Committee violated open meetings law

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Questions have arisen about the Wisconsin Legislature’s approach to open meetings and open records laws following a circuit court judge’s decision earlier this month.

A Dane County trial court judge called a couple of legislators on the carpet for holding faulty meetings and a new lawsuit challenges the government’s handling of records.

The first lawsuit challenged — among other things — an age old legislative practice of casting decisions on government matters via mail-in ballots. Apparently, no one has ever questioned this violation of the open meetings laws until two former employees were fired via this vehicle.

“I don’t know if anybody knows when this process really began but it probably began in a beneficent way to simply allow busy legislators to stay up with the demands of their jobs in casting votes,” said Peter Fox, executive director of the Wisconsin Newspaper Association (WNA). “It has been going on for decades and no one has ever stood up on their hind legs and questioned it before, including members of the press who have been lodged at the state capitol building for lo those same many years. This has been a very common practice and no one until this point recognized this as a violation of open meetings laws.”

Case Background

Markley D. Wahl and his wife, Patrice O’Connor Wahl, both worked for the Legislative Technology Services Bureau, Wahl as the agency’s director and O’Connor Wahl as one of nine team leaders. She also was designated as her husband’s second in command. O’Connor Wahl started working for the LTSB in 1987 and Wahl joined up in 1998. In 2001, the couple followed the proper protocols with regard to notifying the state about their relationship.

The state’s Joint Committee on Legislative Organization (JCLO) — a body comprised of legislative leaders from both houses of the Legislature and both political parties — oversees and proffers policy for all legislative service agencies, including the LTSB.

Rumblings about bad management practices at the LTSB apparently began filtering up to the JCLO in early 2003. Rep. John Gard (R-Peshtigo) as speaker of the Assembly and Sen. Alan Lasee (R-De Pere) as president of the Senate co-chair the JCLO. The two legislators, along with Mary Panzer, former Assembly minority leader, started informal discussions about how to handle the situation. The three decided to hire Dale Cattanach, former director of the Legislative Audit Bureau to look into the situation. Without public notice of the action, Gard and Lasee sent Cattanach a letter retaining his audit services.

Mail-in Vote

Cattanach issued his findings in June and the three discussed the results among themselves and with others sometime during the week of Sept. 15, 2003. The decision to fire the Wahls was made that week; however, neither the public, nor the Wahls, received notice of the meeting. Then, on Sept. 23, mail-in ballots were cast by the 10 members of the JCLO. The vote was unanimous. The public and Wahls were unaware of the vote until the Wahls were separately summoned to Lasee’s chambers where they were each terminated.

The Wahls tried a few other avenues first, but ultimately they filed the instant action in Dane County Circuit Court Judge Richard G. Niess’ court, claiming that the JCLO, Lasee, Gard, Panzer and Rep. James Kreuser (D-Kenosha) all repeatedly violated the open meetings laws during the process of terminating the Wahls.

Niess issued his decision and order on the parties cross motions for summary judgment on Dec. 2, 2005.

The primary argument in the case was whether the joint rules that govern the JCLO trump open meetings rules. Niess said no.

“There is simply no conflict between the rule allowing implementation of the statutory provision for procuring decisions by mail ballot, and the provisions for public notice and open session in the open meetings law,” Niess wrote. “Joint Rule 23(2) — authorizing the JCLO to ‘take appropriate action’ to implement a mail ballot procedure — cannot be broadly read to permit government officials to side-step open meetings law requirements, because there is nothing ‘appropriate’ about proceeding with a mail ballot hidden from public view. The open meetings law strives for transparency in the conduct of government business.”

Sovereign Immunity

In other points posed to the court, Niess found that the JCLO as an entity was entitled to exit the case under theories of sovereign immunity.

“The legislature’s decision to impose the open meetings law on itself and its committees (subject to exceptions) did not thereby authorize suits against those committees,” Niess wrote. “And since there is no express legislative authorization to subject the JCLO to suit under the open meetings law, sovereign immunity bars the plaintiffs’ suit against the JCLO.”

The plaintiffs also maintained that the little here-and-there meetings Gard, Lasee and Panzer had on the termination also violated the open meetings laws. Although their numbers were too small for official action to be taken, Niess said the meetings still needed to be noticed to the public and at least initially held in open session.

Finally, to plaintiff’s plea that the JCLO had direct power to terminate O’Connor Wahl, the court found for the defendants. Niess said there was a dearth of citable law guiding this question, but the conclusion is a logical one.

“Because the JCLO had plenary authority to hire and fire the at-will director of the LTSB, it necessarily has plenary authority to hire and fire his/her at-will subordinate,” Niess wrote. “This is especially true where, as here, Ms. O’Connor became, in effect, acting director of the LTSB upon Mr. Wahl’s termination.”

Two-part Approach

The judge took a two-part approach to this case; however, and scheduled a status hearing for Dec. 16 on the remedies he might im
pose The Wahl’s attorneys, Edward R. Garvey and Christa Wester-berg of Garvey McNeil & McGillivray, S.C., have asked that the termination be rescinded, and for the Wahls’ reinstatement plus back pay, possibly front pay, and all costs and fees associated with the case.

The attorney general’s office said it cannot comment on the case until after the remedies are rendered. But Westerberg considered Niess’ decision colossal.

“We’ve been told there are other legislative committees who do these mail ballots. I don’t know if their procedure is quite as secretive as we had with the JCLO, but it boggles my mind that the public really had no way of knowing ever what the JCLO was doing,” she said. “The JCLO could go three years without meeting, that’s what happened here. We think it’s a great decision on the mail ballots itself, but any decision that’s in favor of open government is very important.”

Despite repeated attempts, Gard, Lasee, Kreuser and Robson could not be reached for comment.

Fox said, if things go according to the usual plan, he expects the state will appeal the decision because the Legislature tends to be very protective of its turf, which would dial the whole issue up a notch.

“If the Legislature decides to appeal this, it starts the process and it makes this procedure the Legislature has been following for decades, it changes the nature of it from this is something the legislature has always done and needs to do in order to do its business,” he said. “It changes it from a conversational curiosity into a bonafide question of law.”

Open Recoords Case

The other lawsuit also challenges what has been normal operating procedure. Ironically — given her office is defending the Legislature in the first case — it was Attorney General Peg Lautenschlager herself who brought suit against Sen. David Zien (R-Eau Claire) and Rep. Scott Gunderson (R-Waterford). Lauten-schlager contends the legislators violated open records laws when they shared a draft copy of the controversial concealed weapon carry legislation with the gun lobby, but wouldn’t give it to her office. The WNA has asked to intervene in the lawsuit in case it gets tossed on separation of powers grounds.

Jennifer Peterson, with the Madison office of LaFollette Godfrey & Kahn, who filed the WNA motion, and her colleague James Friedman, said they don’t think the state has a chance of winning the core point on appeal, namely that the mail balloting must be done pursuant to open meetings laws. The sovereign immunity issue and the ruling on the little insider meetings might be a bit more tenable they said. However, Friedman said the appellate landscape ought to be looked at.

Gard made a brief statement right after Niess’ ruling that could be regarded as disdain for the Dane County courts.

“For what it’s worth, Gard can say whatever he wants about this being a little Dane County judge, but he ought to take a look at the make up of the court of appeals for district four that would hear this case, it’s a bunch of little Dane County judges,” Friedman said. “All of these people probably know and respect Rick Niess very much and probably all supported him getting put on the bench so it’s not going to be a dramatically different make up of judges if they appeal.”

Plaintiffs Face Hurdles

All seem to agree that the decision to appeal will hinge on the resolution Niess reaches. Kelly Kennedy, a spokesperson for the attorney general, said they are standing by statements in their briefs and according to those documents, resolving the remedy issue might not be readily done.

“Plaintiffs have two significant hurdles to overcome with their argument that they are entitled to reinstatement. First, they had no just cause rights to their positions. …

Because plaintiffs were employees at will who could be terminated at any time and for any reason, they will never be able to prove that their terminations were improper on the merits or lacked just cause. They had no property interest and will never be able to prove any entitlement to reinstatement that is supported anywhere in the case law or statutes,” the brief reads.

“Second, even if there was a technical violation of the open meetings law regarding plaintiffs’ termination, the plaintiffs have cited no civil case anywhere in which the appropriate remedy for a technical procedural violation was reinstatement or back pay, much less a case in which the appropriate remedy for an open meetings violation was reinstatement and/or back pay.”

Westerberg said she’ll likely comb equal rights case law for precedent on reinstatement.

Peterson said Niess broke new ground in the first part of his decision and it will be interesting to see how he resolves part two.

“From an open meetings perspective, this was a very thoughtful decision by Judge Niess. It was well researched, well written and he really was trumpeting open meetings law,” Peterson said. “He was saying really there is nothing inconsistent here, you can follow your own rules and create your own procedures; you just can’t do it in a way, such as these mail-in ballots, that allows you to hide government proceedings and not comply with the open meetings law.”