City Attorney Warns Council Against Negative, Walking Quorums
By Brandi Makuski
Annual training for Stevens Point Common Council members in May focused largely on a single issue: illegal communication outside the context of a formal city meeting.
Since being elected in 2015, Mayor Mike Wiza has held annual local training for elected council members to provide education not so much on what they should be doing, but rather what they shouldn’t.
“It’s a good brush-up for ongoing alders, and a good foundation for those who’ve been newly-elected,” Wiza later said of the meeting, adding each alder also receives training from the Wisconsin League of Municipalities.
The workshop was conducted by City Attorney Andrew Beveridge; designed, Beveridge said, to protect the city from potential legal trouble following decisions made by well-meaning citizens who’ve been elected to public office and may not have an understanding of the state’s open meetings law.
The state law reads in part:
“…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.”
Beveridge said there are specific legal definitions for “meeting” and “governmental body”, meaning council members cannot meet in groups of three or more to discuss city business — even informally — unless a public notice has been published at least 24 hours in advance, and must include the time, location and topic slated for discussion.
“[The law] doesn’t include things that are social — or a chance meeting — but that presumes the conversations are solely social,” Beveridge said. “And if it’s something that’s going to affect your decision on something [city related], the public needs to have an opportunity to be present to hear what that information is.”
Wiza, who previously served multiple terms on the City Council, said another concern he had was something called a “negative quorum”: something which occurs when several council members agree in private to not support a pending vote before a public meeting is held.
“Some votes, like a budget amendment, require a super-majority vote to approve,” Wiza said at the meeting. “If a group of alders gets together beforehand to discuss it in private, and all agree they won’t support it, that’s a negative quorum because they’d have the number [of votes] to defeat the motion. That’s also against the law.”
Beveridge said it takes as few as three members of the council engaged in a negative quorum to prevent a vote needing a super-majority. He advised council members in order to avoid any accusation to that effect, they not meet socially.
“The difficult thing about a social [meeting] is, if it’s planned, and everybody gathers, it’s so hard for the conversation to not turn to business matters,” Beveridge said. “I’m sure you have some things in common, but there’s one thing that ties you all together, and it’s going to be real hard for that to not come up.”
Two veteran members of the council — Aldermen Jeremy Slowinski and Mike Phillips — both said they have made it a regular practice to not meet others on the council outside of meetings.
“I try to avoid it completely,” Slowsinki said.
Phillips, the council’s longest-serving member, said he’s got a longstanding personal policy on the matter, because he believes the appearance of impropriety has a negative effect on a council member’s job and reputation.
“One of my rules is: two [council members] can talk, but if another alderman [sic] walks over, I disappear,” Phillips said. “I think that’s just a good, common sense thing to do so you’re never in a position of even being accused.”
Beveridge also said the walking quorum — a series of meetings, telephone conferences, or other ongoing communication allowing a small group of the council to privately arrive at a consensus — has been a hot topic in his office lately, partly because the group utilizes social media more frequently than any other in the history of city government.
Social media is a concern, he said, because the electeds interact with each other in conversation threads.
“I know that everyone wants to be as engaged as they can with their constituents, and you have to go to the platforms that the people are on, but be aware there are the possibilities of violating Chapter 19 via those mechanisms,” Beveridge said, referencing the state statute which governs city meetings. “It’s one thing for other alderpersons to view a comment thread and see what’s going on, but if you start participating in that conversation, not only do you run the risk of a violation, you’re [also] creating public records. Your comments on social media are public records subject to discovery.”
Each alder, he said, is responsible for maintaining their own public records on social media — something that’s “hard to do,” he said — and suggested each keep a running document of everything they post on social media, calling it “an insurance policy”.
“Any comment you put online anywhere that relates to the city is essentially a public record,” Beveridge said. “It doesn’t matter if it’s your personal account or your city account, it’s all the same.”
Ald. Mary Kneebone asked if emoticons — a representation of a facial expression, such as a smiley face, used to indicate one’s feelings about a social media post — could be considered communication between alders outside a formal meeting.
“If there was a video [on social media] about how to use the bike hitches; and if three of us ‘like’ it, technically, we’re making a comment, we’re endorsing that video,” Kneebone said.
“You couldn’t have a function that’s better tailored to be indicative of a plan to vote on something than ‘like’ [on social media], so I’d be careful with that,” Beverage replied, adding if three or more alders “liked” a Facebook post relating to pending city business, he’d “almost guarantee” that would constitute a walking quorum and violate state law.
Phillips suggested council members simply stay off social media, which prompted a reaction from several on the council, who insisted it was a good way to hear out constituents.
Prior to the meeting, Wiza said the city attorney had warned some on the council “several times” about potential open meetings violations.
“It could create a lot of legal problems for the city, and we have too much regular city business to conduct without having to spend our limited resources on fighting those legal problems,” Wiza said, adding the desire by council members to opine on social media wasn’t worth the potential fallout.
He told the council members, “Don’t put the city at risk; don’t put yourself at risk.”