Village board discusses penalties for leaks
By John Faucher
The board voted unanimously to send the idea to executive committee for further review at its Feb. 3 meeting, following a 26-minute discussion on creating penalties for leaking closed session information.
At its Jan.19 meeting, the board tabled discussing ordinance 0-2-17, which seeks to penalize disseminating closed session information. The item was tabled because legal counsel could not attend that meeting.
The ordinance, which would be an amendment to Chapter 1 of the village’s code of ordinances, was introduced at the Dec. 1 meeting.
At the Feb. 3 meeting, trustee Peter Olk began the discussion by stating, “There was an event that actually prompted this to happen.”
Village Attorney Robert Sorensen responded: “Let me say this, Peter. I don’t know that there was one event. For me, I’ve witnessed breaches throughout the course of my representation of the village not unique to any board. I just thought this was a good way of shoring up, or dealing with the issue. OK, that’s my take on that.”
Olk asked, “Don’t you think the penalty for the first offense is a little stiff?”
The current proposed ordinance would assess first offense violators with a fine of no less than $100 and no more than $500, and constitute a neglect of duty, plus municipal court costs.
A second offense would be assessed a fine of no less than $500 and no more than $1,000 plus municipal court costs.
“That’s up for discussion,” said Sorensen.
“I don’t know what other communities have done,” Olk said. “A monetary value assessed to the first offense I think is maybe not the right approach. I think maybe some stern written warning, or notification maybe for a first offense. If it enters into the second offense I could probably see something of a monetary value assessed to it, maybe in additional to unconditional termination or dismissal from the board.”
Olk said he had deeper questions such as who would police it, and who makes the determination that there has been an offense committed.
“What kind of panel reviews it?” Olk asked.
“It’s an ordinance violation so it would go to municipal court,” Sorensen said. “It would be handled by our normal prosecuting attorney or by myself. It’s no different than a traffic violation. As far as evidence you’re either going to have oral or a documentary. It’s no different than any other matter that a person can be taken to task for.”
Trustee Jack Kuhnke asked, “For example, if you’ve got enough neighbors that come forward and say, ‘Hey you’ve been talking about—or this person has been talking about it, then that’s enough?”
“It may be,” Sorensen said. “Who knows whether it’s enough?”
He used the example of a traffic citation.
“Somebody witnessed it, it usually is an officer but it can be a citizen. That comes down to their testimony. A great deal in our society comes down to he said, she said, sort of speak,” said Sorensen.
“I don’t think that’s a reason for discarding all of our laws.”
He said there can be a lot of discretion in prosecuting laws. “It certainly would be serious to charge someone with violation of this,” said Sorensen.
“I don’t think anyone is looking forward to actively enforcing this, but again I don’t see that as a reason for not having it.”
Trustees Jeanne Bellile and Julie Vanden Heuvel both researched what other Wisconsin municipalities have done.
Bellile said since Oconomowoc adopted its ordinance, it has not had a violation of it. The proposed ordinance the village board began looking at is the one adopted by Oconomowoc.
She said quite a few municipalities did not have a specific ordinance penalizing violations, but rather looked to the state statutes for guidance. Bellile said she was under the impression, that is what the village did, or that they had an existing ordinance that just lacked teeth.
Sorensen determined that while the state statute provides rules for closed meetings, and the statute says there may be applied a penalty for breeches, there is no prohibition in the state law.
Bellile said most of the communities she talked to said they handle it by having a discussion with the person who disclosed the information.
“I mean, we are adults here,” she said.
Sorensen also noted that while the state statute says a breach may constitute a neglect of duty, the ordinance the village is looking at is more specific in saying what the neglect of duty is.
“What I’m saying is there is no state statute that says a person is subject to forfeiture or penalty of any kind for violating the confidentiality of a closed session, that I am aware of,” said Sorensen.
“I get that we’re all adults here,” Vanden Heuvel said, “but there are other municipalities that do have something almost identical to what we’re looking at. The city of Weyauwega has something very similar to this.
“I feel like we are all adults, but I think there should be some bite to it as well,” Vanden Heuvel said.
“I work in healthcare. A $100 citation is minor. If I breach confidentiality even once, I lose my job,” said Vanden Heuvel.
She also said if an elected official breaches confidentiality, the voters should know that the violation occurred.
Some board members were concerned that someone may use the ordinance to wrongly accuse or try to intentionally hurt or harm someone’s reputation.
“It’s not a hearsay type of thing,” Village President Traci Martens said. “We’re just trying to define if you do violate it, what happens, because right now we don’t have any consequences.”
Martens also reminded others that years ago, there were serious violations of it that caused problems.
“Those are the things that we are trying to target,” she said.
She would not cite specific examples of past breaches, but noted that nothing was done about it at the time.
“I’ve been doing this a long time,” said Sorensen.
“When it comes up we’re much too grim, and we do talk to the person or the whole board and try to reinforce and get across that it’s not appropriate, and that the village’s interest demands compliance,” said Sorensen. “That’s what we’ve done, and yet through the years we have recurrences. That leads me to believe whether or not we need some sort of ordinance in place that has some sort of teeth to it,” he said.
Anyone can be wrongly accused
Sorensen told board members, “You can be accused wrongfully of any law. I don’t have an answer to that. If somebody is inclined to wrongfully accuse I don’t have an answer to anything. Does that mean then we become a nation of no laws?”
“Well of course not,” Bellile said. “But we have made such a big issue out of this and right now the press has made such a big issue out of this that we already have people in the community looking at us. They’re saying your board is bad.”
Vanden Heuvel said, “Us arguing about this is sending a negative message.”
She used an example of potential developers who have been following the issue and may want to approach the village with an idea or negotiate a property purchase.
“They should know they have a safe place to talk about that,” said Vanden Heuvel.
No second chance
Board members agreed.
“Anybody that violates the trust of this enclave here shouldn’t be allowed the second opportunity to make a subsequent violation,” said Olk.
“If you spill the beans on the first go-around, whether there is a monetary attachment to it or whether it is just a slap on the wrist, I would expect that I wouldn’t want that person to continue on this board,” he added.
Asked what other recourse the village has for a violator if there is no ordinance in place, Sorensen said, “One way is a recall or [another] is at the ballot box of the next election.”
Kuhnke questioned who would police the ordinance.
“Nobody is going to be policing it,” Sorensen said. “This isn’t an act of enforcing an ordinance. We’re not going to have people monitoring it per se. We’re not going to have people monitoring it per se. So I don’t see it as active enforcement, but it’s there if somebody breaches the ordinance, then it comes into play. If anybody violates that, there are consequences.”
Vanden Heuvel noted that Weyauwega has an ethics board to review such cases and suggested the village look into creating one itself. Olk agreed.
“I think we move that direction first. We need some kind of council of some sort to police this,” Olk said.
Board members asked who the ordinance would apply to if created. Village Administrator Diane Wessel and Sorensen both noted it could only apply to people involved in the closed session meeting.
Martens asked Sorensen his thoughts on creating an ethics board.
“I would want to get it more studied,” said Sorensen.
“It has to go through a first vetting and a first review and I think the ethics board is the way to do it,” said Olk.
“If you’re going to table [the proposed ordinance/ethics committee] I would ask that you at least refer it to committee for further study,” Sorensen said.
“I do like the idea of an ethics board and I do like the idea of having some sort of teeth to [the ordinance],” said Martens.
“I don’t know if this is necessarily our end result,” Martens said. “I think this is just one example that was brought forward to us to consider. But I think we have to have a much lengthier discussion of it than board time allows. So I would say we suggest we refer it to executive committee to hammer out some specific details and bring it back to us.”
A motion passed unanimously approved sending it to the committee.
Executive committee members include village board members Jeff Schuh, Kelly Schleif, Bellile and Martens.