June: Secret development deals flout open meetings law

2006 Columns

Have you ever read news of a development project and wondered, “Now, when did that get approved?” Or have you been surprised to see the quiet field near your home become a new construction site?

Don’t chastise yourself for being a bad citizen, or assume you’ve simply missed the project’s publicity. Your government may have been meeting in secret, depriving you and the rest of the public of a chance to learn about a plan until it’s too late to do anything about it.

The Wisconsin Open Meetings law requires governmental bodies to meet in public, with a few specific exceptions. But one of these exceptions is increasingly abused by local governments eager to attract commercial and industrial development. This provision allows closed meetings to discuss or negotiate land purchases, investments or other business “whenever competitive or bargaining reasons require a closed session.”

The Wisconsin Attorney General’s office stated in 1994 that such closed sessions should be allowed only when public discussion would “compromise the governmental body’s bargaining position by revealing its negotiating strategy.” This makes sense. But in fact, government officials have been using this exception not only to conceal negotiating strategy but the fact that they are negotiating at all.

To see how this open meeting exemption can be abused, look no farther than Milton in southern Wisconsin. In 2004, the city was approached by an ethanol plant developer who proposed a new plant on the city border.

Over the next nine months, the Milton City Council met in closed sessions to discuss the plant, citing the “competitive or bargaining” exception in meeting notices.

To make matters worse, the notices didn’t even disclose that the closed sessions focused on an ethanol plant. Instead, the city said the talks concerned an “industrial park.” In a February 2005 closed meeting, the council approved a deal that committed the city to making substantial infrastructure improvements for the plant and paying the developer $811,000 in subsidies. After the deal was done, the City Council emerged from closed session to announce the plant to the public for the first time.

The city went well beyond protecting its “bargaining position.” In fact, city officials claimed the meetings had to be secret to protect the developer’s interests. The city said this secrecy was necessary to keep other communities from “stealing” the plant away.

This argument shields the city and the developer from any public scrutiny but it doesn’t meet Attorney General Peg Lautenschlager’s test. She pointed out in an advisory letter that if all cities follow the Open Meetings law and its disclosure requirements, no community has any advantage over another. Unless, like Milton, they keep secrets.

In their most outlandish claim, Milton officials said they closed the meetings for the public’s own good — because the secrecy advanced the cause of economic development. This claim ignores residents’ right to determine for themselves whether a particular development benefits the community. And this question was of real concern in Milton because ethanol plants emit noxious odors and other air emissions. Horicon officials had rejected the same plant proposal two years earlier, primarily due to environmental concerns.

The Milton case now is headed to the Wisconsin Court of Appeals for clarification of the “competitive and bargaining” exception. Hopefully, the court will make clear that the exception can’t be used to conceal ongoing negotiations over economic development or anything else.

In the meantime, check your local meeting notices for “Wis. Stats. 19.85(1)(e)” or “competitive and bargaining” exemptions allowing closed meetings. If the subject of the closed session is unclear to you, follow up with your local officials.

Otherwise, you never know what will show up in your backyard.

Westerberg is an associate attorney at Garvey McNeil & McGillivray, S.C., in Madison. She represents a citizens’ group that sued Milton for Open Meetings law violations and is appealing the court case. Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council, a nonprofit group dedicated to open meetings and open records.