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home : opinions : opinions
June 15, 2019

5/22/2019 5:55:00 PM
Our view
Walking quorum decision walks county further from good government

In district attorney Michael Schiek's opinion, four members of the Rhinelander city council and mayor Chris Frederickson did not violate the open meetings law when they composed, signed, and circulated a letter to council president George Kirby questioning his leadership, suggesting he resign, and promising a forthcoming and uncomfortable conversation about it all.

Somehow, in his mind, the district attorney doesn't believe that a letter composed out of public view and signed by a voting majority of the council violates the open meetings law, even though that letter substantively discusses the city council president's fitness to lead and essentially gives Mr. Kirby an ultimatum to resign or else.

Somehow, Mr. Schiek sees that as none of the public's business.

We disagree. We believe that the citizens of Rhinelander have every right to know that a majority of its city council orchestrated an attempt to ask Mr. Kirby to resign or else, and we believe indeed that they would want to have known that was going on.

Think about it. If these council members and the mayor had called an open meeting, and put the discussion on an agenda, and made the same points and asked the same questions instead of putting it in a privately composed letter, there would have been no story.

The headlines would be about the merits of the letter's contents, not about the legality of the letter.

More about our specific disagreements with the Schiek decision in a minute, but first we must speak to the potential ramifications of Mr. Schiek's conclusions if they are left unchallenged. We have long argued about the negative ramifications of letting officials off the hook for open records and open meetings violations, and we must do so again.

It just encourages government officials at all levels to keep violating the law, and it likely tempts those who have been following the law to begin playing fast and loose. After all, officials everywhere will ask, "If they can do it and get away with it, why can't we? Who cares about open meetings? Nothing ever happens anyway."

In his statement about Mr. Schiek's decision, Oneida County sheriff Grady Hartman expressed the same concern, saying he was worried the decision would lead to an increase in complaints that will require investigation by his agency, which he said can be difficult in a time of budget constraints.

We are pleased the sheriff sees the importance of open government laws and pledges that his department will continue to investigate those complaints and alleged violations. We equally pledge to remain vigilant of officials' conduct at all levels of government, and will forward every likely violation we see to the sheriff's department.

But the sheriff has a point, too. A violation doesn't just impact the citizens of the community where the violation occurs, it takes resources from agencies elsewhere, and costs all taxpayers in the end, both in their pocketbook and services and in their ability to have open, honest government.

Now, to the specifics of the complaint, and why we think Mr. Schiek's decision is deficient.

First, Mr. Schiek correctly homes in on the definition of a meeting for purposes of the open meetings law: There must a purpose to engage in governmental business, and the number of members present must be sufficient to determine the governmental body's course of action.

In a walking quorum, there is a series of gatherings or communications among 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, the Department of Justice compliance guide tells us.

So the first question is, did the members who signed the letter have a purpose to engage in government business? Mr. Schiek thinks not: "Based on my review of materials, it does not appear that the purpose of the five members was to address governmental business, but do believe there was discussion, decision or information gathering."

So they were discussing Mr. Kirby's leadership and asking questions but had no purpose beyond that to engage in governmental business, Mr. Schiek appears to argue: "Although this was a close case, the evidence provided does not rise to the level of a violation under the first element stated by the court in Showers. It appears more likely that certain members were concerned about Mr. Kirby's actions, and as fellow council members, wanted to address the issue with a letter to Mr. Kirby."

But here, Mr. Schiek has actually misread the specific language of the Showers decision. The decision, which earlier Mr. Schiek correctly quotes, reads: "First, there must be a purpose to engage in governmental business, be it discussion, decision or information gathering."

In other words, discussion, decision or information gathering are all different examples of engaging in governmental business, not activities that fall outside the scope of government business, as Mr. Schiek appears to believe when he writes that "it does not appear that the purpose of the five members was to address governmental business, but do believe there was discussion, decision or information gathering."

Here's how the state Department of Justice's compliance manual puts it: "Showers stressed that 'governmental business' refers to any formal or informal action, including discussion, decision or information gathering, on matters within the governmental body's realm of authority. ... The court stressed that a governmental body is engaged in governmental business when its members gather to simply hear information on a matter within the body's realm of authority. The members need not actually discuss the matter or otherwise interact with one another to be engaged in governmental business."

Thus, by conceding that discussion did take place, Mr. Schiek is conceding that the first element of the Showers test was met.

And indeed it was. According to the Department of Justice's investigatory interviews with the letter signers, there was a whole lot of fact-finding and discussion going on. For example, Steve Sauer, Ryan Rossing and mayor Chris Frederickson were all at Frederickson's house discussing, and, according to one participant, editing and modifying the letter, a letter addressing a significant government business: the future of Mr. Kirby's tenure as council president, and his fitness to lead.

Mr. Frederickson even told investigators the letter included questions he wanted to ask in public, which begs the question as to why did not insist upon that route. Mr. Frederickson went on the say he was aware that Mr. Sauer was questioning how to remove Mr. Kirby, and that city administrator Daniel Guild had helped with the letter.

Mr. Sauer and Mr. Rossing had also met with Mr. Guild, who either drafted the letter or helped in editing and revising it, depending on which interview is believed. Most astounding, Mr. Rossing and Mr. Sauer asked that an agenda item be added to remove Mr. Kirby, but withdrew the requests after the letter was sent.

In other words, the letter satisfied the public business that was to be achieved by the agenda items: It was government business, pure and simple.

It is just preposterous to think that all these meetings and information gathering and discussions do not constitute governmental business, and we are mystified how Mr. Schiek could think otherwise.

But did these members, by their letter, satisfy the second element of the Showers' test, namely, were their numbers sufficient to determine the governmental body's course of action?


To be sure, Mr. Schiek does not think so, but, to arrive at that conclusion, the district attorney had to jump down a rabbit hole. Unfortunately for Mr. Schiek, in this instance, the rabbit he was chasing didn't exist.

To wit, Mr. Schiek opines that a three-quarters vote was needed to remove Mr. Kirby as council president, and the four voting members who signed the letter, plus the mayor, who votes in a tie, did not form that supermajority.

The problem with this reasoning is, the letter never mentions forcibly removing Mr. Kirby. That was not even a suggested or proposed course of action.

But Mr. Kirby's resignation was on the table, and the letter writers sent a not-so-subtle message: "Given recent events, perhaps it would be more comfortable for you to not continue in this capacity?" The next paragraph begins : "This forthcoming conversation may be uncomfortable."

Though they hung a question mark on the first sentence, it was clearly a statement. And then they promised a forthcoming conversation - a uniform course of action by a majority of the council.

Put simply, a council quorum decided and implied that he should resign; at the very least, it decided to pursue a conversation about his resignation and future.

If that's not a quorum conducting government business - suggesting that he resign and promising a likely uncomfortably conversation if he doesn't - we don't know what is.

The letter violates not just the letter of the law, we believe the spirit of the law.

The courts and the statutes have deemed that the open meetings law explicitly provides that all of its provisions must be liberally construed to achieve its purposes, and that public officials must be ever mindful of the policy of openness and the rule of liberal construction in order to ensure compliance with both the letter and spirit of the law.

In State ex rel. Citizens for Responsible Dev. v. City of Milton, the court declared, "The legislature has made the policy choice that, despite the efficiency advantages of secret government, a transparent process is favored."

This letter represents just the opposite of that declaration. In fact, as the district attorney noted, some council members in their own words acknowledged they were trying to keep the issues they were raising out of the public eye.

Mr. Rossing, for example, said his intention was to avoid having more issues with the city of Rhinelander "come out," Mr. Schiek wrote, while alderman David Holt said in his interview that the purpose of the letter was to keep the situation "under wraps" so as not to make a "spectacle" or big deal in the media and city, Mr. Schiek wrote.

As the Milton decision states, the public's business is not always efficient, and we add that it is not always pretty, even most of the time. The city of Rhinelander's issues may be spectacle, but the way to resolve the spectacle is through transparency, not secrecy and behind-the-scenes maneuvering.

Not least, the "bigger a deal" an issue is, the more important it becomes for it to be public.

These council members had and have every right to raise the issues they want to. But at the end of the day, doing so in public would make for better government and less spectacle.

Unfortunately, the district attorney has failed transparency in this decision. He has let a walking quorum walk away untouched, free to take us all down the path of ever more secretive government.

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