Legal Updates


ONE-ON-ONE MEETINGS (EXCHANGING ELECTRONIC-MAIL MESSAGES) - ARE YOU CIRCUMVENTING THE OPEN MEETINGS LAW?

May 21, 2019

The Office of Open Government within the Wisconsin Department of Justice issued an opinion letter on March 5, 2019 responding to an inquiry under the Open Meetings Law regarding whether a mayor may lawfully hold separate meetings with each of the individual members of the city council to, for example, review upcoming agenda items and answer questions that the council member may have. 

The opinion letter begins by outlining the issue raised:  “Can a mayor hold separate meetings with each of the 12 members of a city council to tout an upcoming agenda of his/answer questions/whatever else may happen in a closed door meeting?”  The opinion letter goes on to indicate that “the mayor is a member of [the] council.  He can legally vote to break ties.”

Initially, the Attorney General notes that the Open Meetings Law does not apply to single-member governmental bodies, because the law contemplates that there must be at least two (2) members of a governmental body for the Open Meetings Law to apply.  However, the Attorney General concludes that based upon the information provided (the fact the mayor is a member of the council and can legally vote to break ties), it appears the mayor would be subject to the Open Meetings Law. 

Next, the Attorney General analyzes whether the separate meetings between the mayor and each of the 12 members of the council constitute a “meeting” under the Open Meetings Law.

First, the Attorney General notes that there must be a purpose to engage in governmental business (the purpose requirement).  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.  Mere attendance at an informational meeting on a matter within a body’s realm of authority satisfies the purpose requirement.  The members of the body need not discuss the matter or even interact. 

Second, the Attorney General notes that the number of members present must be sufficient to determine the governmental body’s course of action (the numbers requirement).  A meeting of a majority of the members of a governmental body constitutes a quorum and, therefore, meets the numbers requirement.  Similarly, a negative quorum, the minimum number of a body’s membership necessary to prevent action, also meets the numbers requirement.

Third, the Attorney General notes that the requirements of the Open Meetings Law also extend to “walking quorums” – A series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.  Where there is no such tacit or explicit agreement, exchanges among separate groups of members may take place without violating the Open Meetings Law.

Specifically, the Attorney General cites to various situations where a “walking quorum” has been used to illegally circumvent the requirements of the Open Meetings Law – For example:  (1) using an agent or surrogate to poll the members of governmental bodies through a series of individual contacts; and (2) the use of electronic-mail voting to decide matters (even if the result of the vote is later ratified at a properly noticed meeting).  In contrast, the Attorney General also cites to a situation where the signing of a document by members of a body merely asking that a subject be placed on the agenda of an upcoming meeting does not constitute a “walking quorum” where the signers have not engaged in substantive discussion or agreed on a uniform course of action regarding the proposed subject.

The Attorney General then notes that the phrase “convening of members” under the Open Meetings Law is not limited to situations in which members of a body are simultaneously gathered in the same location, but may also include other situations in which members are able to effectively communicate with each other and to exercise the authority vested in the body.  To this end, a “convening of members” may occur through written correspondence and electronic communications, including electronic-mail.

Ultimately, the Attorney General concludes that based upon the limited information provided he could not determine that a “walking quorum” existed.  That being said, the Attorney General cautions that if the mayor meets with council members in one-on-one situations for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body, a prohibited “walking quorum” may exist if the members:  (1) effectively engage in collective discussion or information gathering outside of the context of a properly noticed meeting; and (2) agree with each other to act in some uniform fashion.

The Attorney General further advises that members of governmental bodies should reduce any possible appearance of impropriety by minimizing inter-member communications.       

The situation the Attorney General was asked to address is similar to a question often raised with us in the school setting as to whether a district administrator may lawfully hold separate meetings with individual members of the school board to, for example, review upcoming agenda items and answer questions that the board member may have (or similarly to communicate with school board members via electronic-mail about upcoming agenda items and answer questions that the board members may have).

For questions regarding this article, please contact the author, Attorney Tony J. Renning (email: trenning@strangpatteson.com; telephone: 844.833.0823), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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