State ex rel. Buswell v. Tomah Area School District
In State ex rel. Buswell v. Tomah Area School District, 2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804 (Wis. 2007), the Wisconsin Supreme Court held that: the language of 19.84(2) of the Wisconsin Open Meetings Law and the policies underlying the open meetings law do not abide a bright-line rule where the general topic of a meeting constitutes sufficient subject matter notice as a matter of law. Rather, they demand a reasonableness standard according to which notice must be reasonably specific under the circumstances of the case. 732 N.W.2d at 814.
The court stated that the reasonableness standard requires taking into account the circumstances of the case in determining whether notice is sufficient, including analyzing such factors as the burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate. Id.
In applying the reasonableness standard, the court carefully examined these three factors:
The first factor, the burden of providing more specific information on the body noticing the meeting . . . balances the policy of providing greater information with the requirement that providing such information be "compatible with the conduct of governmental affairs." Whether more detailed notice is compatible with the conduct of governmental affairs is determined on a case-by-case basis. Such a determination may include, but is not limited to, the time and effort involved in assessing what information should be provided in a notice and the inherent limitations of citizen boards. . . . The crucial point is that the demands of specificity should not thwart the efficient administration of governmental business.
In considering the second factor, we are persuaded that particular public interest in the subject matter of a meeting may require greater specificity in the hearing notice. Particular public interest may be a matter of both the number of people interested and the intensity of that interest. The level of interest, in and of itself, however, is not dispositive. Rather, it must be balanced with other factors on a case-by-case basis.
Third, the degree of specificity of notice may depend on whether the subject of the meeting is routine or novel. Where the subject of a meeting recurs regularly, there may be less need for specificity because members of the public are more likely to anticipate that it will be addressed. However, novel issues are more likely to catch the public unaware. Novel issues may therefore require more specific notice.
The determination of whether notice is sufficient should be based upon what information is available to the officer noticing the meeting at the time notice is provided, and based upon what it would be reasonable for the officer to know. Thus, whether there is particular public interest in the subject of a meeting or whether a specific issue within the subject of the meeting will be covered, and how that affects the specificity required, cannot be determined from the standpoint of when the meeting actually takes place. Rather, it must be gauged from the standpoint of when the meeting is noticed. (Id. at 814-15.)
In Buswell, the school board "held a special meeting in closed session to discuss the provisions of the new TEA master contract." Id. at 809. The notice issued for the special meeting stated: "Contemplated closed session for consideration and/or action concerning employment/negotiations with District personnel pursuant to Wis. Stat. 19.85(1)(c)." Id.
During the special meeting, while in closed session, "the Board tentatively approved the TEA master contract subject to TEA ratification and ratification by the Board in open session." Id. at 810. A regular meeting was later held, where "the Board officially ratified the TEA master contract that had been tentatively approved" at the special meeting. Id.
The court held that the notice for the meeting was not sufficiently specific because the "description is vague, for it could cover negotiations with any group of district personnel or with any individual employee within the district." Id. at 816.
The court further found the notice to be misleading because it stated that the closed session was for "considering matters related to individual employees, not for considering collective bargaining agreements." Id. Analyzing the circumstances of the case, the court determined that three factors support the conclusion that the notice required greater specificity. Id. at 817.
First, it would not have been a burden to the Board to state that the TEA master contract would be discussed at the June 1 meeting because it would only require a few words. Id.
Further, the notice for the second meeting "actually listed the TEA master contract on the agenda, and there is no contention that listing it there was a burden." Id.
"Second, the TEA master contract included a new hiring provision for coaches that was of interest to a number of people in the community. Several citizens had made the effort to petition the Board regarding whether to put a provision for hiring coaches into the master contract." Id.
"Third, the TEA master contract was not a routine subject insofar as it contained a new hiring provision for coaches to which a number of members of the community objected. This suggests that the notice should have mentioned the TEA master contract." Id.