REVIEW of a decision of the Court of Appeals. Rights declared. Reversed and cause remanded.
¶1 ANN WALSH BRADLEY, J. The petitioner, Brian
Buswell, seeks review of an unpublished court of appeals decision affirming a
judgment that dismissed his claims that the Tomah Area School District violated
the public notice requirements of Wisconsin's open meetings law. He asserts that the court of appeals erred
when it concluded that the Tomah Board of Education provided adequate notice
that it would be considering the Tomah Education Association's master contract
at its June 1, 2004, meeting and a new hiring procedure for coaches at both its
June 1 and June 15, 2004, meetings.
¶2 Buswell advances that the notices violated Wis. Stat.
§ 19.84(2) because they were not reasonably likely to apprise members of
the public of the subject matter of the meetings and that the notices are
inconsistent with the policies for the open meetings law as set forth in
Wis. Stat. §§ 19.81(1) and (4).
In essence, Buswell contends that this court should adopt a
reasonableness standard for determining the degree of specificity required in
identifying the subject matter of a meeting in order to comply with the notice
provision of the open meetings law.
¶3 We conclude that the plain meaning of
Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and
that such a standard strikes the proper balance contemplated in
Wis. Stat. §§ 19.81(1) and (4) between the public's right to
information and the government's need to efficiently conduct its business.
Applying that standard, we determine that the June 1 notice was insufficient
under § 19.84(2) and contrary to the policies in §§ 19.81(1) and (4)
because it failed to reasonably apprise members of the public that it would
consider the Tomah Education Association's master contract at that
meeting. We further determine, however,
that the failure to detail the new hiring procedure for coaches contained in
the new master contract renders neither the June 1 nor the June 15 notice
insufficient because it would not be reasonable to require such detail in these
circumstances. Accordingly, we reverse the court of appeals and remand the
cause to the circuit court for further proceedings.
I
¶4 In June 2004, the Tomah Board of Education ("Board")
held two meetings regarding a new master contract between the Tomah Education
Association ("TEA") and the Tomah Area School District ("School
District") for the 2003-04 and 2004-05 school years. Prior to the June meetings, Tomah community
members had expressed concerns over a proposal to include a provision giving
priority to TEA members over other candidates for athletic coaching positions
in the new TEA master contract. The
record reflects that no previous TEA master contract contained a procedure for
hiring athletic coaches.
¶5 Prior to the June 1 meeting, 16 community members, including
Buswell, sent a letter to the Board regarding the School 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 objected to including any such policy in the new TEA contract.
¶6 On June 1, 2004, the School Board held a special meeting in closed
session to discuss the provisions of the new TEA master contract. The Board had issued a public notice of the
agenda which stated:
Contemplated closed session for consideration and/or
action concerning employment/negotiations with District personnel pursuant to
Wis. Stat. § 19.85(1)(c).
¶7 During the June 1 closed session, the Board tentatively approved
the TEA master contract subject to TEA ratification and ratification by the
Board in open session. The new master
contract included the preferential hiring procedure for coaches given to TEA
members over other applicants who were not members of TEA.
¶8 On June 15, 2004, the Board held a regular meeting preceded by a
public notice stating, in relevant part:
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 contract that had
been tentatively approved at the June 1 meeting.
¶9 Buswell filed suit against the School District, alleging it had
violated the open meetings law by failing to: give adequate notice that (1) the
Board would consider the TEA master contract at the June 1 meeting; (2) the
Board would consider the new hiring procedure for coaches contained within that
contract at the June 1 meeting; and (3) the Board would consider ratification
of the new hiring procedure for coaches at the June 15 meeting. The circuit court granted the School
District's motion to dismiss for failure to state a claim, basing its ruling on
the court of appeals decision in State ex rel. H.D. Enter. II, LLC v. City
of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App.
1999). The court of appeals affirmed the
circuit court, concluding that notice of the meeting met the standard under H.D.
Enterprises. Buswell v. Tomah
Area School Dist., No. 2005AP2998, unpublished slip op., ¶7 (Wis. Ct. App.
July 6, 2006). Buswell petitioned for
review.
II
¶10 This case comes to the court on review of a motion to dismiss for
failure to state a claim. In such a
posture, a reviewing court takes as true the facts alleged in the
complaint. Methodist Manor of
Waukesha, Inc. v. Martin, 2002 WI App 130, ¶2, 255 Wis. 2d 707, 647
N.W.2d 409.
¶11 Our focus here is on the interpretation of Wisconsin's open
meetings statutes. We must discern
whether the notices provided for the two meetings complied with the open
meetings law. The interpretation of a
statute presents questions of law that we review independently of the
determinations rendered by the circuit court and court of appeals. Haferman v. St. Clare Healthcare Found.,
Inc., 2005 WI 171, ¶15, 286 Wis. 2d 621, 707 N.W.2d 853.
III
¶12 Although the current version of Wisconsin's open meetings law has
been in force for over 30 years, this court has never addressed the issue of
the degree of specificity required in identifying the subject matter of a
meeting in order to comply with the notice provision of the open meetings law.
Buswell contends that the notices provided by the Board for its June 1 and June
15, 2004, meetings were too general and did not comply with
§ 19.84(2). That section provides
in relevant part:
Every public notice of a meeting of a governmental body
shall set forth the time, date, place and subject matter of the meeting,
including that intended for consideration at any contemplated closed session,
in such form as is reasonably likely to apprise members of the public and the
news media thereof. . . .
¶13 With respect to the June 1 meeting, Buswell claims that the notice
was deficient because it did not indicate that the Board would act upon a new
master contract with the TEA, and it did not state that the Board would act
upon the new procedure for hiring coaches within the master contract. He argues that the notice would have had to
mention both the TEA contract and the new hiring provision in order to be
"reasonably likely to apprise members of the public" of the subject
matter of the meeting. With respect to
the June 15 meeting, Buswell claims that the notice was deficient because it
did not state that the Board would act upon the new hiring provision for
coaches.
¶14 Buswell further argues that the failure to indicate that the
meetings would consider the TEA contract and new hiring provision is contrary
to the polices of the open meetings law, as set forth in
Wis. Stat. § 19.81(1) and (4). Section 19.81(1) provides:
In recognition of the fact that a representative
government of the American type is dependent upon an informed electorate, it is
declared to be the policy of this state that the public is entitled to the
fullest and most complete information regarding the affairs of government as is
compatible with the conduct of governmental business.
Section 19.81(4) adds that the
open meetings subchapter "shall be liberally construed to achieve the
purposes set forth in this section . . . ." Buswell maintains that these policies require
more specific notice than that provided in the notices for the June 1 and June
15 meetings. At the heart of Buswell's
argument is his contention that the court of appeals erred in failing to adopt
and apply a reasonableness standard in determining whether the notices complied
with Wisconsin's open meetings law.
¶15 The cornerstone of the court of appeals' analysis is the
interpretation of § 19.84(2) in H.D. Enterprises. It involved a grocery store's application for
a liquor license from the city of Stoughton.
The city published notice of a council meeting at which it would
consider the application. The published
agenda for the meeting indicated that the council would discuss the application
by listing the item as "licenses."
At the meeting, the council denied the license. 230 Wis. 2d at
482. The council, however, reconsidered
the denial at a second meeting. The
notice for the second meeting also listed the item as "licenses." At
the second meeting, the council granted the license. Id.
¶16 The plaintiff filed a lawsuit alleging that the city had violated
§ 19.84(2). It argued that merely
listing an agenda item as "licenses" does not provide specific enough
information to reasonably apprise members of the public of the subject matter
of the meeting, which was the reconsideration of the denial of the grocery
store's application for a liquor license.
Id. at 485. The court of
appeals disagreed with the plaintiff. It
determined that the word "licenses" sufficed to apprise members of
the public of the subject matter of the meeting, and that the statute does not
require "that the subject matter of a meeting be explained with any more
specificity." Id. at
486. Rather, it adopted a bright-line
rule that "the general topic of items to be discussed is sufficient to
satisfy the statute." Id. at
487.
¶17 In the present case, the court of appeals determined that H.D.
Enterprises compelled the conclusion that the notices were sufficient. Because the terms in the Board's
notices——"employment/negotiations" and "TEA Employment Contract
Approval"——are no more general than "licenses," the court of
appeals reasoned that the Board provided sufficient subject matter notice for
its June 1 and June 15 meetings. Buswell,
unpublished slip op., ¶7.
¶18 The court of appeals further indicated that it was required to
follow H.D. Enterprises, but was sympathetic to Buswell's argument. It stated that "[w]hile we are
sympathetic to Buswell's policy argument, and might have decided the issue
differently prior to [H.D. Enterprises], we do not write on a clean
slate." Id., ¶6. Instead, it noted that any arguments for
changing the standard established in H.D. Enterprises must be directed
to this court.
¶19 The School District maintains that very general terms such as
"employment/negotiations" and "TEA Employment Contract
Renewal" provided sufficient notice for the meetings. At oral argument the School District contended
that under the H.D. Enterprises bright-line rule, even broader language,
such as "District personnel," would have provided sufficiently
specific notice. We, however, disagree
that such a broad heading is per se "reasonably likely to apprise members
of the public" that the subject of the meeting is a new master contract
for teachers.
¶20 The court of appeals' and the School District's interpretation of H.D.
Enterprises elevates a very general provision into a one-size-fits-all
provision. Under their approach, a meeting is not required to have notice with
any more specificity than a very general provision such as
"licenses."
¶21 Allowing such broad language as "licenses" to constitute
sufficient notice as a matter of law is contrary to the plain language of
§ 19.84(2) and the policies of the open meetings law set out in
§§ 19.81(1) and (4). We therefore
reevaluate the approach of H.D. Enterprises. Rather than taking a bright-line approach,
where any notice that is no more general than "licenses" is
sufficient, we adopt a reasonableness approach, according to which notice must
be reasonably specific under the circumstances. It is our view that such a reasonableness
standard is required by the plain language and policies of the open meetings
law.
¶22 To begin, the plain language of § 19.84(2) is not amenable to
a bright-line rule. That section
requires that public notice be "reasonably likely to apprise
members of the public" (emphasis added).
The use of the word "reasonably" suggests a balancing of
factors. Such a balancing requires a
case-specific analysis. In other words,
whether notice is sufficiently specific will depend upon what is reasonable
under the circumstances.
¶23 We find support for this determination in the reasoning of State
ex rel. Badke v. Vill. Bd. of the Vill. of Greendale, 173
Wis. 2d 553, 494 N.W.2d 408 (1993). In Badke, a village board meeting
regarding a controversial special use permit was held at a facility that was
not quite large enough to accommodate the approximately 70 people who
attended. Twenty people could enter only
a foyer in the building, not the main meeting hall, and up to three people were
denied entrance altogether. Some
attendees testified that they could not adequately hear the proceedings from
their spot in the foyer. Id. at
563.
¶24 The plaintiffs in Badke contended that because some citizens
could not gain entrance and others could not hear what was said at the meeting,
the meeting violated the requirement that meetings be "held in places
reasonably accessible to members of the public and shall be open to all
citizens at all times . . . ." Wis. Stat. § 19.81(2). This court determined that the words
"reasonably accessible" suggests that "open to all citizens at
all times" does not require absolute accessibility. Rather, it held that
"reasonably" implies that reviewing courts must evaluate on a
case-by-case basis in determining whether meetings are sufficiently
accessible. Id. at 580. We determine that the word
"reasonably" has similar effect in § 19.84(2).
¶25 The proposition that a statement of the general topic of a meeting
should per se constitute sufficient notice runs contrary to the policies
articulated in § 19.81(1). That
section states that the "public is entitled to the fullest and most
complete information regarding the affairs of government as is compatible with
the conduct of governmental business."
Such information extends to public notice of meetings under
§ 19.84(2). Badke, 173
Wis. 2d at 577-78.
¶26 We note, too, that § 19.81(1) states that the open meetings
law is based on the premise that "representative government [depends] upon
an informed electorate." We observe
that government functions best when it is open and when people have information
about its operations. It is not,
however, merely a matter of enhancing the functions of government. Rather, the
government must be accountable to the governed.
It must be accountable to the people who underwrite government finances
and provide its legitimacy. Having
access to information about the workings of government undercuts arguments of
subterfuge and ultimately promotes public trust and confidence. Moreover, as
this court determined in Badke, the notice requirement gives the public
information about the business to be conducted that will alert them to the importance
of the meeting, so that they can make an informed decision whether to attend. Badke, 173 Wis. 2d at 573-74
and 577-78.
¶27 Thus, the language of § 19.84(2) and the policies underlying the
open meetings law do not abide a bright-line rule where the general topic of a
meeting constitutes sufficient subject matter notice as a matter of law. Rather, they demand a reasonableness standard
according to which notice must be reasonably specific under the circumstances
of the case. Because the reasonableness
standard is at odds with the application of a bright-line rule, we therefore
overrule H.D Enterprises.
¶28 The reasonableness standard requires taking into account the
circumstances of the case in determining whether notice is sufficient. This includes analyzing such factors as the
burden of providing more detailed notice, whether the subject is of particular
public interest, and whether it involves non-routine action that the public
would be unlikely to anticipate. See
H.D. Enter., 230 Wis. 2d at 490 (Vergeront, J., dissenting).
¶29 The first factor, the burden of providing more specific information
on the body noticing the meeting derives from § 19.81(1). It balances the policy of providing greater
information with the requirement that providing such information be
"compatible with the conduct of governmental affairs."
Wis. Stat. § 19.81(1). Whether more detailed notice is
compatible with the conduct of governmental affairs is determined on a
case-by-case basis. Such a determination
may include, but is not limited to, the time and effort involved in assessing
what information should be provided in a notice and the inherent limitations of
citizen boards. In Badke, this
court aptly described the demands on public officials:
In Wisconsin, there are many parttime citizen boards
that work long hours for relatively little or no pay. These boards' real
compensation comes from the satisfaction of public service. It is very difficult for these boards to
anticipate the myriad of situations that may call into question the parameters
of the open meeting law. We recognize
that most public officials diligently try to abide by the
law . . . .
173 Wis. 2d at
570. The crucial point is that the
demands of specificity should not thwart the efficient administration of
governmental business.
¶30 In considering the second factor, we are persuaded that particular
public interest in the subject matter of a meeting may require greater
specificity in the hearing notice. Particular public interest may be a matter
of both the number of people interested and the intensity of that
interest. The level of interest, in and
of itself, however, is not dispositive. Rather, it must be balanced with other
factors on a case-by-case basis.
¶31 Third, the degree of specificity of notice may depend on whether
the subject of the meeting is routine or novel.
Where 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. However,
novel issues are more likely to catch the public unaware. Novel issues may therefore require more
specific notice.
¶32 The determination of whether notice is sufficient should be based
upon what information is available to the officer noticing the meeting at the
time notice is provided, and based upon what it would be reasonable for the
officer to know. Thus, whether there is
particular public interest in the subject of a meeting or whether a specific
issue within the subject of the meeting will be covered, and how that affects
the specificity required, cannot be determined from the standpoint of when the
meeting actually takes place. Rather, it
must be gauged from the standpoint of when the meeting is noticed.
¶33 The School District raises several objections to the adoption of a
reasonableness standard in determining whether a notice complies with
Wisconsin's open meetings laws. None is
persuasive. First, quoting H.D.
Enterprises, it asserts that a case-by-case analysis would "burden
municipalities with an obligation to detail every issue that will be discussed
under every agenda item during meetings when that is not mandated by
statute." H.D. Enterprises,
230 Wis. 2d at 487. A notice
must reasonably apprise members of the public of the subject matter of a
meeting under the circumstances. A reasonableness
standard will not require that every issue on every agenda always be enumerated
because such a requirement would be unreasonable. Rather, general subject
headings may suffice in cases where a general heading reasonably apprises
members of the public of the subject matter of the meeting. In other cases, reasonably apprising members
of the public may require greater specificity.
¶34 Second, the School District argues that a reasonableness standard
would inappropriately constrain discussion at meetings of governmental bodies
because their deliberations would be limited to the noticed narrow topics. We disagree.
Under a reasonableness standard, meeting participants would be free to
discuss any aspect of the noticed subject matter, as well as issues that are
reasonably related to it. It is true that a meeting cannot address topics
unrelated to the information in the notice.
However, that is because the notice requirement functions to assure that
members of the public are reasonably apprised of what is discussed at such
meetings. The objection that other
topics may not be freely addressed is therefore not an objection to a
reasonableness standard, but to the notice requirement itself.
¶35 Third, the School District argues that a reasonableness standard
would impose an unacceptable burden on governmental bodies to predict and gauge
public interest in every item on a meeting's agenda. While it is correct that a reasonableness
standard will at times require that bodies anticipate and account for public
interest when noticing meetings, it will not impose a per se requirement to
predict and gauge public interest on each subject at every meeting. Where predicting and gauging public interest
imposes an unreasonable burden, the bodies will not be required to do so.
¶36 Applying the reasonableness standard, we determine that the notice
for the June 1 hearing was not sufficiently specific to be "reasonably
likely to apprise members of the public" of the subject matter of the
meeting. The June 1 notice stated:
"Contemplated closed session for consideration and/or action concerning
employment/negotiations with District personnel pursuant to Wis. Stat. § 19.85(1)(c)."
This description is vague, for it could cover negotiations with any group of
district personnel or with any individual employee within the district.
¶37 Moreover, the June 1 notice was misleading. It stated that the closed session was
pursuant to Wis. Stat. § 19.85(1)(c). That section provides for closed sessions for
considering matters related to individual employees, not for considering
collective bargaining agreements. As the School District conceded at oral
argument, the appropriate statute to cite would have been § 19.85(1)(e). Because the notice was vague and misleading,
it was not "reasonably likely to apprise members of the public" of
the subject matter of the meeting——in this case the TEA master contract.
¶38 Examining the circumstances of this case, we determine that those
factors support the conclusion that the June 1 notice required greater
specificity. First, and most
importantly, stating that the TEA master contract would be discussed at the
June 1 meeting would not be a burden to the Board. It requires only a few
words. Further, the notice for the June
15 meeting actually listed the TEA master contract on the agenda, and there is
no contention that listing it there was a burden.
¶39 Second, the TEA master contract included a new hiring provision for
coaches that was of interest to a number of people in the community. Several citizens had made the effort to
petition the Board regarding whether to put a provision for hiring coaches into
the master contract.
¶40 Third, the TEA master contract was not a routine subject insofar as
it contained a new hiring provision for coaches to which a number of members of
the community objected. This suggests that the notice should have mentioned the
TEA master contract.
¶41 Thus, analyzing the circumstances of the case, we conclude that the
Board did not provide sufficient notice for the June 1 meeting. The notice was vague and misleading. Under the circumstances, it was not
sufficiently specific to be "reasonably likely to apprise members of the
public" that the meeting concerned the TEA master contract.
¶42 Although we determine that the notice for the June 1 meeting
required greater specificity than it provided as to the TEA master contract, we
do not agree with Buswell's contention that the notice violated § 19.84(2)
by failing to state that the Board would act upon the new hiring provision for
coaches set forth within the master contract.
Again, we apply the factors to the circumstances of the case to
determine whether providing the more specific information would be reasonable.
¶43 The first of the factors, the burden of providing greater
information, weighs against requiring that the notice for the June 1 meeting
state that the Board would address the hiring provision. Admittedly, the second and third factors
weigh in favor of requiring that the notice state that the Board would address
the hiring provision. There was
particular public interest in the hiring provision, and the hiring provision
within the contract was novel. However,
we determine that the burden of providing notice of particular provisions of
collective bargaining contracts is great enough that requiring that information
would be unreasonable under the circumstances.
¶44 Master contracts may be complex and contain any number of provisions. Requiring that school boards, or other
similarly situated bodies, anticipate and list all of those provisions in a
public notice would likely consume a disproportionate amount of their limited
time and may require a significant effort.
Moreover, as the School District argues, requiring that public notice
list which individual provisions of collective bargaining agreements will be
discussed in closed session could serve to undermine governmental bodies'
bargaining positions, which would place a substantial burden on them. Thus, considering the balance of factors, we
determine that the burden of including a particular contract provision in its
notice for the June 1 meeting is substantial enough that it is not required
under § 19.84(2).
¶45 We also reject Buswell's argument that the notice for the June 15
meeting was insufficient. Unlike the
notice for the June 1 meeting, the notice for the June 15 meeting listed
"TEA Employee Contract Approval."
Thus, a member of the public could determine that the TEA master
contract would be discussed by reading the notice. As with the notice for the June 1 meeting,
the notice for the June 15 meeting need not have specified that the new hiring
provision for coaches would be part of the TEA contract. The burden of specifying particular
provisions in a multifaceted contract would be too great. We acknowledge that given the level of
interest in the subject matter, it may have been beneficial to list the new
hiring provision that was contained in the TEA master contract. However, we do not mandate such specificity
here.
IV
¶46 As discussed above, whether a public notice is sufficient under
open meetings law is determined by applying a reasonableness standard and
analyzing the specifics of the case.
This is a departure from the bright-line rule announced in H.D.
Enterprises, according to which a notice stating only the general topic to
be discussed at the meeting is sufficient.
230 Wis. 2d at 486-87.
Ordinarily, this court adheres to the doctrine that a decision which
overrules an earlier decision is retrospective in operation. State v. Picotte, 2003 WI 42, ¶42, 261
Wis. 2d 249, 661 N.W.2d 381 (citing Harmann v. Hadley,
128 Wis. 2d 371, 377, 382 N.W.2d 673 (1986)). Yet, retroactive application of a new rule
can be unsettling because of justifiable reliance on a contrary view of the
law. This court will therefore on
occasion prospectively overrule past precedent to limit such unsettling
effect. Harmann, 128
Wis. 2d at 378.
¶47 Three factors inform the inquiry of whether our judicial
determination should have retroactive versus prospective application. Wenke v. Gehl Co., 2004 WI 103,
¶70-71, 274 Wis. 2d 220, 682 N.W.2d 405. Those three factors are: (1) whether the decision
establishes a new principle of law, either by overruling clear past precedent
on which litigants may have relied, or by deciding an issue of first impression
whose resolution was not clearly foreshadowed; (2) whether retroactive
application would further or retard the operation of the new rule; and (3)
whether retroactive application could produce substantial inequitable
results. Id. at ¶71.
¶48 Applying these factors here, we reach the conclusion that the
application of the reasonableness standard should be given only prospective
effect. First, our decision establishes
a standard that is a departure from past precedent. Second, retroactive application would not
further the operation of the new rule. The public cannot go back and attend meetings
that may have been inadequately noticed when such meetings have already
occurred. Third, and most importantly,
retroactive application of the reasonableness standard may produce substantial
inequitable results. It could jeopardize
the legitimacy of past actions taken at all levels of government.
¶49 In order to reduce the burden on governmental bodies and mitigate
any hardships that result from a change in the law, we will apply the rule
announced here only to this case and to cases challenging future notices. Thus, any challenge to the specificity of the
subject matter of a public notice under Wis. Stat. § 19.84(2)
that was issued prior to the date this opinion is mandated will be examined
under the requirements of H.D. Enterprises. We apply the new rule to this case because
Buswell has acted as a relator on behalf of the state, pursuant to
Wis. Stat. § 19.97(3). As
such, he has worked to vindicate his and others' right to open government. State ex rel. Hodge v. Town of Turtle Lake,
180 Wis. 2d 62, 78, 508 N.W.2d 603 (1993). Applying the new rule in such a case may
serve as an incentive for others to act similarly and to deter future
misconduct.
V
¶50 Having determined that the June 1 notice was insufficient, and that
we will apply the reasonableness standard in this case, we turn to the question
of remedy. In his amended complaint,
Buswell requests voiding the hiring provision for coaches in the master contract
adopted in the June meetings, forfeitures against any member of the board who
knowingly attended a meeting violating the open meetings law, and reasonable
attorney fees.
¶51 Voiding a contract provision is not an available remedy here. The court was advised that the master
contract that adopted the hiring provision has expired. The argument that a provision in an expired
master contract can be voided appears incongruous.
¶52 Similarly, forfeitures are not available as a remedy in this
case. Section 19.96 provides for
forfeitures by "[a]ny member of a governmental body who knowingly attends
a meeting of such body held in violation" of the open meetings law. Our
decision overrules the bright-line rule of H.D. Enterprises and
establishes a reasonableness standard in its place. Members of governmental bodies who complied
with the law as it then existed cannot be sanctioned for a violation based on
an interpretation first announced today.
¶53 With respect to attorney fees, Wis. Stat. § 19.97(4)
provides that a person bringing an action as relator on behalf of the state (as
is the case here) for enforcement of the open meetings law may receive costs
and attorney fees:
In such actions [i.e., where a person brings a case as
a relator], the court may award actual and necessary costs of prosecution,
including reasonable attorney fees to the relator if he or she
prevails . . . .
¶54 Section 19.81(4) requires that the provisions of the open
meetings law be liberally construed to advance the law's purposes. This court has interpreted that requirement
to merit awarding attorney fees to the prevailing relator where doing so
advances the purposes of the open meetings law.
Hodge v. Town of Turtle Lake, 180 Wis. 2d at 78. Such is the case here. Awarding attorney fees
to Buswell will provide an incentive to others to protect the public's right to
open meetings and to deter governmental bodies from skirting the open meetings
law. Accordingly, we remand the case to the circuit court to determine the
appropriate award.
VI
¶55 In sum, we adopt a reasonableness standard for determining the
degree of specificity required in identifying the subject matter of a meeting
in order to comply with the notice provision of the open meetings law. We conclude that the plain meaning of
Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and
that such a standard strikes the proper balance contemplated in
Wis. Stat. §§ 19.81(1) and (4) between the public's right to
information and the government's need to efficiently conduct its business. Applying that standard, we determine that the
June 1 notice was insufficient under § 19.84(2) and contrary to the
policies in §§ 19.81(1) and (4) because it failed to reasonably apprise
the public that it would consider the TEA's master contract at that
meeting. We further determine, however,
that the failure to detail the new hiring procedure for coaches contained in
the new master contract renders neither the June 1 nor the June 15 notice
insufficient because it would not be reasonable to require such detail in these
circumstances. Accordingly, we reverse
the court of appeals and remand the cause to the circuit court for further
proceedings.
By the Court.—Rights declared. We reverse the court of appeals and remand
the cause to the circuit court.
¶56 PATIENCE
DRAKE ROGGENSACK, J. (concurring). Because
I conclude that the June 1, 2004 notice of the open meeting was
insufficient to satisfy Wis. Stat. § 19.84(2) (2005-06), I
join the mandate of the court. However,
I write separately because in my view the notice for the June 1 meeting
does not satisfy the requirements of State ex rel. H.D. Enterprises II, LLC
v. City of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999),
in regard to § 19.84(2). I also
write separately because instead of analyzing whether the subject matter of the
notice given for the June 1 meeting is sufficient under H.D.
Enterprises and § 19.84(2), the majority opinion sets up a straw-man,
its "bright line rule," that it says H.D. Enterprises
creates. Majority op., ¶¶16, 19,
22. The majority opinion then proceeds
to overrule H.D. Enterprises by knocking down the straw-man that the
majority opinion created. Majority op.,
¶¶27, 52. In my view, the public would
be better served by additional guidance about compliance with § 19.84(2)
than is given either in H.D. Enterprises or in the majority
opinion. Accordingly, I respectfully
concur.
I. BACKGROUND
¶57 This case arises out of a citizen complaint by Brian Buswell
(Buswell) that the board of the Tomah Area School District (the board) did not
comply with the public notice provisions of Wis. Stat. § 19.84(2), in
regard to a June 1 meeting where both the TEA Employee Contract and the
applicants for the position of high school principal were discussed. Buswell also alleges that the public notice
provisions were violated for a second meeting held on June 15, 2004. He alleges that the "subject
matter" of both meetings was not reasonably described in the respective
notices because they did not give notice that the board would be considering
new hiring procedures for athletic coaches that would give hiring preference to
current TEA members. He also asserts
that the notice for the June 1 meeting was misleading because that notice
included a reference to Wis. Stat. § 19.85(1)(c), as the statutory basis
for conducting part of the meeting in closed session. He asserts, and the City agrees, that § 19.85(1)(c)
is not applicable to discussing the TEA Employee Contract in closed session.
¶58 The board contends that both notices were sufficient. The notice for the June 1 meeting
provided:
Contemplated Closed Session for Consideration and/or
Action Concerning Employment/Negotiations with District Personnel Pursuant to
Wis. Stats. 19.85(1)(c).
The board admits that the
statutory reference in the notice could have been misleading, but it asserts
that State ex rel. Olson v. City of Baraboo Joint Review Board, 2002 WI
App 64, 252 Wis. 2d 628, 643 N.W.2d 796, concludes that incorrect information
in a notice of a public meeting is not fatal to the sufficiency of the
notice. The board also contends that by
noticing that it would consider "TEA Employee Contract Approval" at
the June 15 meeting, it complied with Wis. Stat. § 19.84(2).
¶59 Prior to the June 1 board meeting, the community knew that
there was a proposal for the TEA Employee Contract that would give priority to
current TEA members in regard to hiring for coaching jobs. Majority op., ¶4. The question that is presented for this
review is whether the notice of both meetings reasonably apprised the public
and the news media of the subject matter of those meetings when the hiring of
coaches was not mentioned, and in regard to the June 1 notice, whether,
because the TEA Employee Contract was not mentioned, the notice was misleading
as well.
II. DISCUSSION
A. Standard of Review
¶60 This review requires us to interpret various statutory provisions
and to apply them to the facts presented herein. The interpretation and application of
statutes are questions of law subject to our independent review. Jackson County v. DNR, 2006 WI 96,
¶10, 293 Wis. 2d 497, 717 N.W.2d 713.
B. Wisconsin Stat. § 19.84(2)
¶61 Wisconsin Stat. § 19.84(2) provides in relevant part:
Every public notice of a
meeting of a governmental body shall set forth the time, date, place and
subject matter of the meeting, including that intended for consideration at any
contemplated closed session, in such form as is reasonably likely to apprise
members of the public and the news media thereof.
Buswell does not challenge the
sufficiency of the notice of the time, date or place of the meeting. Rather, he challenges the sufficiency of the
subject matter described in the notice, claiming it is incomplete, misleading
and does not reasonably apprise the public of what the board will discuss.
1. Notice of the
June 1 Meeting
¶62 It is undisputed that the board intended to and did discuss two
topics at the June 1 meeting under one subject matter topic: the TEA Employee Contract and applications
for the position of high school principal.
Therefore, the board was required to give public notice of both, if
there are two different subject matters that were to be discussed during the
meeting.
¶63 "Subject matter" is not defined in Wis. Stat.
§ 19.84 or elsewhere in the statutes that address open meeting
requirements. Black's Law Dictionary
describes "subject matter" as:
The issue presented for consideration; the thing in
which a right or duty has been asserted; the thing in dispute.
Black's Law Dictionary
1466 (8th ed. 2004). This is a broad
inclusive definition, but it gives us little guidance about how much
particularity or in what form one should describe the subject matter that will
be addressed at a meeting of a public body.
¶64 In H.D. Enterprises, the court of appeals addressed
"subject matter" in the context of the Stoughton Common Council's
consideration of Pick 'N Save's application for a liquor license. H.D. Enterprises, 230 Wis. 2d at
482. Pick 'N Save's application had been
published in accord with alcohol licensing requirements found in Wis. Stat.
§ 125.04(3). Id. at
482. The meeting agenda was used by the
common council as public notice that it would consider the liquor license on
January 27. Id. The agenda listed "licenses" as an
agenda topic. Id. This notice was the first of three occasions
on which the liquor license was discussed, before H.D. Enterprises alleged the
City violated its public notice obligation.
Id. The application for a
liquor license was denied after that first common council meeting. Id.
However, H.D. Enterprises did not allege that the notice insufficiently
described the subject matter of the first meeting. Id. at 487.
¶65 At the second meeting, "licenses" again was listed on the
common council's agenda that gave notice of the meeting. Id. at 482. Pick 'N Save's application was granted at
that meeting. Id. H.D. Enterprise had not appeared at the
second meeting, and it objected to the reconsideration of Pick 'N Save's
application. Id. Therefore, approximately six days after the
second meeting, the common council convened a third meeting that H.D.
Enterprises attended and in which the common council considered H.D.
Enterprises' request that it rescind Pick 'N Save's liquor license. Id. at 482-83. The common council refused to do so. Id. at 483. H.D. Enterprises then sued the City of
Stoughton claiming that the term "licenses" was too general a
description of the subject matter of the second meeting to satisfy Wis. Stat.
§ 19.84(2). Id.
¶66 The circuit court concluded the notice was sufficient and H.D.
Enterprises appealed. In concluding that
"licenses" was a sufficient description of the subject matter to
reasonably apprise the public, the court of appeals examined all the
circumstances surrounding consideration of Pick 'N Save's application for a
liquor license. Id. at 483-84 and
487. It noted that the notice for the
common council's first consideration of the matter used "licenses" to
describe the subject matter. Id.
at 487. The court noted that H.D.
Enterprises had appeared at that council meeting and therefore, it had
experience with the City's use of that description. Id.
The court of appeals noted that H.D. Enterprises did not complain about
the lack of notice for the first meeting.
Id. The court of appeals
also balanced the burden to municipalities, which would be caused by detailing
every facet of a subject matter that may be addressed under every agenda item,
with the sufficiency of the notice to the public. Id.
¶67 The court of appeals opinion took guidance from State ex rel.
Schaeve v. Van Lare, 125 Wis. 2d 40, 370 N.W. 271 (Ct. App. 1985), where
Schaeve complained that the description of the subject matter of the meeting
did not have enough particularity to comply with the statute. H.D. Enterprises, 230 Wis. 2d at
486. In Schaeve, it was contended
that the subject matter set out in the notice was insufficient because it said
only that the possible discipline of a public employee would be
considered. Schaeve, 125 Wis. 2d
at 47. The court of appeals concluded
there was "no requirement in the statute that the subject matter of a
meeting must be explained with any more specificity." Id. at 47.
¶68 Contrary to the assertion in the majority opinion, its straw-man,
the "bright-line rule," is nowhere mentioned or "announced"
in H.D. Enterprises. See
majority op., ¶46. Instead, H.D.
Enterprises is based on the facts and circumstances that were relevant to
the license that would be discussed at an upcoming common council meeting, as
it had been in other meetings. H.D.
Enterprises, 230 Wis. 2d at 482-83 and 485.
H.D. Enterprises reasoned that "[s]ection 19.84(2), stats.
requires that a public notice set forth the time, date, place and subject
matter of a meeting in such form as is likely to reasonably apprise members of
the public." Id. at 485. It established no rule that is applicable
without consideration of the relevant facts and circumstances.
¶69 Moving to the case now before the court, upon consideration of the
facts and circumstances of the notice provided by the board of the Tomah Area
School District in regard to the June 1 meeting, I conclude it was
insufficient under H.D. Enterprises's interpretation of Wis. Stat.
§ 19.84(2). I conclude that the
board's notice of the June 1 meeting was insufficient based on three facts
that are present here and for which countervailing facts were present in and
important to the decision in H.D. Enterprises.
¶70 First, two very different topics were addressed under one heading
in the notice for the board's June 1 meeting, e.g., the consideration of
the applicants for the position of high school principal and the provisions for
a new TEA Employee Contract. In H.D.
Enterprises, the liquor license was the subject matter noticed and
discussed at both meetings. Id.
at 487.
¶71 Second, the provisions of the master TEA Employee Contract were
going to be presented at the June 1 meeting, i.e., this was a brand-new
contract for the board to consider. In H.D.
Enterprises, the second notice given was the same as the first. Id. at 487. Because the liquor license was discussed by
the common council under that topic previously, the public and the news media
had experience in the subject matter as described in the notice. Id.
H.D. Enterprises had attended a previous common council meeting that was
noticed in the same form, by using the meeting agenda with the topic
"licenses" as a subject matter.
Id.
¶72 And, third, the notice for the June 1 meeting was misleading
in regard to the TEA Employee Contract because the notice referenced Wis. Stat.
§ 19.85(1)(c) as the basis for the board's taking up the subject matter in
closed session. Section 19.85(1)(c) is
the appropriate cite for the consideration of applicants for the position of
high school principal, but it does not apply to collective bargaining
agreements such as the TEA Employee Contract.
Section 19.85(1)(e) is the section of the statutes that permits a public
body to consider collective bargaining agreements in closed session. By failing to include both § 19.85(1)(c)
and (e) in the notice, the board misled the public about both the subject
matter of the closed meeting and the number of topics that would be
discussed. In H.D. Enterprises,
there was no allegation that the notice was misleading. Accordingly, I conclude that the notice of the
June 1 meeting of the board did not set forth the subject matter in a form
that reasonably apprised the public and the news media that the TEA Employee
Contract would be discussed in the closed session portion of that meeting. Therefore, the notice for the June 1
meeting did not comply with the requirements of Wis. Stat. § 19.84(2), as
interpreted in H.D. Enterprises.
¶73 However, even though I conclude that the notice for the June 1
meeting was not sufficient to satisfy Wis. Stat. § 19.84(2), as
interpreted in H.D. Enterprises, it appears that the guidance given by H.D.
Enterprises is not sufficient to assist in achieving compliance by those
public bodies that are required to give public notice of the subject matter of
meetings. The statute requires that notice of the
subject matter be set out "in such form as is reasonably likely to
apprise" the public and the news media.
I would advise, but not require, that public bodies adopt a standard
format for their meeting agendas. The
entire agenda for the meeting should then be used as the § 19.84(2)
notice. This would give the public and
the news media experience in what issues are apt to be addressed under
recurring topics. I suggest that the
agendas contain subtopics when more than one matter is to be discussed under
one agenda topic. I also recommend
including in the notice a statement that questions about the agenda can be
addressed to a representative of the public body, whose name, phone number and
an appropriate time to call would be listed.
If the public body has described a subject matter in a way that
generates questions or confusion about what is to be discussed, I suggest a
more detailed agenda topic be employed for future meeting agendas. In that way, the public body will learn both
what specificity is required to describe the subject matter of the meeting and
what form best assists the public and the news media in understanding what will
transpire at meetings.
2. Other
Concerns
¶74 I also part company with the majority opinion's use of State ex
rel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553,
494 N.W.2d 408 (1993), as support for its contentions about the specificity
with which the subject matter in a Wis. Stat. § 19.84(2) public notice is
to be given. Majority op., ¶¶23-26. Badke never addresses or refers
to the specificity of the subject matter in a public notice. And this is for good reason. In Badke, there was no notice of
any type given that the village board was going to meet. Badke, 173 Wis. 2d at 569.
¶75 Furthermore, in regard to the specificity with which the subject
matter of a meeting must be described in the notice, the majority opinion
asserts that if the topic is of "particular public interest,"
"greater specificity" may be required in the notice. Majority op., ¶¶29-30. I see no qualifier in Wis. Stat.
§ 19.84(2). The public and the news
media are those to whom reasonable notice is due. In my view, the majority opinion's
requirement is an invitation for additional litigation claiming the notice was
insufficient. For example, how is the
public servant who prepares the notice to know that there is a "particular
public interest?" Will the notice
be insufficient if he or she should have known of a "particular public
interest" but did not? Does he or
she have a duty to learn of a "particular public interest" in the
subject matters that will be considered?
Furthermore, does a member of the public who has an interest in the
subject matter of the meeting but who has never expressed that interest to others
deserve less complete notice?
¶76 I would not venture into these subjective woods. Rather, I conclude that the standard set by
Wis. Stat. § 19.84(2) is an objective standard. Notice is to be reasonable. And, the persons to be noticed are simply the
public, interested or not, and the news media, interested or not.
¶77 And finally, I disagree with the majority opinion's broad assertion
that "[i]t is true that a meeting cannot address topics unrelated to the
information in the notice."
Majority op., ¶34. The majority
opinion cites no authority for this conclusion.
Does the majority opinion mean that the typical agenda item of
"such other matters as may come before the body" can never provide
sufficient notice under Wis. Stat. § 19.84(2) for a matter that
unexpectedly is presented to the board and requires immediate attention? At least one attorney general did not believe
that to be the case. 66 Op. Att'y Gen.
68, 70 (1977). Notice based on the facts
and circumstances of the case affect when the notice given is sufficient to
reasonably apprise the public and the news media.
¶78 Accordingly, for the reasons set forth above, I concur, joining
only the mandate of the majority opinion.
¶79 LOUIS B. BUTLER, JR., J. (concurring
in part, dissenting in part). I join
those portions of the majority opinion which conclude that (a)
Wis. Stat. § 19.84(2) (2003-04)
sets forth a reasonableness standard; (b) such a standard strikes the proper
balance contemplated in Wis. Stat. § 19.81(1) and (4) between
the public's right to information and the government's need to efficiently
conduct its business; (c) applying the reasonableness standard, the June 1,
2004, notice was insufficient under § 19.84(2) and contrary to the
policies in § 19.81(1) and (4) because it failed to reasonably apprise
members of the public that the master contract of the Tomah Education
Association ("TEA") would be considered at that meeting; (d) State
ex rel. H.D. Enterprises II, LLC v. City of Stoughton, 230
Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999), should be overruled;
(e) this decision should be applied prospectively; and (f) this matter should
be remanded to the circuit court to determine the appropriate award as to costs
and attorney fees.
¶80 I write separately because I conclude that the majority fails to
apply the reasonableness standard it adopts in this case to the question of
whether the June 1 posting provided sufficient notice regarding the Tomah Board
of Education's ("Board") consideration of a new hiring
procedure for athletic coaches. Applying
the majority's standard, I conclude that the June 1 notice was insufficient
because it failed to reasonably apprise members of the public that the Board
would be considering a proposal that was a matter of particular interest to the
community, involved a non-routine action that the public was unlikely to
anticipate, and could have easily been included in the notice.
¶81 The facts are accurately set forth in the majority opinion,
and will not be repeated in full here.
Of import is the fact that in June 2004 the Board held two meetings
regarding a new master contract between TEA and the Tomah Area School District
("School District") for the 2003-04 and 2004-05 school years. Prior to those meetings, a number of
community members had expressed concerns over a proposed new procedure for
hiring athletic coaches. No prior TEA master contract contained a
procedure for hiring athletic coaches.
¶82 The public notice issued by the Board setting forth the agenda of
the June 1 meeting stated, in relevant part:
Contemplated Closed Session for Consideration and/or
Action Concerning Employment/Negotiations with District Personnel Pursuant to
Wis. Stats. 19.85(1)(c).
Section 19.85(1)(c) provides
that closed sessions may be convened for considering employment, promotion,
compensation or performance of any public employee. The notice did not contain any information
referencing the TEA master contract or any proposed hiring procedures for
athletic coaches.
¶83 At issue is whether the notice provided for the June 1, 2004,
meeting was too general and not in compliance with
Wis. Stat. § 19.84(2).
That section provides, in relevant part:
Every public notice of a meeting of a governmental body
shall set forth the . . . subject matter of the meeting,
including that intended for consideration at any contemplated closed session,
in such form as is reasonably likely to apprise members of the
public. . . .
¶84 Brian Buswell ("Buswell") contends that the June 1 notice
was deficient because it did not indicate that the Board would act upon a new
master contract with the TEA, and it did not indicate that the Board would act
upon the new hiring provision for athletic coaches. The majority concludes, and I agree, that the
notice failed to apprise the public that the TEA master contract would be under
consideration at the June 1 meeting.
Majority op., ¶36. I respectfully
disagree with the majority's conclusion that the notice was sufficient with
respect to the new hiring provision for athletic coaches. Majority op., ¶42.
¶85 The majority notes that with respect to the TEA master contract,
the notice given was vague because it could cover any negotiations with any
group of district personnel or with any individual employee within the
district. Id., ¶36. Moreover, it was misleading, as the statute
referenced
in the notice provides for closed sessions for individual employees, not for
considering collective bargaining agreements.
Id., ¶37.
¶86 The reasonableness standard adopted by the court takes into account
such factors as the burden of providing more detailed notice, whether the
subject is of particular interest, and whether it involves non-routine action
that the public would be unlikely to anticipate. Id., ¶28. The majority first points out that it would
not unduly burden the Board to include a few words in the notice about the fact
that the TEA master contract would be discussed at the June 1 meeting. Id., ¶38. Second, the majority notes the TEA master
contract included a hiring provision that was of interest to a number of people
in the community, as several citizens had made an effort to petition the Board
regarding whether to put a provision for the hiring of coaches into the master
contract. Id., ¶39. Third, the majority recognizes that the TEA
master contract was not a routine subject, as it contained a new provision for
the hiring of coaches to which members of the community objected, the subject
of which had never before been included in a TEA contract. Id., ¶¶4, 40.
¶87 For the very reasons the majority concludes the June 1 notice was
insufficient with respect to the TEA master contract, I conclude the notice was
insufficient with respect to the new provision regarding the hiring of athletic
coaches. Thus, it is incomprehensible
that the majority would reject its own analysis when discussing the June 1 notice
as it relates to the new provision for the hiring of coaches that is set forth
in the TEA master contract. As to the
coaches provision, the June 1 notice is still vague because it fails to discuss
coaches or procedures to hire coaches at all, and could cover any negotiations
with any group of district personnel or with any individual employee within the
district. Moreover, the June 1 notice
was still misleading as to the coaches provision, as Wis. Stat. § 19.85(1)(c)
once again provides for closed sessions for individual employees, and not for
considering new hiring provisions for athletic coaches in general. The majority inadequately explains how an
insufficient notice as to a public meeting regarding the TEA master contract is
sufficient with respect to an item buried within that very contract,
particularly when the item in question has never before been the subject of
contract negotiations and was of special interest to the public.
¶88 When applying the factors associated with the reasonableness
standard, the majority concedes that the second and third factors
weigh in favor of requiring notice that the Board would address the coaches
provision. Majority op., ¶43. Thus, the majority's analysis stands on the
first factor, the burden of providing greater information. Yet, just what was the burden? Once again, a few words in the notice would
have sufficed, simply by indicating that the procedure for hiring athletic
coaches would be discussed. For a matter
of considerable public concern, this was no "burden."
¶89 If, as the majority concludes, the June 1 notice was insufficient
to apprise members of the public that the TEA master contract would be
considered at the June 1 meeting, then it was necessarily insufficient to
apprise members of the public that a new provision regarding the hiring of
athletic coaches contained within the TEA master contract would be
considered.
¶90 "[T]he notice requirement gives the public information about
the business to be conducted that will alert them to the importance of the meeting,
so that they can make an informed decision whether to attend." Majority op., ¶26 (citing State ex rel.
Badke v. Village Bd. of the Village of Greendale, 173
Wis. 2d 553, 573-74, 577-78, 494 N.W.2d 408 (1993)). I wholeheartedly concur. Yet, no informed decision to attend was
possible here, as the notice failed to give the public any idea of what would
be discussed at the meeting. The June 1
notice (1) fails to inform the public that the TEA master contract will be
considered, and (2) fails to inform the public that a new hiring procedure for
athletic coaches will be discussed.
Accordingly, I would reverse the court of appeals as to both of these
issues.
¶91 For the foregoing reasons, I respectfully concur in part and
dissent in part from the court's decision and mandate.