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February 18, 2020

1/7/2020 7:30:00 AM
Defendants tweak argument for walking quorum case dismissal

Richard Moore
Investigative Reporter

Attorneys for the Rhinelander mayor, city council, and four council members have filed a reply brief once again seeking dismissal of a lawsuit by Lakeland Times general manager Heather Holmes alleging a walking quorum violation of the state's open meetings law by the defendants.

The reply brief counters an earlier brief by Holmes's attorneys, Tom Kamenick of the Wisconsin Transparency Project and April Rockstead Barker of Schott, Bublitz, & Engel, opposing the defendants' motion to dismiss the case.

The lawsuit stems from a Jan. 30 letter signed by 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 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 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.

In the latest filing, the defendants tweaked their arguments for dismissal, arguing that the letter and the discussions leading to the letter did 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 remove Kirby as council president, there was no agreement among the defendants to act in any sort of uniform manner, and no action or parent body action was ever contemplated by the defendants - all necessary elements of a 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 The 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 reply brief

In the reply brief, attorney Daniel W. Varline of Davczyk & Varline argues that Holmes's previous brief conceded that the "only real issue in this case" is whether the subject letter to city of Rhinelander council president George Kirby and its preparation qualifies as a "meeting" under the open meetings law.

That issue was already presented to the Oneida County district attorney, who refused to act upon it, the defendants observed in the brief.

As previously discussed, the defendants' brief states, the members of a governmental body must be gathered for a purpose to engage in governmental business for a violation to have occurred, and that was not the case in this matter.

"Here, the subject letter speaks for itself and it is clearly not 'for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body,' nor for the purpose of engaging in city of Rhinelander business," the brief states.

While Holmes attempts to argue that the discussions surrounding the preparation of the letter and the letter itself have a governmental purpose because 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, that argument is unsupported on its face, the defendants argue.

"The letter is the issue here, and the letter speaks for itself," the brief states. "Despite plaintiff's repeated, bald assertions that '(t)his was a letter of censure' and 'a private reprimand' and her attempts to explain what she believes to be the defendants' intent of the letter, the letter merely asks Mr. Kirby some questions and attempts to open a dialogue with Mr. Kirby regarding his concerns. A simple review of the letter on its face shows it was not for a purpose to engage in governmental business."

Holmes also fails in her attempt to analogize this case to two previous court cases, the defendants argue, one of which concluded that decisions reached prior to public action might exclude the public and other members of the governmental body from knowing the actual reasons for that decision, and another that found that private discussions of city capital and operating budgets was government business.

But this case does not compare to either of those cases, the defendants argue in their brief.

"Here, however, there was no decision reached, no subsequent public action, and there was no government decision at all, let alone one from which the public or other members of the governmental body were excluded," the brief states.

And the discussions in this case were not remotely the same as those found to be government business in the second case, the defendants assert.

"Here, however, the defendants were merely asking questions to their colleague to try to figure out how to better work together and get along - certainly not discussing capital and operating budgets for the city or anything of the sort," the brief states. "Therefore, although plaintiff attempts to analogize this case to (those cases), this case is clearly distinguishable and it is evident that the subject letter to Mr. Kirby and the preparation thereof do not constitute 'governmental business,' thereby failing the first prong of the Showers test and requiring dismissal of plaintiff's complaint."

Not sufficient numbers

Holmes also fails in her argument that the number of members present in defendants' letter to Kirby and its preparation was sufficient to determine the parent body's course of action regarding a discussed proposal, the defendants argue.

"In opposition, plaintiff argues that the sufficient numbers test is met because the defendants were 'engaged in substantive discussions of governmental business' and 'agreed on the uniform course of action' to send the subject letter to Mr. Kirby," the brief states.

In addition to not being involved in any governmental business, the brief contends, there was no agreement among a quorum of the council to act uniformly and determine the parent body􏰀's course of action on a proposal.

"Here, there was no course of action by the parent body, there was no parent body proposal discussed, and there was no agreement by the defendants to act uniformly in any manner regarding city council business," the brief states.

What's more, the brief contends, it would take more than a quorum to remove Kirby as council president. The defendants argue that state law requires a three-fourths vote of the council to remove Kirby as president - which the defendants do not compose - but Holmes has argued that state law shows it only takes a majority vote to choose a council president.

But, the defendants' brief asserts, that latter statute only addresses how a council president is chosen, not how a council president must be removed, which is governed by another statute. In that statute, removal of city officers requires a three-fourths vote.

Of course, Holmes has never argued that the government action in the case was a proposed removal of Kirby, but that the letter itself was a government action, not to mention that the council could have taken any number of future formal actions. The defendants also addressed that argument.

"Plaintiff also briefly argues that removing Mr. Kirby as president was not the only action that could have been taken or contemplated and that '(t)he 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, none of which would require a three quarters vote," the defendants' brief states.

But, the defendants contend, that argument serves to prove defendants' point that there was no agreement among the defendants to act in any sort of uniform manner and there was no action or parent body action even contemplated by the defendants.

"By conceding that there were a number of 'actions' defendants could have contemplated or taken against Mr. Kirby, plaintiff, through her own argument, concedes that there was no agreement among the defendants to act uniformly in any manner - again meaning the second prong of the Showers test is not satisfied in this case," the brief states.

A hearing on the motion is set for Jan. 22 before Judge Michael Bloom.

Richard Moore can be reached at

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