Legal Updates


WISCONSIN SUPREME COURT ISSUES IMPORTANT DECISION REGARDING THE SCOPE OF THE OPEN MEETINGS LAW

June 30, 2017

On June 29, 2017, the Wisconsin Supreme Court issued its decision in Krueger v. Appleton Area School District Board of Education, Case No. 2015AP231, which held that a curriculum review committee comprised exclusively of school district personnel is a “governmental body” subject to the Open Meetings Law because the committee was authorized by a school board rule.  As a result of this ruling, certain administrative groups may now be required to conduct their work in a manner consistent with the Open Meeting Law’s public notice, recordkeeping, and public access obligations.

Background

In 2011, Appleton Area School District parent John Krueger asked the District to create an alternative Communication Arts 1 course with course materials that did not include profanities or sexualized content.  In response to Mr. Krueger’s request, the Superintendent asked members of the District’s Assessment, Curriculum, and Instruction Department to address Mr. Krueger’s concerns.  The Department, in turn, established a committee, the Communications Arts 1 Materials Review Committee (CAMRC), to identify materials for the Communication Arts curriculum. 

Board of Education Rule 361 delegated responsibility for curricular review to “the professionally trained and certified personnel employed by the school system.”  The process of curricular review was to be carried out according to the District’s Assessment, Curriculum & Instruction Handbook.  In this instance, the Board of Education was advised that the CAMRC would be conducting its review of the Communication Arts curriculum and would ultimately provide its recommendations to the Board for approval. 

The District’s administration solicited volunteers from the District’s staff to serve on the CAMRC.  Seventeen members were appointed including eleven teachers, three Communication Arts Curriculum Support Specialists, one Library Media Specialist and one high school principal.  The District’s Director of Humanities served as the chair.  The CAMRC members were not appointed by the Board of Education; nor did any Board members serve on the CAMRC. 

Mr. Krueger asked, but was not allowed, to attend the CAMRC meetings.  The District took the position that the meetings were not subject to the Open Meetings Law.  When the CAMRC completed its review, it presented a list of 24 books to the Board for approval during a meeting posted in accordance with the Open Meetings Law.  During that meeting, the full Board voted to approve the list.

Mr. Krueger filed suit claiming that the CAMRC was a “governmental body” and, therefore, was required to conduct meetings consistent with Wisconsin’s Open Meetings Law.  The circuit court and the Court of Appeals agreed with the District and held that the CAMRC was not a governmental body and, therefore, Krueger had no right to attend its meetings.  The Wisconsin Supreme Court disagreed.

Supreme Court Decision

Writing for a unanimous Court[1], Justice Gableman’s decision focused on the definition of “governmental body.”  A governmental body, the Court reasoned, is not formed by its stated purpose or by the subject matter of its meetings.  According to the Court, a governmental body is created when the form of the group and the source of its authority satisfy the definition of “governmental body” in Wis. Stat. § 19.82(1), which provides that a governmental body is created when two criteria are met – (1) when the body takes the form of a state or local agency, board, commission, committee, council, department or public body whether corporate or politic; and (2) when the governmental body was created or authorized by a constitution, statute, ordinance, rule or order.  When a rule confers power on a group to take collective governmental action that the members of the group could not take individually, the group will be subject to the Open Meetings Law.  In this case, the Court explained, Board Rule 361 “authoriz[ed] the formation of committees and confer[ed] on them the power to take collective action,” therefore, the committee was “created by rule”.

According to the Court, “loosely organized, ad hoc gatherings of government employees” are not governmental bodies.  However, a Board rule that delegates the Board’s statutory authority to determine curricular requirements to a committee that follows a specific process delineated in a handbook is not loosely organized or an ad hoc gathering.  Since the CAMRC was created as a result of a Board Rule in accordance with a delineated process, the CAMRC satisfied the definition “governing body” for purposes of the Open Meetings Law.

As a result of the Krueger decision, school districts should evaluate any group that has been or will be established to perform a particular function or evaluate some feature of the district to determine if the group should be classified as a governmental body for purposes of the Open Meetings Law.  The following questions will guide that analysis:

  1. Is the collective unit created or authorized by a Board rule or policy?
  2. Is the collective unit formed by a decision of the Board?
  3. Is the collective unit tasked with any obligation that could be viewed as a delegation of the Board’s legal responsibilities?
  4. Is the collective unit authorized by a Board-approved handbook, procedure, policy or practice to conduct any aspect of the Board’s legal responsibilities?

If a group meets one or more of these criteria, its meetings may be governed by Wisconsin’s Open Meetings Law and should be further analyzed in that respect.

Alternatively, school districts may choose to open some administrative meetings to the public to ensure that the district is effectively communicating with parents, families, district staff and the public about its administrative initiatives and priorities.  If a district pursues this option, the district must carefully consider the implications of conducting the particular meeting in a manner open to the public.

The full implication of this decision will be evaluated as each situation arises in which administrations attempt to collaborate with their teams to complete their respective district’s work.  Determining whether a particular group is now a governmental body will need to be evaluated.  As counsel to school districts throughout the State, your Strang, Patteson, Renning, Lewis & Lacy attorney is available to assist in this process.

For questions regarding this article, please contact the author, Attorney Julie A. Lewis (email: jlewis@strangpatteson.com; telephone: 844.626.0909 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] Justices Abrahamson and Bradley filed a concurring opinion to make additional points, but agreed with the result of the decision.  No dissenting opinion was filed.

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