5.28.2009

Well this changes everything....

From today's OshNW:
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.

"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."
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:
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.

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.
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.

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.

5 comments:

Anonymous said...

I see Kent Monte has been busy blogging about how Poeschl's vote wasn't necessary ("Bucholz had 3 votes confirming his selection regardless of what Poeschl voted.") and calling your suspicions sour grapes. I wonder how he explains so many others complaining about the same thing, many with a lot more smarts than him. On top of which, Poeschl's vote absolutely was necessary. Since the appointment required four votes you could even say it was critical.

He also cites the city attorney saying what took place wasn't illegal. Since when does Kent Monte take the word of a department head in city hall as gospel? Answer: when it props up his argument, otherwise he rails against it.

Of course this isn't the first time Kent Monte's been wrong about something and it surely won't be the last. Being wrong on a regular basis is the one thing we know he's good at. Keep up the good work, Jef. Please file a complaint and let's see what some real legal authorities have to say. We all know the Montes don't know much about the law.

MacinOsh said...

If you take the law literally it is arguable that Poeschel's vote did not cause an item or a motion to fail. It was a nomination process to narrow the pool of candidates down to two, and at the time of the discussion the outcome of this process could have ended up in a tie. Proceedings would have then continued.( What that would have consisted of is a mystery to me but maybe someone knows what was intended to happen concerning a tie vote? That is immaterial anyway concerning your allegation.)
As it turned out, Bucholz ended up with a majority after the first round that was intended to narrow the field. The Council then voted unanimously to appoint him.

Ron said...

Jef,

I am curious about something else that was in the Northwestern article. They wrote:

"Poeschl and Councilor Tony Palmeri spoke throughout the break in the council chambers — in front of a crowd gathered there. "

I wasn't there (I watched on TV but naturally took a "break" when they took a break) but you were. So was this crowd gathered in front of Palmeri and Poeschl privvy to the discussion?

I'll watch the playback on the DVR when you can kind of see who and where people are during the break but I'd love to hear more details about where this discussion took place and who else was present.

random n00b said...

While I believe that Ron is one of the few people capable of not just propping up a buddy for old time's sake (I sure hope that's right) I have to point out 2 things
1.The question here is not were "people" - some people, anypeople, two homelss guys and Bobs' wife - privy to this Actionable Conversation, but were The People able to witness the decision-making process. Transparency criteria are not met simply by a few bodies happening to be in close enough proximity to hear. You could never say that deciding to go to the men's room during the break also forfeits your citizen access to tranparency.

I have a passel of relatives in law and government. You KNOW I have strong interest in local issues and I certainly have expressed curiousity on a number of occassions about this issue or that. I have been snubbed/hastily reminded that stuff is not supposed to be discussed. I mean in a private home. By my own father. Do I realize people talk anyway? yup. and Have I seen it happen? yup. However the general behavior I have witnessed, when people are trying to behave "as they should", indicates that you are NOT supposed to be opening the old pie-hole re: votable issues.

2. The big deal here is, after years of Palmeri crawlin' up everybody else's ass on ethics, statutes and transparency, transparency, transparency - well a massive WTF is gonna reverberate across the land, isn't it? People supported and invested in this guy or - felt his wrath and had to deal with this guy.
They're gonna want some answers.

Ron said...

Mister N00b,

I appreciate the props from you. Sure, my instinct is to rush to defend my buddies, but I did some homework before I did because like you implied I'm not going to prop them up without feeling that I know what actually happened.

So I talked to Bob, and I watched the taped portion of the 7 minute break carefully, watching for who was talking to whom and for how long, and watching the body language.

In my opinion, this is just petty politics, and an unjustified attack on Palmeri and Poeschl irregardless of the greyness of the rules on "negative quoroms".

My editorial on this is now posted on Main Street Oshkosh.If Tony and Bob were talking about something significant, I agree, The People have a right to hear it, but I don't feel I need to hear them talking about Harold's tie or Cummings' attitude or Spanbauer's history lecture (as interesting as it would be to be a fly on the wall).

So for me it comes down to whether or not they violated the state open meetings laws, and if they did, whether it was intentional or deceiving to the public. In my opinion, they didn't, and it wasn't.

Looked bad? Yup.
Did Tony talk Bob into voting for Harald? Nope.
Did Tony influence Bob's decision? Maybe, but if he did it was during his public statements during the meeting.

My two cents.