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January 26, 2020

12/12/2019 7:30:00 AM
Lawyers spar over walking quorum lawsuit
Rhinelander council members, mayor move to dismiss complaint

Richard Moore
Investigative Reporter


Attorneys for Lakeland Times general manager Heather Holmes and for the Rhinelander mayor, city council, and four council members have exchanged salvos over Holmes's lawsuit alleging a walking quorum violation of the state's open meetings law by the defendants, with the defendants seeking dismissal and Holmes's attorneys vigorously opposing the motion.

The lawsuit stems from a January 30 letter signed by the defendants - mayor Chris Frederickson and council members Andrew Larson, David Holt, Steve Sauer, and Ryan Rossing - and sent to city council president George Kirby.

In the letter, the officials questioned Kirby's leadership, suggesting that he resign "given recent events" and promising a forthcoming conversation that "may be uncomfortable." Specifically, Holmes - and The Lakeland Times in a prior complaint - contends that the mayor and council members conducted a series of personal communications, email messages, in-person meetings, and communications leading to the writing and signing of the letter, all of which amounted to a walking quorum concerning governmental business without public notice.

The defendants want the lawsuit dismissed, arguing that the letter and the discussions leading to the letter do not meet the legal standard of a meeting subject to the open meetings law, and, in any event, the number of members involved were insufficient to determine the council's course of action, a necessary element of any walking quorum.

Holmes filed the open meetings complaint in circuit court after Oneida County district attorney Michael Schiek declined to prosecute a similar complaint by Lakeland Times and Northwoods River News publisher Gregg Walker. Holmes resubmitted the allegation as a verified, or notarized, complaint - an action that would enable legal action if the district attorney did not prosecute within 20 days.

Schiek declined again to prosecute, and the lawsuit was filed.



The walking quorum tests fail

In the motion to dismiss, which was filed by attorney Daniel W. Varline of Davczyk & Varline, the defendants contend that the purpose of the letter was simply to open a dialogue with the city council president, not to take any action or conduct governmental business.

The motion points out that state statute defines a meeting as "the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body."

It also observes that the state Supreme Court has held that a meeting subject to the open meetings law must satisfy two requirements. First, there must a purpose to engage in governmental business. Second, the number of members present must be sufficient to determine the parent body's course of action regarding the proposal discussed.

The discussion and resulting letter fail to satisfy either test and is thus not a meeting subject to the law, the defendants argue.

"First, the subject letter and any discussion regarding such was not 'for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body,' nor for a purpose of conducting city of Rhinelander business," the motion to dismiss states. "As discussed above, the purpose of the subject letter was to ask Mr. Kirby some questions and to open a dialogue for Mr. Kirby to discuss any concerns he may have, as the council had previously agreed that they would work together and talk to each other if they had issues."

Indeed, Varline continued, the plaintiff's conclusion that "[d]efendants' discussions and letters concerned governmental business, including, but not limited to, the effectiveness, possible and actual censure and/or written reprimand, and consideration of potential future further action against a fellow city council member, George Kirby" is a legal conclusion proven untrue by the letter itself and investigatory interviews.

"Therefore, plaintiff fails to satisfy the first prong of the meeting test, meaning no meeting has occurred and Wisconsin open meetings law is not triggered," the motion states. "Since plaintiff's only claim against defendants is for violating Wisconsin open meetings law and Wisconsin open meetings law is inapplicable to this matter, it is 'quite clear' that there are no conditions under which the plaintiff could recover against the defendants and plaintiff has failed to state a claim upon which relief may be granted in this case."

However, Varline argues, even if the letter and its preparation did constitute governmental business, the second test also fails, meaning that there were not numbers sufficient to determine the parent body's course of action regarding the proposal discussed. The defendants then point to the definition of a walking quorum: 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.

"The Supreme Court of Wisconsin has recognized that a 'walking quorum' may produce a predetermined outcome and therefore pose a danger by rendering the publicly held meeting a mere formality," the motion states, citing case law. "A 'predetermined outcome,' however, is essential to establishing a 'walking quorum.'"

In this case, the defendants contend, the letter and its preparation did not amount to a walking quorum for various reasons.

"First, there is clearly no agreement among the defendants to act in any sort of uniform manner, as is a required element of a 'walking quorum,'" the motion states. "A simple review of the subject letter shows that there was no action even contemplated by the defendants, let alone any sort of agreement to act in a uniform manner."

When there is no agreement among members of the body to act uniformly in sufficient numbers to reach a quorum, there has been no 'walking quorum,' and that's the case in this matter, Varline contends.

"Additionally, plaintiff is vague in her allegations of 'potential future further action against...George Kirby' that she claims defendants considered to amount to a 'walking quorum,'" the motion states. "Logically, the only 'potential future' course of action that the other city council members could take 'against' Mr. Kirby would be to remove him as council president. Although plaintiff recognizes in her complaint that the purpose of the subject letter was 'to ask Kirby questions and not to remove him,' in any event, the signatories of the letter would not constitute a quorum or a 'walking quorum' to remove Mr. Kirby from his position as council president."

That's because state statute requires a quorum of three-fourths of all the members of the council to remove him from his position as city council president, Varline claimed, and the four council members and the mayor did not constitute such a quorum.

"At the time the subject letter was written, the city of Rhinelander City Council consisted of seven total members, with one vacant seat," the motion states. "Therefore, three-fourths of the seven council members (or 5.25 members) would be necessary to constitute the quorum required to remove a sitting council president. Here, only four out of the seven members of the city council .... were involved with the subject letter directed to Mr. Kirby."

Clearly, the number of members "present" was not sufficient to determine the parent body's course of action regarding Kirby's removal as council president because four-sevenths does not amount to the three-fourths, the defendants argue.

"As a result, plaintiff also fails to satisfy the second prong of the 'meeting test,' again meaning that no meeting has occurred, and Wisconsin open meetings law is not triggered," the defendants concluded.



Holmes: The tests are met

In Holmes's brief opposing the motion to dismiss, written by attorneys Tom Kamenick of the Wisconsin Transparency Project and April Rockstead Barker of Schott, Bublitz, & Engel, the attorneys argue that the defendants' entire legal argument rests on a questionable claim that when members of a city council meet to discuss the performance of a colleague, agreeing to write a letter critical of his performance in his public duties and suggesting he resign, they are not engaged in governmental business.

"They claim that because no 'formal action' was taken, those city council members did not meet privately and without public notice in violation of the open meetings law," the motion states.

In fact, however, Holmes's attorneys contend, the letter the council members sent was itself a governmental action, and the council members were engaged in governmental business when they discussed it and agreed to sign it.

"By engaging in governmental business over a series of smaller meetings, each short of a quorum but together representing the decision of a majority of the members of the Rhinelander city council, the defendants engaged in a walking quorum and violated the open meetings law," the motion states.

Indeed, the attorneys argue, citing investigatory interviews, the defendants met in those smaller meetings at least seven times, in their capacities as members of the city council, to discuss Kirby's effectiveness as city council president, his possible and actual censure and/or written reprimand, and potential future further action against Kirby.

"They came to a decision to jointly send a letter of censure to Kirby, criticizing his behavior as city council president, alleging he was unfit for his position, and suggesting he resign," the motion states.

As such, the attorneys argue, the only real issue in the case is whether the defendants' emails and personal meetings qualify as a "meeting" under the open meetings law.

Citing the two-prong test that the defendants raised, Holmes's attorneys argue that both conditions are met.

"The defendants met for a governmental purpose - discussing the behavior of a colleague in his official duties and deciding on a course of action to correct what they saw as misbehavior," the motion states. "And a majority of the board met, sufficient to take any number of official actions against their colleague, including issuing the letter of reprimand they penned."

The attorneys cited a decision known as Showers, which, according to a state attorney general's opinion, 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.

Another case cited by the attorneys, State ex rel. Lynch v. Conta, found that the test is met when the members of a governmental body "intentionally expose themselves to the decision-making process on business of their parent body - by the receipt of evidence, advisory testimony, and the views of each other."

"The Lynch court was concerned that decisions would be reached prior to public action and that 'the public and those members of the governmental body excluded from the private conference may never be exposed to the actual controlling rationale of a government decision,'" the motion states. "Even the mere 'possibility that a decision could be influenced' requires such discussions to be held in public session."



Here, there, everywhere

The defendants had a governmental purpose in their discussion, Holmes's attorneys argue.

"They were frustrated by Kirby's behavior at a governmental meeting and discussed what to do about it," the motion states. "They discussed the letter and its contents. They discussed Kirby's behavior at the recent meeting. They discussed Kirby's effectiveness as a city alderman. They discussed censuring Kirby. They discussed reprimanding Kirby in writing. They discussed other potential future action against Kirby. All of their discussion revolved around the behavior of their colleague in his official duties as a city alderman, and what they would do about it, in their official positions as city aldermen."

The defendants also had a governmental purpose in their letter, the attorneys argue.

"The letter addressed the 'incident' at the prior common council meeting and Kirby's conduct there, including refusing to sit," the motion states. "It addressed an existing dispute between Kirby and city administrator Daniel Guild. The letter asked questions about Kirby's behavior as a council member. The letter referenced a previous understanding that the members would talk together to solve internal problems rather than 'creat[ing] unnecessary drama' and questioned whether Kirby was committed to that process."

The letter was directly critical of Kirby, the attorneys observe.

"It said that 'this incident does not reflect the level of leadership we are looking for,'" the motion states. "It questioned directly whether he was fit to remain as council president. It even suggested that he resign from his post. This was a letter of censure, a private reprimand. The business of the letter was governmental, not private."

The letter was also collective, not an act of an individual that happened to later garner agreement, the attorneys contend.

"Obviously, it was signed by a majority of the common council," the motion states. "It also spoke collectively, constantly using the pronouns 'we' and 'us' instead of 'I' and 'me.' ... The letter even acknowledges that the council members have no authority to act independently, but can only act collectively as a group, belying the notion that the defendants did not understand that they were acting as the council."

Then, too, the attorneys argue, though the defendants argue strenuously that the gathering of council members and letter had no government purpose and was not for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the council - because all they were doing was asking Kirby some questions and opening a dialogue - in fact those things are the very definition of governmental business.

"But 'asking questions' and 'opening a dialogue' about Kirby's performance as a city alderman is a governmental purpose," the motion states. "They were not discussing Kirby's health or his golf handicap, or asking after his children, or gauging his fitness to be a potential business partner. The questions and the dialogue all centered around the official business of the city of Rhinelander."

What's more, the attorneys also contend, the letter did far more than ask questions or open a dialogue.

"It was a letter of reprimand, directly critical of Kirby's performance as a city alderman, questioning his fitness to be council president, and even suggesting he resign," the motion states.

That, along with discussions about Kirby's effectiveness, a possible and actual censure and/or written reprimand, and consideration of potential future further action against Kirby, are all governmental business and within the authority of the city council, the attorneys argue.



Sufficient numbers

There were also sufficient numbers of the council to determine a governmental body's course of action on the business under consideration, the attorneys argue.

"That test is obviously met if a simple majority, or a quorum of the body, gathers to discuss government business," the motion states. "The test is also met if a number of members sufficient to block a proposal gather - that number, less than a majority, can determine the body's course of action by refusing to support certain actions."

As an example of the second circumstance, called a negative quorum, if a proposal requires a two-thirds majority, four out of 10 members form a negative quorum that can block passage of the proposal, the attorneys observed, citing the Showers' court case.

In a walking quorum, a quorum or negative quorum takes place in a series of smaller private meetings on the same governmental business.

The sufficient numbers test is met in this case, the attorneys argue.

"A majority of the members of the city council (as well as the mayor, a voting member when necessary) were engaged in substantive discussions of governmental business, and the same majority agreed on the uniform course of action of sending a letter of censure to Kirby," the motion states. "Although the five of them did not all meet at the same time and the same place, they engaged in a walking quorum - that is, a series of smaller meetings (seven in total), none of them containing a quorum of members by themselves, at which substantive discussions were held and an agreement to act was reached."

Though the defendants argue that the numbers test was not met because there was no agreement among the defendants to act in any sort of uniform manner and no action was contemplated by the defendants, Holmes's attorneys argue, they ignore that the defendants all agreed to send the letter to Kirby.

"The letter was a uniform, collective action on a governmental topic by a majority of the city council," the motion states. "Contrary to the defendants' claims, the complaint alleges that there was both 'substantive discussion' and 'agree[ment] on a uniform course of action,'" the motion states.



Negative quorum

The argument that numbers sufficient to take action were not present because it would have taken three-fourths of the members to remove Kirby as council president and only four of the members met also fails, the attorneys argue.

First, the defendants misread the statute about removal, which refers to "removal and suspension of city officers."

"[The statute] talks about removal of a council member, which is different than selecting a different council president," the motion states. "Removing Kirby would mean stripping him of his status as an alderperson and kicking him off the common council entirely, making him ineligible to ever serve again in that capacity. But to elect another president instead of Kirby would require only a majority vote."

Indeed, the attorneys argue, under Wis. Stat. § 62.09(8)(e), the council president is simply chosen by the council.

In addition, the attorneys argue, the defendants falsely assume that the only action the council could have taken was removal, and is belied by the fact that other action was actually taken - the letter of censure.

"The council could have taken other measures as well: a formal vote of censure, filing an ethics complaint, or adopting new policies or rules of procedure to avoid a repeat of the problems, among others," the motion states. "None of these actions would require a three-quarters vote."

Finally, the attorneys argue, the defendants' argument proves too much.

"Even assuming that the letter was not governmental business and assuming that the only relevant action the council could have taken would have required a three-fourths vote, the defendants still violated the open meetings law," the motion states. "If a three-fourths vote were required, it would take only two council members voting against the proposal to determine the council's course of action - not removing Kirby. Therefore, any gathering of only two members of the council to discuss punishing Kirby would constitute a negative quorum and would violate the open meetings law if not noticed and held in public."

As such, proving a walking quorum isn't even necessary, the attorneys argue.

"Each meeting of two or more council members was a negative quorum and violated the law," the motion states. "Such meetings occurred seven times. Multiple defendants discussed removing Kirby from his position. Before the letter was completely signed and delivered, an email was circulated explaining how to remove Kirby."

In order to dismiss this case, the attorneys contend, the court would have to conclude that the activities the defendants are alleged to have engaged in were not "governmental business" and that they were something else entirely.

"Once such a conclusion is rejected, it is clear that defendants were in fact engaged in governmental business and that their series of meetings formed an illegal walking quorum or several negative quorums," the motion concludes.





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