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Did The State Legislature Violate Open Meeting Laws?

Posted by Chris Liebenthal on February 5, 2011

Yesterday, I wrote about how the state legislature, hidden behind the mask of the Groundhog Day blizzard, went about carrying on theirextremist, irresponsible and weaselly agenda.  These items included making the exception for one of Scott Walker’s campaign donors to pave over a wetland for a store that won’t build on a wetland and the attempted sabotage of the wind power industry.

My good friend, grumps (proprietor of the Happy Circumstance), posteda most intriguing question:

What’s the Open Records Law say about holding a session in a building that has been declared “Closed To The Public?”

What grumps is referring to is the fact that Scott Walker had declareda State of Emergency across 29 counties, including Dane County. This included the statement that they were closing all state buildings to the public.

My curiosity piqued, I made a number of phone calls to people who might know the answer.  As of the time of this writing, only two had gotten back to me.  One said that since the Capital Building was open, it was technically not a violation of the open meeting law.  The other said that this was a gross violation of the law and expressed surprise that no one had brought this up before.

Unsatisfied with the split decision, I looked further.

I found that the as well as The Milwaukee Business Journal both reported basically the same thing, that he buildings were closed.  Heck, even one of Walker’s staffers tweeted as much.

It wasn’t until I tracked down the blurb that JSOnline had posted that I found one small but significant difference:

After sending out the order, Walker amended it Tuesday to ensure that the Capitol will still be open to the public Wednesday since lawmakers are scheduled to take up several major bills that Walker says will boost job creation in the state.

In other words, the Capitol was open, closed for the emergency, then re-opened, all less than twenty-four hours before they legislature was to hold session.

According to “Wisconsin Open Meeting Law: A Compliance Guide” written by Attorney General J.B. Van Hollen in 2007, there needs to be a minimum of 24 hour advance written notice before a session of a governmental body.

One could nitpick that there was not the required time before the session started, since Walker declared the State of Emergency closing the Capitol, before amending it to leave the Capitol open.  Then again, it could be argued that since this was the originally scheduled session, it would still satisfy the requirements.

But further perusal of Van Hollen’s guide indicates that the open meeting session also be reasonably accessible to the public:

An “open session” is defined in Wis. Stat. § 19.82(3) as “a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times.”

Given that Walker had originally declared the building closed due to blizzard conditions.  The State’s and Dane County’s Emergency Management as well as the Dane County Sheriff’s Department were all stating that people should stay off the roads and that travel was not advised.

One could easily deem that the public was denied reasonable access to the session since the State’s own Emergency Management was telling people not to travel and to stay off the roads and that Walker had declared the State of Emergency due to the fact that things were going to quickly become exceedingly unsafe.  The situation was further needlessly complicated by Walker’s continuously changing the status of the Capitol.

Whether the state legislature violated the open meeting record would be a very fine line, in my lay opinion, and would require someone with more expertise in the open meeting law to offer a strong opinion either way.  Even if the session held by the legislature on February 2, 2011 wasn’t technically illegal, one could surely be able to convincingly argue it was unethical given the weather conditions at the time.

This whole incident raises another point, besides the question of the legality and ethics of the state legislature holding session that day.

It also highlights another broken promise, as well as a huge dose of hypocrisy, from Scott Walker.  Last spring, when he was still merely a gubernatorial hopeful, he criticized the state legislature for holding votes on bills in the wee hours of the morning.  He stated that this was a violation of the public trust, since it was unlikely that most people would still be awake, much less paying attention to what the legislation was doing, and that he would never allow this to happen as governor. He made these criticisms in spite of the fact that he had participated in the same sessions as a state legislator himself, and even had voted against limiting how late sessions could go.

So how does not only allowing, but actively abetting, the state legislature to work on the bills in the heart of a blizzard come out any better than the wee hours of the night?  It is unlikely that anyone would be foolhardy enough to try to make the trip to Madison, much less the Capitol Building.

And while I’m on the subject: Where are all the people who were caterwauling when Congress was looking at health care reform? Even though that bill was on the table for more than a year, people were complaining that the public had no time to look at it, much less offer any input or feedback.  But when you listen for their complaints about Walker and his crony capitalists in the legislature passing these fly by night bills, which are often incomplete and will create no jobs, but will make an unholy mess of this state, all you hear is the wind blowing the snow around.

Scott Walker…or is it one of the Fitzgerald boys?

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