Open Records (LT 5-25-08)

In my opinion, there can be no doubt that the provisions of the Open Meetings Laws and the interpretation of them with the more recent court rulings was used and abused by the ECASD BOE under the Presidency of Mike O'Brien. His decision to withhold the discussions related to the Klaus/Olson backdated document reflected his desire to protect his buddies (Klaus and Olson) and avoid disclosure of their fraudulence. This was further complicated and affirmed by the fact that there WERE NO CONSEQUENCES AT ALL for Klaus for his deception. They just said that he could not get the money early as he was attempting to, Illegally, do.

Maria

Updated: 5/24/2008 11:12:02 PM
Questions raised about open records
By Tom Giffey
Leader-Telegram staff
The controversy surrounding an Eau Claire school administrator's contract has thrown a spotlight on the use of closed meetings by local governments.

In particular, the situation highlights how a recent state appeals court ruling may have a chilling effect on the public's attempts to examine what goes on behind closed doors.

While local government meetings are for the most part open to the public, bodies such as the Eau Claire school board can meet in closed session for specific purposes spelled out in state law. Discussion of personnel matters - including performance evaluations and compensation - are among the exceptions.

And it's under those exceptions that the Eau Claire school board met in closed session several times last year. On Jan. 8, 2007, the board met in closed session to discuss the evaluation of then-Superintendant Bill Klaus. According to minutes of that meeting, the board agreed to allow Klaus to move into another administrative job within the district. At another closed meeting Jan. 22, 2007, the board again discussed the terms of Klaus' contract. Then, at an open session meeting Feb. 5, 2007, the board approved the contract changes, allowing Klaus to become Northstar Middle School principal beginning this school year.

The matter would have ended there except for actions taken last summer by Klaus and Carol Olson, the former school board president. At the behest of Klaus, Olson signed and backdated a document to Feb. 5, stating that the school board had agreed to allow Klaus to begin collecting his retirement stipend payments at age 53, rather than at retirement, as stated in his contract. (Klaus is now under investigation by the school board and police, and was placed on paid leave last month.)

Klaus and Olson have maintained that they were not trying to circumvent the contract; rather, they were clarifying a misunderstanding about when the stipend payments should begin.

In a letter to interim Superintendent James Leary earlier this month, Klaus said the minutes of the Jan. 22, 2007, closed session meeting "do not reflect the issues raised regarding my contract" and "are, at best, incomplete." He also complained that there apparently were no closed session minutes from Feb. 5, 2007, "the very meeting at which the Board addressed and approved the matter of my stipend payments."

However, board members - including current President Carol Craig - have said Klaus' contract wasn't discussed in closed session that evening, an assertion backed up by closed-session minutes obtained by the Leader-Telegram.

Records may be vague
This disagreement highlights one ambiguity in the state's meetings laws: How comprehensive should minutes be? According to an open meetings guidebook published by the state Department of Justice in 2007, the law requires minutes be kept of open and closed session meetings. However, these minutes don't have to be "detailed"; rather, they can merely be records of motions and roll-call votes. In other words, the school board would be operating legally if it talked about Klaus' stipend but didn't write down the discussion's details - as long as proper notification of the closed meeting was given.

But the state attorney general's office said governmental bodies must keep a record of any actions taken in closed meetings, formal or otherwise. The Leader-Telegram requested the opinion, which was written last week by Assistant Attorney General Thomas Bellavia.

"A body must create and preserve an intelligible record of the essential elements of all such decisions regardless of the decision-making method used and regardless of whether a formal motion has been presented to the body," Bellavia wrote.

"Regardless of where the outer limits of the record-keeping requirement ... may lie ... it is clear that every action or determination made by a governmental body on any substantive item of the body's business lies well within those limits," Bellavia wrote.

Eau Claire City Council member Dave Duax worries that the minimal record-keeping requirements of the law could land local governments in trouble if their closed session decisions were questioned in court. He noted that the Department of Justice has stated that government bodies can keep tape recordings of their meetings to satisfy the open records law.

"In Eau Claire, that would be an epiphany," he said. If the school board had recorded its closed-session deliberations about Klaus' contract, "It may have saved the man a job, and saved the Eau Claire school district a significant amount of embarrassment," Duax said.

Coincidentally, the Wisconsin Newspaper Association has begun to press state lawmakers to amend the law to require audio or video recordings of all closed session meetings. In a letter last fall to state Sen. Robert Wirch, D-Pleasant Prairie, WNA Executive Director Peter Fox said the law also should be amended to allow public access to the recordings (and other meeting minutes) after the reasons for the meetings' confidentiality had expired.

Ruling criticized
The WNA effort came on the heels of a 1st District Court of Appeals decision that slammed the door shut on access to closed meeting records in Wisconsin. In December 2006, the appeals court ruled in Sands v. Whitnall, a dispute between the Whitnall school district in Greenfield and a former employee who sought disclosure of what went on in a closed meeting during which her employment was discussed. The court ruled that the meetings law was intended to shield some discussions from the public, and that the law "contains no exceptions to the non-disclosure principle, none for litigation or any other circumstance."

Bill Lueders, president of the Wisconsin Freedom of Information Council, called the decision "astoundingly bad." It was appealed, and Lueders hopes the state Supreme Court overturns the ruling. (The high court is expected to announce its decision by the end of June.)

Mike O'Brien - who was Eau Claire school board president until last month - cited Sands v. Whitnall as the reason board members couldn't talk about discussions of Klaus' contract that took place at a closed session meeting Oct. 22. (The board clarified provisions of Klaus' contract in an open session meeting Dec. 17.)

In a Dec. 20 e-mail to the Leader-Telegram, O'Brien wrote that the questions that arose about Klaus' contract involved "information discussed in closed session which I cannot divulge."

In another e-mail, sent April 14, O'Brien wrote that, based on his interpretation of the Sands v. Whitnall ruling, "If the information cannot be disclosed in a court case, it stands to reason it cannot be disclosed to the press."

Lueders, news editor of the Isthmus newspaper in Madison, said the appeals court ruling could be read as a broad prohibition against releasing closed-session information.

"It's an arguably valid interpretation of an astoundingly bad decision," Lueders said. "The fact you could interpret it that way shows what a bad decision it is."

The court ruling notwithstanding, Lueders believes the law allows the release of information from closed session meetings.

"There's no requirement that they treat the (closed session) discussion as part of some top-secret occurrence," he said.

Indeed, earlier this month, the Eau Claire school district responded to a records request from the Leader-Telegram by providing copies of minutes from six closed session meetings last year at which Klaus' contract was discussed. The records weren't completely open, however: Paragraphs were blacked out on three of the documents.

Giffey can be reached at 833-9205, 800-236-7077 or tom.giffey@ecpc.com.