State Ex Rel. Buswell v. Tomah Area School District

LOUIS B. BUTLER, JR., J.

¶ 79. {concurring in part, dissenting in part). I join those portions of the majority opinion which conclude that (a) Wis. Stat. § 19.84(2) (2003-04)1 sets forth a reasonableness standard; (b) such a standard strikes the proper balance contemplated in Wis. Stat. § 19.81(1) and (4) between the public's right to information and the government's need to efficiently conduct its business; (c) applying the reasonableness standard, the June 1, 2004, notice was insufficient under § 19.84(2) and contrary to the policies in § 19.81(1) and (4) because it failed to reasonably apprise members of the public that the master contract of the Tomah Education Association ("TEA") would be considered at that meeting; (d) State ex rel. H.D. Enterprises II, LLC v. City of Stoughton, 230 Wis. 2d 480, 602 N.W.2d 72 (Ct. App. 1999), should be overruled; (e) this decision should be applied prospectively; and (f) this matter should be remanded to the circuit court to determine the appropriate award as to costs and attorney fees.

*222¶ 80. I write separately because I conclude that the majority fails to apply the reasonableness standard it adopts in this case to the question of whether the June 1 posting provided sufficient notice regarding the Tomah Board of Education's ("Board") consideration of a new hiring procedure for athletic coaches. Applying the majority's standard, I conclude that the June 1 notice was insufficient because it failed to reasonably apprise members of the public that the Board would be considering a proposal that was a matter of particular interest to the community, involved a non-routine action that the public was unlikely to anticipate, and could have easily been included in the notice.

¶ 81. The facts are accurately set forth in the majority opinion,2 and will not be repeated in full here. Of import is the fact that in June 2004 the Board held two meetings regarding a new master contract between TEA and the Tomah Area School District ("School District") for the 2003-04 and 2004-05 school years. Prior to those meetings, a number of community members had expressed concerns over a proposed new procedure for hiring athletic coaches.3No prior TEA master contract contained a procedure for hiring athletic coaches.

*223¶ 82. The public notice issued by the Board setting forth the agenda of the June 1 meeting stated, in relevant part:

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

Section 19.85(l)(c) provides that closed sessions may be convened for considering employment, promotion, compensation or performance of any public employee. The notice did not contain any information referencing the TEA master contract or any proposed hiring procedures for athletic coaches.

¶ 83. At issue is whether the notice provided for the June 1, 2004, meeting was too general and not in compliance with Wis. Stat. § 19.84(2). That section provides, in relevant part:

Every public notice of a meeting of a governmental body shall set forth the.. . 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....

¶ 84. Brian Buswell ("Buswell") contends that the June 1 notice was deficient because it did not indicate that the Board would act upon a new master contract with the TEA, and it did not indicate that the Board would act upon the new hiring provision for athletic coaches. The majority concludes, and I agree, that the notice failed to apprise the public that the TEA master contract would be under consideration at the June 1 meeting. Majority op., ¶ 36.1 respectfully disagree with the majority's conclusion that the notice was sufficient with respect to the new hiring provision for athletic coaches. Majority op., ¶ 42.

*224¶ 85. The majority notes that with respect to the TEA master contract, the notice given was vague because it could cover any negotiations with any group of district personnel or with any individual employee within the district. Id., ¶ 36. Moreover, it was misleading, as the statute referenced4 in the notice provides for closed sessions for individual employees, not for considering collective bargaining agreements. Id., ¶ 37.

¶ 86. The reasonableness standard adopted by the court takes into account such factors as the burden of providing more detailed notice, whether the subject is of particular interest, and whether it involves non-routine action that the public would be unlikely to anticipate. Id., ¶ 28. The majority first points out that it would not unduly burden the Board to include a few words in the notice about the fact that the TEA master contract would be discussed at the June 1 meeting. Id., ¶ 38. Second, the majority notes the TEA master contract included a hiring provision that was of interest to a number of people in the community, as several citizens had made an effort to petition the Board regarding whether to put a provision for the hiring of coaches into the master contract. Id., ¶ 39. Third, the majority recognizes that the TEA master contract was not a routine subject, as it contained a new provision for the hiring of coaches to which members of the community objected, the subject of which had never before been included in a TEA contract. Id., ¶¶ 4, 40.

¶ 87. For the very reasons the majority concludes the June 1 notice was insufficient with respect to the TEA master contract, I conclude the notice was insufficient with respect to the new provision regarding the hiring of athletic coaches. Thus, it is incomprehensible *225that the majority would reject its own analysis when discussing the June 1 notice as it relates to the new provision for the hiring of coaches that is set forth in the TEA master contract. As to the coaches provision, the June 1 notice is still vague because it fails to discuss coaches or procedures to hire coaches at all, and could cover any negotiations with any group of district personnel or with any individual employee within the district. Moreover, the June 1 notice was still misleading as to the coaches provision, as Wis. Stat. § 19.85(1)(c) once again provides for closed sessions for individual employees, and not for considering new hiring provisions for athletic coaches in general. The majority inadequately explains how an insufficient notice as to a public meeting regarding the TEA master contract is sufficient with respect to an item buried within that very contract, particularly when the item in question has never before been the subject of contract negotiations and was of special interest to the public.

¶ 88. When applying the factors associated with the reasonableness standard, the majority concedes that the second and third factors5 weigh in favor of requiring notice that the Board would address the coaches provision. Majority op., ¶ 43. Thus, the majority's analysis stands on the first factor, the burden of providing greater information. Yet, just what was the burden? Once again, a few words in the notice would *226have sufficed, simply by indicating that the procedure for hiring athletic coaches would be discussed. For a matter of considerable public concern, this was no "burden."

¶ 89. If, as the majority concludes, the June 1 notice was insufficient to apprise members of the public that the TEA master contract would be considered at the June 1 meeting, then it was necessarily insufficient to apprise members of the public that a new provision regarding the hiring of athletic coaches contained within the TEA master contract would be considered.

¶ 90. "[T]he notice requirement gives the public information about the business to be conducted that will alert them to the importance of the meeting, so that they can make an informed decision whether to attend." Majority op., ¶ 26 (citing State ex rel. Badke v. Village Bd. of the Village of Greendale, 173 Wis. 2d 553, 573-74, 577-78, 494 N.W.2d 408 (1993)). I wholeheartedly concur. Yet, no informed decision to attend was possible here, as the notice failed to give the public any idea of what would be discussed at the meeting. The June 1 notice (1) fails to inform the public that the TEA master contract will be considered, and (2) fails to inform the public that a new hiring procedure for athletic coaches will be discussed. Accordingly, I would reverse the court of appeals as to both of these issues.

¶ 91. For the foregoing reasons, I respectfully concur in part and dissent in part from the court's decision and mandate.

All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

Majority op., ¶¶ 4-9.

The broad community interest exhibited in this case prior to the June 2004 meetings establishes that the public was aware that a proposal was under consideration for a new hiring policy giving priority to TEA members over other candidates for athletic coaching positions in the new TEA master contract. Majority op., ¶ 4. Consequently, I accept the majority's conclusion that the notice for the June 15 meeting, which listed TEA contract approval, was legally sufficient. See majority op., ¶ 45. Nevertheless, the better practice, given the level of public interest that was shown here, would have been to give notice that the procedures for hiring coaches would be discussed at the June 15 meeting.

Wis. Stat. § 19.85(1)(c).

These factors, again, include whether the subject is of particular interest, and whether it involves non-routine action that the public would he unlikely to anticipate. The public had already shown great interest in the athletic coach hiring provision, and the June 1 notice contemplated employment negotiations for any of the individual employees within the district, but did not provide for general hiring procedures for athletic coaches.