Q: Do public bodies that meet in closed session then have to vote in open session?
A: It's not clear because the case law is inconclusive. The Wisconsin Supreme Court ruled that Wis. Stat. § 14.90 (1959), a predecessor to the current open meetings law, authorized a governmental body to vote in closed session on matters that were the legitimate subject of deliberation in closed session. State ex rel. Cities S. O. Co. v. Bd. of Appeals, 21 Wis. 2d 516, 538, 124 N.W.2d 809 (1963). The supreme court reasoned that "voting is an integral part of deliberating and merely formalizes the result reached in the deliberating process."
A subsequent state appellate court case -- State ex rel. Schaeve v. Van Lare, 125 Wis.2d 40, 370 N.W.2d 271 (Ct.App.1985) -- made no reference to this earlier Supreme Court ruling but commented on the propriety of voting in closed session under the current open meetings law. The court indicated that a governmental body must vote in open session unless an exemption in Wis. Stat. § 19.85(1) expressly authorizes voting in closed session. The court's statement was not essential to its holding and it is unclear whether the supreme court would adopt a similar interpretation of the current open meetings law.
Given this uncertainty, the Attorney General advises that a governmental body vote in open session, unless the vote is clearly an integral part of deliberations authorized to be conducted in closed session under Wis. Stat. § 19.85(1). Stated another way, a governmental body should vote in open session, unless doing so would compromise the need for the closed session. Accord, Epping, 218 Wis. 2d at 524 n.4 (even if deliberations were conducted in an unlawful closed session, a subsequent vote taken in open session could not be voided). None of the exemptions in Wis. Stat. § 19.85(1) authorize a governmental body to consider in closed session the ratification or final approval of a collective bargaining agreement negotiated by or for the body. Wis. Stat. § 19.85(3); 81 Op. Att'y Gen. 139.
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