DA won't charge mayor, aldermen for secret meeting violation

District Attorney Mike Nieskes will not pursue a violation of the open meetings law against Mayor John Dickert, City Attorney Rob Weber and five members of the Racine City Council.

In a letter (full text below) to Pete Karas, who filed the complaint with the DA's office, Nieskes rejected Karas' arguments and criticized him for bringing the alleged violation to the attention of the media.

... when we met for the first time on August 5, 2009, you indicated to me that you had already been to the media at that time. This caused me to question your statement that you were interested in open and informed government. If you were truly interested in that process, I believe you should at the minimum give law enforcement the opportunity to review those matters prior to giving an interview to the press.

Karas said Monday he was disappointed, but not surprised, by Nieskes' ruling.

"I had a feeling the DA wouldn't do his duty to defend open government," he said. "... it certainly appears his decision not to go forward was a political decision."

(Read the JT's version of the story here.)

With Nieskes declining to pursue charges, Karas is now allowed to file his complaint directly with a Racine County judge. Karas said he met with an attorney who specializes in open meetings cases and is considering his options. He also intends to monitor city government for further violations.

Karas' complaint dates back to a July 7 meeting of the city's Executive Committee, which met in closed session to discuss City Administrator Tom Friedel's contract. The committee gave public notice of the meeting less than 24 hours in advance of the start time, held a quorum of the full City Council and gave no specifics about what would be discussed at the meeting.

City officials defended the meeting saying they could call an "emergency meeting" to discuss Friedel's contract, which allowed them to bypass the requirement for 24-hour notice of a public meeting.

Nieskes dismissed the quorum argument without addressing the fact that enough members of the council attended the Executive Committee meeting for it, basically, to be considered a City Council meeting. He simply said the Executive Committee and City Council, which met right after the committee meeting, were separate bodies. State law forbids the City Council from meeting twice within 12 hours.

As for notification, Nieskes said the city didn't need to give specifics about what would be discussed the meeting. Nieskes wrote in his letter that Dickert didn't want media to attend because "no final decision had been made as to who was chosen for the job." Dickert announced he had chosen Friedel for the job on June 25 - nearly two weeks before the July 7 meeting.

The ironic aspect of this issue is the meeting backfired on Dickert. The new mayor hoped to build consensus on the issue before the council's vote on Friedel's contract, but questions still emerged from the secret meeting.

Alderman Jeff Coe, feeling trapped by the council's rules, took the unusual step on July 22 using the council's public comment period to suggest the committee had agreed to pay Friedel $85,000 per year, only to later learn (after the vote) that Friedel was making $95,000 per year.

If Dickert and the council had simply met in open session, hashed out a deal and moved forward, none of this confusion would have happened. It's much easier to govern in the sunshine than in the shadows.

Here's Nieskes' full letter:


August 26, 2009
Mr. Pete Karas
821 Blame Avenue
Racine, WI 53405


Dear Sir:
On August 6, 2009, you filed a complaint under the Open Meeting statute 19.84, regarding the Public Notice of Meetings of Governmental bodies. Your allegations were
that a meeting of the Executive Committee on July 7, 2009, in the City of Racine, was in violation of those statutes and asked that a portion of the individuals attending the meeting be held responsible and a forfeiture action to recover a penalty against them be initiated. You had come to this office on the previous day, had a discussion with me regarding the complaint; when various errors in the complaint were pointed out, you were asked whether or not you wanted an investigation to begin or wait until you filed a complaint. You indicated you would be filing a complaint in the future. I informed you that I would begin my legal review of the materials promptly. That afternoon there were conversations with a lawyer from the Attorney General’s staff. We reviewed specifically the provisions of Chapter 19.84(3) which require notice of any governmental body be given at least 24 hours prior to the commencement of said meeting unless for good cause, such notice is impossible or impractical, in which case a shorter notice may be given, but in no case may the notice of the meeting be provided in less than 2 hours in advance of
the meeting.

The next day, I requested that an investigator from the Sheriff’s Department review these matters and conduct an investigation. Later that day, the verified complaint was received at my office with the corrections that we discussed being included.
The following is my accurate summary of the matter:

On July 6, 2009, Mayor John Dickert asked his Administrative Assistant Greg Bach to
notify aldermen if they had questions about the issue of appointment of the City
Administrator that he would be in his office at 5:30 until 7:00 p.m. on July 7th to discuss this matter.

At approximately 4:58 p.m. on that day, Mr. Bach sent an email to the aldermen indicating there would be a “meeting” in the Mayor’s office.

Mayor Dickert states that he had discussed the matter with the City Attorney. Mayor Dickert said City Attorney Weber advised the meeting needed to be noticed and there
was a discussion about the meeting being closed. Mayor Dickert, when interviewed by
the investigator stated that he wanted to include the aldermen in the process of electing a new city administrator but did not have to and desired to have their input. He stated he also did not want the media at the meeting as no final decision had been made as to who was chosen for the job and therefore asked for the meeting to be closed.

Alderman David Maack responded at approximately 9:48 p.m., on July 6, 2009, that given the nature of Greg Bach’s email that this meeting needed to be noticed.

City Attorney Rob Weber states, based on David Maack’s email that on July 7, 2009, at 8:58 p.m., he informed the Deputy Clerk to notice the meeting to be as a closed meeting of the Executive Council beginning at 5:30. The purpose of being in closed session was to discuss a personnel matter, an exemption under the statute for having a meeting in closed session.

A meeting was held of the Executive Council of which a number of members of the City Council attended including the Mayor. The meeting was in closed session.

Mr. Karas, you complain about three violations. First, is that it was improperly posted as an emergency meeting. Under Wis. Stats. Chapter 19, there is no use of the phrase “emergency meeting.” Under 19.84(3), a partial quote reads: “Unless for good cause, such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.”

Here it appears that when the oversight was determined based upon the email of Alderperson Maack, the meeting was noticed at that point, it was impossible to give it notice of 24 hours or greater, and still held the meeting. In my review with the Assistant Attorney General, there is no Wisconsin case law or opinions by the Attorney General on the definition of this portion of the statute regarding impractical and impossible, nor is there any definitions of what qualifies it as an emergency. While the better practice would have been to postpone the discussion until a point where the 24-hour notice could have been given, inasmuch as the Mayor and members of the City Council were acting upon the advice of counsel in how to handle this matter at that point, I cannot believe that a forfeiture matter would prevail. The lack of direction by prior case law, by opinions of the Attorney General, and the fact that the individuals’ counsel was consulted and determined the course of action, demonstrates that all the individuals acted in good faith in holding of the meeting.

Therefore, it is the determination of the District Attorney’s Office that there is no action that lies on this issue.

Your next complaint is that violation does not properly notice the discussion. As I stated previously, it is an exemption from the Open Meetings portion of the statute that personnel matters can be discussed in closed sessions pursuant to Chapter 19.85(1 )(c). I believe the description that is found in the minutes posted albeit before 9:00 a.m. on the morning of the meeting on July 7, 2009, accurately described the subject matter. The subject matter is, “It is intended the Executive Committee will convene in closed session pursuant to Wis. Stat. Sec. 19. 85(1)(c) to consider the employment compensation of the public employee over which the common Council has jurisdiction or exercise ability.” By my reading and my review with the Assistant Attorney General, that is an adequate notification. To have further information would erase the allowable purpose of closed session matters. Therefore, I cannot find there was a violation of the Open Meetings statute pursuant to that matter.

The final complaint is the two meetings were one body within 12 hours. If the argument is that these are actually one meeting of the Common Council occurring in closed and open sessions of each other, I find that that allegation has no basis in fact. These are two separate meetings of two separate bodies. The fact the bodies have overlapping members do not make it a meeting of one body.

Based on my review and findings, there is no basis for a prosecution for a forfeiture
action against any of the individuals and none will be filed by this office. In addition, I feel I must comment on two matters regarding this complaint. First, as the complainant you have acknowledged to me that you knew of other individuals who attended your alleged improper meeting, but you were electing not to file a complaint against them. I am somewhat disappointed that you would pick and choose only certain attendees to pursue any action against. I don’t know the basis for your selective complaint, but I do not believe it would be an appropriate action if this office had engaged in the same sort of behavior. Second, is my disappointment that when we met for the first time on August 5, 2009, you indicated to me that you had already been to the media at that time. This caused me to question your statement that you were interested in open and informed government. If you were truly interested in that process, I believe you should at the minimum give law enforcement the opportunity to review those matters prior to giving an interview to the press. While a review by the press is an important component to an open government with an informed electorate, I believe these actions call into question your actual motives.

Sincerely,


MICHAEL E. NIESKES
Racine County District Attorney

cc
John Dickert, Mayor, City of Racine, City Hall, 730 Washington Ave., Racine, WI 53403
Greg Helding, Alderperson, City of Racine, City Hall, 730 Washington Ave., Racine, WI
53403
Aron Wisneski, Alderperson, City of Racine, City HaIl, 730 Washington Ave., Racine,
WI
Sandy Weidner, Alderperson, City of Racine, City Hall, 730 Washington Ave., Racine,
WI 53403
James Spangenberg, Alderperson, City of Racine, City Hall, 730 Washington Ave.,
Racine, WI 53403
Rob Weber, City Attorney, City Hall, 730 Washington Ave., Racine, WI 53403