City Attorney’s Parting Cheap Shots!

For 20 years Progressive Dane has been meeting with its elected officials prior to city and county meetings . . . and now, it’s a problem?

I’ll go in chronological order of how it unfolded and wrap it up with my thoughts!

EMAIL FROM CITY ATTORNEY MICHAEL MAY

Alders:

I was deeply disturbed to hear reports this week that 7 or 8 alders met privately to discuss matters on the Common Council agenda.  Such meetings almost certainly involve negative quorums on some issues and thus, under the Showers decision, could easily be violations of the Open Meetings Law.

The COVID emergency and the conduct of meetings via the internet do not justify violations of the Open Meetings Law.  Our office has advised the Council on multiple occasions about gatherings of a number of alders to discuss city business.  To remind you again of your obligations, I attach several prior opinions on negative quorums.  For example, Formal Opinion 2015-002 discussed the problem of negative quorums at gatherings of political parties. I understand some meetings occur regularly under the aegis of a local political party. Formal Opinion 2019-003 discussed negative and walking quorums, and includes a link to an earlier opinion on the same topic, Formal Opinion 2004-001.

In this case, I was told the group of alders met, went through the agenda and agreed on a position on various matters.  The agenda of April 21 was replete with items requiring supermajorities of 14 or 15 votes for approval.  A meeting of 7 or 8 alders would be enough to control the outcome of any one of those matters. This included appropriations and numerous matters requiring a suspension of the rules in order to be taken up at the meeting.

It is not a defense to argue that the alders did not actually agree to vote as a bloc on those supermajority items, or that their vote did not in fact control the outcome.  The Showers case makes it clear that a violation occurs when sufficient members meet to discuss a matter such that there is “the potential” of controlling the outcome:

The fact is that there is always the potential, no matter how divergent the forces, to join together. The Open Meeting Law is concerned with the potential to determine the outcome, not with the likelihood that an alliance may or may not be formed. The legislature knew, as do these Commissioners, that politics makes strange bedfellows. Today’s enemy may become tomorrow’s ally. Shifting agendas and shifting alliances can and often do lead to unpredictable results and unlikely alliances. When a group of governmental officials gather to engage in formal or informal government business and that group has the potential to determine the outcome of the proposal or proposals being discussed, the public, absent an exception found within the law has the right to know — fully — the deliberations of that group. The public is entitled to no less.

State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 103, 398 N.W. 2d 154 (1987).

At this point, I have not done or requested any further inquiry on the reports I received.  I urge you to be very careful in your private meetings and discontinue those involving more than 5 alders, unless the meetings are properly noticed.  As noted in the opinions attached to this email, even a meeting of 5 alders or less may, depending on the circumstances, end up being an illegal negative quorum.

Thank you.

Michael P. May

City Attorney ~ City of Madison

Formal Opinion 2015-002 on political meetings

Formal Opinion 2019-003 on Negative and Walking Quorums

ALDER MCKINNEY RESPONDS

Alder Barbara McKinney replies all to the Michael May’s memo and says:

DO NOT REPLY ALL

I have been asked what was the background for my statement last night that “I had received some very disturbing news”.  Atty. May this email is the underscore of my disturbance. I formerly request additional followup and sanctions. This warning is not sufficient for me.

Barbara Harrington-McKinney
Alder, District 1
Cell: 1-608-205-8682

PROGRESSIVE DANE RESPONSE

Why does Progressive Dane respond? Attorney May says “some meetings occur regularly under the aegis of a local political party.”  So what political party could he be talking about?  The Dems?  They don’t do local policy.  The Republicans?  There aren’t that many (or any) on the council.  Greens?  Libertarians? No.  That only leaves one political party I know of . . . Progressive Dane, unless its Adelante?.

This is Progressive Dane’s statement:

As a local, independent political party devoted to improving our local government by making it open, easier to understand, and accessible for all residents of Dane County, Progressive Dane understands the importance of Open Meetings Laws and rigorously follows them. In fact, our platforms–on city, county, and school board issues–each include points on open and democratic government.

In his recent memo, it is unclear if Attorney May is referring to Progressive Dane. It’s well known that members of Progressive Dane have been meeting with local elected officials prior to city and county meetings for over 20 years. These meetings allow our members to share their knowledge and perspectives, develop policy proposals, and discuss issues important to our communities.

We are very careful to not discuss meeting agenda items where a super-majority vote is required, or where there is a negative quorum of any committees that will be taking up the matter. Elected officials leave the meeting, if there is a possibility of a negative quorum for any matter discussed.

For years, we have not been able to meet with more than one of our school board members because of negative quorum issues with a small elected body. We are planning a school board forum to discuss Progressive Dane’s education platform. That meeting will be publicly noticed, in accordance with Open Meetings Laws.

We appreciate that there is new attention to transparency and accountability in local government. We hope this signifies a shift in attention to clean government issues that we have been raising for years, including separation of powers, open meetings, open records, public input and accessibility, unequal access to the political process, ethics, and lobbyist registration and reporting.

Progressive Dane Steering Committee Members
Diane Farsetta
Martha Kemble
Brenda Konkel
Annie Kraus
Heidi Wegleitner

Here’s people who were endorsed by Progressive Dane last spring, minus Keith Furman who quit months ago:

Alder Baldeh no longer attends our meetings, however, we just endorsed Max and he was sworn in on Tuesday

THE MAYOR CHIMES IN

There was an article in the State Journal where they report the following:

Mayor Satya Rhodes-Conway said she takes the Open Meetings Law “very seriously” and noted the city is going to great lengths to provide transparency and public involvement as it moves to virtual meetings during the COVID-19 pandemic. The mayor, who was also endorsed by Progressive Dane in the last election, said she has no personal knowledge of the private meeting referred to in May’s memo but was “disappointed” to hear about it.

HIPPOCRATES!!!

First, just let me say that Alder Barbara Harrington McKinney attended these meetings for over a year, or was it three years?  Time all blurs together.

Second, let me say that then Alder Satya Rhodes-Conway also attended these meetings for 4 or 5 or 6 years.  I wasn’t paying attention for a couple years, so I don’t recall.  Additionally she attended for 2-4 years prior to being an alder – and was one of our primary people who made sure we didn’t violate open meetings laws.

They both know full well that we take great care to adhere to open meetings laws and don’t do vote counts.

SLOPPY CHEAP SHOTS!

Michael May once again shooting from the hip, without facts.  Speculating and raising issues that don’t exist.  Here’s a few direct responses to his irresponsible memo.

• Such meetings almost certainly involve negative quorums on some issues and thus, under the Showers decision, could easily be violations of the Open Meetings Law.
  • Progressive Dane is always very careful not to discuss super-majority items (require 2/3 or 3/4 votes of the council) or even items where there is a quorum of committee members – particularly Board of Estimates or Common Council Executive Committee.   Either someone leaves the room to stay under negative quorum or we do not discuss the upcoming matter.
• The COVID emergency and the conduct of meetings via the internet do not justify violations of the Open Meetings Law.
  • We’ve been holding these meetings for 20 years.  Nothing is different with COVID-19 or virtual meetings.  I’m not even sure why this was brought up.
• It is not a defense to argue that the alders did not actually agree to vote as a bloc on those supermajority items, or that their vote did not in fact control the outcome.  The Showers case makes it clear that a violation occurs when sufficient members meet to discuss a matter such that there is “the potential” of controlling the outcome:
  • Again, we don’t even discuss the matters. We skip them.
• At this point, I have not done or requested any further inquiry on the reports I received.
  • CLEARLY!  All he would have had to do is ask any of the alders in attendance and he would have heard the same thing.  Those items were not discussed.
• I urge you to be very careful in your private meetings and discontinue those involving more than 5 alders, unless the meetings are properly noticed.  As noted in the opinions attached to this email, even a meeting of 5 alders or less may, depending on the circumstances, end up being an illegal negative quorum.
  • This advice is not complete.  Gathering with more than 5 people isn’t a violation.  You need to at least discuss an item where those 5 alders would control the outcome of the decision (negative quorum on a supermajority vote item or item where the are 5 absences at the council meeting)  For years more than 5 alders regularly went out after the council meetings, occasionally with Attorney May in attendance, he didn’t have any concerns about that.  Why, because council business was the last thing on their minds, but there were definitely more than 5.

Here’s a few quotes and responses from the newspaper article:

• Madison City Attorney Michael May has issued a stern warning and is considering further action after learning a number of City Council members allegedly met privately and discussed matters later decided at Tuesday’s council meeting.
  • I’m real curious what “action” Attorney May would consider taking.  In the past when we have inquired about open meetings violations we have been told that they are enforced by the District Attorney or Attorney General and there is nothing the City can do.
• I was told the group of alders met, went through the agenda and agreed on a position on various matters
  • I wasn’t at most of the meeting on Sunday, but if it went like the other meetings, we hardly ever agree on a position.  And, as Alder Mike Verveer embarrassingly points out in the article, they didn’t vote together. “whoever made the complaint to the city attorney was misinformed. “We never decide how to vote. We never discuss extra-majority items,” he said, noting that party members split on every roll call vote at Tuesday’s meeting.”
  • Progressive Dane endorses people with like values who agree to advance our platform.  Sometimes that works out, sometimes it doesn’t.
• On Thursday, May said he is contemplating next steps.“I am not doing anything right now due to the press of other business in the COVID emergency,” he said. “I have not ruled out taking further action, but I want time to think about how to proceed. I am considering how to proceed.”
  • I wish we could get enforcement of open meetings laws. I’ll join him in calling for that.  I have complaints that could and should be filed against the school board and the county board.  But the DA’s office is too busy to enforce the laws.
  • What about lobbying, campaign finance and ethics laws.  The later issues are directly in Attorney’s May’s control, but I don’t see him being dismayed and issuing stern warnings about lobbying, campaign finance and ethics violations.  Let’s tackle those issues too!!!

These tactics of raising concerns about what might have happened without investigating and making public statements misleading people are reprehensible.  What if I said the following:

I’m not saying who, but I heard there is a Madison City Attorney that is an alcoholic, cheats on his wife and kicks his dog.  If he does this it almost certainly involves violations of the law and there could be criminal charges. COVID-19 and bars being shut down are no excuse for those things. I mean, I don’t know, but I heard that.  I’m considering my next steps, including calling the police about my concerns and telling his wife about the cheating.  I’m too busy to decide I’m going to do that now, but if convicted he could spend time in jail, pay fines, be placed on probation, be ordered to go into treatment and his dog could be taken from him.

If I said that . . .  it would be irresponsible in the least.  How is what Attorney May did any different.  He elevated unsubstantiated, un-investigated claims in the local newspaper with the intent to harm the reputation of alders and Progressive Dane. Or to intimidate them.  Or to force them to stop meeting.

Good riddance, when’s his last day?  It can’t come soon enough.  We need someone in that office that does the job, interpreting the law and giving legal advice, not playing politics, giving off the cuff uninformed responses and using that position to influence policy.  We need someone who represents the city, not the mayor, and does so with integrity.  I still miss Eunice Gibson in that position!!!!