Committees created for a special purpose must be open to the public, unlike informal gatherings of government employees
I see a lot of confusion about whether “ad hoc” committees are subject to Wisconsin’s Open Meetings Law. For example, the Cambridge News & Deerfield Independent recently filed a complaint alleging that a police & fire commission “building committee” had met behind closed doors for four years because the Cambridge officials thought it was an “ad hoc” committee not subject to the law.
That’s not how the law works.
Let’s back up a minute and talk terms. Put broadly, the Open Meetings Law requires all “meetings” of “governmental bodies” to be held in open session. Both of those terms are defined in the OML, and here we’re concerned with what groups are subject to the law. The law defines a “governmental body” as “a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order” (the definition goes on with some very specific examples, but we can leave those aside).
There are two key parts to that definition – First, a list of the types of bodies covered by the law (agencies, boards, committees, etc.). This list is pretty exhaustive and is meant to cover anything that is a cohesive body, whatever government officials decide to call it. Second, the law says the body has to be “created” – and then provides another exhaustive list of different ways it can be created (by constitution, statute, ordinance, rule, or order). This definition is meant to be all-encompassing and tries to keep government officials from avoiding the reach of the OML in “creative” ways.
So does an “ad hoc” committee meet that definition or not? It depends on what you mean by “ad hoc.” The term has been used carelessly sometimes, and it could mean two different things.
The Latin phrase literally translates as “to this,” and traditionally, an “ad hoc” committee has been used to mean a committee that is created for a specific purpose, and once that purpose is accomplished the committee is often disbanded. In this sense, it’s the opposite of a “standing" committee. So your local municipality might have a standing “Public Safety” committee, but that committee might create an ad hoc committee to, for example, study whether a new fire truck is needed.
These kind of “ad hoc” committees are clearly covered by the OML. They’re a “committee,” obviously, and they were “created” by the direction (an “order”) of the Public Safety committee. Our hypothetical Fire Truck Study Committee needs to give notice of its meetings and hold them open to the public.
However, “ad hoc” is sometimes used in a different way, to just mean a loose, informal gathering, where there is no clear “body” that is meeting and acting cohesively. So if the mayor regularly holds listening sessions where members of the public can attend to provide feedback, but the group doesn’t have a specific number of members and wasn’t created to provide advice on a specific topic, that wouldn’t be subject to the OML. And if government employees gather to discuss their job duties – even if they gather regularly and offer suggestions to their superiors – the OML wouldn’t apply because the group of them wasn’t “created” to be a discrete body with a dedicated task.
Another way to think about this is to ask in what “direction” was this group created? Was it created “top-down”, where a higher authority created a subordinate group? That higher authority might be a school board, or it might be a mayor. Or it might be a duly-enacted law like a statute or ordinance. That’s a “governmental body.” On the other hand, if it formed “bottom-up,” organically, by its members, then it’s probably not a “governmental body.”
So turning back to this building committee created by the Cambridge Police & Fire Commission, is it a “governmental body” or not? They called it “ad hoc,” but as we’ve seen, that label doesn’t answer the question. The committee acts as a cohesive group with a specific number of members and specific tasks. It was also created by a higher authority (the PFC). The building committee is very clearly a governmental body, and it has been violating the OML for four years by not providing notice of its meetings and holding them open to the public.