Times files new open meetings complaint against Lake Tomahawk’s DeMet, Lopez

The Lakeland Times has filed a new open meetings complaint against Lake Tomahawk town chairman George DeMet and town supervisor Lenore Lopez, alleging that a March 13 vote to move forward with an enhanced wake boat ordinance was the product of an illegal quorum that should be overturned.

At a March 13 town board meeting, town supervisors voted unanimously to pass an enhanced wake boat ordinance, forwarding the language to the state Department of Natural Resources for review and setting the stage for a public hearing before final approval.

It also set the stage for a legal challenge. The Times has already filed a complaint with Oneida County district attorney Jillian Pfeifer related to that ordinance’s development, after DeMet and Lopez both attended an enhanced wake boat presentation last year without properly posting their attendance as a quorum of the town board. The two make for a majority of the three-member Lake Tomahawk town board.

Subsequently, DeMet took responsibility for a quorum notice not being posted for their attendance at that meeting. In a March 6 officer’s report, detective sergeant Kelly Moermond of the Oneida County Sheriff’s Office concluded that an “open meeting violation occurred when both Lopez and DeMet attended the informative presentation after the town board meeting, as the two of them together represent a quorum.”

This week, Lakeland Times and River News publisher Gregg Walker said that illegal meeting now constitutes another violation, along with the March 13 meeting — that of an illegal quorum leading to a predetermined vote at a later date, which Walker describes as akin to a walking quorum. As the Wisconsin Department of Justice compliance manual states, “The essential feature of a ‘walking quorum’ is the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum.”

“That ‘essential feature’ informs the situation in Lake Tomahawk,” Walker wrote in a letter to Pfeifer filing the complaint. “While the unposted appearance of a quorum at that meeting was a violation in and of itself, this is an even more serious one — the illegal meeting of a quorum on an issue the town board later voted on, an illegal meeting that affected the outcome of that vote.”

Walker pointed to an early 2020 ruling by Oneida County circuit court judge Michael Bloom, in which Bloom ruled that a walking quorum “meeting” occurs only if the members of a body reach agreement to take uniform action, such as a formal vote, at a later meeting.

That’s exactly what happened in this situation, Walker wrote. The publisher said it is clear that the illegal session last year affected the outcome of the March 13 vote, given that the presentation was in support of an enhanced wake board regulation — without public notice to those who might oppose such a regulation — and given that Lopez had already put together a draft ordinance and in fact was the one who invited Joe Steinhage, who gave the presentation, to speak.

“Lopez stated Lopez heard this individual speak at another event and felt the information was important enough that she asked the individual to come speak with community members about preserving the shorelines of the lakes within the Town of Lake Tomahawk,” Moermond wrote in her report.

Walker wrote that the district attorney should seek to fine the town supervisors for both the original and subsequent violations, and overturn the recent vote.

“It is clear that one penalty for breaking the open meetings law is for a court to render any decision made at such a meeting null and void,” he wrote. “That should happen here, and then the town can begin to honestly deliberate any such regulation, this time with broad public input rather that effectively railroading a new code provision.”

The case for an illegal quorum

As it is defined in case law, and as the compliance manual states, “a walking quorum is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.”

In his letter to Pfeifer, Walker acknowledged that, in this case, an actual quorum was present at each of the meetings, both the presentation last year and the March meeting at which a vote was taken.

“But the key point is, whether it happens at one meeting or whether it takes five different meetings to compile a quorum, an illegal quorum is established prior to the meeting where the vote is taken, and discussions are held that likely affect the outcome of that vote,” he wrote.

Walker observed that Bloom’s decision was based heavily on a 2018 appeals court case, State ex rel. Zecchino v. Dane County, that a walking quorum “meeting” occurs only if the members of a body reach agreement to take uniform action outside of a legally posted meeting.

Indeed, the Department of Justice compliance manual, which the Zecchino court quoted, characterized the “essential feature” of a walking quorum to be the express or tacit agreement to “act uniformly,” that is, to take formal action.

“Call it a walking quorum or an illegal quorum, call it what you will, but in those cases, what’s central and critical is that an illegal quorum has agreed one way or another to vote a certain way in a later public meeting, eliminating any true deliberation,” Walker said. “It doesn’t matter how many meetings it takes to establish that quorum or to reach agreement, it’s the agreement to act that is critical.”

In Zecchino, Walker said, the court stressed that, to establish a walking quorum, “pleadings must plausibly suggest both that the defendants purposefully engaged in discussions” regarding an upcoming vote and “that the discussions were held between a sufficient number of board members so as to affect the vote.”

Both things occurred in Lake Tomahawk, Walker said.

“By attending the presentation last year, DeMet and Lopez indisputably engaged in purposeful discussion about a matter that they know would lead to a vote — and purposeful discussions include information gathering — and those discussions involved a quorum of the board,” he said. “Indeed, the illegal quorum got ‘walked’ from one meeting to the next, so to speak, with the outcome firmly decided before the meeting at which the vote was taken.” 

Walker urged stiff penalties for the violations. In addition to a forfeiture, state law provides that a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the public interest in enforcing the law outweighs any interest in maintaining the validity of the action.

“That’s exactly the case here,” Walker wrote. “The board reached this decision by undercutting public participation and the state’s transparency laws. Few things are more egregious. Besides, the board can always vote again, after following the law.”

Appealing Bloom

While Walker pointed to the decision by Bloom in saying the open meetings law has been violated again, he stressed that he was not thrilled with that decision, either, and would like to see the courts clarify exactly what constitutes “government business” not only with respect to walking quorums but to all government meetings.

“While it is not directly related to your decision, for context I add that open meetings advocates have not been satisfied with Bloom’s decision, or that of the Zecchino court,” Walker wrote to Pfeifer. “It is past time that the courts clarify exactly what constitutes ‘government business,’ not only with respect to walking quorums but to all government meetings. In the Bloom decision, a walking quorum requires the members to agree on a uniform course of action —such as a formal vote — to trigger a violation. In other words, if in a series of meetings an ultimate quorum of members discuss matters over which they have jurisdiction but do not take or plan any vote, there is no violation.”

Under the old standard, prior to the Bloom decision and Zecchino, Walker wrote, all that was needed to establish a walking quorum violation was to prove a quorum occurred and that government business had been discussed. That government business included information gathering, which is what occurred at the Lake Tomahawk wake boat presentation.

“Since Bloom and Zecchino, that standard has not been enough in a walking quorum case,” Walker wrote.

Thus, under Bloom, Walker continued, members could meet in a series of smaller-than-quorum-sized meetings and discuss all sorts of “business” and not run afoul of the law if no formal vote is taken or planned.

“Indeed, members could decide not to bring a matter to a vote—no need for wake boat ordinance and thus no need to bring it formally to a vote, for example—and evade the walking quorum law, even as they make a critical government decision,” Walker wrote. “One can readily imagine the absurd result.”

In the Lake Tomahawk situation, an illegal quorum could make the same informal decision by themselves to thwart the open meetings law, Walker wrote.

Then, too, Walker added, by redefining ‘governmental business’ in connections to a walking quorum, restricting it to formal action only (and even then failing to define what formal action is), the Bloom and Zecchino decisions opened the door for the courts to apply that definition more broadly to all open meetings.

That is germane to the initial Lake Tomahawk presentation, Walker argued, for it raises the question whether a court might decide that an actual quorum at such a presentation is not even an illegal meeting because no formal action was taken. 

“It is important to consider that the Bloom decision is unpublished and lacking in precedential value, but Zecchino is not,” he wrote. “Still, the Supreme Court has yet to address these issues. In sum, the whole complex of open meetings laws needs to be revisited, and urgently so.”

In the Lake Tomahawk case, Walker continued, the Bloom standard holds in an important aspect — a quorum has attended an illegal meeting and discussed a matter that may affect the outcome of a later, planned vote, and so, with respect to her office, the bottom line was straightforward:

“The quorum attending the presentation last year were in obvious agreement about what needed to happen — a vote enacting a wake board ordinance,” he wrote. “Any action taken to effectuate that explicit or tacit agreement must be null and void, no matter when it is taken. If the second meeting is treated as a stand-alone legal meeting, then the town board will have been able to pass an ordinance with a vote that had been predetermined at the first, illegal meeting.”

That opens Pandora’s box, Walker warned.

Indeed, Walker concluded, the entire point of the walking quorum rule is to prohibit evasions of the law by doing something that would normally trigger its requirements through a series of less-than-quorum sized gatherings, and the same should go for illegal quorum meetings of government bodies.

“It makes no sense at all to allow a majority of the members of a governmental body to evade the law by engaging in lengthy discussions of governmental business outside of properly noticed, public meetings,” he wrote. “It makes even less sense to allow that illegal quorum to take a vote at a later meeting based on tacit or explicit agreements reached during those earlier discussions.”

Prosecution is warranted to halt such practices, and to incentivize the courts to revisit and to clarify the law, Walker wrote.