Who is the People’s Attorney?

Attorney’s argue. They raise points to protect their clients. So, when the city attorney feeds us something, do we just swallow it whole? Or could the media or someone else stand up and question that opinion? Where is the people’s attorney? I’m not saying Michael May, the City’s Attorney is doing a bad job, to the contrary, he is protecting his clients – that’s his job. Let’s just realize that is what he is doing.

Yes, I’m talking about the secret meetings of the East Washington “Selection Committee”.

Here’s his reasoning in his memo, saying nothing was illegal:

I have been unable to find any action creating the “Selection Committee” by the Common Council, the Mayor, or any other City entity with authority to create a City committee. Thus, I conclude that no “governmental body” was created within the meaning of the Open Meetings Law, sec. 19.82(1), Wis. Stats., and therefore the group was not subject to the Open Meetings Law.

He follows it up with:

In Madison, committees are created by ordinance, resolution, order of the Mayor, or order of the president of the Common Council, sec. 33.01(4)(a), MGO. I find none of these actions with respect to the “Selection Committee” that evaluated proposals for development on East Washington Avenue.

As far as I can tell, the group was put together by City staff in the Department of Planning and Community and Economic Development (DPCED) to assist in the evaluation of the development proposals. City staff does not have the authority to create a formal committee subject to the Open Meetings Law.

That’s not the standard by which you are supposed to decide.  The AGs office has a very helpful document that lays it all out very clearly on page 2, paragraph 3

State and local bodies created by “rule or order” are also included in the definition. The term “rule or order” has been liberally construed to include any directive, formal or informal, creating a body and assigning it duties. 78 Op. Att’y Gen. 67, 68-69 (1989). This includes directives from governmental bodies, presiding officers of governmental bodies, or certain governmental officials, such as county executives, mayors, or heads of a state or local agency, department or division. See 78 Op. Att’y Gen. 67.

If you click on the links to the Atty Gen Opinion you find language like this:

The committees created by the natural resources board are included within the definition because the board is a governmental body and the committees it creates by rule or order are, in turn, governmental bodies. The kind of order needed to create the committees is not defined in the open meetings law; but by reason of section 990.01(1), the word is to be construed according to its common and approved usage. Webster’s Third New International Dictionary 1588 (1976) defines “order” to include: “3 a . . . (2): an authoritative mandate usu. from a superior to a subordinate.” The board would, therefore, be creating a committee by order whenever it authorizes the committee and assigns the duties and functions of the committee. Neither the statute nor the dictionary definition require that the order be formal. All that is required to create a governmental body is a directive creating the body and assigning it duties. If a formal order were required, the open meetings law might be evaded by the creation of “informal” bodies. Therefore, the interpretation that the open meetings law does not require that the order be formal is consistent with the statement by the Florida Supreme Court that the sunshine law “‘should be construed so as to frustrate all evasive devices.”‘ Wood v. Marston, 442 So. 2d 934, 940 (Fla. 1983).

And:

The conclusion that the advisory committees appointed by directors and property managers, as well as those by the board and the secretary, are subject to the open meetings law is consistent with the declaration in section 19.81(1) that it is “to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.” The open meetings law is to be construed liberally to achieve this purpose, Sec. 19.81(4), Stats. Whether created by the board, directors or property managers, the advisory committees are an affair of government because their actions affect the decisions of the department and its employes; and because the committees  are an affair of government, the public is entitled to the fullest information about them, pursuant to the policy stated in section 19.81(1)

1. The order or action was informal, there is no need to “find” an order.

2. Nowhere does the law discuss the authority to create the committee. It says that committees created by those folks are subject to the open meetings laws.

So, yes. Yes, the city attorney should be concerned. Hate to be a pain in the ass, but lets get it right and not be wishy-washy about it. Let’s make sure it doesn’t happen again.

A bigger tangential concern is the Mayor Dave era desire to limit who can create a committee. Can an alder create a committee? Do they need the authority to do it? I think not. But I digress.

The sad part about this is, the only way to find out who is right is to file a complaint with the District Attorney. And there are two problems with that, how to you find out facts about a secret committee in order to get enough facts to file the complaint? And then, once filed, the D.A. would likely say this is not a priority to prosecute, which is what has happened in the past with complaints like this about campaign finance violations and open meetings violations. So, the best one could hope for in filing a complaint is more questions being raised in the media, and they are mostly done with this story, I suspect.