In what he called a close case, Oneida County district attorney Michael Schiek said Tuesday a letter written by four Rhinelander city council members and the city's mayor to the city council president did not constitute a walking quorum and so he would not prosecute them for an open meetings violation.
Schiek's decision was immediately challenged by Lakeland Times and River News publisher Gregg Walker, as well as by Oneida County sheriff Grady Hartman. Walker, who filed the complaint, said the newspapers were considering further legal action.
On Jan. 30, four members of the council and mayor Chris Frederickson sent city council president George Kirby a letter questioning his leadership, suggesting that he resign "given recent events," and promising a forthcoming conversation that "may be uncomfortable."
The Northwoods River News and Walker filed a complaint, alleging that the letter's signees, by composing and sending the letter, were discussing an issue upon which they had decision-making authority outside of a publicly noticed meeting.
According to the attorney general's office, a walking quorum is 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.
In a 1987 case, state of Wisconsin Ex Rel. Newspapers Inc and Karen S. Rothe, v Dean Showers, the court ruled that an open meetings violation requires two essential elements.
"First, there must be a purpose to engage in governmental business, be it discussion, decision or information gathering," the court decision stated. "Second, the number of members present must be sufficient to determine the parent body's course of action regarding the proposal discussed."
In a May 17 letter to Walker, Schiek said he did not believe either element had been satisfied.
"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," Schiek wrote. "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."
In addition, Schiek also concluded that the number of members was insufficient to determine a specific course of action, namely Kirby's removal, since the number signing the letter would not constitute three-fourths of the council, the supermajority required for removal of the council's president.
Walker challenged Schiek's reasoning.
"Very clearly the members signing the letter were discussing governmental business," Walker said. "Questioning the council president's leadership and suggesting that he resign is certainly the public's business, certainly topics the citizens of Rhinelander would care about. Rather than write a letter, they should have called a meeting and made those statements and asked those questions openly."
Walker also said the second element of the Showers test was satisfied.
"The letter did not suggest that Kirby would be removed from office, or that the council members and the mayor were pursuing any such option," he said. "Rather, they suggested in no uncertain terms that he resign and promised that that conversation would be forthcoming. They acted in unison not to remove him but to pursue and push him for his resignation, and for that they needed only a majority, not a supermajority."
The case isn't even close, Walker said.
Oneida County sheriff Grady Hartman also disagreed with Schiek's analysis.
"I have a different opinion than the district attorney regarding the open meetings violation of the Rhinelander city council," Hartman said in a statement to The Times. "One of the principal elements of our republic is the open practice of government, and the citizens' right to know how the government is spending taxpayer dollars and exercising the powers granted by the people. In this case, the practice of government was conducted without a posting or an open discussion. Though the district attorney chose not to file charges, it does not mean the action was legal."
Hartman said he was worried that the lack of prosecution would only encourage more violations of open meetings and open records laws, and that in turn would impact his department.
"I have concerns this decision will lead to an increase in complaints that will require investigation by my office," he said. "The sheriff's office will continue to investigate any complaints that come forward, which can be difficult with budget constraints. I encourage my fellow elected officials to follow the law and practice open government to eliminate these types of violations in the future."
One of the signers of the letter - Ryan Rossing - is an Oneida County detective sergeant with the sheriff's department. The department placed Rossing on paid administrative leave while the investigation was ongoing.
In his letter to Walker, Schiek applied his interpretation to the elements of the Showers test.
First, Schiek pointed out, the members who composed and signed the letter - Andrew Larson, David Holt, Steve Sauer, Ryan Rossing ,and mayor Chris Frederickson - had to have intended to engage in governmental business, "be it discussion, decision or information gathering."
"The issue becomes whether these members had a purpose to engage in governmental business, be it discussion, decision or information gathering," Schiek wrote. "All five individuals were interviewed and explained the purpose of the letter."
According to Schiek, Frederickson said the letter represented what he wanted to ask in public, as it asked Kirby if his behavior was becoming.
Rossing said his intention was to avoid having more issues with the city of Rhinelander "come out," Schiek wrote, adding that everything in the letter was a question and there was no pre-determined outcome.
For Sauer, Schiek wrote, the letter's purpose was to ask Kirby questions. Sauer said in the interview that he knew the letter was not binding or decision making, and they were not trying to "kick out" Kirby.
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, Schiek wrote.
"He wanted to keep the council's frustrations private so as to avoid drama within the city," he wrote. "He made it clear that the letter was not a 'secret' but rather he wanted to minimize the appearance of chaos and lack of council cohesion."
In his review, Schiek said it did not appear, based on the interviews, that the members and the mayor intended to undertake any governmental business.
"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," Schiek concluded.
The second element
All that said, Schiek wrote, it is possible those members could have been talking about removing Kirby and what it would take to do that, and that did pose a legitimate worry.
"Mr. Walker, I have the same concerns as you, as set forth in your complaint: 'it would appear the four alderpersons and the mayor were setting the groundwork for a resolution to remove Kirby from his position,'" Schiek wrote. "However, based on the information I have reviewed, it does not appear that a resolution was made or a vote taken to remove Mr. Kirby. Although it is clear how they would vote."
In other words, Schiek concluded, there was no course of action to be taken, which is the second requirement of the Showers test. What's more, he wrote, even if there was a proposed course of action, the signing members did not have a number sufficient to determine the outcome of that course of action.
"In this case, there were only seven members at the time the letter was written, plus mayor Frederickson," he wrote. "The letter contained five signatures, including mayor Frederickson's signature. As a result, said numbers would result in a four-sevenths vote because under [state statutes] mayor Frederickson would only vote in the event of a tie. Therefore, a four-seventh's vote does not satisfy the three-fourths vote required by [state statutes]."
Nonetheless, Schiek wrote, he believed it was a very close call as to the decision whether the first element of the Showers test was satisfied.
"Reviewing the letter to Mr. Kirby, it could be read as an ultimatum - explain your conduct or we will vote to remove you," Schiek wrote. "Perhaps the meaning of the letter was cleverly disguised. I would suggest that in the future, all topics be placed on an agenda to be discussed openly."
Schiek then concluded by quoting the importance of the open meetings law.
"As [the law] suggests, the state of Wisconsin recognizes the importance of having a public informed about governmental affairs," he wrote. "The state's open meetings law declares that: 'In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business."
As the Northwoods River News has reported, the letter was sent to Kirby after a controversy at the January 28 council meeting in which Kirby refused to take part, hoping to draw attention to $13,000 in furnishings that city administrator Daniel Guild bought for his city hall office without council approval.
At the meeting, Kirby attempted to address his colleagues from the podium as "a taxpayer," the River News has reported, but was refused because the item was not on the agenda. He then left the meeting, leaving the council without a quorum until another council member ultimately showed up.
According to the investigation, which was conducted by the state Department of Justice, two days after the meeting, while Sauer was at Frederickson's house for a drink, Sauer informed Frederickson that Rossing had written a letter, which they then discussed, according to Frederickson's interview. Rossing then came over and the three of them discussed the letter.
In his interview, Frederickson said both Rossing and Sauer asked that an agenda item be added to remove Kirby, but withdrew the request after the letter was sent. Frederickson went on the say he was aware that Sauer was researching how to remove Kirby, and that Guild had helped with the letter.
According to Rossing's interview, Guild drafted the letter after having a conversation about Kirby's actions in Guild's office with Rossing and Sauer. It was at Frederickson's house that Rossing said he saw the finished letter for the first time.
However, Rossing said, the letter did convey his thoughts.
Sauer in his interview confirmed the meeting in Guild's office and said he had received the draft of the letter from Guild while at the mayor's house two days later. A final version was drafted and Frederickson, Guild, and Sauer all signed the letter.
The next day, according to Sauer's interview, Sauer met individually with Holt and Larson, both of whom signed the letter.
Some of the interviews contain inconsistent statements about who actually wrote the letter. In his interview, Larson said he had received a called from Rossing, who told him that Rossing and Sauer had written the letter, not Guild, though they had shown it to Guild for input.
For his part, Holt said he did not know who wrote the letter or when it was written.
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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