducted by the CIA Board.

As I see it, the CIA is a City organization. It was formed by action of the City Council. Your position and the CIA itself has always been solely funded by the City's budgets, operates rent-free on City property, and serves to oversee your execution of the day-to-day operations of the JDC, a quasi-governmental entity of the City. You, as Executive Director of the JDC and a member of its Board, exercise both day-to-day and Board-level authority, carrying out the City's powers as enumerated in the covenants of City business park property. You often claim to be the Executive Director of the CIA, although the CIA by-laws do not describe this position.

There is also a contradiction in the CIA's justification of closed session under the personnel exemption. You claim that you are not a public employee. The personnel exemption applies to public employees. Are you a public employee, or not?

As you are aware judging from the content of your report of your conversation with Assistant State Attorney General Alan Lee in your letter to him of October 22, the Woznicki case (among others mentioned in the annotated Wisconsin Statutes) could have some bearing on this situation.

According to Woznicki, the personnel records of public employees are open to the public.
I argue that the Executive Director position administered by the CIA is indeed a public employee and that all these records should be available to the public. If you have had any subsequent communication with Assistant State Attorney General Alan Lee, I would like a copy.

If the CIA is seeking advice as to whether the Executive Director is a public employee or not, I think this investigation should be done more formally than a telephone call.

If you recall in the situation regarding your phone calls to the Attorney General's office in the fall of 1998 about the question of whether the JDC was quasi-governmental, you did not give the Attorney General's office a complete and sufficient representation of the facts of the JDC's situation. This was later confirmed by the City attorney. With all the facts in hand, the Attorney General's office then came to the opposite conclusion you presented. Of course, the same conclusion was later confirmed by the District Attorney.

Similarly, in your September 27, 1999 letter, you claimed that Attorney Curt Witynski of the League of Wisconsin Municipalities advised that the CIA could pick and choose which records it released to the public. When I check with Witynski to confirm the details of his phone conversation with City Administrator David Schornack, it turned out that Witynski had no statutory, case law or Attorney General opinion to justify his position.

I ask you to have the CIA determine whether or not you are a public employee. Please add this to the agenda of the next CIA meeting. If the CIA can't determine this on its own, perhaps the CIA and the City should seek a written opinion from the District Attorney and the State Attorney General's office. Telephone calls aren't the answer. A written opinion is the only way we can confirm the presentation of the facts and the logic of the response. I am confident that the Attorney General's office would say more than "No" as you claim in your letter to Alan Lee.

A few days after the September 2 meeting, the District Attorney gave his opinion regarding my plea for a judgement on the openness of the JDC and CIA. The advice of counsel is no longer needed. The JDC is an arm of the City and so is the CIA. I maintain that all reasons to keep these CIA records closed have now expired, that none of this information is still sensitive, that the Executive Director is a public employee, and that these records should be open to the public.

As I understand the law, you, as custodian of the CIA's records, need to give the specific and sufficient justifications for a prevailing public policy interest in keeping these records away from the public.

Sincerely,

John J. Foust
235 South Main Street