By James M. Kalny
In the landmark case of State ex rel Newspapers v. Showers Wis 2d 77(1987), the Wisconsin Supreme Court first warned public officials of the dangers of engaging in a “walking quorum”—a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. Recognizing that a walking quorum may produce a predetermined outcome and thus render the subsequently held public meeting a mere formality, the court warned that any attempt to circumvent a public meeting through use of a walking quorum is subject to prosecution under the open meetings law.
In Informal Opinion Wis. Atty. Gen to Jones I-01-10, (Jan. 25, 2010), the attorney general confronted the principle of the walking quorum concept in the context of electronic communications. The opinion considered the procedures used by a five person government panel whose purpose it was to review citizen applications for public loans and to administer any loans granted under that program. The panel followed the practice of sending loan applications by e-mail to individual members for review prior to any meeting on the applications and without any public notice. Shortly after receipt of the e-mail, the members would vote for or against the applications by email and that vote would later be “ratified” at a formally noticed public meeting under the subject heading of “Old Business,” without any other designation on the agenda. Based on those facts, the attorney general addressed three questions. First, does the open meetings law allow governmental bodies to take action by e-mail voting? Next, should a governmental body provide advance notice of e-mail voting? Finally, can a governmental body reaffirm the results of an e-mail vote conducted without public notice at a subsequent noticed meeting under the subject heading “Old Business”?
I. E-mail Voting
The attorney general reiterated the general rule that each meeting of a governmental body is to be preceded by public notice, and the body must conduct all of its business in public. He then paraphrased the two element test established in Showers: for the purpose of the open meetings law, a meeting occurs when enough members of a governmental body “convene” to exercise responsibilities, authority, power or duties delegated to or vested in the body. The attorney general explained that the “convening” of a body includes situations in which the members are able to effectively communicate regardless of the physical presence of all members. He concluded that the e-mail voting satisfied the elements of a public meeting in the same manner as a walking quorum because sufficient members of the governing body had agreed by e-mail to act and vote uniformly on the ratification vote at the subsequent public meeting.
II. Notice of E-mail Voting
The attorney general noted that in this case there was no notice given or ability of the public to observe the e-mail voting. He also stated, “It is not appropriate for me to speculate whether a governmental body could create some type of e-mail voting protocol and public notice that would satisfy the public notice and accessibility requirements of the open meetings law.” None-the-less, he warned that a governmental body would “almost certainly violate the open meetings law if it takes a binding collective action of its members without the opportunity for public observance of the decision making process.”
III. Old Business
The opinion also addressed the issue of using the general “Old Business” designation as the heading under which the ratification of these votes was considered. The attorney general reiterated that purely generic subject matter designation such as old business, new business, miscellaneous business agenda reviews or such other matters as authorized by law are insufficient standing alone because they do not identify particular subjects. Consequently, a meeting notice that merely identifies old business as a subject does not reasonably apprise the members of the public that the body would consider the reaffirmation of the e-mail vote conducted previously without any public notice.
The attorney general’s opinion turns on the fact that the “discussion,” albeit a tacit electronic one, of a public issue was done without public notice and the opportunity for the public to observe debate on the decision. The opinion does not prevent a governmental entity from sending information to governmental body members for consideration prior to a meeting. Nor does the open meetings law discourage getting information to decision makers to make informed, public decisions. However, the open meetings law does prohibit sufficient members of a governmental body from exercising delegated authority to determine the body’s course of action without a specifically noticed open meeting—notice that allows the public to observe the process, the debate and the concluding vote.