January: What’s on the agenda? It’s anyone’s guess

2007 Columns

Wondering what your local school board plans to do next Monday night? Just check the agenda. After all, the law says government officials have to tell  you what they intend to do at their meetings.

Not so fast. The meeting notice includes a closed-door session with this cryptic reference: “Contemplated closed session for consideration and/or action concerning employment/ negotiations with district personnel pursuant to Wis. Stats. 19.85(1)(c).”

What could it mean? One, it means you can’t attend. And two, you’ll not know what’s happening. Maybe the school board wants to hike pay for teachers. Or maybe officials plan to change who gets dibs on coaching jobs.

In fact, the notice could refer to many possible actions, as residents of Tomah, Stoughton and other communities have ruefully discovered after important decisions were made without any specific public notice, short-circuiting the public’s right to know.

Unfortunately, some state judges have ruled that such opaque notices meet the letter if not the spirit of the Wisconsin Open Meetings Law.

Now the Wisconsin Supreme Court has a chance to clear the fog. On Jan. 11, the justices are scheduled to hear an open meetings case brought by Brian Buswell of Tomah, who sued the Tomah Area School District in 2004 after it secretly discussed teacher contracts that included a new hiring policy for coaches.

Buswell said officials should have clearly stated their intent to consider the new policy, which gave preference for coaching jobs to teacher union members. Instead, the board posted only the arcane notice cited above. And when the board ratified the contracts two weeks later in an open meeting, another obscure agenda item listed only “TEA Employee Contract Approval” – with no mention at all of the hiring policy change.

Maddeningly, local officials around the state have been fudging their agendas for years. Even though Wisconsin enacted its Open Meetings Law a generation ago, local officials, media outlets and community advocates still spar over this simple question: How specifically must public bodies describe what they meet to discuss?

In supporting Buswell last year, outgoing Attorney General Peg Lautenschlager argued that government officials should be held to a high and clear standard. Otherwise, officials can easily resort to subterfuge when they want to get controversial measures past their critics.

Coach hiring policy had been a hot topic even before Buswell’s lawsuit: Parents had demanded changes of a school committee. But the contract provision was negotiated – and decided – behind the parents’ back, Buswell charged. By the time it was public, it was a done deal.

“I am greatly concerned with what I see as a growing trend…for governmental bodies to provide the least revealing possible notice about what will happen at their meetings,” Lautenschlager said at the time. “I have consistently advised government officials and the public that the Open Meetings Law requires a higher degree of specificity.”

But lower courts have endorsed a lesser standard. Monroe County Circuit Court Judge Michael J. McAlpine rejected Buswell’s demand for more detail, and the Madison-based Fourth District Court of Appeals upheld McAlpine’s decision, citing an earlier ruling supporting Stoughton city officials’ similar penchant for imprecision.

In the Stoughton case, H.D. Enterprises sued city officials for listing only “licenses” on an agenda for a meeting where they planned to act on a specific liquor license. Interestingly, in the Tomah case, the appeals court judges were sympathetic to Buswell’s policy argument. But they rejected it anyway because they had to conform to the earlier Stoughton ruling.

Now Buswell and his lawyers have persuaded the Supreme Court to review the earlier decisions. The justices are not bound by the other courts and could overturn earlier rulings — and require Wisconsin officials to clearly tell the public what’s really on decision-makers’ agendas.

Clearly, residents who don’t have time to follow the ins and outs of the governing process deserve enough information to decipher when their leaders are about to make an important decision on a specific proposal.

If he prevails, Buswell’s uphill battle will reduce government secrecy and help residents statewide hold officials more accountable. The Wisconsin Supreme Court should overturn the other judges’ rulings and clarify state law so officials can’t cloak important public business behind vague legalese.

Your Right to Know is produced by the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records. Kelley is managing editor of the Wisconsin State Journal.