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Attorney General says county erred in agenda postings

County refutes opinion

By Mike Heine/The Week

(Published March. 2, 2007, 2:38 p.m.)

A Wisconsin assistant attorney general said Walworth County violated open meetings laws when committees met last October and December regarding the controversial Intersport baseball complex proposal.

In a letter responding to rural Elkhorn resident Larry Vant, a staunch opponent of the sports complex, Assistant Attorney General Bruce A. Olsen said three public works committee agendas were too ambiguous for the public to assume matters might be discussed in open session.

Vant said he complained to the Attorney General's Office because he "didn't like what's going on in Walworth County," regarding the sports complex.

Because of the three agendas' ambiguity, a person might stay at home and "be deprived of information to which he/she was entitled," Olsen wrote.

Olson said the agendas for the Oct. 30, Dec. 12 and Dec. 18 public works meetings violated open meetings law notice requirements.

He noted a fourth committee agenda, for a Jan. 9, 2007, meeting, was posted properly because it included separate items related to the proposal for both open and closed session discussion.

Walworth County Administrator David Bretl and attorney George K. Steil, Sr., a private attorney representing the county in the matter, disagreed with Olsen's finding.

They noted that the agendas all said that the committee may convene in closed session. The agendas also note that "all agenda items are subject to discussion and/or action."

Such language is sufficient public notice that discussion on the topics could happen in open session, Steil believes.

"There is no requirement that a governmental body meet in closed session each and every time such a topic comes up," Steil wrote in a 13-page opinion for the county. Each committee has the option not to convene in closed session, Steil wrote.

"This point is bolstered by the specific language of the notices, which indicate only that a closed session 'may' be called, and not that a closed session 'would' be called," as Olsen alleged in his opinion, Steil wrote. "Because each committee always retained the discretion to discuss the Intersport proposal in open session, no violation of the open meetings law occurred when the committees discussed aspects of the proposal in open session."

Olsen opined that the meeting agendas were too ambiguous and needed more clarification.

"A person who was interested in that subject would reasonably believe from the meeting notice that he/she would not be able to obtain any substantive information about the Intersport project because there was no indication that any of the discussion would occur in open session," Olsen wrote. "That person might reasonably rely on the meeting notice's representation in deciding whether to attend any of those meetings."

Steil wrote that "at worst," the notices created some ambiguity, but, "because the meeting notices clearly indicated that the Intersport proposal would be one of the issues for discussion, the notices contained enough information to alert any interested individual who might have been confused by the notice to find out more."

A Court of Appeals finding says municipalities don't need to "detail every issue that will be discussed under every agenda item during meetings when that is not mandated by statute," Steil wrote.

"Under the circumstances, I feel that if a member of the public was interested in learning more about the topic of Intersport's proposal, the manner in which we noticed the item for discussion adequately apprised them of that fact and did not deter them from attending," Bretl wrote in a statement.

Walworth County has long noted its agendas this way and has never received a complaint in the past, Steil said.

In recent years, topics are discussed as much as possible in open session before going behind closed doors, Steil wrote.

Olsen forwarded his opinion to District Attorney Phil Koss for consideration of charges for the alleged violations.

Koss said he needed more time for investigation before deciding if he will pursue the matter further.

An open meeting violation concerning improper public notice carries fines between $25 and $300. Any action taken at such a meeting could be deemed null and void.

Koss added that his office might not be able to investigate the case due to potential conflicts of interest.

"Clearly the county administrator has a great amount of clout over my staff and budget," Koss said. "Perhaps it's best for Attorney General himself to prosecute (this matter)."


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