Poeschl explained he was simply reviewing his notes while at the same time speaking with Palmeri. He said the conversation was geared toward the presentations and that Palmeri did not sway his vote.We now know they were discussing the appointment, that was what the presentations were for. This violates open meetings. From the UW Extension Local Government Fact Sheet on WI Open Meetings Law:
"I was flipping through my notes the whole time," he said. "I can understand where the speculation is coming from…but the nature of that conversation was simply geared toward the presentations."
Purpose test. This test is met when discussion, information gathering or decision-making takes place on a matter within the governmental body’s jurisdiction. This test is met even if no votes are taken; mere discussion or information gathering satisfies the test.Emphasis mine.
Here are some quotes from the WI Department of Justice's 2007 Open Meetings Law Guide:
In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.I will address "the letter and spirit of the law" in a later post. Suffice to say that Mr. Poeschl and Mr. Palmeri admitted to violating accessibility to all citizens at all times with their side conversation.
In order to advance this policy, the open meetings law requires that “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.”
Public officials must be ever mindful of the policy of openness and the rule of liberal construction in order to ensure compliance with both the letter and spirit of the law.
Let's talk about why the two councilors constituted a negative quorum:
The Wisconsin Supreme Court has held that the above statutory definition of a “meeting” applies whenever a convening of members of a governmental body satisfies two requirements: (1) there is a purpose to engage in governmental business and (2) the number of members present is sufficient to determine the governmental body’s course of action.Can two councilors out of six "determine the governmental body's course of action?"
In this case, yes. Remember, at this time Mr. Buchholz had two votes for appointment. It took four out of six to make the appointment. This meant that three votes can block any nomination. Therefore Mr. Poeschl's vote was enough to detirmine the course of action.
This is why the council allows for discussion between the council members in open session. this is where Mr. Poeschl and Mr. Palmeri's conversation should have taken place.
The presentations were supposed to be the way the council made the decision. If they were, as Mr. Poeschl's quote indicates, discussing the presentations, they were in violation of both the letter and spirit of the law.