Alderwoman Mary-Beth Kuester failed in her attempt to add an agenda item to censure Mayor Judy Magee at the Clintonville City Council meeting, Tuesday, Sept. 2.
Kuester said she emailed Mary Metoxen, deputy city clerk treasurer, Thursday, Aug. 28 to have an item added to the agenda. She said she sent the item to Metoxen because she was the one who sent out the agenda. When Kuester did not get an updated agenda, she said she contacted Metoxen and was informed that she was on vacation that day.
Since the item was not on the agenda Kuester called for a suspension of the rules so the council could add the item to the agenda.
“I think it’s pertinent to tonight’s discussion,” Kuester said.
Kuester made a motion to suspend the rules in order to add the agenda item she submitted on Thursday. Jim Krause seconded the motion.
City Attorney April Dunlavy said a two-thirds majority vote was needed to suspend the rules and add the item to the agenda.
Alderman Jerry Jorgenson asked what the item was.
“The item is a motion to censure Mayor Magee,” Kuester said.
Kuester also question Dunlavy as to whether a two-thirds majority vote was needed.
Kuester added that the reason for the censure was because it was pertinent to the discussion to be held later in closed session regarding personnel matters.
Alderman Bill Zienert asked Dunlavy if it was legal to suspend the rules and add an agenda item since agendas need to be posted to the public 24 hours in advance of the meeting.
“Yes, that’s why you need a two-thirds majority,” Dunlavy said.
She added that the council needed to consider that the agenda item would not have 24 hours notice to the public. Dunlavy reiterated that the council would be voting on adding something that the public was not given notice of.
“When you vote to add this item on there you should consider that you’re adding something that the public hasn’t been made aware of until just this moment, just this roomful of people are aware of it. No one else is going to be aware that it is going to be on the agenda tonight. You have the ability to do that,” Dunlavy said.
Alderwoman Gloria Dunlavy asked if there could be repercussions if the council added the item to the agenda.
“Yes, because you’re doing something without actually giving 24 hour notice applying to the open meetings laws,” April Dunlavy said.
Alderman Mark Doornick said he was not comfortable adding the agenda item to the agenda without proper notice being given to the public.
City Labor Attorney Bob Burns who was in attendance at the meeting stated since the item was not on the closed session agenda, it could not be discussed in closed session.
When it went to a vote, four voted yes and three voted no. Zienert, Jorgenson and Doornink voted no. Alderman Phil Rath was excused from the meeting.
The agenda item was not added to the agenda because it did not get a two-thirds majority vote.
Open meetings law
While researching the issue following the meeting, the Tribune Gazette found sources that question the legality to add agenda items without giving a 24 hour notice to the public.
Wisconsin State Statute 19.81(1) states, “In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.”
April Dunlavy cited that a two-thirds majority vote was needed to suspend the rules and add the agenda item. When looking at Robert’s Rules of Order, which the city of Clintonville uses, it states rules of order and special rules of order can be suspended with a two-thirds vote. It also states standing rules can be suspended with a majority vote.
Not all rules can be suspended. Federal, state and local laws cannot be suspended. In this situation, the law states that agendas, including detailed agenda items, must be available to the public 24 hours prior to a meeting.
The Wisconsin Open Meetings Law: A Compliance Guide devotes four pages to what must be included in agendas. According to the compliance guide, “every public notice of a meeting must give the “time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated, closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.” Wis. Stat. 19.84(2)
The guide also states that generic agenda items are not allowed.
“Because members and officials of governmental bodies have greater opportunities for input into the agenda-setting process than the public has, they should be held to a high standard of specificity regarding the subjects they intend to address. Thompson Correspondence, Sept. 3, 2004.”
Under the section “Compliance with notice,” in the guide, it states, “A governmental body, when conducting a meeting, is free to discuss any aspect of any subject identified in the public notice of that meeting, as well as issues reasonably related to that subject, but may not address any topics that are not reasonably related to the information in the notice.”
This was confirmed by the Wisconsin Department of Justice when the Tribune Gazette contacted it about this issue.
In the case of the council trying to add an item to the agenda at the meeting, it appears it is not allowed.
During the citizen’s forum portion of the meeting, Kuester requested and was granted permission to speak during that time. After the meeting Kuester emailed a copy to the Tribune Gazette of her written statement. In the email she stated, “I had meant to include in on agenda but as you heard, the notice was not sent out.”
There are also rules regarding what can be discussed when a citizen brings up a topic during the citizen’s forum portion of the meeting.
According to the compliance guide, “During such a period, the body may receive information from the public and may discuss any matter raised by the public. If a member of the public raises a subject that does not appear on the meeting notice, however, it is advisable to limit discussion of that subject and to defer any extensive deliberation to a later meeting for which more specific notice can be given. In addition, the body may not take formal action on a subject raised in the public comment period, unless that subject is also identified in the meeting notice.”
Council members are held to a higher standard when it comes to speaking during the citizen’s forum portion of meetings. The League of Wisconsin Municipalities addresses this issue on its website. Before April Dunlavy was appointed city attorney at the May 13 council meeting, it was said that the League of Wisconsin Municipalities could be used as a resource by Dunlavy because of her limited experience as a city attorney.
On the league’s website it asks, “Can a member of a governmental body, as a member of the public, bring up items not specifically designated on the agenda under the period of noticed public comment allowed by the Open Meetings law?”
The leagues answer is as follows, “No. Wisconsin Statute, sec. 19.84(2) provides limited exception to the general notice requirements of the Open Meetings law which allows members of the public to bring up items not specifically on the agenda during a period of noticed public comment. It is intended to allow local governments to be responsive to their constituents and to allow the governing body to receive information from members of the public. However, it was not intended to allow members of governmental bodies to bring up items for discussion without placing the items on the agenda and giving notice to the public. Given that member of governmental bodies have ready access to agendas of the body, use by members of the 19.82(4) exception to discuss unnoticed matters will likely be seen as an impermissible attempt to circumvent the notice requirements of the Open Meetings law.”
The comments Kuester made while she spoke during the citizen’s forum included many incidents pertaining to the performance of Magee as mayor. Some of the information she shared with the council were text messages received and sent by Magee. Kuester said the text messages were obtained via an open records request by Kuester. Kuester also obtained copies of Magee’s phone records via an open records request.
Kuester said at the last council meeting Magee threatened to use her veto “if action was taken that she did not agree with.” Kuester said such a statement by Magee was “making judgement before hearing facts and not presiding impartially. If she wished to be a part of the debate she [should] step down as presiding officer.”
When the Tribune Gazette asked Magee about the veto comment, she said it was something that was discussed in closed session, and it shouldn’t have been brought up in open session.
Kuester also accused Magee of using the city administrator to update her political website. She added that “engaging in political activity while on duty by a city employee is a felony.”
After Kuester finished her comments, Magee was prepared with a rebuttal.
She said Kuester was wrong in claiming the city administrator was updating her websites.
“This was between myself and the lady, who’s not Lisa, who does my office of the mayor web pages and my Facebook page. She is willing to come before you and confirm that,” Magee said.
Magee added, “It’d be nice if you bothered to check both sides of the story.”