Q. Did the Hudson School Board violate the Open Meetings Law?

A. The presumption of the law is that a violation occurred.

A citizen posed a question during the February 14, 2006 meeting of the Hudson Board of Education. During agenda item 10b “2006 State Education Convention Highlights”, he asked how all seven school board members and the superintendent could have attended the annual meeting of the Wisconsin Association of School Boards without committing a violation of the Wisconsin Open Meetings law.

First, let’s look at some background information that might be helpful in understanding this question. Most Wisconsin taxpayers are aware that we have many layers of government in our state. Each layer has its own political lobbying organization. The League of Municipalities represents over 99% of the cities and villages in Wisconsin. The Wisconsin Towns Association, Wisconsin Counties Association and the Wisconsin School Boards Association each represent over 99% of their respective governments. These groups expend taxpayer dollars lobbying for and against legislative proposals in Madison. Often they are united in their opposition to taxpayer friendly proposals such as the Taxpayer Bill of Rights. Each group holds an annual convention at which elected officials and administrators gather to exchange ideas. The WASB held the “State Education Convention” in Milwaukee, January 18-20, 2006.

Second, let’s review the Wisconsin Open Meetings Law. An attorney for the League of Wisconsin Municipalities, Curt Witynski, did an excellent comprehensive review of this law available online at http://www.lwm-info.org/legal/faq/faq10.html. The Wisconsin Department of Justice publishes a compliance guide (pdf version / web version) for the open meetings law.

The Wisconsin Supreme Court held in the Showers case that the Open Meetings Law applies whenever a gathering of members of the school board meets two requirements: (1) There is a purpose to engage in governmental business and (2) a quorum is present.

The governmental purpose may be discussion, decision or information gathering. In State ex rel. Badke v. Village Board of the Village of Greendale, the Wisconsin Supreme Court stressed that a governmental body is engaged in governmental business when its members gather to simply hear information on a matter within the body's realm of authority. The members need not actually discuss the matter or otherwise interact with one another to be engaged in governmental business.

The exemption that allows a quorum to attend gatherings unrelated to their governmental function is found in Paulton v. Volkmann, a case in which board members attended a meeting unrelated to school issues. The Court found they had not engaged in school board business because they did not receive information or otherwise exercise board duties.

Third, governmental bodies in Wisconsin routinely publish “Badke notices” informing the public that a quorum of the board MAY be present in the audience of gathering which COULD constitute a meeting under the Open Meetings law. To see how common this is try a Google search using “Badke v Greendale”. The City of Hudson publishes such notices to prevent violation of the Open Meetings Law during attendance by alderpersons at meetings where subjects under the City Council’s authority are likely to be discussed. In fact these notices tend to be overused, which led LWM attorneys to caution that they should only be published when “the chair of the governing body or clerk has been informed or otherwise has reason to believe that governing body members will likely be attending the meeting”.

Fourth, the law presumes that a meeting took place whenever a quorum of the board was present. The burden of proof falls on the members to prove that their activities didn’t constitute a meeting under the first part of the Showers analysis. The Department of Justice explains that if 3 board members travel together to a meeting, no meeting is presumed to have taken place without evidence to prove otherwise. If four board members travel or attend a meeting together, the burden of proof instead falls on the members. An open meetings law violation is presumed to have taken place unless the members can prove otherwise. See DOJ Guide, Section II, B, 7.

The WASB meeting fits the Badke v. Greendale definition of a gathering “to simply hear information on a matter within the body's realm of authority”. If not, and the meeting didn’t provide information on matters within the board’s authority, then board members and administrators should have attended on their own time and at their own expense.

In the future whenever four or more members of the school board attend the WASB meeting, a Badke v. Greendale notice may be appropriate.

In summary, the WASB meeting seems to be information gathering in nature, which satisfies the first part of the Showers test. A quorum of four members seems to have been present in the audience of one the general sessions of the WASB convention. Photographic evidence exists to support this assumption. If so the second part of the Showers test was also satisfied.

Learn more about the Hudson School Board here: Police action at 6/14/2005 The Big Lie 10/1/2002 Home