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MADISON - Attorney General J.B. Van Hollen today issued an informal opinion concluding that the long-standing practice of a committee created by the City of Racine to take action on specific loan projects through the use of email voting and to later confirm the results of the email vote at a subsequent committee meeting likely violated the public notice and open session requirements of Wisconsin's open meetings law. In addition, the informal opinion concluded that the open meetings law did not permit the committee to take up specific loan projects under the "Old Business" subject designation in the committee's meeting notices.
The opinion was requested by Stephanie Jones, a reporter with The Journal Times newspaper of Racine. Ms. Jones provided information indicating that the City of Racine created a five-member Loan Review Board ("Board") to review loan applications submitted by city residents for improvements to properties located in the city, and to administer the loans made as a result of granted applications. The Board's minutes reflected that it occasionally took action at its meetings to confirm or reaffirm the results of email votes of the body's members conducted outside the course of regularly scheduled meetings. On at least one occasion, the Board's reaffirmation of an email vote occurred under the subject heading "Old Business" in the Board's meeting notice, without any additional description of the loan in question.
The Attorney General reasoned that the email votes of the Board's members amounted to the exercise of the Board's authority, and the Board's reaffirmation of its voting at subsequent meetings reflected the members' understanding that the Board's course of action would be determined by the number of votes in favor of or in opposition to the question that was the subject of the Board's email votes. That activity fits the definition of a "walking quorum" type of meeting. The Attorney General reasoned that, because the email votes fit the definition of a meeting, and because the open meetings law requires all meetings to be preceded by public notice of the time, date, place, and subject matter of a body's meetings, the Board's failure to provide the public with advance notice of its email votes and an opportunity to observe the voting process almost certainly violated the public notice and public accessibility requirements of the open meetings law. The opinion declined to speculate on whether a governmental body could create some type of email voting protocol and public record notice that would satisfy the public accessibility requirements of the open meetings law.
The Attorney General also reiterated the Department of Justice's long-standing advice that purely generic subject matter designations in meeting notices, such as "old business," "new business," "miscellaneous business," "agenda revisions," or "such other matters as are authorized by law," are legally insufficient because they identify no particular subjects at all. Thus, the Board likely violated the notice requirements of the open meetings law when it voted to reaffirm a prior email vote on a particular project under the subject designation "Old Business."
Under the open meetings law, the Attorney General may provide opinions as to the open meetings law's applicability to any person. Advice often takes the form of correspondence from the Assistant Attorneys General, but the Attorney General may issue formal or informal opinions.
A copy of Attorney General Van Hollen's informal opinion can be accessed via the following web site: