LRES committee delays releasing name of suspended county employee
By Nick Sabato
River News reporter
Oneida County continues to struggle to follow the state's open records law when it comes to disciplinary action taken against its employees.
When the county's labor relations and employee services committee met Dec. 21, a motion was made to hire outside legal counsel to handle a grievance filed by an employee who was suspended for five days without pay.
While the panel quickly approved the motion to obtain outside legal counsel, it failed to immediately release the name of the employee involved.
Release of names of county employees facing disciplinary action is required by state law, however employees have five days to notify the county of their intention to block the release of disciplinary records, if a media organization or other individual requests them, and 10 days from the notice of the open-records request to commence action in court to block release of the records.
In this particular instance, Oneida County was not immediately forthcoming with the name of the suspended individual. LRES committee chairman Ted Cushing told The Lakeland Times the county was required to notify the suspended individual before releasing his name, making it apparent that the county intended to give Woznicki notice (named for Thomas Woznicki whose fight to block release of personnel records resulted in the creation of the state's rules on the release of disciplinary records) for the release of a name, which is contrary to previous county policy and state law.
Times publisher Gregg Walker notified LRES custodian of records and county human resources director Lisa Charbarneau that this would be an unwarranted delay in the request for records and that legal action would be taken if a name was not released by Jan. 3, 2017.
Charbarneau released the name of the suspended employee nearly 24 hours later, identifying the person as Paul D. Jensen, an assistant maintenance technician in the building and grounds department.
The reason for the suspension has yet to be released.
This is the second time the LRES committee has run afoul of state law in the last two months, with the first coming after it was discovered that the committee had discussed unwarranted matters in closed session at its Oct. 5 meeting.
Nick Sabato may be reached at nsabato @rivernewsonline.com or via Twitter @SabatoNick.
1/5/2017 7:30:00 AM Schiek: LRES committee violated open-meetings law Orders entire county board to undergo mandatory training
After The Lakeland Times filed an open-meetings complaint, Oneida County district attorney Michael Schiek has found that the Oneida County Labor Relations & Employee Services Committee violated the state's open meetings law.
Committee chairman Ted Cushing will pay a forfeiture of $25, and all county board members will be required to attend a training seminar on compliance with the state's open meetings laws.
Both county board chairman Dave Hintz and Cushing signed off on a settlement agreement.
As The Times has reported, the minutes of a closed session held during an Oct. 5 meeting of the LRES committee - obtained by The Times - indicated that the committee engaged in routine leave-of-absence and policy discussions that were not exempt from the open-meetings statute, as well as in a discussion of this newspaper's open records request with the county, which was not noticed on the meeting agenda.
Cushing admitted the violations, telling the newspaper the closed-session discussions "shouldn't have happened." The settlement agreement was less specific but nonetheless acknowledged infractions.
"The county admits that certain discussions that occurred during the committee's closed session on October 5, 2016, were not in full compliance with the requirements under Wisconsin's open meetings law," the settlement states. "The county, the committee and committee members desire to resolve all issues relating to the committee's October 5, 2016 meeting."
In addition to the forfeiture, which must be paid within 30 days, all county board supervisors - not just those on the committee - must attend within 90 days a mandatory training seminar on open-meetings law compliance.
"The training seminar will be provided by a third party at the county's designation," the settlement states. "The county will provide notice and certification to the district attorney that such training has been completed by all county board supervisors."
Execution of the settlement agreement will fully resolve the matter legally.
The other members of the committee besides Cushing are supervisors Billy Fried, Sonny Paszak, Carol Pederson, and Hintz.
In his complaint, Lakeland Times' publisher Gregg Walker said there was ample evidence of clear violations, and he urged Schiek to assess each member of the committee the maximum penalty under the law.
That did not happen, but this week Walker said Schiek's action should put the county on notice that future violations will not be tolerated.
"It is a significant shift in the attitude of the district attorney, who in the past has tuned a blind eye to open records and open meeting violations," Walker said. "That has contributed to what appears to have been rampant disregard by county officials of open-meetings and open-records laws. Perhaps officials will think twice in the future."
The complaint stems from an Oct. 5 closed session, which the committee posted as a consideration of "financial, medical, social or personal histories" that "if discussed in public, would likely have a substantial adverse effect on the reputation of the person referred to in such data (topic: leave of absence request)."
Such discussions would indeed qualify as a statutory exemption from the open-meetings law. However, the complaint stated, the session's minutes showed no discussion that would cause any of the employees reputational harm or adversity.
More blatantly, the complaint contended, the committee discussed an item that wasn't mentioned on the closed-session agenda, which Walker called a flagrant violation of the open-meetings law.
That item was this newspaper's open-records request and the county's response to it: "Discussion held on Gregg Walker/Lakeland times open records request, meetings to discuss proper responses and the response provided by Corporation Counsel."
"Any general discussion about this newspaper's specific request to the county should be open for the public to witness, including this newspaper," the complaint stated. "Second, we reject any notion that this discussion could be exempt because it might have concerned a legal response to the request, or any attorney-client privilege with the corporation counsel related to the open-records request, because no litigation was being contemplated."
An exemption for legal counsel applies only if the legal counsel is rendering advice on strategy to adopt for litigation in which the governmental body is or is likely to become involved, the state's open-meetings compliance manual states.
"Clearly that was not the situation here, and, as such, this discussion related to general policy for responses to open-records requests and by statute, must have been held in open session," the complaint contended. "Neither a general discussion about a specific open-records request nor a general discussion about county policy concerning open-records requests warrant a closed session, particularly given that no legal counsel was present."
What's more, the complaint contended, even if one could argue that the substance of the meeting did qualify for a closed session, that discussion has to be noticed specifically on the public agenda of the meeting, but the meeting agenda made no mention about any open-records discussion for the closed session.
The state attorney general's office has warned state and local officials about the misuse of closed sessions, the complaint asserts.
"Although there are some exemptions allowing closed sessions in specified circumstances, they are to be invoked sparingly and only where necessary to protect the public interest," the compliance guide states. "The policy of the open meetings law dictates that governmental bodies convene in closed session only where holding an open session would be incompatible with the conduct of governmental affairs."
Again, Walker wrote in the letter, the newspaper believed that routine discussion of leaves-of-absence requests, as well as related policy concerns about premium payments and funding additional help for departments during LOAs, are public matters, as is the county's policy concerning responses to open records requests.
"Closing those discussions from the public deprives the public of its oversight role with respect to nonreputational fiscal policies and matters of transparency," the complaint asserted.
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