New Reasonableness Standard Applies to Public Notices of Governmental Meetings
Wisconsin’s Open Meetings Law, which applies to meetings of certain state and local governmental bodies, recognizes the importance of having a public informed about governmental affairs. The law declares that the public is entitled to the fullest and most complete information regarding the affairs of the government as is compatible with the conduct of governmental business. To comply with the law, governmental bodies must provide public notice of their meetings, including the time, date, place and subject matter of the meeting, including the subject matter intended for consideration at any closed session during the meeting.
The current version of the Open Meetings Law has been around for 30 years without any interpretation by the Wisconsin Supreme Court concerning the degree of specificity required in identifying the subject matter of a meeting in order to comply with the law’s notice requirements. On June 13, 2007, the Wisconsin Supreme Court answered the question, overruling case law decided by the Wisconsin Court of Appeals, and setting a new reasonableness standard for evaluating the sufficiency of notices required under the law. Governmental bodies, including public sector employers, should take a close look at what the Court has to say. Going forward, there are some new factors that must be considered in determining how specific notice of their meetings must be in order to comply with the law.
The Challenged Notices
In June of 2004, the Tomah Board of Education (Board) held two meetings regarding a new master collective bargaining agreement between the Tomah Education Association (TEA) and the Tomah Area School District (District). The new agreement contained a provision giving priority to TEA members over other candidates for athletic coaching positions. None of the previous TEA master agreements contained a procedure for hiring athletic coaches.
Prior to the first meeting, sixteen community members, including Brian Buswell, sent a letter to the Board regarding the District’s policy for hiring coaches. The letter expressed concern about the possibility that the Board would adopt a new hiring policy for coaches and specifically objected to including a policy in the new TEA agreement.
On June 1, 2004, the Board held a special meeting in closed session to discuss the new collective bargaining agreement. The Board issued a public notice of the agenda for the meeting which stated: “Contemplated closed session for consideration and/or action concerning employment/negotiations with District personnel pursuant to Wis. Stat. Â§ 19.85(1)(c)”. During the closed session the Board tentatively approved the TEA agreement, including the preferential hiring procedure for coaches.
On June 15, 2004, the Board held a regular meeting. The public notice preceding the meeting stated: “New Business – Consideration and/or Action on the Following: TEA Employee Contract Approval”. During the open session of the June 15 meeting the Board officially ratified the TEA master agreement.
Buswell filed a lawsuit against the District claiming that the District violated the Wisconsin Open Meetings Law by failing to give adequate notice that the Board would consider the TEA master agreement at the June 1 meeting, that the Board would consider the new hiring procedure for coaches outlined in the agreement at the June 1 meeting, and that the Board would consider ratification of the new hiring procedure for coaches at the June 15 meeting. The District was successful in the first two court actions. Buswell ultimately requested the Wisconsin Supreme Court to review the case.
The Court Sets a New Reasonableness Standard
The statute section governing notice under the Open Meetings Law instructs that notice must be given in a form “reasonably likely to apprise members of the public and the news media”. According to the Wisconsin Court of Appeals in previous cases interpreting this statutory instruction, identifying the general topic of items to be discussed was sufficient to satisfy the statutory notice requirement.
The Wisconsin Supreme Court characterized the Court of Appeals’ interpretation as a bright-line rule that elevates a very general provision into a “one-size-fits-all” provision. The Court viewed the rule as contrary to the statute’s language and the policies underlying the Open Meetings Law. Overruling the Court of Appeals bright-line rule, the Supreme Court adopted a reasonableness approach, according to which notice must be reasonably specific under the circumstances.
The Court explained that its reasonableness approach involves a balancing of factors on a case-by-case basis so that whether notice of a meeting’s subject matter is sufficiently specific will depend upon what is reasonable under the circumstances. The Court set forth the following three factors:
- The burden of providing more detailed notice;
- Whether the subject is of particular public interest; and
- Whether the subject involves non-routine action that the public would be unlikely to anticipate.
The first factor, the burden of providing more detailed notice, is intended to balance the policy of providing greater information with the requirement that providing such information be compatible with the conduct of governmental affairs. In determining the burden question, the Court suggested consideration of the time and effort involved in assessing what information should be provided in the notice and the inherent limitations of citizen boards, such as time constraints and the difficulty of anticipating the numerous situations that may call into question the parameters of the Open Meetings Law. The Court advised the crucial point is that demands of specificity should not thwart the efficient administration of governmental business.
Specific to the second factor, the Court was persuaded that particular public interest in the subject matter of a meeting may require greater specificity in the meeting notice. According to the Court, particular public interest may be a matter of both the number of people interested and the intensity of the interest. Again, the Court reiterated that the second factor must be balanced with the other factors on a case-by-case basis, stating that the level of interest in and of itself is not the deciding factor.
The third factor, whether the subject of the meeting is routine or novel, is also a consideration in deciding the level of specificity of the notice. The Court explained that when the subject of a meeting recurs regularly, there may be less need for specificity because members of the public are more likely to anticipate that it will be addressed. Novel issues may require more specific notice because they are more likely to catch the public unaware.
The Court also advised that whether the notice is sufficient is gauged on what is known at the time the notice of the meeting is created. The determination is based on what information is available to the individual noticing the meeting at the time notice is provided, and based on what it would be reasonable for the individual to know at that time.
The New Standard Applied
Applying the reasonableness standard, the Court determined that the notice for the June 1 meeting was not sufficiently specific to be “reasonably likely to apprise members of the public” of the subject matter of the meeting. The Court described the notice, referencing employment/negotiations with District personnel pursuant to Wis. Stat. Â§ 19.85(1)(c), as vague and misleading. First, the meeting could cover negotiations with any group of District personnel or with any individual employee within the District. Second, it referenced the statutory section that allows closed sessions related to individual employees, not the section for considering collective bargaining agreements.
Examining the circumstances of the case according to the three factors, the Court, with two justices writing separately, concluded that the notice for the June 1 meeting required greater specificity. Under the first factor, the Court decided that stating that the TEA master agreement would be discussed at the June 1 meeting would not burden the Board. It would require only a few words; the same words that were used in the notice for June 15 meeting. Under the second factor, the Court noted that public interest had been demonstrated by a number of people in the community who had communicated with the Board about whether a hiring provision for coaches should be included in the TEA agreement. Under the third factor, the Court concluded that the TEA master agreement was not a routine subject as far as it contained a hiring provision for coaches to which a number of community members objected.
The Court determined that the notice should have mentioned the TEA master agreement but didn’t go so far as requiring the June 1 notice to state that the Board would act on the new hiring provision contained in the master agreement. The Court applied the three factors, relying primarily on the first factor, in rejecting the argument that the hiring provision should be specifically mentioned in the notice. The Court admitted that both the second and third factors weighed in favor of requiring the notice to include a reference to the hiring provision. Nevertheless, the Court determined that the burden of providing notice of particular provisions of a collective bargaining agreement is great enough that requiring that type of information in a notice is unreasonable under the circumstances. Acknowledging that master agreements can be complex and contain any number of provisions, the Court reasoned that requiring governmental bodies to list each and every provision would consume a disproportionate amount of their limited time and require a significant effort. On the other hand, requiring public notice listing which individual provisions of a collective bargaining agreement will be discussed in closed session may undermine the bodies’ bargaining positions.
The Court rejected Buswell’s argument that the June 15 notice was insufficient. The notice listed “TEA Employee Contract Approval” so that members of the public could determine that the TEA agreement would be discussed. As explained with respect to the June 1 notice, the Court determined that the June 15 notice need not specify the new hiring provision within the contract as part of the notice. The Court mentioned that including a reference to the new hiring would have been beneficial based on the level of public interest expressed but the Court declined to mandate that kind of specificity in this case.
In conclusion, the Supreme Court determined that its new rule, being a departure from the bright-line rule previously announced by the Court of Appeals, should be applied only prospectively. The Court announced that the reasonableness rule would apply to this case and to cases challenging future notices. According to the Court, prospective application will reduce the burden on governmental bodies and avoid hardships that result from a change in the law. Applying the rule to this case was also warranted because Buswell acted on behalf of the State to vindicate his and others’ right to open government, and applying the rule will serve as incentive for others to act similarly and deter future misconduct. As further incentive, the Court applied the statutory fee-shifting provision that applies when individuals act on behalf of the State for enforcement of the Open Meetings Law and ordered that Buswell’s attorney fees and costs be paid. State of Wisconsin ex rel. Buswell v. Tomah Area School District, 2007 WI 71.
What Does the Future Hold?
The Supreme Court’s new reasonableness standard will mean taking a closer look at the circumstances surrounding the subject matter to be discussed at open meetings, including closed sessions of open meetings, to determine the degree of specificity necessary in the public notice of the meeting. For most governmental bodies, this will also likely mean beefing up public notices to be more specific about the subject matter of the meeting, even for closed sessions for the purpose of discussing employment-related matters. Because the new standard applies on a case-by-case basis, making the determination of the specificity required dependent on the circumstances of each situation, we might also expect more court litigation as governmental bodies struggle to adapt to and learn just “how specific is specific” under the new standard.
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