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April 2, 2020

2/1/2020 7:30:00 AM
Oneida County judge dismisses walking quorum complaint
Bloom: No evidence any government business was going on

Richard Moore
Investigative Reporter

An Oneida County circuit court judge has dismissed an open-meetings complaint filed by the general manager of The Lakeland Times and Northwoods River News against Rhinelander mayor Chris Frederickson and four Rhinelander city council members.

In the complaint, Heather Holmes - and The Lakeland Times in a prior complaint - contended that 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 a letter of censure to city council president George Kirby, all of which amounted to an illegal walking quorum concerning governmental business without public notice.

But the defendants had moved for dismissal of the lawsuit, and last Wednesday circuit judge Michael Bloom granted the motion, saying Holmes and the newspapers had failed to establish that the defendants acted with any purpose to engage in "governmental business" or that the contents of the letter represented an agreement among the defendants to "take a uniform course of action" - both elements required to establish a walking quorum.

The lawsuit stemmed from a January 30 letter signed by 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 promised a forthcoming conversation that "may be uncomfortable."

The officials also concluded that 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 The 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.

After Bloom issued his decision, Walker said he was disappointed and the newspaper was looking at possible next steps, including an appeal.

"If allowed to stand, judge Bloom's decision significantly narrows the scope of the open meetings law," Walker said. "It legitimizes walking quorums in a multitude of circumstances, encourages officials to avoid putting controversial topics on agendas for public discussion, and expands what officials can do when quorums are actually gathered in one place."

Walker said the decision would enable and tempt government officials across the state to use informal communications and sub-quorum-sized meetings to engage in private government actions outside the view of the public.

"Much of what was illegal before is legal now, so long as this decision stands," he said. "Judge Bloom has effectively privatized much of the public's business."

Bloom's reasoning

The central element of the newspapers' complaint was that the letter itself was a governmental action, an effective letter of reprimand, and council members were engaged in governmental business when they discussed it and agreed to sign it.

"By engaging in governmental business over a series of smaller meetings, each short of a quorum but together representing the decision of a majority of the members of the Rhinelander city council, the defendants engaged in a walking quorum and violated the open meetings law," the newspapers argued in their briefs.

Indeed, the attorneys argued, citing investigatory interviews, the defendants met in those smaller meetings at least seven times, in their capacities as members of the city council, to discuss Kirby's effectiveness as city council president, his possible and actual censure and/or written reprimand, 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 newspapers alleged.

But Bloom disagreed. In his decision, the judge pointed to the statutory definition of "meeting" for purposes of the Wisconsin open meetings law: "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."

In addition to that definition, the state Supreme Court has held that two elements are necessary to establish an open meetings violation - there must be a purpose to engage in governmental business, be it discussion, decision or information gathering; and the number of members present must be sufficient to determine the parent body's course of action regarding the proposal discussed.

As for that second element, the numbers may form a quorum at a traditional meeting or gathering; it may occur in a negative quorum (enough members present with the power to defeat a proposal); or it may be by walking quorum, whereby in a series of gatherings of less than quorum size, which would include personal communications, email messages, in-person meetings, and communications, the members of a governing body agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.

And that was the issue here, Bloom wrote: "[The] plaintiff's complaint alleges that a series of contacts between sub-quorum-sized groups of the various defendants constituted a 'walking quorum' in violation of Wisconsin's open meetings law."

But, unlike in a traditional meeting, where a quorum is gathered in one place and where mere discussion of "governmental business" can constitute an open-meetings law violation, Bloom wrote, the establishment of a "walking quorum" requires a higher standard - proof is required that a sufficient number of members reached an explicit or tacit agreement to act uniformly relative to some form of "governmental business."

No vote, no action?

So, Bloom wondered, how could the ongoing discussions about Kirby be considered government business?

"At first blush, 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,'" Bloom wrote. "It is quite clear that the discussions in this case led to an agreement among the defendants to sign and distribute the subject letter to Kirby. However, did the discussions among the defendants that culminated in the agreement to sign and distribute the subject letter to Kirby, and their act of signing and distributing it to him, involve 'governmental business' under the first prong of the Showers test?"

Not only that, Bloom pondered, did agreeing to sign and distribute the letter to Kirby, and their act of signing and distributing it to him, manifest an agreement among the defendants to "take a uniform course of action" in their capacity as members of the common council, so as to constitute a "walking quorum," thereby satisfying the added requirement of a walking quorum violation?

To answer those questions, Bloom turned to passages from two court cases, known as Conta and Showers. In Conta, the court held that a quorum-sized gathering could engage in open or silent agreement amounting to a "persuasive occurrence" that, never seen by the public, compels an automatic decision through the votes of the conference participants in a meeting of the parent body.

In Showers, the court found that when a group of government officials gather to engage in formal or informal government business and has the potential to determine the outcome of a proposal or proposals being discussed, the public, absent a statutory exception, has the right to know the deliberations of that group.

Implicit in the reasoning of those cases was 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, Bloom asserted.

"The sufficient numbers prong of the Showers test and the 'walking quorum' test both require that the number of members present at the meeting or involved in the series of gatherings be sufficient to determine the governmental body's course of action on the subject proposition," he wrote. "How else can it be determined whether the number of members present is sufficient to determine the governmental body's course of action relative to the subject proposition other than by determining how many votes are necessary to either pass or defeat it?"

Indeed, Bloom cited Conta - as the newspapers did - that "[q]uorum gatherings should be presumed to be in violation of the law, due to a quorum's ability to thereafter call, compose and control by vote a formal meeting of a governmental body."

"This necessarily requires that the subject of the alleged meeting or series of discussions involve some form of proposed action that would require a formal vote of the governmental body in order to implement," Bloom wrote.

The vote requirement was related in this case to the issue of whether any government business was taking place in the discussion about Kirby's conduct and leadership, that is, a purposeful attempt to exercise the responsibilities, authority, and power of the common council, Bloom asserted.

"On what basis can the Rhinelander common council exercise its 'responsibilities, authority, power or duties' other than by some form of action based on a vote by the council members?" Bloom asked. "In order to take binding action in its capacity as the common council, either a resolution or an ordinance must be adopted, or some other formal action by the common council must be taken, pursuant to a vote. Nothing in the record in this case indicates anything to the contrary."

Put another way, Bloom continued, without a vote, what formal 'action' can a body such as the common council take?

"Again, how else can the number of members necessary to determine the governmental body's course of action be determined other than by determining the number of votes necessary to either pass or defeat the proposition at issue?" the judge asked.

Ground zero

That brought Bloom to the heart of his argument.

"A majority of common council members cannot communicate informally and then just 'decide' to take formal action as a governmental body," he wrote. "In order to take actual 'action,' the common council must posture a proposition and vote on it."

Bloom again referred to Conta.

"The Wisconsin Supreme Court's ... discussion in Conta relative to the policy justification underlying Wisconsin's open meetings law clearly indicates that the law is intended to prohibit a quorum of members privately orchestrating a predetermined outcome relative to a vote that will be taken at a subsequent public meeting, thereby concealing the actual controlling rationale of a government decision from the public and those members of the governmental body excluded from the private communications," he wrote. "Does the Wisconsin Supreme Court's language in Conta apply if a majority of common council members informally 'decide' to do something that does not require a formal vote in order to implement? The court believes, and finds herein, that it does not."

The bottom line was, Bloom concluded, for a walking quorum to exist, the discussions had to be directed toward a proposition requiring a formal vote by the common council.

Taking issue with newspapers

Bloom drilled into the newspaper's allegations, especially on the contention that the defendants discussed "the effectiveness, possible and actual censure and/or written reprimand, and consideration of potential future further action against...Kirby."

But, Bloom stated, nowhere in the letter was a censure or reprimand ever mentioned.

"Nowhere in the incorporated law enforcement reports or in the subject letter is it indicated that the defendants sought to 'censure' or 'reprimand' Kirby," he wrote. "No facts alleged in the plaintiff's complaint indicate that the words 'censure' or 'reprimand' were ever used by any of the defendants. Both terms implicate a degree of formality that is simply not present here."

The common council could certainly vote on a formal motion or other proposition to "censure" or "reprimand" Kirby, Bloom continued, but there were no facts alleged in the plaintiff's complaint to indicate that actually pursuing such action was ever discussed.

Likewise, Bloom found no evidence of discussions regarding the common council taking specific formal action (i.e. action requiring a vote) relative to Kirby's effectiveness or ineffectiveness - and thus there would be no basis for a walking quorum - and the judge spent considerable time on the question of whether the defendants engaged in any substantive discussion or reached any agreement to act uniformly regarding a potential effort to actually remove Kirby as council president.

It all boiled down to an assumption by the newspaper that the council members and the mayor were breaking the law, Bloom asserted.

"The underlying gist of the plaintiff's entire argument seems to be that, with all that was happening, something had to be going on in violation of Wisconsin's open meetings law," he wrote. "In other words, 'where there's smoke there's fire.'"

In fact, Bloom concluded, the only agreement among the defendants established in the newspapers' complaint was the defendants' agreement to sign and distribute the subject letter to Kirby.

"However, unless the actual contents of the letter itself address a proposition requiring a formal vote by the common council to implement, the mere decision to sign and distribute the subject letter would not constitute 'governmental business' for purposes of Wisconsin's open meetings law," he wrote.

The newspaper, of course, argued that that agreement was a government action - "a uniform, collective action on a governmental topic by a majority of the common council."

Bloom attempted to knock that allegation down by referring to the statutory and case-law definitions of a "meeting."

"However, Wisconsin's open meetings law does not address officials convening to discuss governmental 'topics,'" he wrote. "Wisconsin's open meetings law does not address officials convening to discuss matters that may be of 'public and governmental interest.' Wisconsin's open meetings law addresses officials convening to discuss governmental business, consistent with the definition of "meeting" set forth in [the statutes]."

That would appear to assert that actual quorums of government bodies can gather in one place and discuss any government topic or matter of public and government interest without necessarily violating the law so long as the discussion does not involve a standing proposal requiring a formal vote of the governing body.

In the end, Bloom concluded, the letter did make the provocative suggestion that "perhaps it would be more comfortable for [Kirby] to not continue" as council president.

"The question, however, is not whether the letter makes provocative suggestions," he wrote. "The questions are: 1) whether the suggestion implicates 'governmental business' (i.e. some proposition requiring a formal vote by the common council to implement); and 2) whether the suggestion manifests an agreement among the defendants to take some uniform course of action relative to such business."

In fact, Bloom wrote, the letter did not specifically request or demand that Kirby do anything.

"The letter does not threaten Kirby," he wrote. "The letter does not indicate that, unless Kirby does some act desired by the defendants, the defendants will take some stated course of action against Kirby. The letter merely asks Kirby to ponder his role as council president in light of the events at the January 28 meeting."

The bottom line is, Bloom concluded, it was the newspapers' burden to prove that the contents of the letter referred to "governmental business" and manifested an agreement among the defendants to take some uniform course of action relative to some proposition that would require a formal vote by the common council, and the newspapers failed to do so.

"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. "As such, the drafting, signing and distribution of letter, in and of itself, did not constitute a privately conducted persuasive occurrence compelling a predetermined decision through the votes of the defendants whereby, at the time of subsequent public action, the public and those members of the governmental body excluded therefrom would never be exposed to the actual controlling rationale of a government decision."

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