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August 3, 2020

6/30/2020 7:30:00 AM
Holmes, attorneys file brief in walking quorum appeal
Attorneys: Bloom's logic flawed and circular

Richard Moore
Investigative Reporter

Attorneys for the general manager of The Lakeland Times and Northwoods River News filed their supporting legal arguments earlier this month in an appeal of a decision by an Oneida County circuit court judge to dismiss an open-meetings complaint filed against Rhinelander mayor Chris Frederickson and four Rhinelander city council members.

In the complaint, general manager Heather Holmes - and The Lakeland Times in a prior complaint - contended that the mayor and council members David Holt, Andrew Larson, Ryan Rossing, and Steve Sauer conducted a series of personal communications, email messages, in-person meetings, and communications leading effectively to the writing and signing of a letter of reprimand to then city council president George Kirby, all of which amounted to an illegal walking quorum concerning governmental business without public notice.

In the brief filed with the court of appeals last week, attorneys April Rockstead Barker and Tom Kamenick assert that circuit court judge Michael Bloom erred when he dismissed the complaint, arguing that, contrary to Bloom's findings, the council members met for a governmental purpose and that a majority of the board met over a series of smaller meetings, sufficient to take any number of official actions against their colleague, including issuing a letter of reprimand.

In perhaps the most controversial aspect of Bloom's decision, the attorneys contend - again contrary to Bloom's findings - that government business can and does include matters that do not receive or even require a formal vote. In other words, the attorneys argue that informal action on, and discussion about, matters concerning the government body's realm of authority constitute government business as much as matters requiring formal action do.

In his January decision, Bloom found Holmes had failed to allege the council members discussed any governmental business or reached any agreement to take uniform action against Kirby, among other things.

In Bloom's view, government business is not implicated by any discussion of issues that does not ultimately require a formal vote of the subject governing body, including not only a discussion in private of issues not up for a vote but taking informal actions such as writing letters as a quorum of the body.

"The subject letter does not discuss or allude to any potential action that would require the vote of the common council to implement," Bloom wrote in his decision.

The lawsuit stemmed from a Jan. 30 letter signed by Frederickson and the four council members and sent to 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 officials also concluded Kirby's conduct at a January council meeting did "not reflect the level of leadership" they were looking for from a seasoned, experienced elected official and suggested that he resign "given recent events."

Holmes filed the 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 first resubmitted the allegation to Schiek as a verified, or notarized, complaint.

After the district attorney declined for a second time to prosecute, the lawsuit was filed.

Statement of the case

In the brief filed last week, the attorneys argued that allowing government bodies to take informal action in private to avoid taking formal action in public subverts the entire purpose of the open meetings law.

"Public actions must be deliberated and voted on in public unless an express exception applies," the brief asserts.

Over the course of at least seven meetings, the brief states, Larson, Holt, Sauer, Rossing, and Frederickson, acting in their capacities as city council members, discussed Kirby's effectiveness as city council president, possible and actual censure and/or written reprimand of Kirby, 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 brief states. "They prepared the letter and engaged in the discussions about the council president privately in order to avoid taking public action, hoping to keep the matter from the public and avoid a spectacle."

In addition, the brief argues, the number of city council members involved constituted half or more of the city council, plus the mayor, whose voted is counted in the event of a tie.

"The four defendants who were members of the city council (with or without the mayor) had the ability to determine the council's course of action with respect to any decision to censure or reprimand the council president and constitute a sufficient number to determine whether the council should formally evaluate or investigate the council president's performance," the brief asserts.

Nonetheless, the attorneys contend, the judge made a curious call.

"Despite acknowledging that 'discussing the fitness of the common council's sitting president, as well as discussing how to approach his recent behavior, would seem to qualify as common council 'business' and that 'the discussions in this case led to an agreement among the defendants to sign and distribute the subject letter to Kirby,' the circuit court concluded that was insufficient to allege a walking quorum violation," the brief states.

In its analysis, Barker and Kamenick continued, the circuit court developed a novel test unsupported by existing case law and contrary to the open meetings law's purpose.

"The court concluded that 'the discussions or activity at an alleged 'meeting' or 'series of gatherings' - a 'walking quorum' - must involve some proposition that will ultimately require a formal vote of the governmental body in order to implement,'" the brief states.

The court then applied its new test to the allegations in the complaint. Among its findings, the court concluded Holmes failed to substantiate the council members discussed any governmental business; or discussed removing Kirby as president; or discussed potential action against Kirby; or reached any agreement to take uniform action against Kirby.

The circuit court also concluded the letter itself was not "uniform action" on "governmental business" because the letter never received a formal vote and did not address any proposition that would require a formal vote.

"The court also concluded that while the letter provocatively suggested Kirby resign from his government position, the suggestion was not 'governmental business,'" the brief stated.

Holmes' argument

In Holmes' brief, the attorneys assert the only real issue in the case is whether the council members' emails and personal meetings qualify as a meeting under the open meetings law.

According to the brief, a "meeting" in the open meetings law is defined 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."

As such, the brief observed, two elements are necessary to establish an open meetings law violation claim: (1) "there must be a purpose to engage in governmental business, be it discussion, decision or information gathering"; and (2) "the number of members present must be sufficient to determine the parent body's course of action regarding the proposal discussed."

The "numbers" element can also be established through a "walking quorum" - a series of less-than-quorum-sized meetings where there is an explicit or tacit agreement among a sufficient number of members of a body to control the outcome.

Both prongs of the test were met in this case, the attorneys asserted.

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

One of the crucial issues in the case is the definition of government business as it applies to the open meetings laws.

The brief quotes the state Department of Justice Open Meetings Compliance Guide: "Showers 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."

"The Showers case occurred in a different context than here (a single meeting of less than a quorum of a governmental body), but the fundamental point is the same," the brief asserts. "Governmental business should be conducted in public and not behind closed doors. Decisions - even decisions to not take formal action - should be made in formal meetings held in open session."

But was it really government business they were discussing? Kamenick and Barker think so.

"The council members had a governmental purpose in their discussion," the brief states. "They were frustrated with Kirby's behavior at a recent meeting and discussed his behavior and what to do about it. They discussed the letter and its contents. They discussed Kirby's effectiveness as a city alderman. They discussed censuring or reprimanding him 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."

All those discussions were analogous to what was found to be governmental business in Showers, the attorneys contended.

"The court in Showers found that 'the discussion of the capital and operating budgets' was 'government business,'" the brief stated. "The body's members in that case had met in private 'to move (the) issues along, and to discuss the funding issue 'without political posturing.' No action was taken; rather, 'the purpose of the meeting of the four commissioners was to discuss the pending capital budget.'"

The council members also had a governmental purpose in their letter, the brief asserts, not only addressing an existing dispute between Kirby and then city administrator Daniel Guild and asking questions about Kirby's behavior as a member of the city council but, among other things, directly criticizing Kirby's behavior in his official position and questioning whether he was fit to remain as council president.

"It even suggested that he resign from his position," the brief states. "This was a letter of censure, a private reprimand of a government official, by government officials. The business of the letter was governmental, not private, and should have been handled in a duly noticed meeting open to the public."

A collective enterprise

The letter was also a collective work, the brief continued, and in it the council members acknowledged that they had no authority to act independently, belying the notion that they did not understand that they were acting as the city council: "As we have learned, as individuals, we cannot act on our own on behalf of the city. Rather it is the common council, as a group of elected officials, together, which has the authority to address problems," their letter to Kirby stated.

To be sure, the council members argued that their gatherings and the letter had no government purpose because all they were doing was "ask(ing) Mr. Kirby some questions and ... open(ing) a dialogue for Mr. Kirby to discuss any concerns he may have," but, the brief counters, "asking questions" and "opening a dialogue" about Kirby's performance as a city alderman was in fact a governmental purpose.

"The council members were not discussing Kirby's health or his golf handicap, or asking after his children, or gauging his fitness as a potential business partner," the brief states. "Those would be issues of private business, not governmental business. The council members' 'questions' and suggested 'dialogue' all centered around the official business of the city of Rhinelander: the performance of its council president."

What's more, the brief contended, 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 an elected city official, questioning his fitness to be council president, and even suggesting he resign," the brief states. "Those, too, are governmental purposes, not private ones."

And did the council members meet in sufficient numbers to control the outcome of a governing body?

Yes, Holmes' 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, including '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 brief states. "Although the five of them did not all meet at the same time and the same place, they engaged in a series of smaller meetings, none of them containing a quorum of members by themselves."

That same majority also reached an explicit agreement to act in a uniform manner by signing and sending the letter to Kirby, and it can be inferred that they reached a tacit agreement to take no formal action against him, the attorneys argue.

"The council members argued that the second prong of the test was not met because there was 'no agreement among the defendants to act in any sort of uniform manner' and no 'action even contemplated by the defendants,'" the brief states. "Both claims are demonstrably false. The council members ignore that they all agreed to send the letter to Kirby. The letter was a uniform, collective action with a governmental purpose undertaken by a majority of the city council. The complaint also alleges that 'potential future further action' against Kirby was also contemplated."

The council members further argued numbers sufficient to take action were not present because it would have taken three-fourths of the members of the city council (six of the seven) to remove Kirby as council president, and only four of the members (five if the mayor was counted) met, the attorneys observed.

But, Holmes' attorneys contend, that argument fails because removal of a council member is different from selecting a different council president.

"Removing Kirby would mean stripping him of his status as an alderperson and kicking him off the city council entirely, making him ineligible to ever serve again in that capacity," the brief asserts. "But to replace Kirby as president would require only a majority vote."

In sum, Barker and Kamenick conclude, the circuit court erred in dismissing Holmes' complaint.

"The circuit court believed that 'governmental business' in the context of a walking quorum requires a formal vote," the brief states. "Throughout its opinion, the court repeatedly cabined its analysis by asking whether the council members' actions were 'directed towards' or 'addressed' a 'proposition requiring a formal vote.' Even the though the court agreed with the petitioner that the council members all agreed on a uniform course of action of sending the letter, the court concluded that sending the letter was not governmental business, and therefore no walking quorum existed."

Around and around he goes

As a matter of basic logic, the attorneys wrote, Bloom's reasoning fell apart because it was circular.

"(G)overnmental business is something that has to be voted on, and because the council members sent this letter without voting on it, it cannot be governmental business," the brief states, summarizing the court's logic. "Under that reasoning, governmental bodies can avoid operation of the open meetings law simply by 'agreeing' to do whatever they want so long as they never take a vote on it."

But taking action without voting on it is improper in the first instance, the brief asserts. What's more, the attorneys argue, the circuit court's new test has no basis in either statutory language or case law.

"No court has ever concluded that a 'meeting,' whether with a normal quorum or a walking one, requires decision-making," the brief asserts. "For example, even a purely advisory committee is subject to the open meetings law."

The circuit court's conclusion also contradicts established case law, Barker and Kamenick contend.

"As recognized in Showers, members of a body 'exercis(e) the responsibilities, authority, power or duties delegated to or vested in the body' by engaging in 'discussion, decision or information gathering,'" the brief states. "The Showers court expressly concluded that mere discussion of a governmental topic, without action, satisfied the purpose prong. Likewise, the Lynch court concluded that a 'meeting' might consist only of 'the receipt of evidence, advisory testimony, and the views of each other.'"

Bloom read "discussion" and "information gathering" out of the Showers test, requiring that, to have a "governmental purpose," a body must take or at least be considering taking a formal vote, the attorneys observed.

"Accepting the circuit court's construction would allow governmental bodies to do the exact thing the open meetings law was enacted to prevent - reach decisions outside of public view, taking action without debating and making the decision in a properly noticed public meeting," the brief asserts. "A governmental body cannot simply 'agree' to do something informally and then claim there was no violation because they never voted on it. The required liberal construction of the open meetings law prevents the use of such 'elaborate arrangements' to avoid its application."

To illustrate the point, the attorneys asked the appeals court to imagine for a moment that the Rhinelander city council had put a vote on what to do about Kirby on an agenda.

"That would have satisfied the circuit court's requirement and rendered illegal the series of smaller meetings ahead of time to discuss that topic and reach agreement," the brief states. "But why should that matter? The council members avoided having to ever put the matter up for public discussion and vote by agreeing privately what to do about Kirby. In both situations, the same discussions are had, the same work is done, the same decision is reached."

The legal result should be the same, the attorneys argue, to avoid elevating form over substance.

Imagine separately, the attorneys asked, that instead of a series of smaller meetings, all five of the council members had met at the same time and discussed Kirby and agreed to send the letter.

"Under the circuit court's reasoning, that would not violate the open meetings law because the letter was sent without a formal vote," the brief asserts. "Yet that arrangement would clearly violate the Showers test, because both the purpose and numbers prongs would be met. Taking the logic a step further, even if the five council members had all gathered just to discuss Kirby, without agreeing on action, that would still qualify as a meeting under the Showers test - a sufficient number to control the city council gathering to discuss governmental business. Yet the circuit court's test would declare that not to be a meeting because no vote was taken or planned."

There is no reason why those hypothetical violations should be treated any differently than what happened here, the attorneys contended.

"In each scenario, discussion of governmental business among a controlling number of members occurred outside of public view and led to action being taken," they concluded.

Richard Moore is the author of "Storyfinding: From the Journey to the Story" and can be reached at

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