Jamie Taylor/River News
Oneida County Circuit Judge Michael Bloom hears arguments Tuesday afternoon on a motion to dismiss an open meetings lawsuit filed against Rhinelander mayor Chris Frederickson and four members of the common council.
1/25/2020 7:30:00 AM Lawyers spar over motion to dismiss walking quorum case Judge to issue written ruling on or before Jan. 31
Oneida County Circuit Judge Michael Bloom will issue a written ruling on or before Jan. 31 on a motion filed by the mayor of the city of Rhinelander and four of its alderpersons seeking dismissal of an open meetings lawsuit brought by Northwoods River News and Lakeland Times general manager Heather Holmes.
After hearing approximately 35 minutes of oral argument Tuesday afternoon, Bloom announced he was taking the motion under advisement and would issue a written ruling before the end of the month.
"This is a situation where the parties and the public deserve a carefully structured, thoroughly explained decision," Bloom said.
The focus of the lawsuit is a Jan. 30, 2019 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."
The letter was sent two days after Kirby refused to take his seat at a council meeting, opting instead to attempt to address the council as a citizen to call attention to city administrator Daniel Guild's recent office furniture purchases totalling approximately $13,000.
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, a violation of the state's open meetings law.
The defendants want the lawsuit dismissed on the grounds the discussions that took place 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.
Tuesday's motion hearing began with Bloom offering the attorneys an opportunity to supplement the written arguments previously submitted.
On behalf of the defendants, attorney Daniel Varline reiterated the argument that the in-person meetings, and other personal communications that preceded the delivery of the letter to Kirby, were entirely "social" in nature and did not involve governmental business.
"The letter is a private letter that followed a social gathering," Varline argued. "It is merely a letter from some council members to another council member asking questions. It's not a letter to conduct business or a letter that is an attempt to have some impact on pending business or pending matters that need resolution, but simply an invitation to open up conversation on non-governmental type business."
"There's no pending vote upcoming as to Mr. Kirby, as to whether he continues as the city council president or whether he is removed," Varline added later. "There is no course of action, there is no outline as to what the city council is going to do. It's simply an attempt by the city council to open up communications for the purpose of having effective government."
In his written motion, Varline also alleged the number of members involved were insufficient to determine the council's course of action, if there was a specific course of action.
"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 read. "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 argued.
In response, plaintiff's attorney Thomas Kamenick argued the facts here do not describe a social scenario such as watching a Packers game together or attending the same church or birthday party.
Kamenick also reiterated the central argument of his written brief which is that the letter itself was a censure and reprimand by a majority of the council.
Reading excerpts from the letter to the court, he stressed that the defendants explictly state at the outset that the correspondence is a response to Kirby's behavior at the previous common council meeting. In addition, the letter addresses the "expectations they had for each other as council members" as well as how Kirby's behavior at the previous council meeting might impact the community's perception of the council. The letter also includes direct criticisms of Kirby's performance as council chairman, questions his fitness to continue in that leadership position and suggests he consider resigning, Kamenick noted.
"If it wasn't governmental, I don't know what it was," Kamenick continued, referring to the letter. "To look at the letter, it is all revolving around governmental business."
"In this case we have agreement on a course of action - to send this letter as a way to address what to do about Kirby," he added. "Even if the letter itself was not a course of action taken by a majority, the discussions should have taken place in open session and not privately to avoid drama."
As the hearing continued, Bloom posed some questions of his own.
The first was "how does a governmental body such as the Rhinelander Common Council exercise its responsibilities, authority, power or duties other than some proposition that is voted upon?
"I believe that the council can certainly take action without a formal vote on an ordinance or a resolution," Kamenick replied. "If you're looking at a decision being made as the very end of the process and what we're looking at a lot of times in an open meetings case is the process of getting to that decision and you don't know what the decision is before it's made and until it's made there are many options for a city council to take."
"A decision not to take a certain route and to take a different route, as here a letter of reprimand, is nonetheless a governmental decision," added plaintiff's co-counsel April Rockstead Barker, who appeared via telephone.
Bloom also asked plaintiff's counsel whether a scenario involving two council members in a restroom wherein one mentions to the other that he's heard another of their colleagues is interested in removing the council president and both agree to vote against the idea to ensure its defeat would constitute a walking quorum.
"What makes it governmental business as opposed to just two guys in a bathroom talking about something that may never come to pass? the judge asked.
The purpose of the open meetings law is to "ensure the course of action of a public body is not determined by two people speaking in a bathroom ...." Barker replied.
Heather Schaefer may be reached at email@example.com.
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