The Wisconsin Supreme Court will hear oral arguments Wednesday morning in a case whose outcome observers say could provide local governments with a workaround to compliance with the Open Meetings Act. At the heart of the case is this question: can local governments evade the Open Meetings Act by having administrators create committees instead of having elected bodies create them directly?
In 2011, John Krueger, a taxpayer in the Appleton School District, raised concerns about sexual themes and obscene language in books assigned for a 9th grade English course. In response to his request for an alternative course that didn’t use the books, the district instead created a committee to conduct an evaluation of the books used in the existing course. This committee was formed by two school administrators.
The 17 member committee met nine times between October 2011 and March 2012, reviewed more than 90 fiction books and recommended a list of 23 books to the school board’s programs and services committee. That committee and the full school board adopted the list in April 2012. Krueger’s attorney, Rick Esenberg of the Wisconsin Institute for Law and Liberty (WILL) told Media Trackers in an interview (audio below) that Krueger requested to attend the committee meetings but was refused. And Esenberg says the committee made no secret as to why they didn’t want him there:
“They didn’t want him there because they were afraid he was going to tell the public what they were doing. That’s exactly what they said. I mean he had been involved in things like this before and he had made public commentary about it and they didn’t want that. They didn’t want to have public scrutiny of what they were doing and…that they didn’t want that kind of controversy… that shouldn’t be the way these decisions are made.”
Kruger sued the Appleton Schools District, alleging it had violated the Open Meetings Act. A circuit court and an appeals court both sided with the school district. The trial court held that, because the review committee was not created by a directive of the school board, the committee was not a “governmental body” subject to the open meetings law. The Court of Appeals also held that the review committee was not a “governmental body” subject to the law. Despite those setbacks, Esenberg remains convinced the law is on Krueger’s side and that he will prevail at the state’s highest court:
“What they school district has said is, well this means that every time there is a group of teachers that get together to talk about…reading material, or something like that, then they’ll have to comply with all the requirements of the open meetings law. That’s simply not true. We’re not saying anytime two or three people get together to talk about something that has to be subject to the open meetings law. I think what the school district has done is they have tried to create…a parade of horribles about how government will be unable to operate if the public is allowed to watch what it does. I at least hope the Supreme Court won’t go down that direction. I think that based upon its past precedents it is unlikely to do so.”
Esenberg says allowing work delegated by local governmental bodies to committees to be shielded from public scrutiny opens a dangerous door:
“Imagine school boards saying, look, we don’t really want to go through the slings and arrows from the public that we might have to endure if we were going to…debate and select reading materials at an open meeting of the school board. But it’s an important thing that the public needs to have input to. And so, our legislature has decided that wherever the real work of government is being done, if it’s being done by a committee, if it’s being done by a governmental body, the public needs to be there…This case is about…whether local units of government…any unit of government really, can evade that requirement of public access by shoving the real work of government onto someone else.”
You can hear Media Trackers Communications Director Jerry Bader’s interview with Esenberg below.