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June 19, 2019

6/12/2019 5:00:00 PM
Rhinelander walking quorum complaint heads back to district attorney
Verified complaint seeks another look; makes court action possible

Richard Moore
Investigative Reporter

A complaint alleging a walking quorum by four Rhinelander city council members and the city's mayor has once again been filed with the Oneida County district attorney, this time as a verified, or notarized, legal document.

Lakeland Times general manager Heather Holmes signed and filed the verified complaint.

Last month, in what he called a close case, Oneida County district attorney Michael Schiek said 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.

In that January 30 letter, mayor Chris Frederickson and council members Andrew Larson, David Holt, Steve Sauer, and Ryan Rossing 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."

However, Schiek's decision was immediately challenged by Lakeland Times and River News publisher Gregg Walker, who filed the original complaint, and others, including Oneida County sheriff Grady Hartman. Walker said at the time the newspaper was considering further action.

This week, in the complaint prepared by attorney April Rockstead Barker, Holmes followed through, saying she hoped Schiek would reconsider his decision.

"We firmly believe it was a mistaken decision - even Mr. Schiek called it a very close call - and that the council members and the mayor engaged in a walking quorum," Holmes said. "The arguments are the same, but this time around we have explained them in greater depth. It's really not a close call."

This time, too, the complaint has been notarized - a verified complaint in legalese - meaning Holmes can take the complaint to circuit court if Schiek does not change his decision. That might not have been possible with Walker's original complaint, which was not notarized.

Technically, according to state statute, a district attorney can enforce the open meetings law only after receiving a verified complaint from a citizen. If the district attorney refuses to prosecute or otherwise fails to take enforcement action within 20 days after receiving a verified complaint, the statute states, the complainant, acting as a private attorney general, may bring a court action on behalf of the state.

In reality, district attorneys around the state routinely investigate and make enforcement decisions - and even take enforcement actions - on non-verified complaints. However, given the law's actual language, Walker's original non-verified complaint risked being dismissed in court on a legal technicality rather than judged on its merits if the original complaint moved forward.

Private reprimand

According to the new verified complaint, this past January Rhinelander mayor Chris Frederickson and council members Andrew Larson, David Holt, Steve Sauer, and Ryan Rossing engaged in a walking quorum and violated the open meetings law.

In effect, the complaint argues, a quorum of the city council essentially acted together to write and issue a private reprimand to city council president George Kirby, and did so without proper public notice of their discussions, deliberations, and actions.

"On or about January 30, 2019, through a series of personal communications, email messages, in-person meetings, and communications, respondents had discussions amounting to a walking quorum concerning governmental business without public notice, and specifically regarding 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, culminating in the preparation and signature of a document that called Kirby's conduct as a council member into question and that effectively constituted a private reprimand," the complaint states.

The messages, meetings, and communications were all detailed in investigation reports that included interviews with some of the respondents, the complaint states.

Without question, the complaint states, the council members and the mayor were doing government business.

"The nature of the discussions and issues described above demonstrates beyond reasonable debate that respondents' 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," the complaint states.

In his original determination, Schiek said one of the reasons for not pursuing an enforcement action was that the four council members and the mayor did not constitute the three-quarters vote it would take to remove Kirby from his position as council president.

"In this case, there were only seven members at the time the letter was written, plus mayor Frederickson," Schiek wrote in his May determination. "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]."

But the new verified complaint contends that Kirby's removal was not the governmental business the council members and mayor were engaged in or contemplating - the mayor explicitly said it was not - and so the three-quarters threshold was irrelevant.

"Further, mayor Chris Frederickson described a purpose of the letter as 'to ask Kirby questions and not to remove him,'" the new verified complaint states.

What was relevant, the complaint states, was that the four council members and the mayor were engaged in purposeful discussion of government business and that those discussions were held between a sufficient number of council members to affect any number of government actions against Kirby, the complaint contended.

"As also noted above, the number of respondents involved constituted half or more of the city council, plus the mayor, whose vote is counted in the event of a tie," the verified complaint states. "Therefore, the four city council members plus the mayor have the ability to determine the council's course of action with respect to any decision to censure or reprimand Mr. Kirby and constitute a sufficient number to determine whether the council should formally evaluate or investigate Mr. Kirby's performance."

The bottom line is, the verified complaint asserts, the four council members and Frederickson violated the open meetings law for not providing public notice.

"Respondents' subsequent comments to investigators demonstrate that respondents prepared the communication and engaged in the discussions described above specifically in order to keep council business and the matter from the public and in order to avoid 'a spectacle,'" the complaint states. "Further, respondents subsequently indicated to investigators that they engaged in the conduct described above because they felt they were immune from the public records law when merely jointly agreeing on a letter and in discussing, evaluating, warning, censuring, or reprimanding Mr. Kirby through the letter that they jointly prepared and signed, apparently based on their respective erroneous interpretations of the open meetings law as applied to these facts."

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