An assistant attorney general told Oshkosh Northwestern reporter Alex Hummel today that the Oshkosh Common Council Tuesday night closed meeting "sounds to me like it would be okay." It is clear from Assistant Attorny General Alan Lee's comments that he is not aware of all the facts of this situation. Indeed, Hummel's report on the closed meeting from this morning's Northwestern says that "It's unclear what the city is still negotiating with Doig."
Let's assume for the sake of argument that on Tuesday night in closed session the Council spent 45 minutes in deep negotiation with Doig. That in itself means nothing in relation to the legality or illegality of the meeting. The Attorney General's office has said many times (and not just the current attorney general) that the key question for a governmental body to ask is whether the negotiations are REQUIRED to be held in closed session for competitive or bargaining reasons. To make the case that Five Rivers (for which the Council has already approved a detailed term sheet, a TIF district, the developer is already booking conventions and advertising the complex on a web site, while the city attorney claims the city can be sued if it pulls out at this point) fits the closed session requirements is to make those requirements meaningless. Indeed, if this kind of closed meeting is okay then it would be difficult to imagine any situation in which a developer would have to appear in open session; virtually ANY public discussion could be defined as placing the developer at a disadvantage against "rival developers."
More important, the burden of proof is not on citizens to prove that a meeting should be open. The burden of proof is on the governmental body to show that it should be closed. The Common Council has not met that burden of proof, and in fact refused (except for Mr. Esslinger) to request that the city administration resolve the confusion BEFORE going into closed session.
Since city attorney Kraft does not seem to care for attorney general Lautenschlager, let's quote former AG Bronson LaFollette instead. In a 1979 opinion he said: "While the questions whether there are bargaining reasons and whether circumstances require [emphasis in original] closed sessions are of mixed fact and law, the governmental bodies themselves must make a good faith determination of both the applicable facts and the legal conclusion that flows therefrom, given the basic legal guidance already provided by their respective legal counsel and advice provided by this office (pursuant to sec. 19.98, Wis. statutes)."
The Oshkosh Common Council did not make a good faith effort to find out if this closed meeting was proper. A Gannett reporter calling the attorney general after the fact does not cut it. A good faith effort would involve giving the AG's office all of the relevant facts rather than simply acquiesce to the city attorney's logic which even Oshkosh News called "tortured." For once I agree with the Oshkosh Northwestern editorial board: "The public backing for this immense project is now in jeopardy. The demand for secrecy and the city council's sheep-like acquiescence is so infuriating that we think it could threaten public trust in future development projects."
Soon the local DA will have the relevant facts of this situation in a formal complaint. If what the Common Council did on Tuesday constitutes a legal closed meeting, the legislature should give serious consideration to repealing the open meetings law since it would have been shown to be a toothless tiger subject to suspension at the whim of openly confused city officials who cannot even be bothered to inquire from the state AG as to whether they are acting properly.
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8 comments:
You'll notice, however, the foundation of the Northwestern's criticism was public relations, while what underlies your argument is legality.
How many lawyers does it take for Tony to say he is wrong?
Perhaps Mayor Castle was right about who's cousel to take?
You're saying the Northwestern reporter called the assistant AG and just asked for a quote, right?
Like the guy said - "here's the story, care to comment?"
If that's how it was then a lot is hinging on what the reporter said/didn't say and is not anything more than a quick impression and a sound bite.
Sometimes lawyers DO reach conclusions that are contrary to what citizens, even intelligent well-educated ones, beleive the law is clearly saying. But shouldn't the words come from the AG's office itself? Isn't that giving an awful lot of weight to a reporter's quote?
Real verdicts and judgements are not passed through 3rd parties and the media. Important decisions should come directly from the source.
Would you take a message about your divorce proceedings or a malpractice suit or car accident situation from a quote in the Northwestern and call it good? How about a doctor's diagnosis?
Until (if) the AG responds this is all speculation. There are only 2 certainties here:
One, is that the city attorney WILL say "that is just one lawyer's opinion" - they always do. How the council chooses to respond will be pivotal there.
Two, some people will say that a negative AG decision will prove that Tony is a moron and should cough twice and die to further the public good.
While I'm sure Tony, Cheryl, Gary et al will not enjoy a negative decision, it is still in the public interest for CITIZENS to also, when a gray area presents itself, err on the side of openness. Sometimes that's going to mean making noise to get to the truth of the situation.
There were probably guys back in 1776 who thought getting up on a horse and yelling about redcoats was un-cool and made them look like fanatics. I'm sure many people who witnesses the lunch counter abuses in the south said to each other "god, why don't they just MOVE" and on and on. It's only peopel who are not afraid to look stupid who ever change anything. Sometimes it goes well, sometimes it doesn't. Some african americans have a national holiday named after them as thanks for their efforts, some just got dragged to death behind a truck in Texas.
It's a crap shoot people.
The "AG" opinion that Tony and Cheryl so enjoyed earlier this year about the bathrooms was from an assistant in the AG office as well. But on that issue, they were told what they wanted to hear, so they harped about it.
To "harped" anonymous (related to PYMWYMI by any chance?), the AG opinion on the Leach bathrooms bid waiver was a response to a formal written complaint. I believe the AG's office had the complaint for around 30 days before issuing an opinion. Assistant AG Alan Lee's comments from today were a response to a reporter's interview questions. Not even a harped pymwymi would call those the same thing.
Should the AG opine that the meeting was legal, I might disagree with them but respect the opinion. This is in contrast with the Oshkosh city administration, which shows an open contempt for the opinions of the AG's office and thus has reduced the law to whatever the denizens of 215 Church Ave. want it to be.
That's no way to run a city. That's how to run a Banana Republic.
Tony is correct. The bathroom waived bid issue was based on a formal written request for an opinion. Asst. AG Hoekstra took about 6 weeks to make his opinion and had more than a few discussions with the complaintant and Atty. Kraft to gather all the facts. It was much different than this case. Oh, and by the way, although the Mayor and others tried to paint Atty. Hoekstra as a "part-time" assistant. In fact, from what I know, he has 30+ years with the State and is very well respected in municipal law.
Mr. Palmeri, I am quite perplexed that you are not on the ballot for the upcoming council elections. You continually suggest, whether right or wrong, that the council is not performing up to the standards you believe they are required to. Why not run?
Jeff,
If I do not run for State Assembly or Governor this year, I will give serious consideration to running for Mayor or Council next year. I'll make the decision about Assembly in March. If I decide against that, the decision about governor will be made in April or May.
I've never run for the Council in the past because I have felt, rightly or wrongly, that I am more valuable locally as an active citizen and part-time muckraking journalist. Since I have felt, again rightly or wrongly, that the root of many of our local problems are in the corrupt Madison legislature, I have felt that running for the assembly was a better use of whatever talents I might have.
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