Times challenges legality of Bangstad CUP hearings

The Lakeland Times has filed a complaint against members of the Oneida County Planning & Development Committee and corporation counsel Mike Fugle, alleging in a letter to the county’s district attorney and sheriff that the officials violated both state statutes and the county’s general code in conducting recent hearings for a conditional use permit for Kirk Bangstad’s Minocqua Brewing Company.

In the August 11 letter to district attorney Jillian Pfeifer and sheriff Grady Hartman, Lakeland Times publisher Gregg Walker asked that appropriate citations be issued against the officials and that the hearings, held on August 2 and August 9, be declared illegal and any actions taken be stricken as null and void.

The letter was sent to Pfeifer because of her jurisdiction in pursuing violations of state statutes and to Hartman because the sheriff has the power to issue citations for violations of the county code of general ordinances.

Specifically, Walker alleges that the planning and development committee, acting on false information from Fugle, illegally adjourned the August 2 hearing in Woodruff in the middle of a vote. A motion and second had been made to deny Bangstad a CUP to have an outdoor beer garden at his Front Street properties in Minocqua. 

Walker also alleges that the committee then reconvened the public hearing a week later without following statutory noticing or open meetings requirements. Further, the complaint alleges that a closed session prior to the resumption of the hearing on August 9, at which the CUP application was discussed, also violated the state’s open meetings law.

“As the complaint demonstrates, the adjournment of the August 2 meeting while a motion was on the table was illegal on its face,” Walker said Friday. “It was an obvious attempt to derail the vote to deny the CUP, based on a lie that the committee had to adjourn, and the resumption of the hearing the following week was just as illegal, with the committee deliberating a pending motion behind closed doors and failing to properly inform the public of the resumption of the hearing.”

Walker said the hearings need to be declared illegal, all committee actions vacated, and the process started anew.

“The vote to withdraw the motion to deny should be declared null and void, as should the committee’s vote to extend the CUP’s approval time from 90 to 180 days,” he said. “And the appropriate officials should be held accountable.”

Illegal adjournment

The complaint alleges that the abrupt adjournment of the August 2 public hearing was an obvious violation of the county code of ordinances.

At the hearing, Walker wrote, the zoning committee took extensive testimony and public comment and reviewed evidence for about three hours. Then, at approximately 5 p.m., the committee proceeded to a vote.

“Mr. Holewinski had made a motion to deny the CUP application and that was seconded by supervisor Bob Almekinder,” the complaint states. “The room was silent for about 10 seconds before Mr. Holewinski asked if there was any further discussion.”

Fugle then spoke up, Walker wrote, informing the committee that another party was scheduled to use the room at 5 p.m. and, as such, there was no time to go through the reasons for denying the CUP, as he thought Holewinski should do. Fugle advised Holewinski to adjourn and then reconvene the hearing at the committee’s next regular meeting.

“There is a motion on the floor,” Fugle told Holewinski at the hearing. “I think it’s appropriate to adjourn it for the discussion relative to that motion. Certainly there could be an amendment to that motion at the next meeting depending on if there’s further information or [inaudible] from the applicant. But I would recommend adjourning and reconvening on August 9th, and it can be put on the agenda for the next meeting.”

Holewinski did just that with a motion to adjourn, Walker wrote, which was passed by the three members present at the meeting.

“All I want to do is adjourn the meeting to the August 9th meeting and continue,” Holewinski said in making his motion.

The complaint alleges that the motion was out of order with a motion already pending. 

False flag

Walker also advised Pfeifer and Hartman that the reason Fugle gave for the need to adjourn — that another party needed to use the room — was false.

“Before laying out why that is illegal, it’s important to put on the record an underlying fact: I believe an investigation will show that there was no party waiting to use the room and thus no reason to adjourn,” Walker wrote. “Another party was indeed using a room off to the side but was not using the main room where the hearing was being held. So either Mr. Fugle intentionally misled the committee — I am not saying that he did, I don’t know — or, if he did not, then someone else fed him false information, which led him to short-circuit an immediately pending vote.”

Either way, the manipulation of the committee during a vote is very serious, Walker wrote. 

“If the corporation counsel intentionally misled the committee, that is a serious breach of his ethical responsibility,” the complaint states. “If someone else fed him bad information, then that person needs to be exposed to the public.”

As for the adjournment itself, Walker wrote, it could not possibly have been legal because, by county code, all county board and committee meetings must follow a specific book of parliamentary procedure: A Guide to Parliamentary Procedure for Local Governments in Wisconsin by Larry E. Larmer. When a question of procedure is not addressed in the book, Robert’s Rules of Order apply.

The thing is, Walker wrote, under both sets of rules, no motion can be made to adjourn while a vote is pending.

“A motion to adjourn may not be made while a vote is being taken,” Larmer’ s book states explicitly.

The idea, Walker explained, is to prevent officials who sense that a pending vote might not be going their way from quickly adjourning to shut down the process, and perhaps never taking up the item again. 

Clearly a vote was taking place, Walker wrote.

“A motion had been made and seconded, and the chairman had issued a final call for further discussion,” he wrote. “Once a motion is official with a second, there are only certain ways to stop a vote from proceeding to its conclusion. Adjournment is not one of them.”

Walker added substantive detail to Larmer’s explicit statement that a motion to adjourn may not be made while a vote is being taken. Motions to adjourn may be either “main motions” or “privileged motions.”

“The motion to adjourn is a main motion if made: (1) when no provision is made for the next meeting; (2) when the time for adjourning the present meeting has already been determined; or (3) when the motion includes the time at which or to which the meeting will be adjourned,” Larmer’s guide states. “When it is made under any of these three conditions, the motion to adjourn has the characteristics of the class of main motions and is out of order when other business is pending.”

Condition 3 is what occurred at the August 2 hearing, Walker wrote. 

“The motion included the time to which the hearing was being adjourned (the August 9 regular meeting at 1 p.m.) and so the motion was out of order while the motion to deny the CUP was pending,” the letter alleges.

Some might argue that Holewinski’s motion was a privileged motion to adjourn immediately, or as a motion to “set the time to which to adjourn,” which becomes the highest ranking motion, Walker observed. 

“Privileged motions are granted precedence because they involve matters of great importance,” he wrote. “However, as Larmer provides, a privileged motion to adjourn can only occur ‘if the motion itself does not specify the time at which or to which the meeting will be adjourned.’ Holewinski’s motion included the specific time and date to which the meeting would be adjourned and so could not be privileged.”

The bottom line is, Walker says, a privileged motion cannot be qualified in any way. 

What’s more, he wrote, Larmer points out that “the privileged motion to set the time to which to adjourn only provides, in effect, that when the group adjourns the present meeting, it will meet again at the time proposed. Adopting this latter motion does not adjourn the present meeting.”

Even if the committee could adjourn in the middle of a vote, Walker continued, any motion to set the time to which to adjourn to must provide “for a meeting prior to the next regularly scheduled meeting.” 

“Because the motion adjourned the hearing to the next scheduled meeting and hearing, it was out of order and not a valid adjournment,” he wrote. “The bottom line is, the motion to adjourn violates both Larmer’s guide and Robert’s Rules of Order, and, because the code demands that those rules be followed, the code was violated and the adjournment was illegal.”

An alleged illegally reconvened public hearing

Regardless of the legality of the adjournment, the clear intent was not to adjourn the hearing and conduct a separate meeting the following week but to continue the public hearing on August 9, Walker wrote. 

“Under parliamentary rules, a meeting that is adjourned to a specific time to complete is not a separate meeting,” he wrote. “The motion to adjourn to a specific time merely continues the meeting or hearing at that time.”

Walker said that was the clear intent of the corporation counsel as well as of Holewinski’s motion to continue the public hearing on August 9. 

“Mr. Fugle recommended ‘adjourning and reconvening’ then, while Mr. Holewinski’s motion was to ‘adjourn the meeting to the August 9th meeting and continue,’” he wrote.

Indeed, Walker wrote, while state statutes are not all that specific when it comes to public hearings, they do lay out what they involve when it comes to the promulgation of administrative rules in chapter 227.18(b), namely, factual information is gathered, while each stakeholder and the public is afforded the opportunity to present facts, opinions or arguments, at least in writing. 

“The point is, a public hearing is far more than just taking public comment; it is to gather all the testimony and evidence and comment as a basis for deliberation,” the letter states. “While Mr. Holewinski closed what he said was ‘the public portion of the public hearing,’ he did not close the public hearing. Evidence-gathering and testimony continued.”

What’s more, Walker wrote, as Fugle was advising the committee to adjourn to August 9, he acknowledged that the hearing would in fact continue to gather information: “Certainly there could be an amendment to that motion at the next meeting pending on if there’s further information or [inaudible] from the applicant,” Fugle said.

“Not to mention that by definition the hearing continued because the committee was resuming deliberation on a pending motion—an action left unresolved and a motion needing to be acted upon,” the letter states. “Logic and parliamentary procedure dictates that resumed deliberation of a motion on the table that was part of the hearing is still part of the hearing, particularly when fact-finding had remained open, as opposed to a hearing in which all the information and comment had been gathered, the hearing adjourned, and then deliberation and voting took place in a separate meeting.”

Declaring the August 9 meeting to be a separate meeting rather a continued hearing is like serving someone their left-over half-eaten sandwich and telling them it’s a freshly made one, Walker wrote. 

“In reality, it’s the same half-eaten sandwich, no matter what it is called, just as the August 9 public hearing was the same half-completed public hearing started on August 2, no matter what they called it,” Walker said this week.

No matter from what angle it’s viewed, this was a resumption of the public hearing, Walker wrote in the letter to Pfeifer and Hartman. The problem is, as a public hearing, the August 9 meeting should have been noticed as such, and a Class 2 notice should also have been published. Instead it was listed as a regular agenda item and no Class 2 notice was published. 

“That is a violation both of the state’s open meetings law with its improper characterization on the meeting agenda and of the state’s notice requirement statutes for conditional use permits,” the letter states.

Invalid closed session

In his letter, Walker also alleges that the closed session prior to the resumption of the public hearing on August 9 was illegal as it pertained to Bangstad’s CUP application.

“By their own words, the opposing counsels met and had what they called a ‘productive’ meeting in the week following the adjourned public hearing,” Walker wrote. “Such private negotiation is unseemly because it took place during the middle of a vote that was still pending, and likely involved discussions and possible compromises that should have been held openly at the public hearing. Yet, because neither attorney is an elected official, we do not allege any violation.”

The same cannot be said of the closed session prior to the resumption of the public hearing on Aug. 9, Walker wrote, in which the agenda listed discussion of the CUP application and used the following statutory exemption to hold the discussion in closed session—“conferring with legal counsel with respect to litigation in which it is or is likely to become involved.”

“Now it is true that Mr. Bangstad had threatened to sue the county at the public hearing if he did not get his conditional use permit,” Walker wrote. “But the opposite was also true, that is, Mr. Bangstad was not going to sue if he did get his permit.”

As such, Walker asserted, it was impossible for the committee to have known how likely they were to get sued until after the vote on the CUP was taken. 

“If they approved the CUP, no litigation would be likely; it would be if they denied it,” he wrote. “So the time to hold a closed session discussion about likely litigation on the CUP would be AFTER the vote was taken, not before. What’s more, any discussion of likely litigation on the CUP would necessarily revolve around the outcome of the motion that was pending on the table, given that’s how the likelihood of litigation would come about.”

In other words, Walker wrote, supervisors were obviously and ineluctably deliberating the motion behind closed doors in an illegal closed session.

For all those reasons, Walker urged the district attorney to declare the hearings on Bangstad’s CUP by the zoning committee on August 2 and its resumption on August 9 to be illegal and to seek to have any actions taken at those hearings to be declared null and void. 

“In addition, I ask that the district attorney cite supervisor Scott Holewinski for insufficient notice of a public hearing under the state’s public notice requirements (as chairman of the committee) and for improper notice of a public hearing on an agenda under the state’s open records laws; that Holewinski, Mike Timmons, Bob Almekinder, and Tom Ryden as zoning committee members be cited for participating in an illegal closed session prior to the August 9 meeting; and that sheriff Hartman issue citations to Holewinski, Timmons, Almekinder, and corporation counsel Mike Fugle for failure to follow parliamentary procedures as required by county code.”

Walker noted that while he strongly believes the illegalities need to be established and that the committee’s actions should be declared null and void, he also does not believe that county supervisors who receive citations should or can be fined.

“They were acting on legal advice given them, and so they can’t be fined,” Walker said. “But the county needs to be held accountable when it does not follow its own code or state law. And the actions need to be voided and the process started over, and this time done the proper way.”