Kronenwetter Board Meets behind Closed Doors for 2.5 hours, Arguably Violates Open Meetings Law

Trustee Charneski was excluded from the majority of the closed session under threat of a lawsuit.

Background

Notice of Closed Session
The notice provision in Wis. Stat. § 19.84(2) requires that, if the chief presiding officer of a governmental body is aware that a closed session is contemplated at the time he or she gives public notice of the meeting, the notice must contain the subject matter of the closed session. (Open Meetings Compliance Guide, pg 24).

Authorized Closed Sessions
Wisconsin Stat. § 19.85(1) contains eleven exemptions to the open session requirement which permit, but do not require, a governmental body to convene in closed session. Because the law is designed to provide the public with the most complete information possible regarding the affairs of government, exemptions should be strictly construed. The policy of the open meetings law dictates that the exemptions be invoked sparingly and only where necessary to protect the public interest. If there is any doubt as to whether closure is permitted under a given exemption, the governmental body should hold the meeting in open session. (Open Meetings Compliance Guide, pg 26, emphasis added).

Wis. Stat. § 19.97(3) provides that a court may void any action taken at a
meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action. (Open Meetings Compliance Guide, pg 34, emphasis added).

Kronenwetter Closed Session Notice

Consideration of motion to convene into closed session pursuant to Wis. Stat. § 19.85(1)(g) Conferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved – to wit Trustee Charneski’s lawsuit against the Village, Marathon County case no. 24-CV-33; and Trustee Charneski’s Wisconsin Elections Commission Complaint EL 24-26; and Administrator Candidate David Baker’s Wisconsin Elections Commission Complaint EL 24-68 and Cease and Desist correspondence to
Trustee Charneski and pursuit to Wis. Stat. § 19.85(1)(f) Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations – to wit Von Briesen Confidential Investigation Summary and related personnel issues and Potential actions after closed session items listed in agenda item 11 and pursuit to Wis. Stat. 19.85(1)(c) Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility – to wit employment status of Village Clerk (8/26/24 Meeting Agenda, Emphasis Added)

Discussion

The Exemption in Wis. Stat. § 19.85(1)(f) was apparently used to discuss Agenda Item P – adopting a “Code of Conduct” Ordinance and Agenda Item T – Amendment of Policy Gen 001 in closed session among other topics.

It is notable that the packet did not include any information for either of these Agenda items to inform the public.

In my opinion, Exemption f clearly does not cover the discussion of the modification of ordinances and policies, especially if the exemption is strictly construed as required.

Attorney General’s Discussion of Exemption f, page 28 (Emphasis Added)

Consideration of Financial, Medical, Social, or Personal Information
The exemption in Wis. Stat. § 19.85(1)(f) authorizes a closed session for:
Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations.
An example of this is where a state employee was alleged to have violated a state law. This exemption is not limited to considerations involving public employees. For example, the Attorney General concluded that, in an exceptional case, a school board could convene in closed session under the exemption to interview a candidate to fill a vacancy on the school board if information is expected to damage a reputation, however, the vote should be in open session.
At the same time, the Attorney General cautioned that the exemption in Wis. Stat. § 19.85(1)(f) is extremely limited. It applies only where a member of a governmental body has actual knowledge of information that will have a substantial adverse effect on the person mentioned or involved. Moreover, the exemption authorizes closure only for the duration of the discussions about the information specified in Wis. Stat. § 19.85(1)(f). Thus, the exemption would not authorize a school board to actually appoint a new member to the board in closed session.

For all actions other than fines, the provisions of the law must be liberally construed to ensure the public’s right to “the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.