April 21, 2021 at 5:13 p.m.
A clear abuse of power
A clear abuse of power
While some might argue whether a walking quorum was committed, it's a lot less arguable about certain supervisors' overall conduct in this matter, which has been nothing less than an abuse of power.
At the very least, in elbowing a developer who had a contract to buy the property, without the slightest effort to get public input, the town shed all pretense of due process. In doing so, the board held discussions in closed session that should have been open, they likely committed two separate open meetings violations, and one supervisor flat out contradicted his own statement.
More than that, they short-circuited the county's legal land use process.
Just to be clear, the issue here is not about whether it would have been good or bad for that site to be developed into condos. The issue is not whether it's a win-win-win for the town and the public and the Campanile Center for the town to own the property.
The issue is due process and public participation, and this is simply no way for public officials to act, regardless of whether any laws were technically broken.
For starters, town board members said they became aware on Feb. 2 of an offer from a private land developer, Plover-based Lokre Development Company, to buy the property for construction of an 11-unit condominium.
According to a John Thompson text obtained by The Lakeland Times, the deal to sell the property to Lokre was discussed during a closed session on Feb. 2 - "it was all discussed at the meeting last night."
That's arguably an open meetings violation. For one thing, the town board's agenda for that night listed a closed session "for the purpose of discussing the possible purchase of property." The thing is, the town board was planning to discuss another property and wound up discussing the Campanile property, too, after town chairman Mark Hartzheim said he had found out about the signed Lokre deal from Adam Redman that morning.
Nothing in the agenda was specific enough to satisfy the open meetings laws requirements.
According to the attorney general's open meetings compliance manual, closed sessions cannot merely cite the general exemptions used to convene in closed session, it must "contain the specific nature of the business, as well as the exemption(s) under which the chief presiding officer believes a closed session is authorized. Merely identifying and quoting from a statutory exemption does not reasonably identify any particular subject that might be taken up thereunder and thus is not adequate notice of a closed session."
So the town was obligated not merely to provide the general exemption, which it did - discussing the possible purchase of property - but which properties it was discussing, unless to do so would compromise its negotiating position. For the property that prompted listing a closed session on the agenda, that might well have been the case, but it was almost certainly not the case for the Campanile property.
That's because, on that day, Lokre had a signed contract on the property. There was no town negotiating position to protect. There was nothing to discuss, at least not without the public being invited and involved to discuss the situation.
As soon as Mr. Hartzheim learned of that contract, the proper thing to do was to involve the public then and there. He could have even called a special meeting out of urgency.
Instead, they discussed the matter in private in a closed session - there's one violation - and then what followed was even worse. Supervisor John Thompson in particular got fired up, Lokre backed out of the deal, and, we believe, the actions that followed culminated in a walking quorum.
That is, between that Feb. 2 closed session and the board's official approval on Feb. 10 to move the sale forward to town electors, various supervisors discussed the potential purchase among themselves in discussions of less than quorum size but, taken together, totaled more than the quorum needed to decide the Feb. 10 vote.
That's illegal. Discussions and deliberations are supposed to be conducted at publicly noticed meetings. They are not allowed in small groups prior to meetings, away from the public.
Specifically, discussions about the Campanile property, and about the town owning it, occurred at least between town supervisors John Thompson, Bill Stengl, and Mark Hartzheim. That's a quorum and it makes those discussions illegal.
In our interview with Mr. Hartzheim, he disagrees that mere discussion constitutes a walking quorum violation, that is, he believes the three of them needed to agree to vote in a certain way for there to be a violation. The courts have never really answered that question - and two have suggested opposing answers - but we believe the logic of our position will stand when and if the courts address the question directly.
To wit, if the three of them gathered in one room and had the same discussions about the town's potential ability to buy the property, then that's unquestionably an open meetings violation. That they merely formed a quorum with one-on-one discussions rather in one room should not matter: A quorum is a quorum, and they conducted government business either way.
What's more, even if we are wrong on that question, we believe there is compelling evidence that they did make a decision. After all, a few days after their discussions, they voted to buy the land.
And Thompson even admitted on Facebook that was their goal in those private discussions. In that post, prior to Feb. 10, Thompson announced that the town was working together toward a specific outcome - to get the property for the town. That was the fruit of their discussions.
"I have also been on the phone with the town and we have options right now and are actively working on a solution to keep things as is and just a change of ownership (town)," Thompson wrote.
So, according to Thompson, they had agreed on a solution - the town would own the property - the very solution they voted for on Feb. 10. There's not a more textbook case of a walking quorum, even in judge Michael Bloom's contorted world.
To be sure, the town board members said that, while discussions were had, they reached no agreement. That's what Stengl told The Times, and, interestingly, that's what Thompson also said.
As reported, Thompson said that, while he believes there may be a perception he was "arranging" for the Campanile parking lot to eventually become town property, he also maintained that was not the case.
The problem with that statement is that it contradicts Thompson's own Facebook post, where he publicly proclaimed that was exactly what he was doing.
So at the very least, Thompson, who said he was pre-arranging an outcome before he denied he was pre-arranging an outcome, was discussing the issue substantively with Stengl and Hartzheim.
On top of that, we also know that between Feb. 2 and Feb. 10, town supervisor Brian Fricke and Mr. Thompson went on a fishing trip together but supposedly, according to Mr. Fricke, never discussed the contentious hot-button issue. It's a ludicrous claim.
Let's get this straight. Mr. Thompson gets fired up when he learns there is a signed contract for Lokre to buy the property. He reaches out and discusses it with Mr. Stengl. He reaches out and discusses it with Mr. Hartzheim. He announces on Facebook that he and the town are "actively working on a solution to keep things as is."
And during that very same time he and Mr. Fricke go on a fishing trip, and we are expected to believe they never said a word about the issue at all. We can't prove they did, of course. We'll leave that to the court of public opinion.
Finally, beyond the legality of the process is the integrity - or lack thereof - of how the town went about its business. There was a substantial lack of decorum and civility in Mr. Thompson's texts to Adam Redman, for example.
And just why did Lokre suddenly back out? Taken together - the private discussions, the closed sessions, the apparent walking quorum, the defiant public posts, the nasty private texts - all these paint the picture of a bullying town board determined to get its way using whatever means.
The appropriate process should have included public input as soon as the property went up for sale. Town opinion and public discussion might have resulted in an earlier offer and avoided the desperate backroom politics that occurred. And a public process - along with following the county's conditional use permitting process - would have preserved the developer's due process rights as well.
The town board's role is to facilitate that process, not to pursue pre-arranged private outcomes. This incident should be used a template for how not to conduct town business in the future.
We will say this, we have always lauded Minocqua town officials for their transparency, and it does not sound to us like Mark Hartzheim is trying to cover anything up or be anything but above board. In fact, if it hadn't been for Mr. Hartzheim and Mr. Stengl telling us, we would never have known there were those discussions and a potential walking quorum in the first place.
So kudos for honesty. And we are reassured that Mr. Hartzheim says he is going to make sure town officials have the very latest open meetings and open records training from the Department of Justice.
But make no mistake. This incident has raised serious questions about the conduct of the town board and its commitment to public input and due process. They cannot ignore these issues and let such a thing happen again.
Indeed, if they do not take corrective action to demonstrate to the public that they understand how inappropriate, out of line, and illegal these actions were, if they do not undergo the training Mr. Hartzheim has pledged to implement, rest assured that a complaint will be forthcoming to the district attorney.
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