The Lakeland Times and publisher Gregg Walker have filed an open-meetings complaint against Oneida County supervisors Robb Jensen and Jack Sorensen, alleging that the two engaged in an illegal discussion about building a new highway facility that did not appear on a meeting agenda.
The infraction allegedly occurred at an August 19 Oneida County capital improvement program subcommittee meeting in Rhinelander, at which the committee reviewed various departmental capital improvement requests for 2020.
The agenda for that meeting lists no discussion about a potential new highway facility, yet, as The Times has reported, Jensen and Sorensen engaged in an extended discussion about the merits of a new or expanded facility.
The Aug/ 19, 2019, subcommittee notice simply lists, "Review of 2020 Capital Improvement Program Project Process and Requests," and lists a presentation by the highway department of its proposals.
No new highway facility is proposed for 2020, and in fact the county has pursued upgrades to the existing facility instead. However, Walker said, during review of the highway department's requests, which included some of those upgrades for the existing building, Jensen and Sorensen undertook a discussion about a potential new or expanded highway facility that stretched on for more than six minutes total.
"That's a significant discussion, and it was laced with reasons why the existing facility should be abandoned for a new one," Walker said this week.
Indeed, Sorensen called the upgrades Band-Aids, and Jensen said he and others that he did not name were putting numbers together and scouring potential sites for a new facility.
Walker called on district attorney Michael Schiek to aggressively prosecute the supervisors.
"As Mr. Jensen himself has said, a new highway facility is a hot-button issue," Walker said. "It raises questions about the county's priorities. Do we put money into roads or into new gleaming government buildings?"
At a cost of more than $10 million, building a new highway facility also raises other questions about the responsible use of tax dollars, Walker said.
"As such, any discussion of a new facility - and especially any advocacy for such a facility - must be on an agenda," he said. "Supervisors cannot be allowed to manipulate tangential agenda items to promote special interest causes and leave the public and those who might oppose such projects in the dark about those discussions."
Walker also said Schiek bears some responsibility for ongoing open meetings and open records infractions in the county because he has failed to hold violators accountable.
"It is customary for violators in Oneida County to escape any consequences for violating open government laws, and that only encourages more violations," he said. "We believe this is the latest consequence of a lack of enforcement of the law."
In a Sept. 4 complaint to Schiek, Walker said Jensen and Sorensen launched into a discussion about the merits of a new highway facility as the highway department presented its request for $408,000 for a proposed brine building and storage facility, a project that would be finally finished in 2024.
"The discussion started when supervisor Billy Fried wondered - since the county had decided not to build a new highway facility - why the county wouldn't just do the entire brine project right away," the complaint states.
According to the complaint, Fried's question was valid, and so was Sorensen's response, which essentially was, instead of doing what Fried suggested, why not just consider a new highway facility?
"The committee certainly had a right to debate whether a brine building next year made sense if the county was going to reconsider its decision to build a new highway facility," the complaint states.
While the committee had a right to that discussion, it did not have a right to actually begin to reconsider the decision not to build a new facility, Walker wrote.
"In other words, they could discuss what to do with the brine building proposal given a possible county board reconsideration of a new facility, but they could not undertake a discussion about the merits of any new facility because it wasn't on the agenda," the complaint states.
Yet that is exactly what Jensen and Sorensen proceeded to do, Walker wrote.
"The two of them began a wide-ranging discussion of highway department expansion and/or relocation options, as well of the merits of a new facility, all of which were positive in their view and none of which had anything to do with the proposed brine building," the complaint states. "For example, Mr. Jensen started doing the math of the cost of the various options and said he and unnamed others were pondering where a new facility might go."
Jensen said he and others were looking at the county's bypass property, and also trying to find closer sites with the proper infrastructure that might work, Walker continued.
"Mr. Jensen also wondered if Kwik Trip was still interested in the current facility's property," the complaint states. "For his part, Mr. Sorensen started talking about why the previous Kwik Trip offer did not succeed, and he also discussed the building of the law enforcement center as an analogous project to a new highway department because, like the new highway facility idea, it was an emotional issue at the time but ultimately came in under bid, on time, and paid for itself."
None of the conversation was remotely related to the brine building, Walker contended, and their dialogue lasted for more than six minutes total, a significant amount of discussion.
"As soon as Mr. Sorensen asked why a new facility wasn't being considered, Mr. Jensen, as subcommittee chairman, should have deferred that discussion to another meeting when it could be put on an agenda, and he should have limited the capital improvement subcommittee review to the wisdom of constructing a building before that new-facility discussion was undertaken and resolved," the complaint states. "Or, if supervisors had wanted to have that discussion along with the brine building review, they should have put it on the meeting agenda."
Getting it right
A subsequent August 30 meeting both demonstrated the correct way to hold a discussion about highway department capital proposals in the context of a potential relocation and exposed just how illegal the August 19 meeting was, Walker asserted in the complaint.
"Indeed, during a subsequent August 30 meeting, Mr. Jensen and Mr. Sorensen acted properly when the brine building came back up, as well as during discussion about a fuel system upgrade at the current facility," the complaint states. "Mr. Sorensen again asked when the time would be to just consider a new building, saying a real argument existed to scrap the existing building for a new facility."
But this time, Sorensen did not attempt to answer the question or articulate an argument for a new facility, or even engage in an extended discussion about the topic, as he had on August 19, while Jensen also framed the discussion appropriately, Walker asserted.
"On August 30, Mr. Jensen said the subcommittee should say to the administration committee, 'if the highway facility stays at its current location, here's our recommendation,' and, 'if there is a possibility the highway facility may move, here's our recommendation,'" the complaint states.
That conversation happened exactly as it should have happened, and that's exactly how it should have happened on August 19, Walker wrote.
"Instead, on August 19, the two moved the discussion from one of various possibilities depending on potential future county board action to an inappropriate and unnoticed discussion about what that future action should be," the complaint states.
That's not all, folks
But the problem with the August 19 meeting didn't end with the brine building review, Walker wrote, because Jensen and Sorensen later continued their discussion about a new facility.
"On August 19, the two supervisors continued the discussion during a second request - for the first part of a $2 million project that would ensure worker safety at the current facility and bring it up to code," the complaint states. "Mr. Sorensen again pointed to the building of the law enforcement center as an example to follow and questioned why the county would continue to put money into the existing facility when it could just build a new one."
Meanwhile, Walker wrote, Jensen went way off the topic of upgrades for code and safety, saying the existing building just wasn't large enough for newer, larger quad trucks the department needed.
"The bottom line is, the two supervisors were not merely discussing a new facility, they were advocating for one, without any agenda notice that such discussion and advocacy would take place," the complaint states. "The public - especially those opposed to a new facility - should have been apprised that such discussion and advocacy would occur."
Topping it all off , Walker wrote, was Jensen's own acknowledgement during the discussion that the $2 million upgrade project had to be done regardless of what the county does with respect to a new facility: "[W]hen the decision was not to move forward [with the Kwik Trip purchase], for safety purposes we have to do this," Jensen said.
"That being the case, that the proposed capital improvement was needed no matter what, the discussion about, and advocacy for, a new facility was even more unnecessary, and completely inappropriate," the complaint states.
Case law for sufficient notice
According to the attorney general's compliance manual, Walker wrote, the courts have laid out three factors to determine whether a meeting agenda is sufficiently specific.
The first is that the demands of specificity not hinder the efficient administration of government, and Walker wrote that it was obvious that was not the case in this matter.
The second factor takes into account "both the number of people interested and the intensity of that interest," and Walker argued that there is huge public interest.
"The potential relocation and building of a new highway department is, as Mr. Jensen said several times during the meeting in question, an emotional issue," the complaint states. "Clearly it is an issue in which there is substantial public interest and any discussion of a new facility should be on a meeting agenda. Period. It was not."
The third factor considers "whether the subject of the meeting is routine or novel," Walker continued.
"On its face, building a new highway facility at a cost exceeding $10 million is anything but routine," the complaint states.
Finally,Walker wrote, the attorney general's manual contains good advice when determining whether a topic to be discussed should be on an agenda:
"In order to draft a meeting notice that complies with the reasonableness standard, a good rule of thumb will be to ask whether a person interested in a specific subject would be aware, upon reading the notice, that the subject might be discussed," the compliance manual states.
The agenda for the August 19 meeting did not come close to meeting that standard, Walker wrote.
"The August 19, 2019, subcommittee notice simply lists, 'Review of 2020 Capital Improvement Program Project Process and Requests,' and lists a presentation by the highway department of its proposals," the complaint states. "There is no mention of a new highway facility. No one reading that agenda could possibly know that a discussion about a new facility that would exceed $10 million in taxpayer costs would be discussed, much less advocated for. That's especially true because the county had previously and publicly decided not to pursue a new facility - as was reiterated several times during the August 19 meeting - and has not publicly changed that position."
As such, Walker concluded, the only reasonable expectation by those reading the agenda would be a discussion about upgrades and proposals for the existing facility, not a re-opening of the discussion about a new facility.
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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