DA files open meetings complaint against Lake Tom officials

Oneida County district attorney Jillian Pfeifer has filed verified open meetings complaints against the Lake Tomahawk town chairman and a town supervisor, saying she believes the two violated the state’s open meetings laws when they attended an unnoticed presentation on enhanced wake boat regulations last year.

The two supervisors form a quorum of the Lake Tomahawk town board. Pfeifer filed the complaint on behalf of River News and Lakeland Times publisher and complainant Gregg Walker, who had alleged to the district attorney’s office a violation of the open meetings law.

While Pfeifer agreed that an illegal meeting had occurred under the open meetings law, she rejected Walker’s claim that the two supervisors had formed a walking quorum in which members of the town board acted illegally and in concert to form a quorum and predetermine the outcome of a later vote in open session.

“I do believe there was a violation of open meetings law,” Pfeifer wrote in an April 5 letter to Walker. “However, I do not believe the violation was committed by engaging in a ‘walking quorum.’ Rather, I believe the violation is for failure to give notice as required by [state law].”

Pfeifer explained her view that, statutorily, a walking quorum is distinguishable from a “meeting.”

That distinction is particularly notable and relevant in small communities, where government bodies only consist of three members, Pfeifer wrote. 

In explaining her position, the district attorney referenced state statutes, which holds that a meeting occurs when one-half or more of members of a governmental body convene for the purposes of exercising its responsibilities, authority, power, or duties. 

Those criteria for determining whether the open meetings law applies are broken down in State ex rel. Newspapers, Inc. v. Showers, Pfeifer asserted.

First, there must be a purpose to engage in governmental business, and, second, the number of members present must be sufficient to determine the parent body’s course of action regarding the proposal discussed, in other words, there must be a quorum of one half or more of the members.

In small communities such as Lake Tomahawk where the governmental body consists of three members, Pfeifer wrote, it only takes two members to satisfy that second criteria.

“Therefore, any time two of the three members meet in connection to their government duties, including attending an informational presentation on a topic of local public interest ultimately leading to the proposal of an ordinance, the first prong of the Showers test has also been satisfied, thereby triggering open meeting laws and the requirements prescribed within,” she wrote.

However, Pfeifer continued, while such a meeting could be illegal if those requirements are not met, it is still not a walking quorum.

“This is distinct from instances of ‘walking quorums’ whereby the series of small, separate groups in and of themselves do not satisfy the second prong of the Showers test, thereby allowing the small, separate groups to still conduct government business while avoiding the requirements of open records law,” she wrote.

No arguments from them

In this case, Pfeifer wrote, there was no dispute that a majority of town board members were present at a September 13, 2023, meeting, when chairman George DeMet and town supervisor Lenore Lopez attended the town board meeting.

“There is also no dispute that an informational presentation on enhanced wake boats was not noticed as an agenda item for the September 13, 2023 meeting and, as a result, Mr. Steinhage gave the informational presentation immediately following said town board meeting,” she wrote. “Also undisputed is the attendance by chairman DeMet and town supervisor Lopez at the informational presentation by Mr. Steinhage.”

During a subsequent sheriff’s department investigation, Pfeifer recounted that, in an interview with detective sergeant Kelly Moermond, Lopez told Moermond that she requested that Steinhage attend the September 13, 2023 town board meeting to give the presentation.

In his interview with Moermond, DeMet said Steinhage was to give the presentation at that town board meeting but it wasn’t noticed as an agenda item, so DeMet told Steinhage he could give the presentation following the meeting.

“According to detective Moermond’s report, chairman DeMet stated approximately 20 individuals attended the presentation by Mr. Steinhage, including himself and town supervisor Lopez,” Pfeifer wrote. “Chairman DeMet and town supervisor Lopez’s attendance at the informational presentation on enhanced wake boats by Mr. Steinhage does constitute a ‘meeting’ because the majority of the town board members were present and their attendance was relating to government business; specifically, there was discussion the town board enact an ordinance regulating enhanced wake boats.”

As a result, Pfeifer concluded that there was “a clear violation” of the open meetings law that warranted a forfeiture. 

Pfeifer acknowledged that the law allows for other relief — including voiding any actions taken at the meeting — but she did not think any other relief would be appropriate.

“However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken,” she wrote.

In this case, Pfeifer concluded, there were no facts to support a proposition that any action was taken by DeMet or Lopez while attending the informational presentation by Steinhage on September 13.

“Therefore, I do not believe a declaratory judgment is an available remedy under the circumstances as presented,” she wrote. “With that being said, I will proceed with filing the complaint against chairman DeMet and town supervisor Lopez alleging a violation of open meetings law.”

Walker disagreed

This week, Walker said he was appreciative that Pfeifer recognized the open meetings violation and filed a complaint in circuit court.

“The message needs to be sent, loud and clear, that the open government laws of this state are fundamental to democracy and must be taken seriously,” Walker said. “And the only way to do that is to hold officials accountable when they break those laws, and to make sure they receive more than a mere slap on the wrist. The district attorney has sent such a message.”

But Walker said he disagreed with Pfeifer that equitable relief in addition to forfeitures would not be an available remedy and he also said the open meetings law has a loophole in it that allows illegally rendered decisions to be enacted anyway.

“This cries out for resolution, either legislatively or in case law,” he said. “The illegal meeting that Pfeifer is filing a complaint about was not just an illegal meeting — it was an illegal meeting that produced a vote for an ordinance at a later meeting.”

Walker said Pfeifer defined a walking quorum as a series of sub-quorum meetings or exchanges that leads to a pre-determined vote at a later time, whereas in this case there was an actual quorum in attendance at the presentation, and they took no action.

“But they clearly had an agreement to take action in the future and, as such, the later vote should be declared null and void,” Walker said. “Ms. Pfeifer makes a distinction between an illegal meeting and a walking quorum, but in this case — and in many other cases — it is a distinction without a difference.”

Indeed, Walker explained, the two supervisors could have simply talked on the phone or by email and reached an agreement to pass a later vote on wake boat regulations, and that would be considered a walking quorum, with any such vote likely thrown out.

“But there’s no real, practical difference between that and what actually happened,” he said. “The bottom line is, the two supervisors acted in concert to predetermine a vote at a later meeting — it makes not one iota of difference whether they did so in private conversations between them or did so gathered together as an actual quorum at an illegally attended presentation. The result is the essential element of a walking quorum — the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum.”

DeMet was the one who granted permission for the after-meeting presentation in support of an enhanced wake board regulation, Walker said, while Lopez had already put together a draft ordinance and in fact was the one who invited Steinhage to give the presentation.

The ability to evade walking quorums though the clever construction of actual quorums is especially important to recognize in small towns like Lake Tomahawk, Walker said, where two supervisors make a quorum.

“It is a fundamental concept in law that statutory constructions must not lead to absurd conclusions,” Walker said. “Town boards must not be able to escape the consequences of illegal walking quorums—the voiding of their concerted pre-determinations formalized at a later meeting — simply by gathering together a quorum that accomplishes the exact same thing. That’s absurd on its face.”

Walker said the proposition needs to be tested in court precisely because, if it is not clarified, town boards across Wisconsin will continue to abuse the law.

What’s more, Walker continued, public deliberation and participation would suffer, and open government will continue to shrink.

“That’s exactly what happened in this case,” he said. “There was no public notice for those who opposed such regulation. There was no honest deliberation of the need for any such regulation. A majority of the town board made a decision out of the public eye and then railroaded it through at a later meeting. So we had a majority of the town board participating in a presentation about an issue that was to come before that board, but the public had no idea they were doing so or what influence that presentation may have on their vote.”

The public also had no way of countering any information presented because they had no idea any information was being presented in the first place, Walker said. 

“It is no doubt cold comfort for those would have liked to have participated in the town’s decision-making on an important matter that the district attorney is only seeking forfeitures for an illegal meeting and not to have the result of the later meeting voided,” he said. “Now every town knows exactly what to do to evade participatory government — deliberate always as a quorum in secret, informally reach agreement, and then schedule a formal vote for later.”

Even if the illegal quorum gathering is discovered, Walker said, they will still have achieved what they set out to do illegally, because the final vote will stand unscathed.

“It’s an absurd and flawed view, and it’s not right,” Walker said.

Walker said he still hopes Pfeifer will bring a case that allows the logical contradictions to be resolved.

“Without clarification, the framework of the entire open meetings law could collapse, and many more local government decisions will be made in private,” Walker said.

Walker called for two remedies, the first being to re-establish the Showers’s court’s definition of government business as “any formal or informal action, including discussion, decision, or information gathering, on matters within the governmental body’s realm of authority.” 

The second, he said, is to use the law’s “essential element” test to determine whether a walking or illegal quorum has been attained — not the number of officials in any one meeting, but whether a quorum — either in discussions or by correspondence or in one meeting or three meetings — has reached an agreement to act uniformly without publicly noticed deliberation.

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