11/2/2019 7:30:00 AM Our View Living with eyes closed, Schiek misunderstands all he sees
Gregg Walker and Richard Moore Publisher and Columnist
Once again, Oneida County district attorney Michael Schiek has delivered an open meetings decision that is impressive in its lack of clarity, a mangled mishmash of gobbledygook that is epic in its unintelligibility and abstruseness.
On the one hand, Mr. Schiek has declined to issue open-meeting violation citations to Oneida County supervisors Jack Sorensen and Robb Jensen for our complaint that they violated the law by discussing and advocating for a new highway facility at an Aug. 19 meeting to consider a list of proposed 2020 capital improvement projects, which did not include a new highway facility.
Seems like a no-brainer, especially after Mr. Sorensen acknowledged he violated the law and said he felt bad about the transgression, and after a sheriff's department investigation also concluded the supervisors engaged in a discussion not on the agenda.
But not for Mr. Schiek. In his view, they did not knowingly or intentionally violate the law, so no citation. He could still have imposed forfeitures, though, because the Supreme Court has ruled that knowledge is not required to impose forfeitures on an individual for violating the open meetings law.
On the other hand, the district attorney did require Mr. Sorensen to attend open-meetings training, and suggested that Mr. Jensen do so. This is curious on three counts.
First, we fail to see how Mr Schiek can require Mr. Sorensen to do anything if he isn't charging him, unless some sort of agreement, similar to a deferred prosecution, was put in place. However, no such agreement appears to exist because one was not included in the records provided to the newspaper.
Second, it's curious why Mr. Schiek would require training for Mr. Sorensen - who looked at the law and understood what he did wrong and was remorseful - while only suggesting training for Mr. Jensen, who maintained his innocence all the way through and apparently still can't understand why advocating for a new $10 million-plus highway facility is a discussion that should be put on an agenda.
Third, why even bring up training for the two supervisors at all if they did nothing wrong, as Mr. Schiek appears to believe? We say "appears" only because it is hard to tell if he believes they did nothing wrong, or just didn't knowingly do anything wrong.
Indeed, his letter is a safari through the tangled jungle of his mind as he leaps from case-law quote to case-law quote, with little substance and lots of nothingness in between. About as clear as Mr. Schiek got was when, at one point, the district attorney seemed to throw up his hands and stated, "I don't know ...."
That's a good summary of Mr Schiek's world, which he apparently lives in with his eyes closed, misunderstanding all he sees. Our apologies to The Beatles.
Let's take a look at his analysis. For the first factor, that public notices be "reasonably likely to apprise members of the public," Mr. Schiek acknowledged that the new highway facility was neither on the agenda nor on a separate list of proposed 2020 capital improvement projects.
But was it reasonably related? In other words, would the public know from looking at the generic agenda that the committee might discuss a project that wasn't on the list?
We argue that the public would not, and especially if they saw the proposed list of improvements. Indeed, the county has already made a decision to upgrade the current facility, not to build a new one, and the 2020 list included some of those upgrades. Per the committee's mission, anyone looking at the agenda would simply assume the discussion would be about the importance of those projects in the coming year, not a discussion about building a new facility.
Put another way, it was not in the capital improvement subcommittee's purview to debate and advocate a broad change in established county policy - which is to upgrade the existing facility - but to deliberate about the best way to pursue existing policy next year.
Changing the overall policy must be a county board debate, and while a recommendation to that board to have that debate can come from a committee, it would be from the public works committee most of all, via the administration committee.
Certainly that would not be an appropriate discussion for a subcommittee with a limited mission, which is to examine the proposed projects that are actually on the table before them and prioritize them - for example, should the need for an exhaust system be ranked higher than the need for magnetic doors.
All this is underscored by the minutes of the July 25 public works committee meeting, at which the committee approved the proposed 2020 projects (we wonder if Mr. Schiek managed to look at those). According to those minutes, there was absolutely no discussion about a new facility, only what projects for upgrading and adding to the current facility should be pursued in 2020.
A person who attended that meeting or read the minutes would conclude the priorities of the proposed projects might be debated at the Aug. 19 meeting, but would have no inkling that a new highway facility would be injected into the conversation.
That it was illegal.
That said, it's entirely possible the capital improvements committee could have ranked the highway department projects lowered based on some indication that a debate about a new facility would be renewed. But, while such an indication should inform their priorities, it was not a green light to actually debate that change of policy, especially when the committee had no power to change it.
Here's what the Department of Justice's compliance manual says about such a situation: "The Attorney General has similarly advised, in an informal opinion, that if a meeting notice contains a general subject matter designation and a subject that was not specifically noticed comes up at the meeting, a governmental body should refrain from engaging in any information gathering or discussion or from taking any action that would deprive the public of information about the conduct of governmental business."
Mr. Schiek, living with his eyes closed, could not see any of this.
As for the second factor, whether building a new highway department was a matter of public interest, he apparently concluded it wasn't because "it appears that only one person was present at the time the hearing concluded."
Well, duh. If no one knows a new highway department is going to be discussed, how would they know to attend? After all, even Mr. Jensen has acknowledged the matter is a hot-button and emotional issue. Given that, the lack of attendance is simply more evidence the discussion was not properly noticed.
On the third factor, Mr. Schiek ponders whether it involved non-routine or novel action that the public would be unlikely to anticipate. No, he concluded, because the capital improvements process and requests occur on an annual basis: "This was not a novel subject, it was an annual hearing."
Again misunderstanding what he sees with his closed eyes, Mr. Schiek misses the entire planet. It's not the annual hearing that is novel, but the building of a $10 million-plus highway facility that is novel. As the DOJ compliance guide makes clear, "the degree of specificity of notice may depend on whether the subject of the meeting is routine or novel."
Let's repeat that for the district attorney, it is the subject matter of the meeting - in this case the highway facility discussion - that must be novel, not the meeting itself. It's incomprehensible that Mr. Schiek missed this.
Finally, Mr. Schiek alleges that he did not "observe any conversation that would infer the committee wanted to buy a new highway facility for $10 million, which you suggest in your complaint."
That is factually false. This newspaper's complaint never alleged the committee wanted to buy a new highway facility at any cost, only that Mr. Sorensen and Mr. Jensen took the opportunity to advocate for a new building at length, a discussion that was out of line because it was not on the agenda.
That discussion may have been an attempt to persuade fellow supervisors without the inconvenience of opponents being present, all the more reasoning why such items must be noticed. In any event, at least the district attorney should get his facts straight, but we guess that's hard to do when looking at things with your eyes closed.
All of which brings us to Mr. Jensen, who maintains the discussion was OK to have. No need to rehash that, but during the Aug. 19 meeting Mr. Jensen said he and unnamed others were pondering where a new facility might go. Mr. Jensen said he and those others were looking at the county's bypass property, and also trying to find closer sites with the proper infrastructure that might work.
So Mr. Jensen and other unnamed people are working furiously and in secret to change county policy and pursue a new highway facility. Our guess is that they are developing a detailed plan - perhaps in league with the secretive folks over at economic development and complete with an offer already negotiated with Kwik Trip - to spring upon supervisors in hopes of a quick vote.
Our question is, and it should be that of every resident in the county, why doesn't Mr. Jensen have the courage to come out and work this in the open? Why doesn't he and his unnamed accomplices in government secrecy have the courage to subject their work to transparency and debate?
Why won't they just put this at long last on an agenda and get it out in the open?
Such secrecy is a big problem these days in county government, and incomprehensible decisions like that of Mr. Schiek feed it, and perhaps is the root cause of it.
On second thought, maybe Mr. Schiek isn't living with his eyes closed, after all. Maybe he knows exactly what he is doing, and just thinks we are all stupid.
Perhaps he is afflicted instead with a syndrome known as pareidolia, a psychological phenomenon that causes people to see patterns in random objects, such as a face in a cloud, or the shape of someone you know in the limbs of a tree.
Theory has it that seeing such familiar figures in physical objects binds you more closely to those people. It helps in bonding and survival.
Maybe Mr. Schiek, whose lifelong world is the good-old-boy establishment, sees his good-old-boy cronies everywhere he looks. Maybe when he looks at compliance manuals and at government statutes and case law, the words form the shapes and the faces of the good old boys upon which his existence depends, and so he must protect them at all costs.
Psychologically explainable, perhaps, but it's still misunderstanding all he sees.
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