July 6, 2001
Dear Mr. Palmeri:
I am writing this letter in response to your April 24, 2001 correspondence regarding activities of the City of Oshkosh Common Council. Specifically, you questioned the legality of actions by council members earlier this year concerning redevelopment of the 100 block of North Main St. in the City of Oshkosh. If I understand your complaint correctly, you are concerned that certain closed session meetings held by the City Council may have violated Wisconsin's Open Meetings law. Additionally, you questioned whether votes were taken in closed session, effectively selecting a developer for the re-development project without public disclosure of the vote. You also questioned the propriety of council members agreeing in closed session to refrain from talking to the news media about the project. These issues were the focus of our investigation and I will address them individually.
First, Wisconsin law provides that a closed session may be held only for those specific purposes listed in Sections 19.85(1)(a)-(j). In the case at hand, council members rely on Section 19.85(1)(e), Wis. Stats. as the appropriate exemption for meeting in closed session. Under Section 19.85(1)(e), a closed session may be held for the purpose of deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.
The investigation revealed that the topics discussed in closed session met the requirements of Section 19.85(1)(e), Wis. Stats. Specifically, discussions included consideration of the cost of land to be sold to the developers, the amount of money to be financed by the city, the amount of "in kind" funds to be committed by the city and amount of potential tax incentives.
I conclude that Section 19.85(1)(e) clearly applies to the situation at hand and the closed session meetings in question were properly authorized and noticed under Wisconsin law.
Second, there is a question as to how one of two competing developers was selected for the project. Specifically, was there a vote in closed session to select a developer, without subsequent public disclosure of the vote? Under Section 19.88(3), Wis. Stats., motions and roll-call votes shall be recorded, preserved and open to public inspection, whether taken in open or closed session. The record should ultimately indicate the motion, maker of the motion, second of the motion and outcome of the vote. Where there was a roll-call vote, the record must note how each member voted. In the case at hand, the threshold issue becomes whether any motions were made or role(sic)-call votes taken.
On this issue, City Attorney Kraft reported that council members never voted on any matters during the relevant closed sessions. In fact, Kraft stated that he routinely advises council members that if they do vote on issues in closed session, whether by roll-call or show of hands, the votes must be detailed and recorded. City Attorney Kraft stated that the procedure for the 100 block re-development project was the same as with other building projects. Specifically, when developers are interested in a project, they are referred to the Oshkosh Community Development Department. Development projects with potential merit are subsequently referred to city council members via confidential memo from City Manager Richard Wollangk. Closed session meetings are then held under Section 19.85(1)(e), Wis. Stats. to discuss the terms of the proposals. Some meetings include representatives of the developers submitting proposals. After the representatives are excused, City Manager Wollangk leads a discussion about the pros and cons of the various proposals. Using this feedback as guidance, City Manager Wollangk continues to negotiate with the various developers. Eventually, "term sheets" are prepared for the final closed session. These term sheets contain the final offers from the city and the developers. City Manager Wollangk again facilitates a discussion of the pros and cons of the final offers and ultimately drafts a resolution for consideration in a public meeting. City Attorney Kraft stated that this procedure was followed with regard to the 100 block project.
In response to direct questions as to how Ganther Construction Company was chosen over a competing developer, City Attorney Kraft reported that the competing developer insisted that the city assume a variety of costs the city was not prepared to assume. Therefore, City Manager Wollangk did not draft a resolution which included that developer's proposal. Again, City Attorney Kraft stated that no vote was taken at any of the closed sessions concerning which developer should be included in the final resolution to be voted on during public session.
City Manager Wollangk also reported that no motions were made and no votes were taken in closed session with regard to the 100 block re-development project. Wollangk went on to clarify that there were no roll-call votes, no verbal votes and no show of hands. Wollangk stated that the selection of Ganther over the other developer was made after a discussion with council members about the two proposals. Wollangk stated that some of the provisions by the other developer were unacceptable to the city. Accordingly he drafted a resolution with Ganther as the developer.
This office subsequently interviewed each of the city council members attending the referenced closed session meetings.
Council member Melanie Bloechl reported that during one closed session meeting, council members verbally agreed to bring the Ganther proposal forward in a formal resolution. Bloechl stated that at the time, she questioned whether this verbal agreement was in essence a vote between the two proposals that should have been done in open session. Bloechl stated that there were no motions and no formal votes.
Council member Paul Esslinger stated that no motions were made and that no votes were taken in closed session. He specifically stated that the choice between Ganther and the other developer was not based on any motion or vote in closed session. Esslinger stated that there was a discussion in closed session with City Manager Wollangk wherein the pros and cons of the two proposals were discussed. Using the discussion as guidance, Wollangk drafted the Ganther resolution.
Council member Kevin McGee stated that he recalls a discussion about choosing one of the two competing developers for the project. He did not agree with Council member Bloechl's statement that council members verbally agreed to choose the Ganther proposal. Rather, McGee recalled a show of hands (called for by City Manager Wollangk) as to which developer should be included in the final resolution.
Council member Jon Dell'Antonia stated that no motions were ever made and no votes were ever taken in any of the referenced-closed sessions. Dell'Antonia stated that City Manager Wollangk listened to the discussions of the council members and used that as guidance in drafting the Ganther resolution.
Council member Steven Hintz stated that no motions were made and no votes were taken in closed session. He recalled that City Manager Wollangk listened to a discussion by the council members and then drafted a resolution including the Ganther proposal. Hintz stated that it was obvious from the individual opinions expressed in the discussion that most of the council members preferred the Ganther proposal.
Council member Mark Harris stated that he did not recall any votes being made in any of the closed session meetings, whether verbal, written or by show of hands. Harris also reported a general discussion with City Manager Wollangk which ultimately resulted in the Ganther resolution being drafted by the City Manager.
City council member Richard (Matt) O'Malley stated that no votes were made by city council members in any of the closed session meetings. O'Malley stated that there were discussions about the proposal submitted by Ganther and the other developer and that City Manager Wollangk used these discussions as a guideline to draft the resolution favoring Ganther Construction Company. O'Malley reiterated that there was never a vote by council members on the issue of Ganther versus the other developer.
Again, Section 19.88, Wis. Stats. provides that no secret ballot may be utilized to determine any election or other decision of a governmental body except the election of the officers of such body in any meeting. Further, the motions and roll-call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection.
In the case at hand, all parties acknowledge that no motions were ever made in closed session concerning the 100 b lock re-development project. Additionally, all parties acknowledge that there was no formal roll-call vote in closed session concerning the 100 block re-development project. Council member Melanie Bloechl reports that there was a verbal agreement to bring the Ganther proposal forward in a formal resolution. Council member Kevin McGee stated that there was no verbal agreement as reported by council member Bloechl, but rather a show of hands called for by the city manager on the issue of which developer should be included in the final resolution. No other person present at the closed session meetings reported a show of hands vote on the issue in question. Other than the conflicting statements by Council members Bloechl and McGee, all other council members, as well as the city attorney and city manager, reported that no vote of any kind was taken on the issue of which development proposal would be included in the final resolution.
Based on the information developed in the investigation, it is my conclusion that the State would not be able to meet its burden of proof in a prosecution. Accordingly, no charges will be filed. I base my conclusion on the fact that no motions were made and no roll-call votes made at any of the closed sessions. Also, there are conflicting reports of a verbal agreement and/or show of hands vote. These claims are specifically challenged and denied by the vast majority of those present at the referenced meetings.
Despite its finding, it is advisable for the City Council to take greater steps to properly its activities in closed session. Such steps would eliminate the prospect of inconsistent recollections by individual Council members. Whether the closed session meetings were audiotaped, videotaped or stenographically recorded, there would be no question as to what transpired during the meeting.
Third, there is a question as to the propriety of council members agreeing in closed session to refrain from speaking to the news media about the project being considered. Other than the statutory obligations referenced herein, city council members are under no obligation to affirmatively speak to the news media about projects such as the one in question. However, in the spirit of open and honest government, it is always in the best interest of the public for officials to engage in free, open and public dialogue about the people's business. Although discussions about refraining from speaking to the news media were ill-advised, those discussions did not result in any illegal conduct.
Thank you again for bringing this matter to my attention. If you have any further questions, please feel free to write or call.
Very truly yours,
Joseph F. Paulus
District Attorney Winnebago County, WI Return to Commentary