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Police
Commissioners Blindsided by Sunshine
By GEOFF DAVIDIAN
ShorewoodNewsroom.com
SHOREWOOD,
Wis. (July 15, 2021) --
Transparency reared its ugly head at the Shorewood Police Commission
meeting today, and nearly everyone was caught unprepared. Video
The
commission, meeting for the first time in nine months, elected Rick Cole
president by a 4-1 margin and unanimously named Commissioner Jennifer
Anderson secretary. But the five members could not agree on much else
except adjourning.
There
was bickering over incomplete or incorrect minutes; whether the commission
should meet more frequently; whether citizens will be able to address the
commissioners; whether the police chief should be present at closed
sessions; and who should be able to add items to the agenda.
After
an hour, Commission President Michael Y. O’Brien and Commissioner Craig Bulluck
announced they had appointments and could not stay any longer.
The
tense, awkward and sometimes confrontational virtual Zoom meeting was
dominated by the newest commissioner, Chuck Carlson, who questioned why
members were not provided agenda material or background on measures they
were being asked to approve. The only documents commissioners received were
the agenda, and minutes from the Oct. 6, 2020, meeting, which presented the
first bone of contention. According to Carlson, the minutes did not
correctly or fully memorialize the body’s business.
Outgoing
Commission President Michael O’Brien several times appeared to grow
frustrated and impatient with Carlson, balking at some of the questions and
observations about what the minutes should contain. Ultimately, O’Brien and
Commission Secretary Rick Cole agreed that Carlson could submit his
proposed corrections as a list for consideration at a future meeting.
Another
transparency issue that put Carlson at odds with the longer-serving
commissioners was his questions about the justification for going into a
closed session to discuss an employment process. According to Wis. Stat. 19.85(1)(c), a closed
session may be held for “[c]onsidering
employment, promotion, compensation or performance evaluation data of any
public employee over which the governmental body has jurisdiction or
exercises responsibility.”
When
Carlson asked questions about the closed session and other matters,
commissioners responded several times that he should ask the village
manager. Carlson asked why the commission was meeting behind closed doors
“regarding the Captain
promotional process,” commissioners removed that from the list of secret
topics.
Carlson
also inquired whether a police position that was to be filled was a new
position, pointing out that a recent, $50,000 study of the department
suggested the number of officers should be cut from 25 to 23. Nimmer said
the new position would put the force at 24. Nimmer said the village board
had approved the additional position despite the $50,000 study.
At
one point, Nimmer, who has applied for a job as chief in Brown Deer in the midst of
his department’s reorganization, told Carlson that the justification for
something was that it had always been done that way.
But
before the closed session could begin without the policy discussion,
O’Brien pulled the plug on the meeting, announcing he had an appointment.
State
case law is clear about some of the matters raised by Carlson, and he may
have saved his colleagues – and taxpayers – some expenses.
Carlson
asked whether the closed meetings were recorded, and whether the minutes
would be released to the public a later date. Commissioners did not know.
Furthermore, the commission has no lawyer present to advise members on what
is legal. Apparently, such questions are to be directed to Village Manager
Rebecca Ewald, who is not an attorney.
According to state law, the commissioners
would be subject to personal liability for violating the open-meeting
requirements had the discussion taken place out of public view.
According
to a sampling of Wisconsin case law:
Although a meeting was properly closed, in order to
refuse inspection of records of the meeting, the custodian was required by
s. 19.35 (1) (a) to state specific and sufficient public policy reasons why
the public interest in nondisclosure outweighed the public's right of
inspection. Oshkosh Northwestern Co. v. Oshkosh Library Board, 125 Wis. 2d 480, 373 N.W.2d 459 (Ct. App. 1985).
The balance between protection of reputation under sub.
(1) (f) and the public interest in openness is discussed. Wis. State
Journal v. UW-Platteville, 160 Wis. 2d 31, 465 N.W.2d 266 (Ct. App. 1990). See also Pangman v. Stigler, 161 Wis. 2d 828, 468 N.W.2d 784 (Ct. App. 1991).
A “case" under sub. (1) (a) contemplates an
adversarial proceeding. It does not connote the mere application for and
granting of a permit. Hodge v. Turtle Lake, 180 Wis. 2d 62, 508 N.W.2d 603 (1993).
A closed session to discuss an employee's dismissal was
properly held under sub. (1) (b) and did not require notice to the employee
under sub. (1) (b) when no evidentiary hearing or final action took place
in the closed session. State ex rel. Epping v. City of Neillsville, 218 Wis. 2d 516, 581 N.W.2d 548 (Ct. App. 1998), 97-0403.
The exception under sub. (1) (e) must be strictly
construed. A private entity's desire for confidentiality does not permit a
closed meeting. A governing body's belief that secret meetings will
produce cost savings does not justify closing the door to public scrutiny.
Providing contingencies allowing for future public input was insufficient.
Because legitimate concerns were present for portions of some of the
meetings does not mean the entirety of the meetings fell within the narrow
exception under sub. (1) (e). Citizens for Responsible Development v. City
of Milton, 2007 WI App 114, 300 Wis. 2d 649, 731 N.W.2d 640, 06-0427.
Section 19.35 (1) (a) does not mandate that, when a
meeting is closed under this section, all records created for or presented
at the meeting are exempt from disclosure. The court must still apply the
balancing test articulated in Linzmeyer, 2002 WI 84, 254 Wis. 2d 306. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.
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