Officials say closed sessions needed as Port deals with lakefront projects, but others question secrecy
As Wisconsin celebrates Sunshine Week — a time dedicated to open government and the state’s open meetings law — the City of Port Washington is facing questions over its use of closed sessions during the past year.
The city has held 22 closed sessions over the past 15 months, many of them concerning the proposed sale of city land and pending developments along the lakefront.
At last week’s Common Council meeting, one woman questioned aldermen about the number of closed meetings, saying it has led people to feel disenfranchised.
“The more I talked to people and asked why they didn’t go to council meetings or watch them on TV, I heard almost unanimously that they gave up because anything they were interested in was not discussed in open session,” Kim Haskell, 767 W. Grand Ave., said. “It was all done behind closed doors.”
Some residents are so frustrated they are considering filing a complaint with the district attorney’s office over the closed sessions, Haskell said.
Bill Lueders, president of the Freedom of Information Council (FOIC) in Madison, said it’s natural for people to question what officials are doing when they meet in closed session — especially if they do it frequently.
When asked about Port Washington’s repeated closed sessions, Lueders said, “I think it is a little strange so many of these meetings would have to take place behind closed doors. If I was a member of the community, I would be suspicious.”
The state’s open meetings law is intended to be interpreted narrowly rather than expansively, Lueders said.
“Public bodies should use their ability to go into closed session sparingly,” he said. “That’s the thrust of the law — what you do, you should do in public. Only in exceptional instances should it not be open.
“Some public bodies manage to go into closed session virtually never. They probably have a higher degree of trust than other public bodies.”
That’s especially true when the public has demonstrated an interest in the topic under consideration, Lueders said.
“When you’re dealing with a topic the public has said matters to it, you need to be especially careful,” he said.
Many of the Port Washington Common Council’s closed sessions during the past year have dealt with the controversial sale of a city-owned parking lot for the Blues Factory. Other topics have included the potential sale of a nearby parking lot for a townhouse development and, most recently, consideration of three development proposals for a 44 acres of city-owned land on the south bluff.
The Port Common Council has repeatedly cited an exemption to the open meetings law allowing closed session for “the purposes of deliberating or negotiating the purchasing of public property, investing of public funds or conducting other specified business, whenever competitive or bargaining reasons require a closed session.”
Officials need to be mindful of the requirement that legitimate competitive or bargaining reasons need to exist to justify a closed session, Lueders said.
The public has little way of knowing whether officials are properly using the closed sessions, Lueders noted, because they aren’t included in the discussions.
“It’s impossible if you’re unable to look in to know if it’s an appropriate use of the ability to go into closed session,” he said.
The FOIC has been trying to get the Legislature to consider a requirement that closed sessions be tape-recorded so that, if challenged, a judge could review the recordings in camera to determine whether the law was abused.
“It’s such a simple solution,” Lueders said. “It’s a way public officials could increase the trust between the people and themselves. This is done in other states.”
Barring that, he said, the public should ask officials whether they are strictly adhering to the law when they hold a closed session.
“They should be asked, are you really keeping with the spirit of the law, which is to be interpreted in a very narrow way?’” Lueders said.
Port Mayor Tom Mlada said Tuesday that officials follow the guidance of City Attorney Eric Eberhardt in deciding when to hold closed sessions and in the discussions held behind closed doors.
“If there’s something that doesn’t meet the guidelines, he says so,” Mlada said. “We have always done things in accordance of the law.”
Mlada said officials have been open, accessible and as communicative as possible, but said there are times that closed door sessions are needed.
“At the end of the day, when we have to make use of closed sessions ... to get the best possible deal for taxpayers and to protect the taxpayers, we will,” he said.
City Administrator Mark Grams noted that most of the recent closed sessions have dealt with financing issues, adding this is often woven into land negotiations.
He said he realizes the potential for closed sessions to erode the public trust and is aware of that when issuing meeting agendas.
“I try to be cognizant of that and do it only when we’re dealing with financing and negotiations,” Grams said.
In response to Haskell’s comments at last week’s Common Council meeting, Eberhardt said, “I want to assure the public that in deciding whether a closed session is permitted we vigilantly do apply the law. We take the Open Meeting Law seriously.”
He agreed that there have been many closed sessions held during the past year, but said that is because there have been more development proposals involving city land or investment than ever before.
“This is an unprecedented time,” Eberhardt said.
Officials need to be mindful of the potential loss of public trust, Lueders said.
“It’s reality, people think poorly enough about politicians,” Lueders said.
That said, Lueders said he believes most officials try to follow the law.
“My guess is most of the time public officials stick to the straight and narrow in these situations,” he said. “The problem is the public doesn’t have a way to know that.”