Attorneys presented their arguments Wednesday, July 21, in Neal Loehrke’s suit against the Weyauwega-Fremont School Board.
Loehrke, who is the current school board president, is a plaintiff in a suit against the school board, four of its former members, the Personnel Committee and the district administrator. Filed March 22, the civil complaint alleges that the school board violated Wisconsin’s open meetings and open records laws.
Loehrke initially sought a court injunction to stop the board from voting on an early retirement package for Dr. F. James Harlan, the district administrator.
After the April 6 election, the proposed early retirement package became a moot issue. The new board has not placed the proposal on the agenda or voted on it.
However, Circuit Court Judge John Hoffmann must still decide whether or not the board violated the law. The interpretation of the law, rather than the facts, are the focus of the dispute in this case.
Tom Maroney, who represents Loehrke, argued that the board failed to provide sufficient information in its public notice regarding the closed session meetings held on March 1 and March 8. He accuses the board of trying to camouflage its true intent with vague and misleading language.
Maroney also argues that Harlan stonewalled Loehrke’s open records request when he responded with a letter asking for clarification.
Lori Lubinsky is defending the school board and the district administrator. She argues that the open meetings law allows government bodies to go into closed session to discuss employee issues and that the wording of the board’s public notice was reasonable and met the law’s requirements.
She has also asked the court to sanction the plaintiff because she believes the complaint is frivolous. Lubinsky has asked that the defendants be awarded their costs and attorney’s fees.
In addition to Harlan, former board President Mike Abraham, Craig Smith, Mike Haak and Bill Brace were named as defendants in the suit.
On March 1, the Weyauwega-Fremont School Board held a special meeting. The public notice for that meeting indicated the board would go into closed session “to consider the employment, compensation and performance evaluation data of the district administrator and the assistant district administrator.”
“If the board wanted to be upfront and truthful with the public, it would be real easy,” Maroney argued. “First, the notice should not have combined the District Administrator with the Assistant District Administrator. … Second, all the board needed to put in the notice was, ‘Discussion and possible action on buyout of Dr. Harlan’s contract.’ With that notice, everyone would have known what the board was doing.”
As evidence that the wording was vague, Maroney noted that Loehrke believed that the board was going into closed session in order to discuss giving Harlan a raise.
Lubinsky said there was “nothing unreasonable in combining two employees in discussion of one posted agenda item.”
She also said the public was aware that the district administrator refers to Harlan.
“And if they don’t know the district administrator’s name, they know he is the top dog,” Lubinsky said.
Maroney makes similar criticism of the public notice for a March 8 Personnel Committee meeting. That notice read, “To consider the employment, compensation and performance evaluation data of the District Administrator, including negotiations and deliberations as it pertains to a retirement package for the District Administrator.
“Final Approval of any retirement package shall occur at a subsequent open session meeting of the Board of Education.”
Maroney suggested that the lack of detail in the notice is evidence that the board “did not want the public to know what they were doing.” He told Hoffmann at the July 21 hearing that the notices should have clearly indicated that the board was considering Harlan’s early resignation and a buyout of his contract.
Lubinsky said the wording in the notice complied with the law.
“For Plaintiff to suggest that the Defendants violated the open meetings law because he believes a better word could have been used is, quite frankly, a frivolous argument,” Lubinsky said. “The test is whether the agenda item would give the public reasonable notice of what would be discussed in closed session, not whether a better word could have been used.”
Lubinsky also noted that the word “buyout” is “loaded with personal views and innuendo.”
In their arguments, both attorneys referred to the 2007 state Supreme Court decision in Buswell v. Tomah Area School District. In that case, Brian Buswell sued the Tomah School District because he believed its public notices did not comply with the state’s open meetings law. He argued that a June 1, 2004, notice did not sufficiently inform the public that the school board would be discussing a contract with the teachers union. He also challenged a second notice that did not refer to a new procedure for hiring coaches. The procedure was included in the teachers’ contract.
The Supreme Court found that the first notice violated the law because it failed to refer to the board’s discussion of the contract. But the court rejected the second complaint because the new policy was part of the contract and “it would not be reasonable to require such detail in these circumstances.”
Lubinsky argued that under the Buswell decision, “The burden of specifying particular provisions of a multifaceted contract would be too great” and that the details of Harlan’s early retirement settlement did not need to be included in the public notice.
Maroney said the Supreme Court’s decision in Buswell set a reasonableness standard that requires “taking into account the circumstances of the case in determining whether notice is sufficient. This includes analyzing such factors as the burden of providing more detailed notice, whether the subject is of particular public interest and whether it involves nonroutine action that the public would be unlikely to anticipate.”
As evidence of public interest, Maroney said, “The public outcry over the attempt at giving Dr. Harlan a ‘golden parachute’ was amazing.”
He noted that Harlan “has been in the center of storms of controversy surrounding the Weyauwega-Fremont School District. He has been a defendant or central witness in at least four lawsuits filed since 2007 by various plaintiffs alleging violations of the open meetings laws and the public records laws. He has tried to censure or discipline board members who disagree with him. He was involved in an illegal appointment of a school board member, which was investigated by the attorney general’s office.”