Court of Appeals Narrows Open Meetings Law Exception

March 1, 2007

In State ex rel. Citizens for Responsible Development v. City of Milton, a recent decision interpreting Wisconsin’s open meetings law, the court of appeals created significant ambiguity as to when governmental bodies may deliberate in closed session. There the court ruled that the City of Milton had violated the open meetings law by holding, in closed session, ten meetings related to a proposed ethanol plant and associated real estate acquisition.

In general, Wisconsin’s open meetings law requires that meetings of all state and local governmental bodies be publicly held. An exception exists for governmental bodies that are planning or negotiating transactions involving public funds or property, or where other competitive or bargaining reasons require a closed session. The City of Milton sought unsuccessfully to invoke this exception.

The court first noted that Wisconsin courts had previously ruled that the exception may not be applied in a blanket fashion to allow closed meetings merely by stating that competitive or bargaining issues would be discussed. The court further noted that the governmental body seeking to invoke the exception bears the burden of demonstrating that competitive or bargaining issues require closed sessions.

The court went on to narrowly construe the exception, determining that the legislature intended to limit its use to those situations where a governmental body’s competitive or bargaining reasons leave no other option but to close its meetings to the public. This meant that a request by a private entity, with which a governmental body is negotiating, for closed meetings would not qualify for the exception in the court’s view. Furthermore, the court determined that the exception would not allow a governmental body to close meetings in an attempt to limit competition from other municipalities or private entities.

More specifically, the court determined that the City of Milton’s fear that it would lose the ethanol plant to another municipality if public meetings were held did not present a compelling reason, based on its construction of the exception, to close the meetings. Consistent with this, the court stated that keeping negotiations regarding a purchase of land secret, where the prospective seller was not required to keep the negotiations confidential, did not constitute a compelling justification for the City of Milton to close meetings under the exception.

The court concluded by indicating that portions of meetings that would reveal negotiation strategy could be closed under their interpretation of the statutory exception. That is, where issues relating to the purchase of land or the recruitment of employers are to be discussed, only discrete portions of those meetings, such as discussions relating to the development of a negotiation strategy or the price to offer for a piece of real estate, may be closed to the public.

There are several items to note about this opinion. First, the court, in a footnote, questioned the usefulness of previously issued attorney general opinions. The court declined to address arguments made relating to those attorney general opinions, since in the court’s view, they were unpersuasive non-controlling precedent. This is a significant statement given the fact that most municipalities strictly follow the attorney general’s advice in this area.

Second, the court appeared to give no deference to the governmental body’s interpretation of what constituted a competitive or bargaining reason requiring closed meetings. In fact, the probability that a governmental body might be in the best position to make such a judgment was not even addressed. The court appears to have substituted its judgment for that of the general body.

Finally, as a practical matter, the court provided little guidance for governmental bodies seeking to comply with its ruling. The decision includes only limited examples of the topics or issues that would require closed sessions. For this reason it is important that governmental bodies discuss open meetings law compliance with counsel before going into a closed session.

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For more information about "Court of Appeals Narrows Open Meetings Law Exception," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743 or Lori M. Lubinsky at llubinsky@axley.com or 608.283.6752 or Timothy D. Fenner at tfenner@axley.com or 608.283.6733.