October 18, 1999

Dear District Attorney Wambach,

In the October 14 Daily Union newspaper I read that you plan to meet next week with members of the Commerce and Industry Association (CIA) to discuss my complaint of its violation of open meetings law. Is this true? If so, what is the time and place of the meeting, and is this meeting open to the public and press?

I do not pretend to have any significant understanding of the statutes that guide the duties of the District Attorney, but it occurred to me that if the CIA meets as a group to discuss its business, would this meeting itself be subject to open meetings law requirements? Or does your investigation trump that? I can imagine that it would, but I wasn't sure. If open meetings law does apply, wouldn't you need to quiz each member separately to prevent them from discussing their business as a group in a private place?

Based on Jim van Lieshout's statements in the October 15 Daily Union article, and from his letter to me of September 17 as included in my complaint, I believe they have been making a significant effort to concoct alternative justifications of what they did.

When I spoke with van Lieshout on the phone before the September 2 meeting, he said they intended to be justified in entering closed session under the stated exemption because he instructed David Olsen to find an attorney for the CIA before the meeting, but that to his knowledge Olsen had not done this in time for the meeting.

In the Daily Union on October 15, van Lieshout first pleads ignorance of the fine points of open meeting law. However, the CIA, JDC and the Executive Director have been studying this question since at least August 1998, months before my April 1999 request for your investigation. Just a month before, the CIA deliberated and decided it was subject to the law. David Olsen prepared the agenda, and quoted a specific exemption from open meeting requirements. I think it's clear they studied the open meeting law statutes in great detail.

Next in his statements in the newspaper and in his September 17 letter, van Lieshout claims they needed to enter closed session to discuss whether or not they'd need counsel to assist in their refusal to release these records to me. Simply considering whether the CIA needs counsel is not a valid reason to enter closed session.

My open records request asked for performance evaluations that were presented in open session. If I'd requested records that had been presented in closed session, it would certainly be easy and justified to refuse to release them to me. However, I believe they recognize that these evaluations were presented in open session.

Next, in the paper and in his September 17 letter, van Lieshout claims they should have used the personnel evaluation exemption to enter closed session. However, they were not conducting a personnel evaluation. They were discussing an open records request that among other things requested performance evaluations that were not presented in closed session. They weren't discussing the contents of the performance evaluations. They were discussing ways to avoid releasing these and other records of the CIA.

It is clear that discussing open records requests is not a valid reason to enter closed session. They spent approximately 50 minutes in closed session. They shouldn't have been using that time to discuss my open records requests in general, or to conduct legal strategy without a lawyer present.

I know personnel evaluations can be a valid reason to go into closed session. However, it is not a requirement. They can be conducted in the open. The person being reviewed can ask for them to be conducted in closed session. It is not illogical for me to be able to assume they were conducted in open session.

Also, I don't think it's clear whether the performance evaluations of the Executive Director should be considered personal evaluations or evaluations of the CIA's functions. The former would be justified to take place in closed session, but the latter would not. As far as I know, there is no other public review of the CIA's performance.

In the paper, van Lieshout also claims it was too late to change the agenda. As I recall, David Olsen posted the agenda approximately 25 hours before the meeting took place. As I see it, this was an effort to meet the requirements of the law but also minimize the chance that anyone would learn of the meeting. Posting an agenda in the glass case in the dark hallway inside the Carnegie Building is hardly effective public notice.

Also, as I reminded them in my written and oral statements to van Leishout and the CIA Board, they had the choice to refrain from entering closed session. Even though a closed session is announced on the agenda, they can change their mind and remain in open session if the reason for closed session has evaporated.

The central problem is that the CIA believes they can pick and choose which records they will release in the future. They believe this because of an informal opinion from League of Municipalities attorney Curt Witynski, who said they had this power because they opened voluntarily. However, Witynski was unable to tell me any statute, case or opinion of the Attorney General to support his opinion. Why didn't the CIA ask for the opinion of the District Attorney's office across the street?

Beyond the performance evaluations, I have asked for other records that have not been released.
The CIA has denied that any long-distance telephone records exist because the Chamber pays the bill. They've also denied that any time records exist for the Executive Director position. They've given me conflicting and ambiguous answers to the question of the assets owned by the CIA. Audio recordings have been destroyed before the law allows, and now they've stopped recording their meetings. What else will they "pick and choose" to refuse to release?

To my eyes, at the August 3 meeting the CIA merely confirmed that they were subject to open meetings law. Nothing changed about the nature of the CIA at that meeting. However, they now want to use this simple confirmation as an excuse to deny access to records.

I quote from the minutes of the August 3 CIA meeting: "Discussed the open meetings/open records requirements and how they pertain to the Commerce and Industry Association and the Jefferson Development Corporation. The district attorney is conducting an analysis regarding the JDC and the CIA relating to open meetings. The JDC is awaiting the district attorney's response. The CIA is subject to open meetings and open records."

No vote was held on this question. To me, it shows that they were acknowledging that the CIA was open all along, or should have been, and that no vote was necessary because nothing was being changed. The above is the entire description of the discussion from the minutes. David Olsen claims to have erased the audio tape of the meeting within days of the meeting and his creation of the minutes. This is a clear violation of Wis. Stat. 19.21(7).

Perhaps what is needed is a clarification from your office that says that the CIA should have been considered subject to open meetings law from the start, and that Witynski's opinion is invalid in this situation.

Sincerely,