Open Meetings

The Wisconsin Open Meetings Law ensures that all meetings of governmental bodies are held publicly and remain open to all citizens unless otherwise expressly provided by law. A meeting occurs when a convening of members of a governmental body satisfies the two requirements of the so-called Showers test, so named after the court case, State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987), in which the test was articulated.

• First, there must be a purpose to engage in governmental business (the purpose requirement).
• Second, the number of members of the governmental body present must be sufficient to determine the body’s course of action (the numbers requirement).

Regarding the purpose requirement, a body is engaged in governmental business when its members gather to simply hear information on a matter within the body’s realm of authority. Thus, mere attendance at an informational meeting on a matter within a body’s realm of authority satisfies the purpose requirement. The members of the body need not discuss the matter or even interact. This applies to a body that is only advisory and that has no power to make binding decisions.

Regarding the numbers requirement, a quorum is the minimum number of a body’s membership necessary to act. Thus, a convening of a quorum of a body’s members would meet the numbers requirement. However, a negative quorum, the minimum number of a body’s membership necessary to prevent action, also would meet the numbers requirement. Determining the number of members of a particular body necessary to meet the numbers requirement is fact-specific and depends on the circumstances of the particular body.

A meeting does not include any social or chance gathering or conference that is not intended to avoid the requirements of the open meetings law. However, a meeting of a governmental body occurs when a sufficient number of members plan to and do attend or regularly attend a meeting of another governmental body and the subject matter of that meeting is within that body’s realm of authority. In such a situation, it is important that the governmental body whose members attend another body’s meeting ensures that the open meetings law’s requirements, including notice, are followed.

If a majority of the members of a governmental body are gathered, the law presumes that the members conducted a meeting subject to the requirements of the open meetings law. The body members may overcome the presumption by proving that they did not discuss any subject within the realm of the body’s authority.

The purpose of the open meetings law is to ensure public access to information about governmental affairs, and the law is to be liberally construed to achieve this purpose. Any doubts as to whether a particular gathering constitutes a meeting subject to the open meetings law should be resolved in favor of complying with the provisions of the law.

Under the Wisconsin Open Meetings Law, there are several options available when an individual believes a governmental body has violated the law. The Attorney General and the district attorneys have authority to enforce the law. Generally, the Attorney General may elect to prosecute complaints involving novel issues of law that coincide with matters of statewide concern.

More frequently, the district attorney of the county where the alleged violation occurred may enforce the law. However, in order to have this authority, an individual must file a verified complaint with the district attorney. The verified complaint must be signed by the individual and notarized and should include available information that will be helpful to investigators. Helpful information includes:

• The name of the governmental body
• The names of the body’s members who are alleged to have violated the law
• A description of the factual circumstances of the alleged violations
• The names of witnesses
• Any relevant documentary evidence

The law does not require a district attorney (or the Attorney General) to commence an enforcement action upon receipt of a written request to do so. A district attorney has broad discretion to decide whether to bring an action for enforcement. The open records law takes into account the fact that the Attorney General or district attorneys may not always commence actions for enforcement and provides individuals with the option of commencing their own action.

If the district attorney refuses or otherwise fails to commence an action to enforce the Open Meetings Law within 20 days after receiving the verified complaint, the individual may bring an action in the name of the state. (Please note, a district attorney may still commence an enforcement action even after 20 days have passed.) Such actions by an individual must be commenced within two years after the cause of action accrues.

An individual who is interested in bringing an action in the name of the state may wish to consult with an attorney. The Wisconsin Open Meetings Law Compliance Guide has an open meetings law complaint template in its appendix.

The answer depends on what is reflected in the meeting minutes. So long as the minutes record all motions and roll-call votes, generally, there is no violation of the open meetings law. A popular misunderstanding is that the open meetings law requires that a governmental body maintain meeting minutes. This is not the case. The open meetings law only requires a governmental body to create and preserve a record of all motions and roll-call votes at its meetings. This requirement applies to motions and roll-call votes that occur in both open and closed sessions.

Meeting minutes are a common method that governmental bodies use to preserve a record of motions and roll-call votes. However, minutes are not the only permissible method. For example, an audio recording would fulfill the open meeting law’s requirements. In practice, many governmental bodies also record other aspects or details of meetings. How comprehensive such meeting minutes are may vary widely from one body to the next. However, so long as the body is maintaining some type of record of all motions and roll call votes, the open meetings law’s requirement is satisfied.

It is important to note that this answer only concerns the open meetings law’s requirements. Other statutes outside the open meetings law may prescribe particular minute-taking requirements for certain governmental bodies and officials. Such requirements may exceed what is required by the open meetings law.

Although not required by the open meetings law, in an effort to increase government openness and transparency, it is recommended that governmental bodies keep minutes of all meetings. The open meetings law does not specify a timeframe in which a body must create a record of all motions and roll-call votes. However, as a best practice, it is advisable that the motions and roll call votes of a meeting of a governmental body be recorded at the time of the meeting or as soon thereafter as practicable.

First, it is helpful to define “quorum.” A quorum is the minimum number of a governmental body’s membership necessary to act. One governmental body may define what constitutes a quorum differently than another governmental body. For example, a quorum for a seven member town council may be a simple majority of four members while a quorum for a neighboring town’s seven member council may be a super majority of five members.

A “walking quorum” is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. A walking quorum may produce a predetermined outcome and thus render a publicly-held meeting a mere formality. The Wisconsin Supreme Court has commented that any attempt to avoid the appearance of a meeting through the use of a walking quorum is subject to prosecution under the open meetings law. Furthermore, the requirements of the open meetings law cannot be circumvented by using an agent or surrogate to poll the members of governmental bodies through a series of individual contacts. The series of gatherings need not be face-to-face. For example, phone calls, email exchanges, and other electronic messaging may suffice.

The essential feature of a “walking quorum” is the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum. Where there is no such tacit or express agreement, exchanges among separate groups of members may take place without violating the open meetings law. Thus, the signing, by members of a body, of a document asking that a subject be placed on the agenda of an upcoming meeting likely does not constitute a “walking quorum” where the signers have not engaged in substantive discussion or agreed on a uniform course of action regarding the proposed subject. In contrast, where a majority of members of a body sign a document that expressly commits them to a future course of action, a court could find a walking quorum violation.

Walking quorum issues are complex and fact specific. If a member of a governmental body or a citizen has questions or concerns regarding a possible walking quorum, they should consult with their legal counsel.

The Wisconsin Open Meetings Law requires that public notice of every meeting of a governmental body must be provided at least 24 hours prior to the meeting. If, for good cause, such notice is impossible or impractical, shorter notice may be given, but in no case may the notice be less than two hours in advance of the meeting. (There is little guidance as to what constitutes “good cause”; like the entire open meetings law, this provision should be interpreted in favor of providing the public with the fullest and most complete information.) The law requires separate public notice for each meeting at a time and date “reasonably proximate to the time and date of the meeting.”

A governmental body’s chief presiding officer or his or her designee must provide notice to the following: the public; to news media who filed a written request for such notice; and to the official newspaper, or if there is no official newspaper, to a news medium likely to give notice in the area. Other statutes, other than the open meetings law, may also establish notice requirements for governmental body meetings. The notice must provide the time, date, place, and subject matter of the meeting.

The notice must be written such that it is reasonably likely to apprise members of the public and the news media of this information. Governmental bodies often provide notice to the public by paid publication or posting in one or more places likely to be seen by the public. Although not specifically required by the open meetings law, the Department of Justice has long recommended that a governmental body post in three separate physical locations. Posting notice on the governmental body’s website may be used as a supplement—but not a substitute—to the law’s notice requirements.

It is important to note that notice to the public and notice to a news medium are separate requirements. A governmental body is not required to pay for, and the news medium is not required to publish, notice provided to the news medium. However, if a governmental body seeks to provide notice to the public by paid publication in a news medium, the chief presiding officer must ensure that the notice is published.

The Wisconsin Open Meetings Law acknowledges the public is entitled to the fullest and most complete information regarding government affairs as long as it does not hinder the conduct of governmental business. All meetings of governmental bodies, such as a city council, shall be held publicly and be open to all citizens at all times unless otherwise expressly provided by law. The open meetings law does not require a governmental body to allow members of the public to speak or actively participate in an open session meeting. The law only grants citizens the right to attend and observe open meetings.

However, the law permits a governmental body to set aside a portion of an open meeting as a public comment period. While public comment periods are not required, if a governmental body decides to have such a comment period, it must be included in the meeting notice.

There are other state statutes—other than the open meetings law—that require governmental bodies to hold public hearings regarding certain matters. Unless such a statute specifically applies, a governmental body has wide discretion over any public comment period it chooses to permit. Besides the discretion over whether to allow public comments at all, a body also has discretion to decide to what extent it will allow public participation. For example, a governmental body can limit how much time each citizen may speak.

If a governmental body permits a public comment period, it may receive information from the public, and it may discuss any subject raised by a member of the public. A body may not take any formal action on such a subject unless it was identified in the body’s meeting notice. If a citizen raises a subject that is not included on the meeting notice, it may be advisable for the body to limit substantive discussion on the subject until a subsequent meeting in which the body can include the subject on the meeting notice.​​