When West Salem Village Board members John Lautz and Kevin Hennessey struck up a conversation about chickens after a meeting, they were unknowingly in violation of state open meeting laws.
The two board members had unwittingly formed a quorum of the three-member Law Enforcement Committee last month when they began discussing an upcoming agenda item: whether the village should allow chickens to be raised in town.
Even when members don’t mean to flout the law, forming a quorum without notifying the public is a violation. But avoiding it is a challenge faced by many small municipalities—including West Salem’s neighbor Bangor—that have committees with few members.
Bangor’s village board unanimously approved Tuesday increasing the size of its finance committee to avoid a similar situation.
Lautz, who had missed the West Salem meeting in which the topic was discussed, said he was seeking clarification for another board member on the issue and the fact that Hennessey was on the committee did not occur to him until later.
Hennessey said it didn’t occur to him either and added he was under the impression if the conversation took place in a public place it was not considered an illegal meeting.
“I thought if it was in a public place, it was fine,” Hennessey said.
However, Wisconsin open meeting laws require all meetings in which a quorum of a board is present be posted at least 24 hours in advance.
“If one-half or more of the members of a government body are present, the meeting is rebuttable presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body,” reads the state statute.
The statute does include an exception for chance or social gatherings in which government business is not discussed.
According to attorney Christa Westerberg, the vice-president of the Wisconsin Freedom of Information Council, any time half or more of a government body are together it is assumed it’s a meeting.
“I’m not aware of any exceptions to the law,” she said. “It’s up to them to disprove that they’re not talking about government business.”
Westerberg said committee members should seek to avoid chance or social meetings because the burden falls on them to prove that no business was conducted.
West Salem Village Administrator Teresa Schnitzler said she was confident the two board members did not realize their mistake.
“I think they walked out together,” she said. “I think it was like Kevin Hennessey said, they weren’t even thinking.”
All new board members are invited attend a workshop put on by the Wisconsin League of Municipalities where they receive among other topics instruction on open meeting laws.
Schnitzler said these meetings are held throughout the state every year so that any board member has the opportunity to attend. However, these conferences are not mandatory.
“It is sent out to the whole board in case anyone needs a refresher,” she said.
Schnitzler questioned whether she failed the board by not doing more to ensure all board members were clear on open meeting law.
“Should I do something annually? Did I fail the board here?” she asked.
Making the committees larger to avoid these situations could be an option, but Schnitzler said it is a difficult solution to implement.
However, Bangor is considering just that.
The Bangor Village Board changed the makeup of its three-member finance committee, raising it to five members, during Tuesday night’s meeting.
Bangor Village Administrator Shelly Miller said consulting with finance committee members, one of whom is also Village President Gary Althoff, is difficult.
Anytime Miller needs to talk to both Althoff and another finance committee member, she must have posted notice of a meeting at least 24 hours in advance.
“We would always have to post and publish it and put it on our agenda,” she said. “It’s a little annoying, but you have to follow the law.”
In an effort to ensure compliance with state open meeting requirements and to allow to greater expedience to government operation, Miller has suggested increasing the number of finance committee members to five.
“What it would do is make it easier for us, business-wise,” she said.
Alan Harvey, the attorney hired by Bangor, wrote in a letter to village officials that there are three options for addressing these concerns. The village could continue issuing notices before any meeting of a quorum, increase the size of the committee such that two members would not constitute a quorum or make the finance committee a committee of the whole.
He wrote the village’s ordinance allows for the village board to convene a committee of the whole is they desire.
However, in West Salem, Schnitzler argued making the committees larger would lead to its own problems.
“Five-member committees would make things very difficult around here,” she said. “I sometimes have a hard time getting three to have mutual open times.”
Finding people to serve on the committees is often difficult as well.
“There is not a line of people running out this door wanting to run for village board,” she said. “Public service isn’t what it used to be.”
Lautz agreed with Schnitzler.
“I don’t know how it would be addressed where you would get more people,” he said. “We have trouble finding people for the board itself.”
When former board member Lee Deal announced his non-candidacy last spring, the lack of candidates meant candidate Daniel Wee was unchallenged in his run for office.
Lautz said the issue remains something the board needs to address.
“It’s a pretty tough situation,” he said, adding that if it doesn’t get changed two members who find themselves in a social setting together may need to separate to avoid the perception that illegal business is being conducted, even if it is not.