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home : opinions : opinions June 27, 2017

5/11/2017 7:29:00 AM
Oneida County: Where government lawlessness lingers longer

Under the category of What Else Is New ....

Once again Oneida County district attorney Michael Schiek has determined that the county has violated the open meetings law, but once again he doesn't believe anybody should be held accountable.

Nobody got hurt - this time - so be on your way and have a nice day.

Please understand that when we say Schiek doesn't hold anybody accountable, we are referring to government elites, not average citizens. Break a little law and, unless you're a Government Royal, you'll find yourself stiffly fined, if not in the clink.

The district attorney has a peculiar way of dealing with government elites. Rather than try to explain away their misdeeds as non-violations - because they are too obvious to be explained away - he convicts them publicly but then says the infractions don't rise to the level of being fined or otherwise held accountable.

No wonder the county is known as the place where government lawlessness lingers longer.

In this case, the district attorney added a twist. The county board broke the law, he said, but not in a way that would require any consequences - that's par for the course - but, on top of that, he concluded that they didn't really break the law, after all.

Say what?

We can explain because we happen to be fluent in that rarified tongue called Bureaucratese, a language indigenous to government officials and Democrats, and, folklore has it, some packs of laughing hyenas. We think the latter is urban legend.

First, there's the issue of the basic violation, an illegal generic item on the Macrh meeting agenda called "other business," without any specific topics mentioned, which the attorney general has said is not specific enough by itself to satisfy the notice requirements of the law.

No problem here; Schiek agreed that it was "inherently insufficient" under the state's open-meetings law. But, of course, he added, there's no reason to fine anybody because a county ordinance forced them to put it on the agenda, they have done so since 2008, and they did not do so in April.

So apparently they put it on years of agendas just to obey the county ordinance, but now they are taking it off the agenda before they change the county ordinance. Hmmmm.

There are other problems with this sort of thinking, and we use the word "thinking" loosely.

First, the county could satisfy both the ordinance requirement to put the item on the agenda and the state requirement to specify what topics will be discussed by including the item "other business" and then listing the topics to be discussed below it. If there was no other business, they could explain that on the agenda, too.

All laws would be satisfied. The board didn't have to break state law to satisfy county law.

And that they have broken open meetings law since 2008 shouldn't be a reason for not fining them, it should be a reason for fining them. Who should get the stiffer punishment, a guy who committed nine house robberies or someone who committed one?

Habitual lawlessness is not usually an argument for a get-out-of-jail-free card.

As for correcting their ways by refraining from putting the item on one meeting agenda, at a time when the press is looking over their shoulders and the DA is investigating, that hardly assures us that this body, so acclimated to breaking the open meetings law, has really changed its ways.

Maybe they have, but a stiff fine to show them the consequences of future violations would send a stronger message than assuming they have reformed while they are trying to avoid financial consequences and public scrutiny.

At this point, Schiek decided to plumb the depths of his mind by addressing two arguments the newspaper made in its complaint, namely, that the generic item allowed the board "to discuss two pieces of business" that were not listed on the agenda, and a charge that items such as "other business" allow supervisors to evade the open meetings law by discussing matters of public business that they don't identify or specify, which they did.

Here, Schiek manages to miss the point of the newspaper's arguments and hopelessly mangle legal definitions. He asserts that the matters discussed under that item were innocuous and so were not public "business" at all, meaning statements made for the purpose of exercising the responsibilities, authority, power, or duties delegated to or vested in the board. So the law wasn't broken after all.

He's wrong and he misreads the statutes in being wrong. The language he is referring to comes from the definition of a "meeting" that must be posted: A meeting, he says, means the convening of members of a governmental body for the purpose of exercising responsibilities, authority, power, or duties delegated to or vested in the body.

That's true enough, but Schiek then reads that to mean that any statement made by officials during a meeting that is not "for the purpose of exercising responsibilities, authority, power, or duties delegated to or vested in the body" is somehow not part of the meeting.

Does that mean that a 10-minute stretch of the meeting transcript or recording that happens to be innocuous should be deleted and is not part of the record? Who decides what is innocuous and what's not?

Of course clerks can't erase whole stretches of meetings. Schiek's whole notion is absurd. While a meeting is indeed a gathering convened for such purposes, every part of the subsequent meeting is presumed to be public business that must be noticed precisely because the officials are presumably there only to conduct public business.

Now, it is true that some nonposted matters or statements might be made that do not rise to the level of a contestable infraction, impromptu birthday greetings, for example, and it is also true that that was the case with the comments made during the "Other Business" session at the March county board meeting - a fact this newspaper conceded when the complaint was made.

But that's where Schiek missed the larger point. Our issue was not with the comments made - they could have been made at any time and place during the agenda and indeed did not require posting - it was with the agenda item itself.

Put simply, the mere listing of "other business" by itself with no topics or with no explanation that there would be no other business is illegal, and the board would have been in violation even if supervisors Mott and Fried had made no comments.

It's illegal because it provides a formalized platform for supervisors to insert business they don't have to or want to post. That comments were made show how tempting it is for supervisors to do so.

As we observed in our complaint, the comments were innocuous and no harm was done, but they could have been important and public harm could have been done, and that's why the agenda item was illegal.

And that's why county supervisors should be fined, and especially so since the board was advised at the very previous month's meeting that such items were not legally allowed. Attorney Lori Lubinksy informed the board in, of all things, a training session on open meetings compliance that "it is a no-no," and they couldn't get away with it.

Now, thanks to Schiek, they did get away with it.

Let's imagine you are driving down a highway, tooling along at 85 in a 55-mph speed zone. Suddenly a state trooper appears and stops you. You can imagine the conversation.

"Is there any reason why you are going 30 mph over the speed limit," the trooper asks you.

"I can only say I didn't know any better, Ms. Trooper," you say. "I won't do it again. I didn't know what the speed limit was."

Ms. Trooper is in a good mood, or she already has her quota, so she decides to give you a warning. But, she cautions solemnly, "driving 85 in a 55 is a no-no. You can't get away with that."

And with that you're on your way. Only, a few weeks later you are driving down the same highway and once again you are doing 85 in a 55. This time a different trooper stops you but sees you have just been recently warned.

Now what do you think this trooper will do? Will he give you a ticket or merely say, "Well, you didn't smash up any cars or kill anybody, so I guess you were wrong but since it was harmless I'm just going to look the other way."

You are likely going to get a ticket. And, if you don't, you are likely going to keep driving 85 in a 55-mph speed zone.

The same thing has happened in Oneida County. In this case, Trooper Lori Lubinsky had the entire county board pulled over for a session on obeying the open meetings law because the board had already been busted for speeding past it.

She warned them they couldn't keep getting away with it, and then they kept on speeding. Then they were caught again, and along comes Trooper Schiek, who lets them off again.

That means they are likely to keep on speeding, i.e, breaking the open meetings law, and the message it sends to other local governments is that they can get away with it, too.

We do offer thanks to the district attorney for one thing. Though we disagree with him in the end, he did pursue the matter diligently. He dutifully handed the case for investigation to the county sheriff's department, which passed it to Langlade County to avoid any potential conflicts of interest, and they looked into it.

At least they have taken the open meetings laws seriously enough to devote resources to ensure compliance.

Our only advice to the district attorney is, when he finds a violation, he should apply the penalties the Legislature provided for violating that law. They put those penalties there for a reason.

The reason is deterrence. It's a good one.

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