Village of Colfax holds questionable closed session

By LeAnn R. Ralph

COLFAX —  The Colfax Village Board has once again held a questionable closed session that could be reported as a violation of the state’s Open Meetings law.

The village board held a general discussion of EMT wages in closed session on February 25 prior to the regular village board meeting that was supposed to start at 7 p.m.

The closed session did not deal with performance evaluations of specific, individual employees or wages attached to performance evaluations for individual, specific employees.

According to the state Attorney General’s Compliance Guide to the Open Meetings Law, the purpose of the exemption to go into closed session for consideration of employment, promotion, compensation and performance evaluations is not to be used for general discussions of wages.

Instead, the exemption for closed session “is to protect individual employees from having their actions and abilities discussed in public and to protect the governmental bodies ‘from potential lawsuits resulting from open discussion of sensitive information.’ … It is not the purpose of the exemption to protect a governmental body when it discusses general policies that do not involve identifying specific employees.”

The Compliance Guide also states, “Wis. Stat 19.85(1)(c) authorizes a closed session to discuss the qualifications of and the salary to offer a specific applicant but does not authorize a closed session to discuss the qualifications and salary range for the position in general.”

Collective bargaining

Wisconsin’s Act 10, signed into law in 2011, prohibits collective bargaining for public employees, so the Colfax Village Board could not have been developing negotiating strategies for a collective bargaining agreement with the EMTs during the closed session.

When collective bargaining for public employees was still legal in the state, governing bodies could meet in closed session to discuss their negotiation strategies.

Reconvening

The village board’s presiding officer, which in this case is the village president, also did not announce to the public waiting in the hallway of the Colfax Municipal Building that the closed session was open.

A number of Colfax EMTs and the media representative for the Colfax Messenger were waiting in the hallway.

According to the attorney general’s Compliance Guide, “The Attorney General advises that a governmental body vote in open session, unless the vote is clearly an integral part of the deliberations authorized to be conducted in closed session.”

The Compliance Guide also notes, “When a governmental body reconvenes in open session following a closed session, the presiding officer has a duty to open the door of the meeting room and inform any members of the public present that the session is open.”

Those who were waiting for the closed session to reconvene into an open session had no way of knowing if the closed session was open or if the village board even voted in open session.

Jackie Ponto, administrator-clerk-treasurer, reported the next day that the village board had decided to send the wage proposal to the village’s attorney for review.

The village board’s public safety committee also held a closed session to discuss EMT wages on February 15.

Public interest

Holding general wage discussions in secret prevents the general public from having an opportunity to know what their elected officials are considering about wages for public employees who serve the public.

“The policy of the open meetings law dictates that the exemptions be invoked sparingly and only where necessary to protect the public interest. If there is any doubt as to whether closure is permitted under a given exemption, the governmental body should hold the meeting in open session,” according to the Compliance Guide.

The state Attorney General and county district attorneys have the authority to enforce the Open Meetings law.

Actions taken by a governing body in an illegal closed session can be voided by the state Attorney General or by the county’s district attorney.

The Compliance Guide contains a form that can be used by members of the general public to file a formal complaint about violations of the Open Meetings law.

Third party

The Compliance Guide states that “competitive or bargaining reasons permit a closed session where the discussion will directly and substantially affect negotiations with a third party.”

In this case, there was no “third party,” only the Colfax Village Board discussing the EMT wages.

If Colfax were competing with another municipality for keeping the rescue squad, and the EMTs would go wherever they received the highest wages, then the Colfax Village Board could have discussed the wages in closed session because it would have been in the best interests of the public for the other municipality not to know what Colfax was offering.

Notice

The notice posted for the regular village board meeting stated that the regular meeting would start at 7 p.m.

The closed session was held at 6:30 p.m., but the regular board meeting did not start until closer to 7:30 p.m.

To remain compliant with the Open Meetings law, the village board notice should have said that the regular meeting would begin immediately after the closed session.

Since the notice stated that the regular meeting would start at 7 p.m., the presiding officer should have ended the closed session prior to 7 p.m.

Past practice

In the past few years, the Colfax Village Board has held a number of questionable closed sessions that could be reported as violations of the Open Meetings law.

Before advertising to fill the positions, the Colfax Village Board held general discussions of job descriptions and salary ranges for the administrator-clerk-treasurer, the deputy clerk and the director of public works in closed sessions.

The village board also held in closed sessions discussions of developer’s agreements with Colfax Health and Rehabilitation Center and the Colfax Fire Department.

The village was not competing with a third party for developments planned by Colfax Health and Rehab or the fire department.

In spite of strong objections about going into closed session from Mark Warner, chair of the Colfax Fire Board, the Colfax Village Board went into closed session with the fire board to discuss the dilemma of who actually owned the old rescue squad building and fire station.