COURT OF APPEALS DECISION DATED AND FILED March 18, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from a judgment of the circuit court for
Before Dykman, P.J., Vergeront, and Lundsten, JJ.
¶1 PER CURIAM. Gervase C. Thompson appeals[1]
from the judgment of the circuit court that granted summary judgment to the
Town of
¶2 The undisputed facts in this case are that Thompson and the Town entered into an employment agreement for Thompson to act as the Town’s Zoning Administrator. The agreement was for one year, and provided that the contract would automatically renew for a period of one year, unless notice of “non-renewal” was given at least thirty days prior to the expiration of the agreement. The agreement terminated on February 12, 2006. On December 13, 2005, the town board convened in a closed session to discuss the renewal of Thompson’s employment agreement. Thompson briefly spoke at this meeting, and then left. The town board then took an informal vote in closed session not to renew Thompson’s contract, and did not ever vote on this issue in open session, on the record.
¶3 On December 27, 2005, Thompson received a letter from the board saying that his contract was not being renewed. Thompson then brought this action alleging that the board did not act in accord with the Open Meetings Law, and, therefore, the decision to not renew his contract was void, the contract remained in effect, and he is entitled to receive his salary as damages. Both parties ultimately moved for summary judgment. The court granted judgment to the Town, determining that the board did not violate the terms of the employment agreement, and that while the board technically violated the Open Meetings Law, Wis. Stat. § 19.86, Thompson had not followed the proper procedure for pursuing a claim under that statute.
¶4 Thompson argues that this is not an action under the Open Meetings Law, but rather an action “in contract,” and that “the violation of that law rendered the vote of non-renewal invalid.” Thompson also argues, however, that this is not a claim for breach of contract because “the Agreement is still in full force and effect because the board failed to properly vote to non-renew the contract.” In other words, Thompson asserts that he has a contract remedy because the town board violated the Open Meetings Law. Thompson, however, has not cited any authority to support his argument that he has a contract remedy for an Open Meetings Law violation.
¶5 We conclude that Thompson was required to follow the
enforcement procedures established in the Open Meetings Law when he brought
this action. See Wis. Stat. § 19.97. No matter how Thompson attempts to phrase the
issue, the success of his action—that the Town owes him his salary, that the
reason it owes him his salary is because the decision not to renew his contract
is void, and because the decision is void the contract is still in effect—is dependent
on a determination that the Town violated the Open Meetings Law. The Open Meetings Law statute provides a
specific procedure for enforcement, including that the actions must be brought
by or on behalf of the State. Wis. Stat. § 19.97(1) and
(4). The failure to bring an action on
behalf of the State under § 19.97 is fatal, and deprives the court of
competency to proceed. Fabyan
v. Achtenhagen, 2002 WI App 214, ¶13, 257
¶6 Further, the cases on which Thompson relies to support his
argument that the decision to not renew his contract should be void, were
brought on behalf of the State, and therefore properly pled under Wis. Stat. § 19.97.
¶7 Since Thompson’s claim is dependent on his allegation that
the Town violated Wis. Stat. § 19.86,
and since Thompson did not bring the action in accord with Wis. Stat. § 19.97, there is no
valid determination as to whether or not the Town violated
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.