Wisconsin Senate GOP voted to strip collective bargaining rights from many state workers by ostensibly removing financial provisions from the bill. Questions may arise as to whether this measure constitutes a fiscal bill as Walker views this measure as part of the budget balancing process:
On Wednesday, Mr. Walker said he applauded the legislature's action "to stand up to the status quo and take a step in the right direction to balance the budget and reform government."
The legal issue under discussion now is whether the meeting of the joint conference committee violated the State's open meeting laws. Before the Senate vote, a Democrat objected on the grounds that the meeting violated this state law. At least one of the 14 Democrats agrees that the GOP violated the state's open meeting law.
One issue is whether the GOP provided sufficient notice. The open meeting law generally requires at least 24 hours notice before a meeting but provides an exception of good cause allowing only 2 hours notice. However, the open meeting law also provides that the law does not apply when it conflicts with a Senate rule. There is one Senate rule that provides notice is sufficient in some circumstances when it is posted on a legislative bulletin board. While the Senate Chief Clerk has opined that the GOP provided sufficient 2-hour notice by posting notice on a legislative bulletin board, an investigation and legal action could show that Rule 93 eviscerates the intent of open meeting laws to enable public participation and knowledge of government affairs by limiting notice to those who see the bulletin board and more specifically, clarify that Rule 93 does not change the time requirements for notice.
Update: Additional facts improve the Democrat's position of noncompliance with open meeting law. Assembly Minority Leader Peter Barca (D-Kenosha) did not receive notice of the 6 p.m. meeting until 4:09 p.m.. The conflict between open meeting law and Rule 93 focuses on manner of notice (i.e. public notice or legislative bulletin board). Rule 93 does not address time requirements and thus there is no conflict in Rule 93 that might trump notice requirements under the open meeting law regarding how much time is required for proper notice. The Senate should have provided notice within 24 hours or if they can establish good cause, at least 2 hours advance notice.
Update - March 10th: I accidentally deleted last night the financial penalties that can be obtained in a lawsuit for violating this open meeting law. Here is the para I deleted:
There is also a forfeiture penalty. Each member who knowingly attended a meeting in violation of the law is subject to a forfeiture of $25-$300 for each violation. An issue of intent is not likely given that a Democrat stated at the meeting that it violated this law before the vote.
This is minor financial penalty but the court would first have to find a violation of this law before imposing penalty, and that finding is not trivial. A court would be saying that these GOP members violated a law intended to ensure Democratic government by providing notice to the public so that they can attend open government meetings discussing and addressing the people's business. Thus, it may not be good politically for these GOP lawmakers, and could increase support for recalls.
According to a compliance guide for the state's open meeting law prepared by the Wisconsin Department of Justice and Attorney General Van Hollen, this open meeting law is designed to implement the citizen's right to attend open meetings of governmental bodies to ensure that the public is informed about governmental affairs.
The open meeting law is applicable to every meeting of a governmental body and should apply to a legislative conference committee. The compliance guide states that a State legislature constitutes a governmental body:
Generally speaking, the open meetings law applies to the state Legislature, including the senate, assembly and any committees or subunits of those bodies. Wis. Stat. § 19.87. The law does not apply to any partisan
caucus of the senate or assembly. Wis. Stat. § 19.87(3). The open meetings law also does not apply where it conflicts with a rule of the Legislature, senate or assembly. Wis. Stat. § 19.87(2). Additional restrictions are set forth in Wis. Stat. § 19.87.
When the open meeting law applies, then the governmental body must give at least 24 hours advance notice of its meeting to the public and conduct its meeting in an open session unless an exemption is applicable. The 24-hour requirement has a good cause exception when notice is "impossible or impractical." The GOP might argue that notice was not practical because it would trigger more "disruptions" by protesters. Unfortunately, there are no court decisions or Attorney General opinions that address what constitutes good cause. However, even when there is good cause, the notice should be provided "as soon as possible and must be given at least two hours in advance of the meeting."
The law requires notice to be provided to the public, any members of the media that have requested notice and a news medium "likely to give notice in the area." The method of notice is posting notice in "places likely to be seen by the general public."
As a general rule, the Attorney General has advised posting notices at three different locations within the jurisdiction that the governmental body serves. Id. Alternatively, the chief presiding officer may give notice to the public by paid publication in a news medium likely to give notice in the jurisdictional area the body serves. 63 Op. Att’y Gen. 509, 510-11 (1974). If the presiding officer gives notice in this manner, he or she must ensure that the notice is actually published. Meeting notices may also be posted at a governmental body’s website as a supplement to other public notices, but web posting should not be used as a substitute for other methods of notice. Peck Correspondence, April 17, 2006. Nothing in the open meetings law prevents a governmental body from determining that multiple notice methods are necessary to provide adequate public notice of the body’s meetings. Skindrud Correspondence, March 12, 2009. If a meeting notice is posted on a governmental body’s website, amendments to the notice should also be posted. Eckert Correspondence, July 25, 2007.
However, the open meetings law also "does not apply where it conflicts with a rule of the Legislature, senate or assembly."
Wisconsin's Senate Chief Clerk Rob Marchant, who "provides non-partisan advice" to the Senate on parliamentary procedures, processing of legislation and legal issues, says the vote "appears" to be in compliance with the "requirements of the rules and statutes."
Here is Marchant's statement:
There was some discussion today about the notice provided for the legislature's conference committee. In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board. Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legisaltive offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes.
Senate Rule 93(2) governs special, extended or extraordinary sessions" and provides:
(2) No notice of hearing before a committee shall be required other than posting on the legislative bulletin board, and no bulletin of committee hearings shall be published.
Rule 93 essentially swallows up the right of the public to have notice to implement their right to attend government meetings. It is unclear where this legislative bulletin board is located. If it is inside the state Capitol building, then how does the public get actual notice when access has been restricted to the state Capitol building. Clearly, posting on a legislative bulletin board did not provide actual notice given the confusion today over whether any notice had been provided before the committee meeting.
It is also noteworthy that Marchant's opinion was a bit equivocal as he stated that the "notice appears to have satisfied the requirements of the rules and statutes." Thus, an investigation could answer these and other questions. The stakes are high and if an enforcement action is filed, a court could "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." A court may also provide "any other appropriate legal or equitable relief, including declaratory and injunctive relief. Wis. Stat. § 19.97(2)."
Enforcement of violations of the open meeting law can include citizen action. The Attorney General and district attorneys have authority to enforce the law. "A district attorney has authority to enforce the open meetings law only after an individual files a verified open meetings law complaint with the district attorney." A citizen may file a private enforcement action: If the "district attorney refuses to commence an open meetings law enforcement action or otherwise fails to act within twenty days of receiving a complaint, the individual who filed the complaint has a right to bring an action, in the name of the state, to enforce the open meetings law." The court may also provide attorney fees to the private parties "where such an award will provide an incentive to other private parties to similarly vindicate the public’s rights to open government and will deter governmental bodies from skirting the open meetings law."
We might have some citizens willing to participate in an enforcement action:
Outside the Assembly chamber, House Minority Leader Peter Barca allowed protesters to fill out forms listing themselves as witnesses to a violation of the state's open meetings laws stemming from the Republicans' earlier conference committee meeting.
