Municipal Compliance with the Wisconsin Open Meetings Law

February 11, 2010

On January 25, 2010, the Wisconsin Attorney General issued an Attorney General’s Opinion dealing with the issue of e-mail usage by members of a governmental body. The exact issue was whether or not the particular e-mail usage was in violation of the Wisconsin Open Meetings Law. In that particular case, the City of Racine had created a five member commission for purposes of reviewing loan applications submitted by City residents for property improvements located within the City. Minutes of the meetings indicated that the commission met periodically to take action to confirm or reaffirm the results of certain e-mail votes that the commission members had conducted outside of the regularly scheduled meeting. Evidently loan applications would be distributed to the individual commission members. The individuals would review them and then vote via e-mail as to whether or not to approve the application. The vote was then approved at the subsequent public meeting.

The Attorney General concluded that the process of voting by e-mail constituted a meeting, which was contrary to Wisconsin law. The two basic requirements of the Open Meetings Law are that:

  • The governmental body gives advance notice of the meeting
  • The meeting itself be conducted in open session unless there is a specific exemption for closure

In reviewing Wisconsin case law as well as the statutory provisions, the Attorney General concluded that the e-mail voting by members of the commission in question amounted to the “. . . exercise of the body’s responsibilities, authority, powers or duties, and therefore was the conduct of governmental business.” As such, it was required to be preceded by public notice and an open meeting. However, since the actions occurred via e-mail, there does not appear to be any way that advance public notice could be given or could there be an open session when the vote was being tallied. As a result, the procedure was held to be unlawful.

The Opinion also indicated that the mandates of the Open Meetings Law cannot be avoided “. . . by using an agent or surrogate to poll the members of a governmental body through a series of individual contacts.”

Municipalities are advised to take steps to ensure that e-mail communications between members of the governmental body and/or its staff occur within the proper confines of the Wisconsin Open Meetings Law. If not, danger that such communications could constitute a meeting requiring prior notice and public participation exists.

For more information about "Municipal Compliance with the Wisconsin Open Meetings Law," contact Timothy D. Fenner at tfenner@axley.com or 608.283.6733.