Daily Bread for 11.16.22: That’s an Ailment in Whitewater, Right There

Good morning.

Wednesday in Whitewater will be cloudy with a high of 36. Sunrise is 6:49 AM and sunset 4:30 PM for 9h 41m 12s of daytime. The moon is in its third quarter with 50.5% of its visible disk illuminated.

Whitewater’s Parks & Rec Board meets at 5:30 PM, and the Police & Fire Commission at 6:30 PM

On this day in 1990, pop group Milli Vanilli are stripped of their Grammy Award because the duo did not sing at all on the Girl You Know It’s True album. Session musicians had provided all the vocals. 

Turns out it wasn’t true.

 Only two days ago, FREE WHITEWATER published a post entitled What Ails, What Heals. Under what ails this libertarian blogger listed closed government, and under what heals the medicine of open government. For those who doubted there were any ailments lingering in government, doubt no longer.  The Whitewater Common Council met in open session last night, for forty-six minutes. A video of the session appears below. Every minute of that session was open to the public — and every minute of it should have been. Unfortunately, some in the government don’t seem to understand the importance of open government. 

Part of the meeting’s agenda, at Item C1, was a discussion of a “[r]equest for approval of one additional day of vacation for Police Department Officers completing Spanish course. (Police Chief Request).” See Video beginning @ 30:40 and agenda and Item C1 related documents.

Fair enough — the head of the Whitewater Police Department would like to discuss ways to make language learning more effective for his department (and possibly other departments). Some might support that idea, some might be uncertain, and others opposed. That’s to be expected — unanimity is rare.

What should not be rare — but instead should be unanimous — is the understanding that under our law this discussion should be an open-session discussion.  

Instead, a long-tenured councilman wondered why this was not a closed-session item (video @ 43:08):

Why wasn’t this put on as a closed session agenda item and vetted before we brought it public? It should have been.

When Whitewater’s city manager requested the opinion of Whitewater’s city attorney, here’s what the city attorney said (video @ 43:22):

I think it technically could [be a closed-session item]. It’s discretionary as to whether or not that type of thing would go on and but because it theoretically would be something that could be negotiable or maybe increased or decreased in certain ways. And some strategic negotiating aspect. I think it technically could. It’d be maybe not a slam dunk but if if I was asked to give a thumbs up or thumbs down I’d say technically it could go on as a as a closed session.

Under our law, Wisconsin makes plain that the Open Meetings Law (Wis. Stat. §19.81presumes in favor of open meetings:

19.81. Declaration of policy.

(1) 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.

There are eleven specific and enumerated exceptions to open meetings. Each exception, even if applicable, is discretionary only:

19.85. Exemptions.

19.85(1). Any meeting of a governmental body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section. The motion shall be carried by a majority vote in such manner that the vote of each member is ascertained and recorded in the minutes. No motion to convene in closed session may be adopted unless the chief presiding officer announces to those present at the meeting at which such motion is made, the nature of the business to be considered at such closed session, and the specific exemption or exemptions under this subsection by which such closed session is claimed to be authorized. Such announcement shall become part of the record of the meeting. No business may be taken up at any closed session except that which relates to matters contained in the chief presiding officer’s announcement of the closed session. A closed session may be held for any of the following purposes…..

The law is plain that “a governmental body, upon motion duly made and carried, may” (not shall) meet in closed session. Note the obvious difference between these two results: no closed-session exception is required, as each and every exception is merely a possibility.

One of those discretionary exceptions, at 19.85(1)(c), is when “Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.”

The councilman thinks that this topic should be a closed-session topic. The city attorney thinks that this should technically or theoretically (!) be a closed-session topic. 

They are both wrong, on law and policy.

One starts with the law. What does the city attorney think a technical or theoretical possibility means? Perhaps he thinks that ‘technical’ makes a closed-session a requirement. If he thinks as much, over Item C1, then he’s simply wrong on the law. Wisconsin law does not require that this discussion be held in closed session. 

Perhaps, as he says, instead, technical or theoretical means it’s discretionary with the city council. If so, (and he’d be right that’s it’s discretionary) then he might have answered plainly in line with Wisconsin’s Declaration of Policy: “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.” The law presumes and favors open government. Nothing about this discussion has, or could, interfere with ‘government business.’ Discretion in this case goes only one reasonable way. 

His use of technical and theoretical do not describe a probable state of law. Instead, they describe an improbable, less likely, disfavored application.

Whitewater’s city attorney might have cited some portion of the law suitable to this discussion to show that this discussion must or even should be closed to the public, if he could find one.  He can’t, because there isn’t one. A lawful presumption favors open meetings in Wisconsin. Wisconsin law applied to these circumstances calls for an open session. If Whitewater’s city attorney can find a provision of law (statutes or judicial decisions applying those statutes) that holds this innocuous discussion should have been held in closed session, he’s free to send me an opinion letter @ (If he’d like a proper opinion letter in reply from me, rather than merely a blog post, I’d be happy to oblige him.) 

As policy, the open discussion of this topic advances the public interest without detriment to local government. How, when, and why the city should compensate public employees is a general discussion every community should  have openly. This isn’t a discussion for six or seven people to the exclusion of a community of 14,889. There’s no need to vet this privately.

How very predictable that a councilman who has spent years on a public Community Development Authority that for a generation has run as though a private clubhouse should wonder why this discussion should wasn’t closed to the public. If anything, over many years, Whitewater’s public bodies (council, CDA, and school district) have had too many closed sessions with too few explanations. 

A reminder: the best place for private discussions is private life. Those in government who don’t understand as much should return to private life.

It was a right — and legally sound — decision to bring this topic to an open session of the Whitewater Common Council. 

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10 months ago

Good stuff! The reflex here is to keep topics secret. Always has been. You can’t defend taxpayers by keeping them in the dark! This one came right down the middle of the plate. Not surprised it wound up over the wall.

Learn Something Every Day
10 months ago

Good idea to have a language program.Yes a bad idea to think you need to “vet” this program in secret.
Good of the chief to discuss openly. Isn’t that what the council is for? My new word is “vet”.Can’t discuss something until I vet it.

House of Strong Opinions
10 months ago

Nothing less than total commitment to the belief and indeed Wisconsin law stating that the electorate is entitled to the fullest and most complete information should be accepted from our local governing bodies.