Saturday, August 07, 2010

Special Monona City Council Meeting Preview

Special City Council Meeting

Date: Mon - 08/09/2010

Time: 6:00 PM

Location: Monona Public Library, 1000 Nichols Rd., Community Media Room (Lower Level)

The Monona city council meets on Monday evening with one item of business: consideration of a development agreement with Meriter Hospital.

The council will also get a report on the city's TIF districts as requested by alder Wiswell and me at our previous meeting. This item comes after the Meriter project on the agenda which seems odd given that a critical piece of the Meriter agreement is a request for substantial TIF assistance.

The agenda calls for the council to suspend the rules and approve or reject the development agreement at a first reading. It also calls for a closed session under s. 19.85 (1)(e) Wis. Stats. The Open Meetings law is here (go to pages 25-26).

I do not plan to support taking a vote on this agreement at Monday's meeting. The CDA met and approved the development agreement this past Thursday evening (so I am told). And the council is expected to vote on the agreement four days later. The council was still receiving data on the agreement as of late yesterday afternoon (Friday). The agreement asks for a very large public expenditure in return for a very positive and significant new development. I just don't think we should rush to a decision.

More specifically, we are being asked to approve $2.55 million in TIF assistance for the project. Under the development agreement, the project would construct a 43,000 square foot, two-story medical clinic and provide upon completion a guaranteed $15,230,000 in taxable property value. The agreement contains a number of safeguards to limit the city's risk.

This project would be the city's third largest investment by dollar value in at least the past three seven years, after only Monona Drive reconstruction and the Garden Circle acquisition. In my opinion, we can wait a week or so and have a second special meeting after there's been some public airing of the proposal and the council members (especially those of us not on the CDA) time to deliberate before deciding.

Moreover, the public knows basically nothing about this agreement. Maybe they will think it's great, maybe they will think it's outrageous, maybe they will think it's great, but have doubts about the amount of assistance, or maybe they will just have questions. A vote on the agreement on Monday night will preclude public scrutiny before the deal is done.

Is a Closed Session Required?

Monday's meeting provides an opportunity for the council to have a public discussion about the proposal and its merits. A closed session is scheduled. Perhaps there is some part of the discussion that warrants a closed session, but certainly most of the discussion should be held in open session. I will have to be persuaded that circumstances "require" a closed session.

I use the word "require" advisedly. That's the word used in the exception to the Open Meetings Law cited in the agenda for this closed session. A recent Court of Appeals case interpreted this exception quite narrowly and quite forcefully.

The case, State ex rel. Citizens for Responsible Development v. City of Milton, 300 Wis.2d 649, 731 N.W.2d 640, 2007 WI App 114 (Court of Appeals 2007) is relatively short and makes interesting reading, but the following is especially compelling:

The legislature's choice of the word "require" thus connotes its intent to limit the exception under § 19.85(1)(e) to those situations where the government's competitive or bargaining reasons leave no other option than to close meetings. Thus, a government may have a valid reason for desiring to close its meetings that nevertheless fails to establish closed meetings are required. While a private entity with which the government is negotiating might request confidentiality, and such a request might provide a reason for a government to desire holding closed meetings, that request does not require the government to hold closed meetings to preserve the government's competitive or bargaining interests.

Permitting the governed to express opinions about prospective purchases may be time consuming, frustrating, counterproductive and might increase costs. But the Wisconsin legislature has decided that complete information regarding the affairs of government is the policy of Wisconsin. We cannot accept the proposition that a governing body's belief that secret meetings will produce cost savings justifies closing the door to public scrutiny.

The court did leave just a little wiggle room in its final paragraph:

Finally, we agree with Milton that portions of meetings that would have revealed their negotiation strategy with United Coop or their negotiation strategy for the purchase of land for the ethanol plant site could be closed under Wis. Stat. § 19.85(1)(e).[7] Developing a negotiation strategy or deciding on a price to offer for a piece of land is an example of what is contemplated by "whenever competitive or bargaining reasons require a closed session." See Wis. Stat. § 19.85(1)(e). However, just because those concerns were present for portions of some of the meetings does not mean the entirety of the meetings fell within the narrow exception under § 19.85(1)(e). Thus, we do not agree that Milton was justified in closing all parts of all meetings concerning the proposed ethanol plant based on the reasons it has asserted.
Whether the Monona council can avail itself of this wiggle room is doubtful. We have a tentative agreement in place. The negotiations are essentially complete. The state Attorney General states in its Open Meetings Compliance Guide (at page 27):

Once a governmental body’s bargaining team has reached a tentative agreement, the discussion whether the body should ratify the agreement should be conducted in open session. 81 Op. Att’y Gen. 139, 141 (1994).


You can find the decision here and here (DOJ web site). If you read the caes at the DOJ web site you will notice a couple of familiar names. The author of the opnion was Judge Charles Dykman of Monona and one of the attorneys for the citizens group was former Monona alder Peter Mckeever.


For more background, see my recent post.

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