So, nothing is worse than when public officials use open meetings laws to thwart public information. I was reminded about how they did that with the Cap Times during the F-35s debate. See what I found in my open records request.
So, I have a theme going, in the past few days I blogged about illegal County Board and illegal School Board meetings. Violations of the open meetings laws. While blogging, I was reminded of an atrocious misuse of the open meetings laws to avoid having to make their true opinions known to the public, who votes for them. It looks like they got terrible “legal advice”. Most likely off the cuff without any real research. Or maybe no legal advice at all? And then when they were violating the law, particularly on the school board, legal council said nothing?
CAP TIMES REQUEST
To county board supervisors
From: Abigail Becker [mailto:ABecker@madison.com]
Sent: Monday, October 07, 2019 1:39 PM
To: #County Board Recipients
Subject: Reaching out from the Cap Times
Hello Dane County Board supervisors,
The Cap Times is compiling a list of how local elected officials feel about the Air Force’s proposal to locate a squadron of F-35 fighter jets at Truax Field. Please answer the following question by Wednesday at noon to be included in the Cap Times’ ongoing coverage of this issue:
“Do you support the Air Force’s proposal to locate F-35 jets at Truax Field?”
If you do not respond, our coverage will reflect that you did not return a request for comment.
And if your response does not include a yes or no in the submitted answer, the reporting will show you didn’t take a position on the issue.
Thanks for your time, Abby Becker
Abigail Becker / City /County Gov ernment Reporter
1901 Fish Hatchery Road • Madison, WI 53713
Office: 608-252-6438 http://host.madison.com/ct/writers/abigail-becker/ • Twitter:@abecker_4
To alders
From: Abigail Becker <ABecker@madison.com>
Date: October 7, 2019 at 1:39:23 PM CDT
To: All Alders <allalders@cityofmadison.com>
Subject: Reaching out from the Cap Times
Hello Madison alders,
The Cap Times is compiling a list of how local elected officials feel about the Air Force’s proposal to locate a squadron of F-35 fighter jets at Truax Field. Please answer the following question by Wednesday at noon to be included in the Cap Times’ ongoing coverage of this issue:
“Do you support the Air Force’s proposal to locate F-35 jets at Truax Field?”
If you do not respond, our coverage will reflect that you did not return a request for comment.
And if your response does not include a yes or no in the submitted answer, the reporting will show you didn’t take a position on the issue.
Thanks for your time,
Abby Becker
Abigail Becker / City/County Government Reporter
1901 Fish Hatchery Road • Madison, WI 53713
Office: 608-252-6438
http://host.madison.com/ct/writers/abigail-becker/ • Twitter:@abecker_4
CITY/COUNTY/SCHOOL BOARD RESPONSE
From: “Corrigan, Sharon” <Corrigan@countyofdane.com>
Date: October 9, 2019 at 11:34:47 AM CDT
To: Abigail Becker <ABecker@madison.com>, “sgirard@madison.com” <sgirard@madison.com> Cc: “greyes@madison.k12.wi.us” <greyes@madison.k12.wi.us>, “district5@cityofmadison.com” <district5@cityofmadison.com>
Subject: RE: Reaching out from the Cap Times
Dear Abby and Scott,
Your email request attempts to distill into a binary a multifaceted, complex issue over which, as local elected bodies, we have no direct oversight or decision-making authority. If we were the ones making the decision, we would need far more information and analysis than currently available to us as local governing bodies. In addition, by polling members of each of our bodies on an issue that may come before us, you have raised potential Wisconsin Open Meeting Law violations.
The Madison Board of Education and Madison City Council have taken a position on the issue through resolutions linked here:
https://go.boarddocs.com/wi/mmsd/Board.nsf/files/BG7K3Q4FEB29/$file /BOE%20resolution%20on%20F-35s%20at%20Truax-Final.pdf https://madison.legistar.com/LegislationDetail.aspx?ID=4138215&GUID=77571D24-7EF0-4EFC- B4CF-12A7AEF46123&Options=ID|Text|&Search=F35
A number of members of the Dane County Board of Supervisors have signed letters expressing their position on this issue.
We refer you back to these documents in your coverage of this issue. We are all deeply committed to our work as local elected officials and are focusing on the equity and environmental sustainability issues before us and under our direct control.
Sincerely,
Sharon Corrigan, Chair, Dane County Board of Supervisors
Shiva Bidar, President, Madison City Council
Gloria Reyes, President, Madison Board of Education
CITY ATTORNEY RESPONSE
I blogged about the chilling impact on public information in October. As a reminder, the City Attorney said this:
I am concerned that this sort of “straw poll” on an issue that may reappear on the Council’s agenda is an invitation to violate the Wisconsin Open Meetings Law. This could easily be seen as an attempt at creating a walking quorum. The time for comments on the draft EIS has been extended, and the Council may revisit the F-35 issue if the Final EIS does not deal with specified identified problems.
I recognize that this also could be seen as a benign attempt to get the political positions of local politicians.
MISLEADING PERSONAL OPINION, NOT A LEGAL ONE
At the time I didn’t re-read the Attorney General’s Open Meetings Law Compliance Guide, because this wasn’t really legal advice. It was a “concern”. But upon further consideration, this is really shitty use of the law and an attorney to avoid answering the question. The Compliance Guide on page 12 explains walking quorums.
The requirements of the open meetings law also extend to walking quorums. A “walking quorum” is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. (Showers, 135 Wis. 2d at 92 (quoting Conta, 71 Wis. 2d at 687).) In Conta, the court recognized the danger that a walking quorum may produce a predetermined outcome and thus render the publicly-held meeting a mere formality. (Conta, 71 Wis. 2d at 685–88.) The court commented that any attempt to avoid the appearance of a “meeting” through use of a walking quorum is subject to prosecution under the open meetings law. (Id. at 687.) The requirements of the open meetings law thus cannot be circumvented by using an agent or surrogate to poll a quorum of the members of governmental bodies through a series of individual contacts. Such a circumvention “almost certainly” violates the open meetings law. (Clifford Correspondence (Apr. 28, 1986) (individual polling of every member is a prohibited walking quorum); Herbst Correspondence (July 16, 2008) (individually polling of a quorum of members is a prohibited walking quorum).) In contrast, simply keeping track of the votes of less than a negative quorum of the members of a governmental body is “hardly indicative” of a walking quorum. (State ex rel. Zecchino v. Dane Cty. Bd. of Supervisors, 2018 WI App 19, ¶¶ 11–14, 380 Wis. 2d 453, 909 N.W.2d 203 (individual polling of less than a negative quorum of members is not a prohibited walking quorum).
The essential feature of a “walking quorum” is the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum. Where there is no such express or tacit agreement, exchanges among separate groups of members may take place without violating the open meetings law.94 The signing, by members of a body, of a document asking that a subject be placed on the agenda of an upcoming meeting thus does not constitute a “walking quorum” where the signers have not engaged in substantive discussion or agreed on a uniform course of action regarding the proposed subject.95 In contrast, where a majority of members of a body sign a document that expressly commits them to a future course of action, a court could find a walking quorum violation.96
In this case, no one was using the reporter to gather information to determine agreement for an action. In fact, by October 9th when the leaders of the three bodies replied the City Council had already voted on their resolution, and the County Board only wrote a letter and didn’t have anything to vote on before them. If this was a staff member counting votes in advance of the body meeting to make a decision, that would be a problem. However, this was not the case – there wasn’t a vote pending for two of the bodies and the intent wasn’t there. Using the City Attorney to scare people into not revealing their positions on this important matter seems to be game play to prevent having an article revealing that many elected officials are not in support of the F-35s.
SCHOOL BOARD LEGAL ADVICE
Good morning Board Members,
Recently, I have become aware of a Cap Times Poll that is being sent to individual board members about their position on the F-35 jets at Truax Field.
Please do not respond to this poll because if each board member were to respond to this email poll, it would likely result in a claim that the board circumvented the open meetings law by engaging in a walking quorum. According to the Wisconsin Department of Justice’s (DOJ) Open Meetings Law Compliance Guide, “a “walking quorum” is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.” Additionally, in the guidance the DOJ considers this type of request and posits that “the open meetings law thus cannot be circumvented by using an agent or surrogate to poll a quorum of the members of governmental bodies through a series of individual contacts. Such a circumvention “almost certainly” violates the open meetings law.”
This advice does not differ when there is no current board action pending on this issue. The Board’s F-35 resolution is the collective voice of the Board on this issue.
Gloria is working on a collective statement that will be issued from the Board, which will include a link to the Board resolution.
Regards, S herry
—
Sherry Terrell-Webb
Interim General Counsel
Madison Metropolitan School District 545 West Dayton Street
Madison, Wisconsin 53703 608.663.1868
In this case, I think the Interim General Council cherry-picked the info that gave her the answer that the School Board President Gloria Reyes wanted and failed to address the much larger issue of the open meetings law violations in the “collective statement” process of the Board.
FURTHER PROOF IT WOULDN’T BE A WALKING QUORUM
In their letter, the leaders of the three bodies further point out why this would not be a walking quorum – because they would need more information and analysis which could change their minds:
Your email request attempts to distill into a binary a multifaceted, complex issue over which, as local elected bodies, we have no direct oversight or decision-making authority. If we were the ones making the decision, we would need far more information and analysis than currently available to us as local governing bodies. In addition, by polling members of each of our bodies on an issue that may come before us, you have raised potential Wisconsin Open Meeting Law violations.
Also, I love the “binary” argument. Every vote they take as elected officials is “binary”. Sigh.
FURTHER PROOF OF FURTHER MISUNDERSTANDING OF WALKING QUORUM
Subject: Board engagement around the F-35 proposed for Truax From: Cristiana E Carusi <cecarusi@madison.k12.wi.us>
Date: 9/13/2019, 7:57 PM
To: Gloria Reyes <greyes@madison.k12.wi.us>
CC: Savion J Castro <sjcastro@madison.k12.wi.us>
Hi Gloria,
I wanted to give you a quick update about where Savion and I are at with the F-35s:
1) We attended the hearing yesterday and connected with community members there.
2) We are reaching out to building and PTO leaders at the elementary schools that will be most affected by this: Hawthorne, Lake View and Sandburg.
3) We are planning to write a resolution that would potentially be introduced and voted on at the regular September BOE meeting, and then submitted to the Air Force as public feedback. Do you have any questions or concerns about us doing this? I looked over our board policies, and while we are required to discuss policy changes at two open meetings, this is not required for resolutions. (I believe our resolution on the state budget was introduced and voted on at the April 29 meeting, without prior discussion.) I am hopeful to have a draft ready by they end of the weekend, if not sooner, so we have as much time as possible for board input.
4) We hope to meet with Rachel about this early next week.
Savion – if I missed anything, please let me and Gloria know (separately, or this will turn into a walking quorum).
Thanks! Cris
Sigh. What Cris describes to Savion is the definition of a walking quorum. And how is it that in the 892 pages of information, there is no resolution draft or “input”. Again, there is this:
Subject: [board] F35 resolution
From: Cristiana E Carusi <cecarusi@madison.k12.wi.us> Date: 9/19/2019, 6:28 AM
To: Board <board@madison.k12.wi.us>
Hi all,
Please let me know by noon if you have any last-minute edits to the F-35 resolution I emailed on Tuesday. Barb is planning to post it to Board Docs today.
Thanks, Cris
and
Subject: [board] Feedback on F-35 resolution
From: Cristiana E Carusi <cecarusi@madison.k12.wi.us> Date: 9/22/2019, 7:39 PM
To: Board <board@madison.k12.wi.us>
Dear fellow board members,
Over the weekend, there have been numerous comments that our resolution on the F-35s isn’t strong enough. Attached is a draft with a new clause more directly stating that we don’t support Truax as a preferred location for the F-35s. Please let me know ASAP if you have concerns about this new clause, if you have other ideas for stronger wording, or if you’d prefer to stick with the version on Board Docs.
Thanks, Cris
This is the only feedback I could find from school board members:
In response to the second email:
Subject: Re: [board] Feedback on F-35 resolution
From: Katherine E Toews <ketoews@madison.k12.wi.us> Date: 9/22/2019, 10:03 PM
To: Cristiana E Carusi <cecarusi@madison.k12.wi.us>
Cris,
I would prefer to keep it more vague. This is a complicated issue and worth discussing if we want to be more specific.
Kate
and
Subject: Re: [board] Feedback on F-35 resolution
From: Nicki K Vander Meulen <nkvandermeul@madison.k12.wi.us> Date: 9/22/2019, 7:40 PM
To: Cristiana E Carusi <cecarusi@madison.k12.wi.us>
Looks good
So, there isn’t proof of violating walking quorum, but the lack of feedback seems suspicious. Perhaps the feedback was given over the phone? Or in private meetings? Or were the school board members just not engaged on this issue?
TIME FOR INTENSIVE TRAINING ON OPEN MEETINGS LAWS/OPEN RECORDS/ETHICS
The City of Madison does training for new alders and once a year does training for committee members.
CITY OF MADISON
The City of Madison has the following trainings available:
Written materials on open meetings laws
TRAINING MATERIALS & PRESENTATIONS
SCHOOL BOARD
I could find no such training materials on the School Board website, the last I found was in 2010 for a 4K subcommittee.
I can’t find evidence of the County or School Board doing anything similar or making this a priority in any way. I think the training makes a huge difference and it would prevent leaders from misusing the open meetings laws to avoid answering where they stand on an issue.
OK, KONKEL, WHAT DO YOU WANT TO SEE HAPPEN?
- Training
- Training and;
- Training.
It seems like people are just reading portions of the open meetings laws to get the answers they want and not reading them in their entirety. I really do think our local elected officials need training and on-going support to wade through all the issues involved. Right now, their blowing it big time and my guess is that some of them don’t even know it because they haven’t been trained and open meetings laws don’t seem to be a priority.
