Attorney General Clarifies Legality of Policy Discussions in Closed Session
2011-08/22 Dean R. Dietrich Printer Friendly PDF Version

A recent opinion of the Attorney General has clarified the appropriateness of closed session discussions regarding budgetary considerations.  In a letter to the Editor of the Beloit Daily News dated July 11, 2011, the Assistant Attorney General discussed the potential violation of the Wisconsin Open Meetings law when a School Board allegedly discussed general parameters of budget reductions during a closed session meeting of the Board to consider the possible non-renewal of employee contracts.  The School Board adjourned into closed session under Wis. Stat. § 19.85(1)(c) to discuss preliminary non-renewal recommendations but it was alleged that there was a discussion of general policy issues that were not directly related to the non-renewal recommendations.  While the Assistant Attorney General suggested that there had been a violation of the Wisconsin Open Meetings law, the Department of Justice did not pursue enforcement as requested by the Editor. 

In the opinion drafted by Assistant Attorney General Thomas C. Bellavia, a general conclusion was stated regarding the use of Section 19.85(1)(c), Stats. as a basis for discussing personnel issues in closed session.  Assistant Attorney General Bellavia stated:

Therefore, while section 19.85(1)(c) does authorize closure of a meeting to determine whether to lay off a public employee or whether to non-renew an employee’s contract at the expiration of the contract term, it does not authorize a closed session to discuss whether to reduce or increase staffing in general or to otherwise discuss general policies and issues that do not involve the consideration of information related to one or more specific public employees.  See 66 Op. Att’y Gen. 211, 213 (1977); see also 80 Op. Att’y Gen. 176, 178-82 (1992); 67 Op. Att’y Gen. 117, 118 (1978). 

Under this conclusion, it is clear that a local governmental body must limit what is discussed in closed session to the specific topics that are identified in the agenda providing for the closed session when the basis for adjourning into closed session is allowed under the exemptions to the Wisconsin Open Meetings law.  Local governing boards must be careful to limit the discussions in the closed session to avoid potential findings of a violation of the Open Meetings law. 

The Assistant Attorney General also commented regarding the procedures for adjourning into closed session.  It is good to review this process to make sure that each local government unit is acting appropriately when convening into closed session.  The Assistant Attorney General stated the following:

Every meeting of a governmental body must initially be convened in open session.  Secs. 19.83 and 19.85(1), Wis. Stats.  Before convening in closed session, the governmental body must follow the procedure set forth in section 19.85(1) which requires that the governmental body pass a motion, by recorded majority vote, to convene in closed session.  Before the governmental body votes on such a motion, the chief presiding officer must announce and record in open session the nature of the business to be discussed and the specific statutory exemption which is claimed to authorize the closed session.  66 Op. Att’y Gen. 93, 97-98 (1977).  If the motion passes and the body convenes in closed session, “[n]o business may be taken up at [that] closed session except that which relates to matters contained in the chief presiding officer’s announcement of the closed session.”  Sec. 19.85(1), Wis. Stats.

Local governmental bodies should be careful when adjourning into closed session to make sure it is in compliance with these requirements. 

Please feel free to contact Dean Dietrich, the author of this article, or any of the attorneys in the Local Governments & Municipalities Focus Team, or the School Districts and Educational Institutions Focus Team of Ruder Ware: Steve Immel, Steve Lipowski, Randi Osberg, Ron Rutlin, Mary Ellen Schill, Bryan Symes, or Kevin Terry if you have questions in regard to compliance with the Wisconsin Open Meetings law.

© 2011 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
This document provides information of a general nature regarding legislative or other legal developments. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed.