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June 1, 2020

4/28/2020 12:30:00 PM
'Be very, very careful': City attorney offers advice to new alderpersons on use of email, phones, avoiding potential walking quorums
Heather Schaefer
Associate Editor

Minutes after they took the oath of office last Tuesday evening, the four newest members of the Rhinelander City Council received a warning from city attorney Steve Sorenson involving the level of public scrutiny they will face as elected officials.

Sorenson warned the new members - Tom Barnett, Carrie Mikalauski, Eileen Daniel and Gerald Anderson - to take care in the use of their city email accounts, personal email accounts and personal phones. The attorney also offered advice on avoiding walking quorums and so-called "telephone tag" quorums.

Sorenson made his remarks during the council's organizational meeting while incumbent alderpersons David Holt and Ryan Rossing were having a private conversation outside the presence of the rest of council about the position of city council president. Both men were nominated for the position and the first vote ended in a tie. After the private chat, the council voted 5-3 to select Rossing as council chairman.

While the aldermen were conferring, Sorenson took the opportunity to explain some important rules that come with serving in elected office.

After announcing that all of the council members will be given new email addresses that start with their name rather than their district number, Sorenson began to explain how to avoid open records issues.

"That email belongs to the city," he said, referring to the new council member email accounts. "It does not belong to you personally and if somebody comes in with an open records request we generally, subject to attorney-client privilege and other privilege and confidentiality rules, we have to turn all of that over. So, for the new alderpersons, be very, very careful about what you say and do with those email addresses. You can obviously have your own personal email address but be really careful if you do any city business on your own personal email address because you've suddenly exposed your personal email to an open records request. That's what I find a lot of individuals don't think about. And they use their personal (account) and they send a note to the mayor saying, 'Can't we discuss this at the next meeting.' Well, what that's done is open up all of your personal email to somebody wanting to have an open records request. Now, we may be able to keep 85 percent of it out of there, but it would mean somebody here at the city would have to go through your personal email and say, 'No, that one's not appropriate' and I'm sure there's things in some people's personal email you'd rather not have Val (Foley, the city clerk) or I look at and I know we don't want to look at it. It gets pretty expensive. So please use your district email for communicating everything with city, use your personal email for personal. Don't combine the two, if you can help it. And be very careful about what you do and say in those emails because they can be misconstrued and oftentimes it gets into issues."

Sorenson then turned to the concept of walking quorums.

"The other thing new alderpersons have to be very cognizant of is what we call walking quorums," he said. "If more than three of you get together, there's a concept that if a subsequent vote would take place or action would take place in the (council) body relative to what the four of you were talking about at the ball game or at the ice cream shop that could be considered a walking quorum. So all of you can get together, sit around and chit-chat about how beautiful the city is and we should get rid of the Hodag. I don't care what you talk about. It's if you're going to talk about city business that's when you put up your hand and say, 'No, there's too many of us, we're not going to do that.'"

Sorenson also advised that phone calls cannot be used to circumvent the open meetings law.

"You can't play telephone tag either," he said. "You can't say I'll call you if you'll call the next one, if you'll call the next one."

He also advised the alderpersons not use their personal telephones to send city-related text messages.

"The minute you use your personal telephone to text the city, you've just opened up your personal telephone to someone being able to subpoena that phone," he said, noting that he always carries two phones with him, one for business use and one for personal use.

The city is still involved in litigation related to a walking quorum complaint filed by the general manager of this newspaper, Heather Holmes.

The lawsuit stemmed from a Jan. 30, 2019 letter signed by Mayor Chris Frederickson, council members Andrew Larson, David Holt, Ryan Rossing, and former alderperson Steve Sauer, and sent to then city council president George 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 that Kirby's conduct at a January 2019 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."

In her complaint, Holmes contended that the mayor and council members 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 Kirby, all of which amounted to an illegal walking quorum concerning governmental business without public notice.

Holmes first filed the complaint in circuit court after Oneida County district attorney Michael Schiek declined to prosecute a similar complaint filed by Lakeland Times/ 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.

In January, Oneida County Circuit Judge Mike Bloom dismissed the complaint on the grounds that Holmes had failed to prove that the contents of the letter referred to "governmental business" or that the letter manifested an agreement among the defendants to take some uniform course of action relative to a proposition that would require a formal vote by the common council, all of which he said was required to prove a walking quorum.

Holmes has appealed Bloom's decision to the Third District Court of Appeals in Wausau.

Heather Schaefer may be reached at heather@rivernewsonline.com.



Reader Comments

Posted: Monday, May 4, 2020
Article comment by: Jeremy Walker

Just another attempt by Mr Rog to take a news story out of context. Having watched the stream of the last council meeting where Mr. Sorenson spoke. He did his job by telling new council members about not using city email addresses for personal use, not using personal emails for city use. Not using personal cell phones for city business etc. Because doing so could open up their personal email and cell phone accounts to open records. He also did his job in explaining avoiding getting themselves into a walking quorum. The reason why the city has saw a spike in open records is the effect that the former adminstration and council(2016/2017) were very good at keeping importing information out of open records. Especially that former city attorney Miljevich cost the city a legal bill to the River News for about $8,000. But who wants to remember that fiasco.

Posted: Wednesday, April 29, 2020
Article comment by: Christopher Rog

As this story further proves, acting City Attorney Steve Sorensen continues to make a mess of this city and adds to its deepening legal woes.  Instead of setting up policies about how to effectively avoid compliance with open government and open records laws, start by informing these new (and existing) council members of an opposite approach: that everything they do (except for very narrow exceptions) is subject to open records.  Insist they perform their work with that in mind,and they'll have nothing to hide when the open records requests come in.  And we’ll go back to the days when the clerk filled open records without attorney intervention (and cost), before the arrival of Guild, Frederickson, and Sorensen, when there was no need to be so very, very, very careful. 

Instead of teaching ways to avoid open government laws and shield the public form what is going on, advise on ways to perform all work in a 'nothing to hide' manner.  

Half of our local officials are in legal jeopardy on multiple counts for just the types of policies and practices you advocate, and unless things change dramatically, theother half is soon to follow. 




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