Department of Justice Vindicates Five Rivers Five

Back in February of this year, when it looked like the Oshkosh city administration was intent on forcing developer Tom Doig's Five Rivers Resort project down the throats of an unwilling public, I argued that the Common Council had broken the open meetings law when going into closed session with Doig. Five citizens ended up crashing the Council's closed meeting, a move which earned praise from Oshkosh News.

Shortly after crashing the meeting, Cheryl Hentz and I filed a formal open meetings complaint against the Common Council with Attorney General Peg Lautenschlager. Almost 10 months later, the Department of Justice (DOJ) has finally responded to the complaint. Today we received a 15-page, single-spaced response. We are a bit peeved that it took so long for the AG's office to make a decision, but we are content that the response's findings, conclusions, and recommendations should contribute to better government in Oshkosh.

The response was written by Assistant Attorney General Paul L. Barnett. He starts by saying that, "The Department of Justice Public Integrity Unit received a complaint from Ms. Hentz and Mr. Palmeri alleging violations of the Open Meetings Law by members of the Oshkosh Common Council in connection with a closed session of the Council held on February 14, 2006. Subsequently, District Attorney Lennon referred a similar complaint from the Oshkosh Northwestern to this office after determining that he had a conflict of interest."

The DOJ investigated two major allegations made against the city. First, the Oshkosh Northwestern's allegation that in the closed meeting, the Common Council discussed subjects that fell outside of the scope of the agenda notice for the closed session. Second, the Hentz/Palmeri allegations that the Council's closed session was illegal according to a plain reading of Wisconsin statute 19.85(1)(e).

On the Northwestern's compaint, the DOJ found that the closed session notice failed to reasonably apprise the public of subjects that would be under discussion; "however, we must acknowledge that, based on the majority decision in H.D Enterprises, a reasonable argument can be made that the notice complied with the Open Meetings Law."

As regards the Hentz/Palmeri complaint regarding whether the closed session was proper, the DOJ treated the closed session as consisting of two parts. The first part included the Common Council's discussion with Doig regarding the term sheet, status of financing, etc. The second part included the Common Council's discussion of its strategies in light of what was said in part one.

The DOJ argues that the second part of the meeting justifiably took place in closed session, claiming in essence that the fact that the city had already signed a term sheet agreement with Doig did not mean that the city could not reconsider that agreement based on what Doig said in the first part of the meeting. The DOJ claims that such reconsideration is allowed to be held in closed session under the statute language.

It is in the discussion of the first part of the closed session that the DOJ vindicates the Five Rivers Five: "It is harder to justify a closed meeting for the first part . . . The contents of the term sheet were public knowledge. The developer's adherence to those terms, including important deadlines which were set forth in the document, was clearly a matter of public interest for this major project in which the City had committed millions of public dollars. Given the presumption in favor of openness, it was incumbent upon the City to establish a sufficient basis for conducting the question and answer period in closed session." (empahsis added). Interpreting the statute under which the Council went into closed session, the DOJ writes that "inconvenience, delay, embarrassment, or frustration is an insufficient basis on which to close a meeting for competitive or bargaining reasons. Similarly, a general concern that the subject matter might have an indirect effect on negotiations will not suffice either."

Examining the City Mananager and City Attorney's reasons for keeping the first part of the meeting closed, the DOJ claims that "none of these reasons survive serious scrutiny . . . There is no doubt that information which revealed that the developer may not be able to comply with some of the terms is both embarrassing and frustrating. However, that is no reason for withholding the information from the public. Moreover, given the extent of the City's commitment of public funding to support the project, this is precisely the kind of information that should be in the public domain." (emphasis added; those lines represent exactly the position of the Five Rivers Five).

The DOJ goes even further: "Mr. Doig's concern about revealing the status or substance of his financial negotiations was a relevant factor for the City to consider in determining the propriety of closing this meeting. However, his concern cannot drive that decision unless it directly implicates a public interest at stake if the meeting were not closed. Here, none of those interviewed, including Mr. Doig himself, identified a specific concrete reason why a public discussion of whether he would be able to meet certain terms of the agreement, including with respect to financing, would directly and adversely affect an important public interest sufficient to justify a closed session for that purpose . . . Besides, the session was closed not because Mr. Doig requested it but rather because the Community Development Director did in his January 19, 2006 memo."

Finally, the DOJ pointedly disagree with certain City officials: "Of course, the City Attorney's and City Manager's non-particularized fear of avoiding an 'anti-development' reputation can never justify a blanket closing of a meeting. Given the Open Meeting Law's presumption of openness coupled with the restrictive language governing the specific exemption relied upon here, much more than this generalized concern is needed to justify a closed session for competitive or bargaining reasons."

The clincher: "In our opinion, a court that engaged in a searching inquiry as contemplated in Pleva would find that the first part of the closed session was not justifed and did violate the Open Meetings Law." (empahsis added).

The DOJ will not prosecute members of the Common Council who attended the closed meeting because "it is a recognized defense to prosecuting an open meetings violation that a body's members relied on legal advice by someone authorized to give it." Thus, because the 6 members of the Council who went into closed session did so on the advice of City Attorney Warren Kraft, that advice is the "out" that saves them from being prosecuted. The DOJ does say that the fact that one member of the Common Council (Mr. Esslinger) voted against the motion to convene in closed session and refused to participate in it "should have given pause to the other members." However, "the refusal of a lone member to 'go along' in unlikely to overcome the other members' reliance on the City Attorney's advice, even when . . . the advice may be in error."

The DOJ response closes by recommending that the City revisit the manner in which it prepares closed meeting notices. "Given the legal and practical importance of a proper meeting notice, we disapprove of the apparent practice employed by the City in preparing its meeting notices, particularly for a closed session, where, as here, the specific contents of the final notice are left to a subordinate in the City Clerk's office who can simply borrow language from a prior notice without regard to (and probably without knowledge of) the specific matters that were known by others would be discussed at the meeting. We strongly urge the City to require that someone in a position of authority, such as the Mayor or the City Manager, review and ensure that the final draft accurately and adequately notifies the public of the subject matter to be taken up at Common Council meetings."

Of course, the implication of the DOJ's suggestion is that if the City does accurately notice the meeting, it will be that much more difficult to go into closed session. Indeed, it SHOULD be difficult to go into closed session.

The six Common Councilors who went into closed session will not be proseduted because they have the "out" that they merely followed the legal advice of the City Attorney. Still, they should at the very least apologize to the public for their violation of the law and pledge to be more vigilant in demanding openness. They should also advocate openly for putting the DOJ's recommendations in place.