State Ex Rel. Buswell v. Tomah Area School District

PATIENCE DRAKE ROGGENSACK, J.

¶ 56. {concurring). Because I conclude that the June 1, 2004 notice of the open meeting was insufficient to satisfy Wis. Stat. § 19.84(2) (2005-06),1 I join the mandate of the court. However, I write separately because in my view the notice for the June 1 meeting does not satisfy the requirements of State ex rel. H.D. Enterprises II, LLC v. City of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999), in regard to § 19.84(2). I also write separately because instead of analyzing whether the subject matter of the notice given for the June 1 meeting is sufficient under H.D. Enterprises and § 19.84(2), the majority opinion sets up a straw-man, its "bright line rule," that it says H.D. Enterprises creates. Majority op., ¶¶ 16, 19, 22. The majority opinion then proceeds to overrule H.D. Enterprises by knocking down the straw-man that the majority opinion created. Majority op., ¶¶ 27,52. In my view, the public would be better served by additional guidance about compliance with § 19.84(2) than is given either in H.D. Enterprises or in the majority opinion. Accordingly, I respectfully concur.

I. BACKGROUND

¶ 57. This case arises out of a citizen complaint by Brian Buswell (Buswell) that the board of the Tomah Area School District (the board) did not comply with the public notice provisions of Wis. Stat. § 19.84(2), in regard to a June 1 meeting where both the TEA Employee Contract and the applicants for the position of *212high school principal were discussed. Buswell also alleges that the public notice provisions were violated for a second meeting held on June 15, 2004. He alleges that the "subject matter" of both meetings was not reasonably described in the respective notices because they did not give notice that the board would be considering new hiring procedures for athletic coaches that would give hiring preference to current TEA members. He also asserts that the notice for the June 1 meeting was misleading because that notice included a reference to Wis. Stat. § 19.85(l)(c), as the statutory basis for conducting part of the meeting in closed session. He asserts, and the City agrees, that § 19.85(l)(c) is not applicable to discussing the TEA Employee Contract in closed session.

¶ 58. The board contends that both notices were sufficient. The notice for the June 1 meeting provided:

Contemplated Closed Session for Consideration and/or Action Concerning Employment/Negotiations with District Personnel Pursuant to Wis. Stats. 19.85(l)(c).

The board admits that the statutory reference in the notice could have been misleading, but it asserts that State ex rel. Olson v. City of Baraboo Joint Review Board, 2002 WI App 64, 252 Wis. 2d 628, 643 N.W.2d 796, concludes that incorrect information in a notice of a public meeting is not fatal to the sufficiency of the notice. The board also contends that by noticing that it would consider "TEA Employee Contract Approval" at the June 15 meeting, it complied with Wis. Stat. § 19.84(2).2

¶ 59. Prior to the June 1 board meeting, the community knew that there was a proposal for the TEA *213Employee Contract that would give priority to current TEA members in regard to hiring for coaching jobs. Majority op., ¶ 4. The question that is presented for this review is whether the notice of both meetings reasonably apprised the public and the news media of the subject matter of those meetings when the hiring of coaches was not mentioned, and in regard to the June 1 notice, whether, because the TEA Employee Contract was not mentioned, the notice was misleading as well.

II. DISCUSSION

A. Standard of Review

¶ 60. This review requires us to interpret various statutory provisions and to apply them to the facts presented herein. The interpretation and application of statutes are questions of law subject to our independent review. Jackson County v. DNR, 2006 WI 96, ¶ 10, 293 Wis. 2d 497, 717 N.W.2d 713.

B. Wisconsin Stat. § 19.84(2)

¶ 61. Wisconsin Stat. § 19.84(2) provides in relevant part:

Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof.

Buswell does not challenge the sufficiency of the notice of the time, date or place of the meeting. Rather, he challenges the sufficiency of the subject matter described in the notice, claiming it is incomplete, misleading and does not reasonably apprise tbe public of what the board will discuss.

*2141. Notice of the June 1 Meeting

¶ 62. It is undisputed that the board intended to and did discuss two topics at the June 1 meeting under one subject matter topic: the TEA Employee Contract and applications for the position of high school principal. Therefore, the board was required to give public notice of both, if there are two different subject matters that were to be discussed during the meeting.

¶ 63. "Subject matter" is not defined in Wis. Stat. § 19.84 or elsewhere in the statutes that address open meeting requirements. Black's Law Dictionary describes "subject matter" as:

The issue presented for consideration; the thing in which a right or duty has been asserted; the thing in dispute.

Black's Law Dictionary 1466 (8th ed. 2004). This is a broad inclusive definition, but it gives us little guidance about how much particularity or in what form one should describe the subject matter that will be addressed at a meeting of a public body.

¶ 64. In H.D. Enterprises, the court of appeals addressed "subject matter" in the context of the Stough-ton Common Council's consideration of Pick 'N Save's application for a liquor license. H.D. Enterprises, 230 Wis. 2d at 482. Pick 'N Save's application had been published in accord with alcohol licensing requirements found in Wis. Stat. § 125.04(3). Id. at 482. The meeting agenda was used by the common council as public notice that it would consider the liquor license on January 27. Id. The agenda listed "licenses" as an agenda topic. Id. This notice was the first of three occasions on which the liquor license was discussed, before H.D. Enterprises alleged the City violated its *215public notice obligation. Id. The application for a liquor license was denied after that first common council meeting. Id. However, H.D. Enterprises did not allege that the notice insufficiently described the subject matter of the first meeting. Id. at 487.

¶ 65. At the second meeting, "licenses" again was listed on the common council's agenda that gave notice of the meeting. Id. at 482. Pick 'N Save's application was granted at that meeting. Id. H.D. Enterprise had not appeared at the second meeting, and it objected to the reconsideration of Pick 'N Save's application. Id. Therefore, approximately six days after the second meeting, the common council convened a third meeting that H.D. Enterprises attended and in which the common council considered H.D. Enterprises' request that it rescind Pick 'N Save's liquor license. Id. at 482-83. The common council refused to do so. Id. at 483. H.D. Enterprises then sued the City of Stoughton claiming that the term "licenses" was too general a description of the subject matter of the second meeting to satisfy Wis. Stat. § 19.84(2). Id.

¶ 66. The circuit court concluded the notice was sufficient and H.D. Enterprises appealed. In concluding that "licenses" was a sufficient description of the subject matter to reasonably apprise the public, the court of appeals examined all the circumstances surrounding consideration of Pick 'N Save's application for a liquor license. Id. at 483-84 and 487. It noted that the notice for the common council's first consideration of the matter used "licenses" to describe the subject matter. Id. at 487. The court noted that H.D. Enterprises had appeared at that council meeting and therefore, it had experience with the City's use of that description. Id. The court of appeals noted that H.D. Enterprises did not complain about the lack of notice for the first *216meeting. Id. The court of appeals also balanced the burden to municipalities, which would be caused by detailing every facet of a subject matter that may be addressed under every agenda item, with the sufficiency of the notice to the public. Id.

¶ 67. The court of appeals opinion took guidance from State ex rel. Schaeve v. Van Lare, 125 Wis. 2d 40, 370 N.W. 271 (Ct. App. 1985), where Schaeve complained that the description of the subject matter of the meeting did not have enough particularity to comply with the statute. H.D. Enterprises, 230 Wis. 2d at 486. In Schaeve, it was contended that the subject matter set out in the notice was insufficient because it said only that the possible discipline of a public employee would be considered. Schaeve, 125 Wis. 2d at 47. The court of appeals concluded there was "no requirement in the statute that the subject matter of a meeting must be explained with any more specificity." Id. at 47.

¶ 68. Contrary to the assertion in the majority opinion, its straw-man, the "bright-line rule," is nowhere mentioned or "announced" in H.D. Enterprises. See majority op., ¶ 46. Instead, H.D. Enterprises is based on the facts and circumstances that were relevant to the license that would be discussed at an upcoming common council meeting, as it had been in other meetings. H.D. Enterprises, 230 Wis. 2d at 482-83 and 485. H.D. Enterprises reasoned that "[s]ection 19.84(2), stats, requires that a public notice set forth the time, date, place and subject matter of a meeting in such form as is likely to reasonably apprise members of the public." Id. at 485.3 It established no rule that is applicable without consideration of the relevant facts and circumstances.

*217¶ 69. Moving to the case now before the court, upon consideration of the facts and circumstances of the notice provided by the board of the Tomah Area School District in regard to the June 1 meeting, I conclude it was insufficient under H.D. Enterprises's interpretation of Wis. Stat. § 19.84(2). I conclude that the board's notice of the June 1 meeting was insufficient based on three facts that are present here and for which countervailing facts were present in and important to the decision in H.D. Enterprises.

¶ 70. First, two very different topics were addressed under one heading in the notice for the board's June 1 meeting, e.g., the consideration of the applicants for the position of high school principal and the provisions for a new TEA Employee Contract. In H.D. Enterprises, the liquor license was the sole topic noticed and discussed at both meetings. Id. at 487.

¶ 71. Second, the provisions of the master TEA Employee Contract were going to be presented at the June 1 meeting, i.e., this was a brand-new contract for the board to consider. In H.D. Enterprises, the second notice given was the same as the first. Id. at 487. Because the liquor license was discussed by the common council under that topic previously, the public and the news media had experience in the subject matter as described in the notice. Id. H.D. Enterprises had attended a previous common council meeting that was noticed in the same form, by using the meeting agenda with the topic "licenses" as a subject matter. Id.

¶ 72. And, third, the notice for the June 1 meeting was misleading in regard to the TEA Employee Contract because the notice referenced Wis. Stat. § 19.85(l)(e) as the basis for the board's taking up the subject matter in closed session. Section 19.85(1)(c) is the appropriate cite for the consideration of applicants *218for the position of high school principal, but it does not apply to collective bargaining agreements such as the TEA Employee Contract. Section 19.85(l)(e) is the section of the statutes that permits a public body to consider collective bargaining agreements in closed session. By failing to include both § 19.85(l)(c) and (e) in the notice, the board misled the public about both the subject matter of the closed meeting and the number of topics that would be discussed. In H.D. Enterprises, there was no allegation that the notice was misleading. Accordingly, I conclude that the notice of the June 1 meeting of the board did not set forth the subject matter in a form that reasonably apprised the public and the news media that the TEA Employee Contract would be discussed in the closed session portion of that meeting. Therefore, the notice for the June 1 meeting did not comply with the requirements of Wis. Stat. § 19.84(2), as interpreted in H.D. Enterprises.

¶ 73. However, even though I conclude that the notice for the June 1 meeting was not sufficient to satisfy Wis. Stat. § 19.84(2), as interpreted in H.D. Enterprises, it appears that the guidance given by H.D. Enterprises is not sufficient to assist in achieving compliance by those public bodies that are required to give public notice of the subject matter of meetings.4 The *219statute requires that notice of the subject matter be set out "in such form as is reasonably likely to apprise" the public and the news media. I would advise, but not require, that public bodies adopt a standard format for their meeting agendas. The entire agenda for the meeting should then he used as the § 19.84(2) notice. This would give the public and the news media experience in what issues are apt to be addressed under recurring topics. I suggest that the agendas contain subtopics when more than pne matter is to be discussed under one agenda topic. I also recommend including in the notice a statement that questions about the agenda can be addressed to a representative of the public body, whose name, phone number and an appropriate time to call would be listed. If the public body has described a subject matter in a way that generates questions or confusion about what is to be discussed, I suggest a more detailed agenda topic be employed for future meeting agendas. In that way, the public body will learn both what specificity is required to describe the subject matter of the meeting and what form best assists the public and the news media in understanding what will transpire at meetings.

2. Other Concerns

¶ 74. I also part company with the majority opinion's use of State ex rel. Badke v. Village Board of the Village of Greendale, 173 Wis. 2d 553, 494 N.W.2d 408 (1993), as support for its contentions about the specificity with which the subject matter in a Wis. Stat. § 19.84(2) public notice is to be given. Majority op., ¶¶ 23-26. Badke never addresses or refers to the speci*220ficity of the subject matter in a public notice. And this is for good reason. In Badke, there was no notice of any type given that the village board was going to meet. Badke, 173 Wis. 2d at 569.

¶ 75. Furthermore, in regard to the specificity with which the subject matter of a meeting must be described in the notice, the majority opinion asserts that if the topic is of "particular public interest," "greater specificity" may be required in the notice. Majority op., ¶¶ 29-30. I see no qualifier in Wis. Stat. § 19.84(2). The public and the news media are those to whom reasonable notice is due. In my view, the majority opinion's requirement is an invitation for additional litigation claiming the notice was insufficient. For example, how is the public servant who prepares the notice to know that there' is a "particular public interest"? Will the notice be insufficient if he or she should have known of a "particular public interest" but did not? Does he or she have a duty to learn of a "particular public interest" in the subject matters that will be considered? Furthermore, does a member of the public who has an interest in the subject matter of the meeting but who has never expressed that interest to others deserve less complete notice?

¶ 76. I would not venture into these subjective woods. Rather, I conclude that the standard set by Wis. Stat. § 19.84(2) is an objective standard. Notice is to be reasonable. And, the persons to be noticed are simply the public, interested or not, and the news media, interested or not.

¶ 77. And finally, I disagree with the majority opinion's broad assertion that "[i]t is true that a meeting cannot address topics unrelated to the information in the notice." Majority op., ¶ 34. The majority opinion cites no authority for this conclusion. Does the majority *221opinion mean that the typical agenda item of "such other matters as may come before the body" can never provide sufficient notice under Wis. Stat. § 19.84(2) for a matter that unexpectedly is presented to the board and requires immediate attention? At least one attorney general did not believe that to be the case. 66 Op. Att'y Gen. 68, 70 (1977). Notice based on the facts and circumstances of the case affect when the notice given is sufficient to reasonably apprise the public and the news media.

¶ 78. Accordingly, for the reasons set forth above, I concur, joining only the mandate of the majority opinion.

All further references are to the 2005-06 version of the Wisconsin Statutes unless otherwise noted.

I agree with the majority opinion's conclusion that the notice for the June 15 meeting is sufficient to satisfy Wis. Stat. § 19.84(2); therefore, I do not address that notice further in this concurrence.

The City of Stoughton used entire meeting agendas as the public notices for its meetings. State ex rel. H.D. Enterprises v. City of Stoughton, 230 Wis. 2d 480, 482, 602 N.W.2d 72 (Ct. App. 1999).

There are times when one authors an opinion and believes that the issues presented were sufficiently addressed, but in hindsight, they were not. As the author of H.D. Enterprises, I now find myself in a position similar to that of Justice Robert Jackson. When faced with a similar problem, he remarked, "The matter does not appear to me now as it appears to have appeared to me then." McGrath v. Kristensen, 340 U.S. 162, 178 (1950) (Jackson, J. concurring) (further citations omitted). H.D. Enterprises appears to me now a bit differently than it appears to have appeared to me in 1999. When it was written, the court of appeals decision in H.D. Enterprises appeared to provide *219sufficient guidance on the form in which the subject matter in a public notice should be provided in order to reasonably apprise the public and the news media of what would be discussed. However, now it appears more guidance was needed.