Sheriff’s department, DA find Oneida zoning violated procedure

The Oneida County Sheriff’s Office and the Oneida County district attorney both say the Oneida County zoning committee violated the county’s mandated parliamentary procedures when it adjourned a public hearing in the middle of the vote, but neither entity has taken any action against the officials after the findings.

In addition, in an August 28 response to a complaint by The Lakeland Times publisher Gregg Walker, district attorney Jillian Pfeifer said the committee did not run afoul of the state’s open meetings law when it adjourned the August 2 hearing until the following week and reconvened a week later, but doing so as a regular meeting and not as a continuation of the public hearing.

Because the August 9 meeting convened as a regular meeting, the committee did not follow the statutory noticing requirements for a conditional use permit public hearing. Walker filed a complaint, maintaining that the reconvened meeting was and had to be a continuation of the previous week’s public hearing and should have been noticed as such; Pfeifer said the public hearing was over and the August 9 meeting was a separate regular meeting that could and was noticed as such.

Walker also alleged in his complaint to sheriff Grady Hartman and Pfeifer that the abrupt adjournment of the public hearing to consider a conditional use permit for Kirk Bangstad and the Minocqua Brewing Company was illegal. Bangstad is seeking to operate an outdoor beer garden and rotating food truck at his Front Street property in Minocqua.

With the committee seemingly poised to deny the permit and after a motion had been made to deny it, committee chairman Scott Holewinski took the advice of corporation counsel Mike Fugle not to hold the vote but to adjourn the session to the following August 9 meeting, ostensibly because it was 5 p.m. and another party had to use the room. 

In the complaint, Walker alleged that a motion to adjourn a meeting to another date and time is out of order when another vote is being taken, according to the parliamentary rules of procedure the county code requires committees to use. Thus, Walker argued, violating those parliamentary procedures becomes a code violation.

Both the sheriff’s office and the district attorney’s office agreed on the procedural violation. 

“After reviewing the complaint that was made by Walker and speaking with all those involved, it appears the rules of parliamentary procedure were not followed,” Oneida County detective sergeant Robert Hebein wrote in his open meetings investigation. “This report will be forwarded to the Oneida County District Attorney’s Office for review.”

In her response to the complaint, Pfeifer advised that breaking the parliamentary rules of procedure did not mean the open meetings law was violated, though she said she agreed with Hebein’s conclusion about parliamentary procedures.

“Accordingly, whether the rules of Parliamentary Rules of Procedure were followed during the August 2, 2023 Planning and Zoning meeting is beyond the scope of Open Meetings Law,” Pfeifer wrote in her response. “However, in analyzing whether a violation of Open Meetings Law occurred, I do believe the motion to adjourn the August 2, 2023 Planning and Zoning meeting could have been, and should have been, more clear, but the committee’s failure to make a clear record does not, in and of itself, change my analysis. Nor do I take issue with statement made in Detective Hebein’s report stating there was a violation of the rules of parliamentary procedure.”

Outrageous

In his response to the findings, Walker said he was gratified that a finding was made that the committee violated the county’s obligatory parliamentary procedures but he also said he was confounded because there were no consequences for doing so.

“Let’s be clear, the county code requires that committees adhere to Larmer’s rules of parliamentary procedure, and so it is a violation of the county code to violate those rules,” Walker said. “Everyone agrees that the rules were broken, and so the county code was violated, and yet there are no consequences for doing so. Apparently county officials can just break the rules whenever they want and get away with it. It’s outrageous.”

According to the county code, the sheriff can issue citations for violations of the general code, up to $500 for a first infraction.

Walker also said it was a mistake to downplay the significance of allowing county officials to routinely break the law.

“In this case, the issue was a permit for an applicant who had repeatedly violated his county administrative review permit, to the point that it was revoked,” he said. “Now it looks to everybody that an almost certain vote of denial was short-circuited in breach of the county code, without any consequences at all.”

That sets a dangerous precedent, Walker said.

“What if supervisors were readying a vote on the committee chairman’s pet project that would cost millions of dollars and suddenly the chairman senses it is going to be defeated, so he adjourns the meeting to buy more time,” Walker said. “Such shenanigans could cost taxpayers dearly, and that’s why these safeguards are in place.”

Walker also said he disagreed with Pfeifer’s finding that there was no open meetings violation.

“Her entire analysis is based on her mistaken belief that, by the time of the vote, the public hearing was concluded,” he said. “Thus, in her view, the committee could just take up the matter again at the next regular meeting, with regular noticing. In fact, committees do adjourn public hearings all the time and vote at a regular meeting.”

The problem in this case, Walker said, is that no one ever ended the public hearing on August 2. 

“What the committee did — to use corporation counsel Mike Fugle’s own words — was vote to reconvene the hearing the following week,” he said.

The parliamentary violation

In his August 21 report, Hebein quickly focused his attention on what he thought was the main issue with the August 2 public hearing.

“The point of contention was not that the meeting was adjourned but that the meeting was adjourned when a vote was being taken,” Hebein wrote. “In researching a Guide to Parliamentary Procedure, author Larry E. Larmer, it cites on page 72 that a motion to adjourn may not be made while a vote is being taken. If this meeting was adjourned contrary to proper parliamentary procedure, then the meeting on August 9, 2023, would have been considered an illegal meeting.”

In his investigation, Hebein spoke with Fugle, who said the complaint about parliamentary procedure was not valid.

“Corporation counsel Fugle felt that if a violation of parliamentary procedure had been committed only members of the parliamentary body can make an appeal or raise an objection to that meeting,” Hebein wrote. 

This week, Walker acknowledged the truth of that point but said Fugle was omitting a key parliamentary detail. 

“Generally, a member of the body can only object to a violation of parliamentary procedure at the time of the violation, but that is not always the case,” he said. “In fact, when a major violation has occurred, such as when a statute or code is violated, as it was here, then there is what is known as a continuing breach, where there is no time limit for objection. Right now, at the next zoning meeting, those members who attended the August 2 meeting should object, and in fact, knowing this was a violation, they should have already objected.”

In his report, Hebein also reported that he discussed with Fugle that the complaint really only centered around if the meeting was adjourned after the motion was made.

“[A]nd that was not disputed,” he wrote.

The open meetings violation

The alleged open meetings violation relates to the August 9 regularly scheduled zoning meeting, at which Bangstad’s CUP application was considered again. The zoning committee noticed the meeting as a regular meeting, including Bangstad’s CUP agenda item.

However, The Times alleges that the session pertaining to the CUP was not a regular meeting at all but a resumption of the public hearing, and thus required wider public notice, including publication of a Class 2 notice.

At the heart of district attorney Pfeifer’s finding that there was no open meetings violation is her belief that the public hearing had ended the week before and therefore the committee could proceed with consideration of the CUP application in a regular meeting.

“At the August 2, 2023 Planning and Zoning meeting, based on the information available, it appears that after holding the public hearing and public comment on the Conditional Use Permit application by Kirk Bangstad, a committee member made motion to approve or deny the Conditional Use Permit application, said motion was seconded,” she wrote.

That’s when Holewinski, acting on Fugle’s advice, made the motion to adjourn, Pfeifer wrote.

“The timing of the motion is notable — the motion to adjourn was post-public hearing, post-public comment, post-motion to approve or deny the Conditional Use Permit application by Kirk Bangstad, but prior to taking a vote on the motion to approve or deny,” she wrote. “Absent any information to the contrary, it appears that at the time Mr. Holewinski made the motion to adjourn the August 2, 2023 meeting, the public hearing on the Conditional Use Application by Kirk Bangstad had already been completed in its entirety and the only agenda item remaining/undecided was the motion to approve or deny the Conditional Use Permit application by Kirk Bangstad. This is relevant for purposes of determining whether there was proper notice of the August 9, 2023 Planning and Zoning Meeting.”

But Walker said the public hearing had not been concluded, and that there is overwhelming evidence to support that contention.

“First, Ms. Pfeifer relies heavily on the end of public comment to conclude that the hearing is over, but Mr. Holewinski clearly explained that he was merely closing ‘the public portion of the public hearing,’ not the public hearing itself,” Walker said. “He did not close the public hearing. Evidence-gathering and testimony continued.”

In fact, Walker continued, 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,” Walker said.

Walker said the committee was clearly preparing to gather additional evidence following adjournment, evidencing a continuation of fact-finding and the hearing, and contradicting Pfeifer’s assertion that the public hearing was completed in its entirety and all that was left was the vote.

Walker pointed to Fugle’s own words at the August 2 meeting as belying the district attorney’s assertion that fact-finding had ended: “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.

In addition, Walker said, the clear intent of the corporation counsel was to resume the public hearing the following week, and that was also the intention of Holewinski’s motion to continue the public hearing on August 9. 

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

The wording of that motion is crucial, Walker said.

“He is clearly planning to continue the public hearing, and in fact — again according to the county’s own parliamentary rules of procedure — that’s all he could do at that point because those rules clearly state that adjourning a meeting to a specific date does not adjourn or end that meeting but merely continues the meeting or hearing at that time,” he said.

Walker said that, as Larmer points out, “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.”

“And then, of course, the most crucial detail of all — no one ever adjourned the public hearing, as Ms. Pfeifer claims,” Walker said. “Holewinski closed the public comment portion of the hearing, but he never said the public hearing was over, and votes can certainly be taken during public hearings. Ms. Pfeifer can search the record of the August 2 meeting for years, and she will never find Holewinski closing or adjourning the public hearing before the final out-of-order motion.”

The only motion made and voted on was to continue the hearing the following week, Walker said.

Walker also said Pfeifer had all that information in the complaint but either didn’t read it — many of the points were not rebutted or addressed — or the case went over her head.

Other points of disagreement

Walker also took issue with several other points made by Pfeifer, the first being Pfeifer’s view that the fact that the committee did not hold a public hearing on August 9 was evidenced by its lack of intention to hold a hearing and by its citing in the meeting agenda that a hearing had already been held.

“However, at the August 9, 2023 Planning and Zoning meeting, it does not appear it was committee’s intention to, nor did the committee do so, hold a public hearing on the Conditional Use Permit application by Kirk Bangstad,” Pfeifer wrote, adding that the notice for the August 9 notice included the fact that “[t]he committee held the public hearing on August 2, 2023.”

Based on that information, Pfeifer said the hearing was completed on August 2, that they wanted to pick up where they left off, and that the committee had no intention of holding a public hearing and did not do so.

Walker called that thinking beyond the pale.

“Of course the committee did not intend to hold a public hearing,” he said. “For whatever reason, that was the idea, either to avoid a larger crowd that would have gathered for a public hearing, or to avoid a delay because it would have taken longer to give proper notice.”

Walker said the county’s prosecutor appears to think that government assertions are irrefutable and that government intentions are always good. 

“It could be that they did not intend to hold a public hearing because they intended to break the law, or were, more likely, misguided by bad legal advice and were unaware of the procedures and implications,” he said. “But no matter their intention and no matter their incorrect assertion that the hearing was already held and ended, the reality is they had to reconvene the public hearing to dispense with the motion made at that hearing, just as Fugle told them on August 2.”

Walker also said Pfeifer missed the point about the contents of the notice for the open session when she concluded that the committee gave “sufficient notice that was reasonably likely to apprise the members of the public and news media that a discussion and/or decision was to occur on the Conditional Use Permit application by Kirk Bangstad.”

“It was reasonable notice for a regular meeting but not for a public hearing, which would have required a Class 2 publication,” Walker said. “She had already concluded in her mind that a regular meeting was sufficient, and so her reasoning about the content of the notice flowed from that foundational error. The notice was insufficient not because of its content but because it gave notice to an illegal meeting that should not have occurred and did not give proper notice for the resumption of the public hearing that should have occurred. Her reasoning is simply grossly defective.”

Then, too, Pfeiffer points out that not meeting the publication requirements is separate and distinct from an open meetings violation, Walker said.

“I agree,” he said. “They were guilty of both, by not publishing the Class 2 notice and also by not posting a notice that a public hearing was to be — and had to be by parliamentary procedure — reconvened.”

Finally, Walker said, Pfeifer wrote that the August 9 agenda observed that “[t]he committee held public hearing on August 2, 2023,” leading to “a reasonable inference that a public hearing on the Conditional Use Permit application by Kirk Bangstad was not going to be held on August 9, 2023.”

“Precisely,” Walker said. “What could only be a reconvened public hearing according to the county’s own rules of parliamentary procedure and county code was instead transformed into an illegal meeting that was improperly advertised.” 

One thing was for sure, Walker said.

“Ms. Pfeifer says people could reasonably infer from the August 9 agenda that no public hearing was going to be held, and that is true,” he said. “That’s why it was so illegal. The agenda suppressed the attendance by any member of the public interested in seeing the outcome of a public hearing on a matter of particular public interest in Minocqua.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.