Palmeri on Open Meetings - Updated

In a 2001 letter to Former DA Joe Paulus, Councilor Tony Palmeri quoted directly the statue he violated:

Wisconsin Statutes 19.83 say that "At any meeting of a governmental body, all discussion shall be held and all action of any kind, formal or informal, shall be initiated, deliberated upon and acted upon only in open session except as provided in s. 19.85."

So he can not please ignorance.

Original post below:

Perhaps the most disturbing part of this whole episode is how Mr. Palmeri has gone against his history of open meeting advocacy when an issue affected him. here are some of his greatest hits:

From Mr. Palmeri's blog regarding a closed meeting to discuss the goals of the city manager:

If a strong case is made for going into closed session on the 24th, I will certainly join my colleagues. But "strong case" has to be more than a narrow reading of the Open Meetings law. We need to be concerned not just with the letter, but also the spirit of that law.

and further in the comments by Mr. Palmeri:

I think we should do that hashing out in public. Not only is that more in line with the spirit of the open meetings law, but it would also allow citizens who make goal suggestions to see and hear for themselves if the Council is taking them seriously.

And finally from Mr. Palmeri's statement when running for the 54th Assembly:

OUR OPEN MEETINGS LAW SHOULD ALLOW NO EXCEPTIONS.

A side discussion in a recess after half the council has voted is absolutely against the spirit of open meetings.

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.

Things we know, things we suspect

There is a bunch of speculation out there as to what I was saying in this post.

So, to clear the air after a day's more thought let's run through...

Things we know:

1. Councilor Tony Palmeri selected Mr. Buchholz, giving interactions he had with Mr. Buchholz before this meeting as the main reason.

2. Councilor Dennis McHugh selected Mr. Buchholz without giving any real reason.

3. Councilor Bob Poeschl requested a recess to think over which of the candidates he was going to support. Mr. Poeschl and Mr. Plameri had an off-microphone conversation for the entire recess. They were referring to the notes Mr. Poeschl made during the meeting in this conversation.

4. Mayor Paul Esslinger, by his own admission, came to the meeting with Mr. Buchholz selected.

5. An email was sent to several members of the council by Mr. Buchholz discussing the open position. This email was not made part of the council packet or public record before the meeting.

6. Mr. Poeschl, after the recess, gave his 'youthfulness' as the only reason to select Mr. Buchholz (who, according to his resume started his career in 1975).

From these facts, we know: A negative quorum was made when Mr. Palmeri and Mr. Poeschl discussed who to appoint. This is because Palmeri and McHugh had both indicated their choice. If Mr. Palmeri did, as it appears, try to convince Mr. Poeschl to also support Mr. Buchholz, Mr. Palmeri created a negative quroum, as three votes is enough to block any nominee. If Mr. Palmeri had the discussion with Mr. Poeschl on microphone in the open meeting, there would have been no violation.

Things we suspect:

1. Mr Poeschl really did not know who he was going to vote for going into the meeting. He should not have spoken to Mr. Palmeri, creating the negative quorum, but it was Mr. Palmeri who had previously stated who he supported that caused the problem.

2. Presumably Mr. Palmeri had a reason to select Mr. Buchholz that he did not want to mention in open session that he discussed with Mr. Poeschl in recess.

3. Mr's Palmeri, Esslinger and McHugh all came to the meeting with Mr. Buchholz as their selection. Mr. Buchholz did have contact with each of them outside of the meeting (which is legal), but did they have contact with each other? They all seemed pretty sure of their selection, with two giving indication they had Mr. Buchholz selected before they hit their seats at the meeting.

4. The whole matter stinks. It seems to me that Mr. Poeschl is caught up in some manuvering that he may not have been party to until the suspect recess.

Someone on the council needs to come clean about the process, or more research into pre-meeting correspondence and recess discussions needs to be done.

Poeschl, Palmeri - Caucus or Open Meeting Violation?

Last night, the Oshkosh Common Council selected a new member.

In a long process Harold Buchholz was selected on the first ballot with 4 of the needed 6 votes.

The process worked like this:

1. Presentations from candidates
2. Comments from citizens (there were none)
3. Council discussion
4. Council polling for candidate nomination

The council discussion worked like this:

1. Palmeri says he would select Buchholz
2. Tower selects Hintz
3. McHugh selects Buchholz
*4. Poeschl asks for a recess to think over his selection - selects Buchholz after.
5. King selects Hintz
6. Esslinger selects Buchholz
7. Buchholz wins 4-2

* Let's talk about the recess and review a few things about open meetings.

A negative quorum exists when enough members of the council have come together to block a vote outside of the open meeting. In this case, 4 votes were needed to pass the candidate. That means that 3 votes (out of the 6 councilors) could block the nomination of any of the candidates.

After Palmeri and McHugh selected Buchholz, they were in effect 'off the table'. However, when Poeschl asked for 5 minutes to think over his selection, he immediately began a discussion with Palmeri that lasted the entire break.

During this discussion, they repeatedly referred to Poeschl's notes. All of this took place off-camera and away from the eyes and ears of Oshkosh citizens.

In other words, it was against open meetings rules.

They created a negative quorum as soon as Poeschl decided to also support Palmeri's choice.