If It’s Not on the Agenda…

The Open Meetings law in Wisconsin has a number of requirements, but two of the most basic and most important to remember are:

  • Local government meetings must be open to the public (with important, but very limited, exceptions).
  • All topics that are to be considered must be “noticed” 24 hours in advance (this is typically accomplished by publishing or posting the agenda).

Although it may lead to some inefficiency, it is very clear that the legislative policy and law in Wisconsin favors open government over efficiency if those two policies conflict (at least for municipalities). The requirement that meetings be open to the public has the consequence that board members should generally avoid talking or emailing amongst themselves about government business, outside of a properly noticed board meeting.

Walking Quorums.

Even with 5 or 7 person boards, if only two board members talk to each other directly, there is the risk of creating a “walking quorum” open meeting violation. For example, assume a five-person board or committee is going to consider a controversial conditional use permit. Board member Alice talks to or sends an email to board member Bill saying she intends to vote no on upcoming conditional use permit. Board member Bill replies that he agrees and will also vote no. Then Alice talks to board member Charley, who replies, “Well, if you and Bill are going to vote no, so will I.” Even though only two board members ever talked to each other, and Bill and Charley never talked to each other at all, the fact that the three board members discussed and decided on a vote outside of a board meeting likely constitutes a “walking quorum” violation of the open meetings law.

Public Comment.

What about “public comment” topics? Many local governments have a public comment or public forum item on the agenda where members of the public may present information. At times, members of the public will present topics and say something along the lines of “What are you going to do about it?” The board should not respond to that or any other question, or engage the citizen in a debate or conversation.

Can We Discuss a Topic if We Don’t Take Action?

I have often heard someone say “we can talk about it, we just can’t act on it” with respect to a topic that is not on the agenda. This is almost always incorrect; it is not okay to discuss the merits of a topic which is not on the agenda, with the only exception being in the case of a true emergency.

Although there are grey areas, as a rule, a topic that is not on the agenda should not be discussed at all by board members. Period.

What the board may do is to determine how to handle the topic procedurally. Usually, it is appropriate for the head of the board to determine whether to tell the clerk to put the topic on the agenda for the next meeting, send it to committee, or have the clerk or other staff investigate further.

Personal Liability and Loss of Public Trust.

Board members should also note that violations of the Open Meetings law are one of the very few areas where they do not have legal immunity from lawsuits or prosecutions for performing their local governmental duties. A violation of the Open Meetings law is a personal violation, and board members can be held personally liable for fines.

Perhaps most importantly, violations of the Open Meetings law can have the consequence of creating a lack of trust in the local government by citizens.

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