Two PFAS-related closed sessions in 2020 lacked legal justifications
Yesterday, the Wisconsin Court of Appeals ruled that the City of Marinette violated the Open Meetings Law on two occasions when it met in closed session to discuss PFAS-related issues. The suit was brought by Douglas Oitzinger, a Marinette alderperson, represented by the Wisconsin Transparency Project. The court’s ruling reaffirms that the Open Meetings Law must be construed liberally in favor of transparency and that its exemptions permitting closed sessions must be construed narrowly. Furthermore, the decision requires all governmental bodies statewide to explain, on the record in open session, why secrecy is necessary before voting to go into closed session.
This case has been recommended for publication and therefore will be binding on all government bodies and courts across the state. It has significant statewide ramifications for how government business is conducted.
Key Takeaways:
Governmental bodies cannot simply read the language from a public notice before voting to go into closed session.
Instead, administrators or the presiding officer must explain to the body’s records (and record in the official minutes) why a particular situation meets the strict requirements to qualify for one of the statutory exemptions
This is because governmental body members – who can be liable for up to $300 in forfeitures for Open Meetings Law violations – must make an informed decision to go into closed session
The existence of ongoing negotiations or the possibility of future negotiations does not justify holding all discussions related to that topic in closed session
Rather, only the limited discussions of a body’s negotiating strategy (e.g., what terms and conditions they want to offer and would be willing accept) can be held in closed session
All other matters (e.g., background explanations, questions from members, legal opinions not related to litigation, or terms that have already been proposed or negotiated) must be discussed in open session
October 6, 2020 Meeting
On October 6, 2020, Marinette administrators presented a fully-negotiated settlement agreement to the city’s common council for approval in closed session. The agreement released Tyco, the entity responsible for the PFAS contamination, from most liability to the city in exchange for a “donation” toward equipment that would dry out the “sludge” byproduct from its wastewater treatment plant to make it cheaper to ship to a specialized landfall.
During the closed session, administrators explained the situation to city council members, including how the sludge had been contaminated with PFAS, why drying it out would save shipping costs, how the drying equipment worked, and the terms of the agreement – all information already known to Tyco. The council never seriously considered making a counter-offer and eventually went into open session and approved the agreement without any discussion. The public never saw the agreement or heard its elected representatives’ opinions and questions before it was approved.
October 7, 2020 Meeting
On October 7, 2020, Marinette’s common council went into closed session to hear a presentation from Ruekert Mielke, an engineering firm. Ruekert Mielke had been contracted to analyze eight potential solutions for providing clean drinking water to neighboring Town of Peshtigo residents whose well water had been contaminated with PFAS. Two of the eight options involved the City of Marinette providing water, either on a retail or wholesale basis.
During the closed session, the engineers, aided by Marinette administrators, explained the problem and presented a technical analysis of the advantages and disadvantages of each of the eight options. While it was possible the city would at some point negotiate with the town to provide water, at the time of the closed session, negotiations were not imminent. The public – and, until this lawsuit was filed, the council itself – never saw the written report Ruekert Mielke had prepared or heard the engineer’s conclusion that the city providing wholesale water was the most practical option.
Court Decision
The Court of Appeals ruled that both sessions violated the Open Meetings Law. First, the Court noted that the council had been given no information prior to voting to go into closed session explaining why, under the language of the statute, “competitive or bargaining reasons require[d] a closed session.” The court noted that a governmental body must have enough information to make an informed decision that a closed session is, in fact, necessary.
Second, the court ruled that only developing negotiation strategies – what terms and conditions they would be willing to offer and accept in a contract or agreement – is an appropriate topic of secret discussions under the exemption cited by the city. Because the council never engaged in that kind of discussion during either closed session, they were both illegal. All the background discussions of the PFAS issues, proposed solutions for addressing contaminated sludge and groundwater, and technical details should have been held publicly in open session.
As the court said, “The public deserved to know [Ruekert Mielke’s] conclusions that Marinette had paid to obtain” and that “the citizens who were now dealing with serious concerns about PFAS in their water supply and the municipality’s costs to clean them up at taxpayer cost had a right to know this information.”
“This has been a very long and stressful process but in the end, the public’s right to know and open government won out,” said Mr. Oitzinger. “The court rejected calling anything and everything a negotiation, which the city argued allowed them to hold all deliberations in secret. This could have been settled long ago if only there had been a willingness to acknowledge that city administration could have done better. Democracy is a little bit stronger today in Wisconsin because of this court decision.”
The decision also requires Marinette to pay Mr. Oitzinger’s reasonable attorney fees and court costs.
A copy of the Court of Appeals decision is available here.
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