Oneida County district attorney Michael Schiek has declined to prosecute two Oneida County supervisors over a Lakeland Times complaint that they illegally discussed and advocated for a new highway facility at an August capital improvements meeting, the agenda for which did not include any such discussion.
However, Schiek is requiring one of the supervisors, Jack Sorensen, to attend one hour of open-meetings training, and he suggested the second supervisor, Robb Jensen, do the same. Jensen was the chairman of the capital improvements program subcommittee.
The district attorney's decision comes after Sorensen himself wrote to Schiek saying he agreed with the complaint by The Times and its publisher Gregg Walker that he violated the open-meetings statute.
"I agree with Mr. Walker that I stepped over the line from why I was opposed to the projects for the Oneida County Highway Department to advocating for a new building," Sorensen wrote to Schiek on Sept. 27. "This issue should be on a properly posted agenda for committee or county board in the future."
Schiek's decision also came after the Oneida County sheriff's department investigated the Aug. 19 meeting and also found that the two supervisors strayed from agenda topics.
"It was found that Jensen and Sorensen were first talking about building a new brine building," detective sergeant Kelly Moermond wrote in her findings. "They then got off topic and began talking about building a new highway building as well as east side and west expansion locations for a new highway shop. Jensen and Sorensen also began speaking about Kwik Trip being interested in the highway shop in this portion of the meeting."
As The Times also alleged in the complaint, the two supervisors returned to the topic in another portion of the meeting, Moermond determined.
"Later in the meeting, Jensen and Sorensen again spoke of building a new highway shop rather than fixing or upgrading the exhaust system on the current shop," she wrote. "Sorensen also spoke of putting all this money into the existing building, but suggested they should build a new building and that they need to move forward with building a new building."
Those discussions were not posted to the public, Moermond stated.
"These topics involving building a new highway department (building) were clearly not on the agenda for the 2020 capital improvement meeting," she wrote. "This case will be forwarded to the Oneida County district attorney's office for their review on the open meeting violation."
In an Oct. 24 letter to Walker, Schiek laid out his reasons for not citing Sorensen and Jensen.
First, the district attorney pointed to Wisconsin's open-meetings law and its requirement that public notice be "reasonably likely to apprise members of the public."
The use of the word "reasonably" is important, Schiek argued.
"The use of the word 'reasonably' suggests a balancing of factors," Schiek wrote, quoting open meetings case law. "Such a balancing requires a case-specific analysis. In other words, whether notice is sufficiently specific will depend upon what is reasonable under the circumstances."
Whether the notice is reasonable depends upon such factors as the burden of providing more detailed notice, whether the subject is of particular interest, and whether it involves non-routine action that the public would be unlikely to anticipate, Schiek wrote, continuing to cite case law.
Schiek then laid out the courts' underlying principles in analyzing those factors: the burden of providing more specific information should not thwart the efficient administration of governmental business; particular public interest in the subject matter of a meeting may require greater specificity in the hearing notice, though the level of interest, in and of itself, is not dispositive but must be balanced with other factors on a case-by-case basis; and the degree of specificity of notice may depend on whether the subject of the meeting is routine or novel.
Novel issues may catch the public unaware and therefore require more specific notice, case law states.
The bottom line was, Schiek wrote, government officials can discuss any aspect of an agenda item, as well as issues reasonably related to that subject.
"Under this reasonableness standard, a governmental body, when conducting a meeting, is free to discuss any aspect of the noticed subject matter, as well as issues that are reasonably related to that subject, but may not address any topics that are not reasonably related to the information in the notice," he wrote, referring to the Department of Justice's open meetings compliance guide.
The question at hand
So, Schiek summed up, the issue in the open meetings complaint was whether the exchange on Aug. 19 between Sorensen and Jensen involved a discussion of an aspect of the notice and any issue reasonably related to the subject or involved a different topic.
To answer the question, he referred to The Times' complaint and its assertion that the Aug. 19, 2019, subcommittee notice simply listed, "Review of 2020 Capital Improvement Program Project Process and Requests," and a presentation by the highway department of its proposals, without any mention of a new highway facility.
No one reading that agenda could possibly know a discussion about a new facility would occur, the complaint argued.
In his letter to Walker, Schiek acknowledged a new highway department was not specifically on the agenda or on a related summary document of the various aspects of the noticed subject matter, specifically, a list of the year's proposed capital improvement projects. But, he wondered, was it reasonably related? And, he asked, what was the burden of providing a more detailed notice?
"Would the demand of specificity thwart the efficient administration of governmental business," he asked. "I don't know, in the future could Exhibit B (the separate summary list of proposed capital improvement projects) simply be attached to the agenda as a supplement? Or would it require each item to be included on the actual agenda, within the department? That would seem burdensome."
As stated in case law, Schiek continued, it is very difficult for such boards to anticipate the myriad of situations that may call into question the parameters of the open meetings law.
Next, Schiek wondered, was the building of a new highway department a matter of public interest, per the second factor needing to be analyzed.
"Second, whether the subject is of particular interest, which may be a matter of both the number of people and the intensity of that interest," he wrote. "In this case it appears that only one person was present at the time the hearing concluded."
Schiek next addressed whether it involved non-routine action that the public would be unlikely to anticipate.
"The capital improvement program project process and requests occur on an annual basis," he wrote. "This was not a novel subject, it was an annual hearing. The hearings that were conducted lasted over three hours, your complaint states that the dialogue lasted approximately six minutes. I did not observe any conversation that would infer the committee wanted to buy a new highway facility for $10 million, which you suggest in your complaint."
Indeed, Schiek continued, ideas were exchanged by board members about prior experiences that related to the noticed subject matter.
"My understanding is that the capital improvement committee is a non-action committee," he wrote. "They are tasked with obtaining information and ranking the proposals to report to the administration committee for action, which in turn report to the county board for approval."
Schiek acknowledged that Sorensen provided his position on the matter in a Sept. 27 email - the email in which Sorensen said he agreed with the complaint that he violated the open-meetings statute.
That concession notwithstanding, Schiek said he was not going to issue a citation to Sorensen.
"I don't believe Mr. Sorensen intentionally and knowingly attended a meeting in violation of the open meetings law," he wrote. "Rather than file a formal complaint, I am requiring Mr. Sorensen to remediate and provide documentation that he has completed one hour of open meetings training."
Schiek made no such requirement of Jensen. Instead, he offered up a recommendation.
"I don't believe Mr. Jensen intentionally and knowingly attended a meeting in violation of the open meetings law," he wrote. "I do believe as chairperson he should remediate and provide documentation that he has completed one hour of open meetings training, specific to (the open meetings law)."
In his conclusion, Schiek emphasized that the open meetings law is based on the premise that "representative government depends upon an informed electorate," and that statutory language should remind committee members of why notice is so important.
"It should be observed that government functions best when it is open and when people have information about its operations," he wrote. "It is not, however, merely a matter of enhancing the functions of government. Rather, the government must be accountable to the governed. It must be accountable to the people who underwrite government finances and provide its legitimacy. Having access to information about the workings of government undercuts arguments of subterfuge and ultimately promotes public trust and confidence."
Though Jensen declined comment to the newspaper on Oct. 1 when asked about his position on the complaint - after Sorensen had sent his email to Schiek - he had plenty to say to the district attorney in his own defense, which Schiek released to the newspaper with his decision.
Amid a lengthy description and timetable of public works committee and capital improvements subcommittee discussions and plans, he offered his position on the Aug. 19 capital improvement program subcommittee discussion at the center of the open meetings complaint.
"The committee is charged with the task of reviewing, evaluating, and prioritizing department capital improvement projects and ultimately providing the administration committee with recommendations for the upcoming annual budget," Jensen wrote. "It is essential for the capital improvement program subcommittee to have the opportunity to discuss project justifications, modifying project scope, funding and implementation timeline, and alternatives. During the 2019 capital improvement committee process, all of these occurred."
The proposed capital improvements for the budget totaled more than $900,000, Jensen wrote, and the Aug. 19 discussion was intended to provide committee members with an understanding of the status of those concerns and options and with enough information to rank the proposed projects.
"For example, with respect to Kwik Trip's interest in the highway facility property, committee members were informed the previous offer may or may not be on the table," he wrote. "If when provided with this information, a committee member may have ranked project proposals differently than if a current Kwik Trip offer existed. Understanding the advantages and disadvantages associated with capital improvement program proposals assists in the ranking process."
All of the highway facility's issues and options are not new to the general public, Jensen opined, writing that a number of county committees, including the CIP subcommittee, had addressed them and received coverage from a variety of media sources.
"In conclusion, as previously explained, there was reasonable notice and a person interested in the highway facility was aware the options might be discussed," he wrote. "Thus, the Capital Improvement Program subcommittee members were free to discuss any aspects of the highway department capital improvement program projects as well as east, west, and new facility options."
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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