Open Meetings and Open Records

Wisconsin has a long history of promoting open government. As a local government conducting business that has a direct impact on residents, the City of Whitewater also values and appreciates the importance of maintaining transparency. For this reason, it is imperative that public officials endeavor to comply absolutely with state laws related to public meetings and public records.

Open Meetings Law

Wisconsin’s open meeting law is found in Wis. Stat. Secs. 19.81 - 19.98. Essentially, the open meeting law requires that all meetings of all governmental bodies be preceded by public notice and be publicly held in places reasonably accessible to the public and open to all citizens at all times unless otherwise expressly provided by law. For the purpose of this manual, it is safe to conclude that, in general, all discussions, deliberations, actions, or inquiries conducted by a governmental body (meaning the common council or any other municipal committee) should be conducted in an open meeting unless otherwise specifically mentioned in Sec. 19.85(1) (a-j). More information regarding open meetings can also be found in chapter 7 of the League of Wisconsin Municipalities publication, Handbook for Wisconsin Municipal Officials.

Whitewater Transparency Ordinance

In addition to open meeting rules as established by state law, the City of Whitewater has enacted a Transparency Enhancement Ordinance (Whitewater Ordinance Chapter 2.62) which provides additional open government requirements such as a seventy-two hour in advance meeting notice posting for meetings and adding agenda items. This is greater than the State statutory twenty-four hour requirement normally applicable to cities. If the seventy-two hour requirement has not been met, the item can only be taken up by the body by an affirmative vote of the members voting.

Walking and Negative Quorums

There are two important circumstances where a group of committee members, less than a quorum in number, could gather together and still violate the open meeting law. These two situations are referred to as “walking quorum” and “negative quorum.” The following sections were taken from Chapter 6 of the Wisconsin Legislator’s Briefing Book for 2017-2018 and provide details regarding court cases wherein walking and negative quorums were defined.

Negative Quorum: The applicability of the Open Meetings Law to a gathering of less than one-half of the members of a governmental body has been addressed by the Wisconsin Supreme Court. The case involved an unannounced, private meeting of four members of the 11-member Milwaukee Metropolitan Sewerage Commission. The subject of the meeting was the commission’s proposed operating and capital budgets. Adoption of these budgets required a 2/3rds vote of the commission (i.e., eight votes), and four members was a sufficient number to block adoption. Such a gathering of enough members that could be sufficient to block an action of the full body was labeled as a “negative quorum.” [State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77 (1987).]

The court provided a two-part test to determine when a gathering constitutes a negative quorum and triggers the Open Meetings Law. Under the test, such a meeting is subject to the law if: (1) the members have convened for the purpose of engaging in governmental business, whether discussion, decision-making, or information gathering; and (2) the number of members present is sufficient to determine the governmental body’s course of action on the subject under discussion.

Walking Quorum: The applicability of the Open Meetings Law to a series of informal discussions between small numbers of the body’s members has been addressed by the Wisconsin courts and the state Attorney General. This is commonly referred to as a “walking quorum,” and such series of small-group meetings that occur with the implied or express agreement to act uniformly in a sufficient number to reach a quorum may only be held with proper notice and accessibility.

The essential danger identified by the courts with a walking quorum is that it may produce a predetermined outcome and render the public meeting a mere formality. According to an informal opinion by the Attorney General, use of administrative staff to individually poll members regarding how they would vote on a proposed motion is a prohibited walking quorum.

If, however, there is no implied or express agreement to act uniformly in sufficient number to reach a quorum, a series of informal exchanges among separate groups of members may occur without violating the Open Meetings Law.

Open Records Law

Transparency in government in Wisconsin does not relate solely to open meetings, but extends to governmental records as well. The essential takeaway for newly elected or appointed officials is this, unless otherwise specifically identified as an exception by law, all governmental records are public and subject to public examination. It should be noted that all city-related emails, letters and reports produced by, sent from, or received by an elected or appointed official qualify under this broad definition. More detailed information regarding public records can be found in Wis. Stats. Secs. 19.21 -19.39 and also in in chapter 7 of the League of Wisconsin Municipalities publication, Handbook for Wisconsin Municipal Officials.