If the special Clintonville Common Council meeting scheduled for Wednesday, May 21, had taken place, would it have been a legal meeting?
When the Tribune-Gazette posed that question to city attorney April Dunlavy, her immediate response was, “There is a city ordinance in Clintonville that allows for six hours of notice.”
She then added, “In state statute it requires 24 hours notice unless it’s impossible or impractical at which case you can have not less than two hours notice.”
Dunlavy said the meeting for Wednesday, May 21, was scheduled the prior night.
“The meeting was agreed upon at the Tuesday night meeting of the common council that there would be a meeting on Wednesday, which was already after the 24 hours notice, which would have made it impractical [for] 24 hours in advance,” Dunlavy said.
The Tribune-Gazette asked Dunlavy to clarify if she was using the six-hour city ordinance, or the two-hour exception for impossible or impractical reasons for allowing less than 24 hours notice of the meeting. She said she was using the two-hour exception.
The Clintonville city ordinance that Dunlavy refers to is listed under “Special Meetings” in the Clintonville Municipal Code. The first item listed under special meetings states, “(a) Special meetings of the Council may be called by the Mayor, or in his absence the President of the Council, at such time as he may appoint, by written notice of the purpose and time thereof to each member delivered to him personally or left at his usual place of abode, at least 6 hours before the meeting.
The ordinance further states: “(c) In addition to all other requirements, the requirement of sub. (5) below shall be complied with.”
Sub. (5) lists the state statue for open meetings, which is: “Except as provided in 19.85, Wis. Stats., all meeting of the Council or of any City board, commission, committee or otherwise designated formally constituted subunit of City government shall be open sessions as defined by 19.82, Wis. Stats. Pursuant to 19.84, Wis. Stats., notice of all meetings shall be given as a time, place and subject matter not less than 24 hours prior to the commencement of such meetings unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no event less than 2 hours in advance of the meeting. In addition, such notice shall be posted for a like period on the City Hall bulletin board.”
This state statute is also listed in the document, “Wisconsin Open Meetings Law: A Compliance Guide” by Wisconsin Department of Justice Attorney General J.B. Val Hollen. The document can be found on the Wisconsin Department of Justice website.
The Tribune-Gazette spoke with Bob Dreps, an attorney for the Wisconsin Newspaper Association, about the six-hour city ordinance. After the entire ordinance was read to him, he said a local ordinance can not modify the requirements of state law. He added that looking at the entire ordinance it does state that 24 hours notice of a meeting is required.
“They can’t point to that and say we can give notice to the newspaper and the public six hours in advance. That doesn’t fly,” he said.
He added that the mention of six hours probably refers to council members having to receive the packet of materials for the meeting six hours prior to the meeting.
Alderman Mark Doornink, who was not present at the May 21 called meeting, shared with the Tribune-Gazette information he gathered regarding open meetings law. On Friday, May 23, Doornink emailed Claire Silverman, legal counsel with the League of Wisconsin Municipalities, asking for legal advice regarding that proposed meeting.
In his email, Doornink included a copy of Clintonville’s city ordinance. In addition he added, “This line of Clintonville code has been interpreted in such a way that it allows a meeting of the council to be called with at least six hours notice. I interpret that line of code to deal with the delivery of the meeting notice to each member, not the public. Our city attorney, the mayor and other members of the council believe that it means a council meeting can be called with at least six-hour notice. A meeting was called using that interpretation of our local code for Wednesday, May 21, 2014. I refused to attend as did one other alderman.”
Doornink asked for Silverman’s legal opinion.
Silverman’s email back included the following response, “I don’t wish to get involved in a war of opinions, but I think this is a pretty straightforward matter. As you note, the open meetings law requires 24 hours advance notice of a meeting to the publc and news media ‘unless for good cause such notice is impossible or impractical, in which shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.’ Wis. Stat. sec. 19.84 (2) (emphasis added).”
She then included a copy of the state statue from the Wisconsin Department of Justice’s Open Meeting Law Compliance Guide. She highlighted the following information from the guide regarding the impossible or impractical two hour notice.
“No Wisconsin court decisions or Attorney General opinions discuss what constitutes ‘good cause’ to provide less than twenty-four-hour notice of a meeting. This provision, like all other provisions of the open meeting law, must be construed in favor of providing the public with the fullest and most complete information about governmental affairs as is compatible with the conduct of governmental business. Wis. Stat. 19.81 (1) and (4). If there is any doubt whether ‘good cause’ exists, the governmental body should provide the full twenty-four-hour notice.”
Silverman also acknowledged the existence of similar six hour ordinances like the one Clintonville has.
“The Clintonville ordinance you cite allowing the mayor to schedule a special meeting with 6 hours notice to the council members is not unique. It mirrors the provisions of Wis. Stat. sec. 62.11 (2). It is a requirement for notice to members of the common council. It does not in any way vitiate the requirements of the open meeting law to give the public and news media notice of the meeting as required under sec. 19.84. I am quite sure the Attorney General’s office would agree with this.”
Dreps also stated that the two-hour notice is intended for an important matter that can’t be held over for 24 hours.
Doornink said he was out of town for business on May 21, but was going to be present at the council meeting via phone. He said he changed his mind after he questioned the legality of the meeting.
According to the Wisconsin Open Meetings Law: A Compliance Guide, “any member of a governmental body who ‘knowingly’ attends a meeting held in violation of the open meetings law, or otherwise violates the law, is subject to a forfeiture of between $25 and $300 for each violation. Wis. Stat. 19.96.
Since there wasn’t a quorum present May 21, a meeting was not held, so no open meeting laws were violated.