March 16, 2023 at 12:44 p.m.
Oneida County conservation committee blinks; postpones 'ballot' discussion
Ballot offered suggested positions on county's proposed shoreland ordinance amendments
Specifically, the contested items were two documents submitted for discussion by supervisor Bob Thome of Crescent, a member of the county's Conservation and UW-Extension Committee, and included in the meeting's information packets emailed to committee members. One of the documents was a "public hearing ballot" for the county's scheduled March 29 public hearing on the proposed shoreland amendments, which individuals could sign and submit. The ballot contained a list of various changes the draft ordinance would make to the current ordinance and allowed the ballot signer to indicate support or opposition to the change.
It also included a suggested recommendation about how the individual casting the ballot should vote, many of which opposed the changes the county's zoning committee has approved.
The Times objected to the discussion because the meeting agenda did not indicate that any discussion about a "ballot" for the public hearing would take place. Instead, the agenda indicated that county zoning director Karl Jennrich would present about the proposed recommendations: "Shoreland Protection Ordinance Amendment # 13-2022. Amendments to Chapter 9 Article I, Article 3, Article 9, Article 10 and Appendices - K Jennrich."
The original agenda indicated that Jennrich would present an "update" about the proposed revisions. A revised agenda posted at noon on Friday before the Monday meeting dropped the word "update" but still did not mention any discussion about the "ballot" documents the committee had received and that the county website already indicated would be discussed.
Indeed, the county's website posted the documents as "items of special concern" for the March 13 agenda and called attention to Thome's submissions, saying they did not represent the position of the county's land and water conservation department or of the committee but were "meant for discussion purposes only."
Given the controversial nature of the ordinance amendments, The Times contended that because the proposed ballot had been posted on the county's website as a matter to be discussed - and the actual ballot and a companion piece was included in the meeting packet - the discussion of the ballot should have also been listed on the meeting agenda rather than simply taken up under the general "shoreland protection ordinance amendment item."
The Times was able to communicate its objection to the agenda to conservation committee chairman Jim Winkler over the weekend prior to the meeting. However, after checking with corporation counsel Michael Fugle, Winkler told The Times that Fugle said the agenda passed muster and that he would move forward with the discussion.
On Monday morning before the meeting, Fugle also indicated directly to The Times that he believed the meeting notice was legally sufficient and that the ballot discussion did not have to be specifically mentioned but could occur under the generic agenda item of the proposed amendments.
In a text, Fugle quoted case law from 2007 that the reasonableness standard relating to notice sufficiency requires taking into account the circumstances of the case in determining whether notice is sufficient: "This includes analyzing such factors as the burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate."
And while a notice must reasonably apprise members of the public of the subject matter of a meeting under the circumstances, the decision in State ex rel. Buswell v. Tomah Area School District continued, "A reasonableness standard will not require that every issue on every agenda always be enumerated because such a requirement would be unreasonable. Rather, general subject headings may suffice in cases where a general heading reasonably apprises members of the public of the subject matter of the meeting. In other cases, reasonably apprising members of the public may require greater specificity."
In Fugle's view, he wrote in the text, the general heading for the proposed ordinance amendment was sufficient: "The meeting notice identifies the ordinance amendment. Mr. Thome's 'ballots' fall within the rubric of the committee discussing the ordinance amendment."
However, after listening to and considering the objections lodged by The Times, Fugle had a different stance by the time the meeting started, advising the committee to postpone the discussion on the ordinance amendment item entirely.
"There is a criteria for going through and assessing if the notice is sufficient," Fugle told the committee. "I think you certainly could speak about the shoreland protection ordinance amendment. I think where it becomes a gray area - and attorneys hate gray areas, unless you're getting paid to litigate hourly - I think if you get into the companion materials on the website relating to the ballots and that sort of stuff, I think it becomes much less clear."
Fugle told the committee that he believed there were good arguments to be made on both sides - for the idea that the agenda was sufficient and for the argument that it was not - and he believed the county should not risk becoming enmeshed in litigation and a potential open meetings violation.
"In speaking to Mr. Winkler, I have suggested that you address number 6 [the ordinance amendment agenda item] at a different meeting and thereby provide all of the information materials that you want to provide to ensure there is a sufficient basis for the public to know what is being discussed and what is going on," he told the committee.
Fugle cited one of The Times' contentions, that the amendments were controversial enough to warrant a specific mention on the agenda, particularly because the conservation department had considered it important enough to mention on the department's website.
"Certainly the higher the profile the issue, the more the case law suggests that you should be more specific in your notice," he said.
Fugle suggested postponing the agenda item to the committee's next meeting - either its next regular meeting or a special meeting it could schedule - to ensure proper posting. The committee approved a motion to that effect.
The Times' argument
In relaying the newspaper's concerns about the agenda item, Lakeland Times publisher Gregg Walker pointed to the state Department of Justice's open meetings compliance guide's reasonableness standards for specificity and asserted that the meeting agenda - both the original and amended versions -failed to make the grade.
The first factor in assessing whether an agenda item is specific enough, the guide states, is "the burden of providing more detailed notice." In other words, the policy of providing greater information to the public must be compatible with the conduct of governmental affairs, i.e., the demands of specificity must not burden the government office in a way that would burden or thwart "the efficient administration of governmental business."
Posting the ballot discussion as a specific agenda item posed no such burden, Walker asserted.
"Indeed, on Friday, March 10, just three days before the March 13 meeting, the conservation department amended its agenda," Walker wrote in The Times's objections. "One of the amended items was the aforementioned agenda item. As stated, the original item closed with 'update by K. Jennrich.' That was changed to just 'K. Jennrich.'"
For days prior to issuing the amended agenda, Walker continued, the conservation department's website posted the packet of supervisors' materials for the meeting, which included the ballot in question.
"The website clearly states that a discussion of that ballot would take place at the meeting," he wrote. "Thus, it could not have burdened the department to add that discussion, which they knew was happening, to an agenda they were already amending for other reasons."
The second factor in assessing whether an agenda item is specific enough, according to the guide, takes into account "both the number of people interested and the intensity of that interest, though the level of interest is not dispositive, and must be balanced with other factors on a case-by-case basis."
In this case, Walker said, there has been intense public interest in the proposed ordinance amendments.
"They were sparked by a public meeting in Minocqua, attended by approximately 100 people, with most requesting ordinance changes," he wrote.
More than that, Walker wrote, over the past year or so, as the committee drafted the amendments, there was much ongoing public comment, by both proponents and opponents of the proposed revisions.
"Opponents have characterized the proposed revisions as contrary to state law," he wrote. "On its website, the Oneida County Lakes and Rivers Association has even posted this 'alert': 'The day likely will soon come for OCLRA and lake advocates to stand up and be counted on protection of our vital lake shorelands. Revisions to the Oneida County Shoreland Protection Ordinance are now being considered by the Planning and Development Committee....'"
The point is, Walker observed, there was and is significant public interest in the proposed revisions on both sides of the issue.
"That means any specific discussion a committee is intending to have about them must be listed on an agenda," he wrote. "This is not an item that is coming up unexpectedly at a meeting. This is a discussion the department and the committee knows will be had, and they know it is a controversial discussion about a ballot that makes recommendations about how to answer the questions."
That the department knew it would be a controversial discussion was apparent by the language on its website about the ballot and two other associated documents, Walker asserted. That language stated: "The 3 SPO (shoreland protection ordinance] documents listed below were submitted by supervisor Bob Thome and are meant for discussion purposes only. These documents do not reflect the views of the CUW Committee, nor the Oneida County Land & Water Conservation Dept."
Quite simply, Walker wrote, the department announced this discussion on its website but not on the meeting agenda.
"For obvious reasons, posting on a website does not satisfy notice requirements because people do not routinely view government websites; that is why there are posting and notice requirements to the media and the public," he wrote.
What's more, Walker continued, the "ballot," which asked about public support or opposition to the proposed revisions, also suggested how those questions should be answered, and many of the suggested answers opposed what the zoning committee had adopted in the draft headed to public hearing.
"Most certainly those supporting these amendments would be highly interested to know that a county committee is taking up a ballot with suggestions to oppose much of the planned revisions and would like to engage that conversation, including how the ballot is going to be distributed and by whom," Walker said. "It is inappropriate and we believe illegal to entertain a discussion of a special-interest ballot and knowingly exclude others of the public."
Finally, Walker wrote, the third factor in the compliance manual considers "whether the subject of the meeting is routine or novel," meaning there may be less need for specificity where a meeting subject occurs routinely -members of the public are more likely to anticipate that the subject will be addressed -while "novel issues may . . . require more specific notice."
Simply put, Walker asserted, there was nothing routine about discussing a proposed ballot with recommended answers coming before a county committee two weeks before a public hearing.
"That is the very definition of 'non-routine action that the public would be unlikely to anticipate,'" he wrote. "Nobody knows what the purpose of the discussion or the ballot is - that's presumably what the discussion is for - but people interested in this topic would certainly want to find out, particularly supporters of the proposed amendments, and the only way they could find out is by public notice. The committee and the department have denied them that notice."
Finally, Walker wrote, the DOJ compliance manual offered "a good rule of thumb" for assessing whether an agenda is specific enough: Ask whether a person interested in a specific subject would be aware, upon reading the notice, that the subject might be discussed.
That was not the case with the conservation committee's agenda, Walker wrote.
"Citizens interested in the ordinance provisions most certainly would be interested in knowing that a committee planned a discussion of such a ballot," he wrote. "There is no way to know that by looking at the agenda. What's more, the original agenda, which was not replaced until noon on the Friday before the Monday meeting, listed only an update on the proposed amendments by zoning director Karl Jennrich. An update is just a summation of the most recent information; it suggests no controversial action or discussion and would attract a lot less attention than posting a discussion about a controversial ballot."
What's more, Walker observed, when the department revised the agenda, it took out the word 'update,' presumably to allow for broader discussion.
"Because the department and the committee knew what that broader discussion would entail and that it would be controversial, and chose not to put it on the agenda, it violates the open meetings law to have the discussion."
The ballot in question
There was no indication on the conservation department's website what the intended outcome of any discussion of the ballot might be. And while the ballot indicated that people attending the public hearing would have access to the ballot, there was no indication how the ballots might be distributed.
There was also no indication if the discussion was intended as informational only or whether the committee's approval would be sought. The county's website indicated that the items were for discussion only, but that carries no legal weight and the agenda made no mention of a discussion-only item. If the discussion was intended simply to notify the committee of the ballot's distribution, there was no indication in the packet material who specifically might be distributing the ballot.
Oneida County zoning director Karl Jennrich told The Times he became "fully aware" of the agenda item on March 8 after receiving a call from county board chairman Scott Holewinski, who was also inquiring about the conservation department's website and agenda.
"The info on the website was added because after looking at the agenda it appeared or could have been perceived that this was coming from staff," Jennrich said. "It did not, it came from supervisor Thome."
But Jennrich said he could not speak to the ballot.
"I did not develop it, have no clue who did or what the purpose of the document is," he said. "I have not talked to supervisor Thome. I have an idea of where it may have come from due to previous comments at both Planning and Development and CUW committee meetings. Furthermore, I have no clue what the CUW (Conservation and UW-Extension committee) will do with the information."
From all appearances, the ballot seems designed for people to deliver to the zoning committee at the March 29 hearing, though, again, it is unclear if the ballots would be distributed to people before the hearing or whether they would be distributed to specific constituencies, and the ballot does not indicate any sponsorship by any other person or group other than Thome.
The ballot indicates it is a formal registration of support or opposition to various changes the zoning committee is proposing.
"Given the limited time for individual public comments and the long list of changes in the Shoreland Protection Ordinance Amendment #13-2022, I am providing my support or opposition to EACH of the following ordinance changes," the preamble to the ballot states. "These are provided along with my public comments or in lieu of my public comments at the public hearing. I wish my individual selections be recorded by the P&D Committee when the summary of the public hearing is presented to the Oneida County Board."
Each change listed on the ballot provides a recommended position intended for the person filling out the ballot.
For example, one change in the proposed amendments that is also listed on the ballot is a provision allowing stairs on the exterior of boathouses. The ballot's recommendation is "oppose."
Another provision would allow a concrete apron between a boathouse and the ordinary high water mark. The ballot's recommendation is to "oppose."
Another proposed change in the ordinance is to revise the definition of a building footprint to include balconies, chimneys, porches, decks, fireplaces, and eaves. The ballot describes the language as an attempt to expand footprints and recommends "oppose."
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