Friday, October 01, 2010

Monona CDA Closes Its Doors - To the City Council

The Monona Community Development Authority adopted a policy this week that generally excludes Monona city council members from attending its closed sessions. I previously blogged this subject during the debate over the Meriter Clinic developers agreement after I was prohibited from sitting in on the CDA's closed session.

The city administrator relayed the decision in an email that first set forth the policy:

“Attendance at a closed session is limited to the body, necessary staff and other officers, such as clerk and attorney, and other persons whose presence is necessary for the business at hand.”

The email continued with this explanation:
The parent body (City Council) must be admitted to closed session only if meeting is a subunit of a larger body (like the finance committee). The League of Wisconsin Municipalities handbook says that statutory boards and commissions (like the Library Board, CDA, Police and Fire Commission) are “probably not” subunits of the Council. Exclusion of members is covered by 19.89 of state statutes.

The CDA statutes (66.1335 (1)) state that the CDA is “a separate body politic” which clearly distinguishes it from a simple subunit of the Council, and therefore means that Council members should be excluded from closed CDA sessions.
I replied as follows:
I agree that excluding council members from closed sessions is within the power of the CDA.

One question: Does the policy apply to the Mayor also?

I disagree with your statement that because CDA is a separate body politic that therefore "Council members should be excluded from closed CDA sessions."

The word 'should' expresses a policy choice and I think excluding council members is a very bad choice. For many years the CDA struggled with very little funding. The council finally set up mechanisms to fund the CDA so it could achieve its goals. Now the CDA expresses its independence by choosing to keep council members in the dark about its deliberations and negotiating strategies.

This policy will cause delays in council approval of CDA proposals since we will need time to get up to speed.

I would also note that the CDA has made very extensive use of closed sessions in the past. The Milton case placed stringent limits on the use of closed sessions. I would ask that the CDA use closed sessions as sparingly as possible and take caution that closed session discussions do not stray into other topics that should be discussed in open session.

Basically, I agree the CDA has the power to adopt this exclusionary policy, but that begs the question whether it is a wise policy that furthers the interests of the CDA or the city as a whole. Sometimes the wisest use of power is knowing when not to exercise it.
To be clear, I do not propose that council members should take an active role in the CDA's closed sessions, but if an alder wants to sit in for the purpose of gathering information, then they should generally be allowed to do so. Excluding the council could lead to delays and increase costs by making the CDA's consultant attend more meetings.
When a TIF development is on the table, the city council is going to have to approve or reject a developers agreement that the CDA has negotiated. It would be useful for the alders not on the CDA (two alders are on the CDA) to understand not just the end point of negotiations, but how the two sides got there.
Closed sessions are especially important with regard to the CDA because it is a rare meeting that does not include a closed session.
As noted above, the CDA has made extensive use of closed sessions. You can see archived CDA agendas here. Unfortunately, the CDA does not conform to the city's policies to post not only agendas and minutes, but also meeting packets.
The Open Meetings Law strictly limits the use of closed sessions to the specifically enumerated purposes in s. 19.85 Stats. The degree of this limitation was spelled out by the Milton case. Closed sessions for the purpose of negotiating, particularly negotiating developers agreements, may only be used they are "required". The Milton case states that only having "...a valid reason for desiring to close its meetings that nevertheless fails to establish closed meetings are required." (My emphasis).

State of Wisconsin ex rel. Citizens for Responsible Development v. City of Milton, 2007 WI App 114, 731 N.W.2d 640, 2007 WI App 114.

An article by attorney Christa Westerburg from the State Bar's Wisconsin Lawyer magazine argues that, "With a little care, open government and economic development can coexist, with the public reaping the rewards of both. "

Open Meetings Law resources from the Wisconsin State Law Library. The state DOJ's 2010 Open Meetings Law Compliance Guide.

CDA Meetings with closed sessions in 2010:
August 16
August 5
July 27
July 20 (These are the minutes, which have the year stated incorrectly)
June 30
May 25
May 3
April 27
March 23 (A closed session was on the agenda, but it appears that no closed session was held.)
March 18 This agenda identifies the subject of the closed session as "Consideration of TIF request", which may very well not provide adequate notice.
February 23 
January 26


  1. Methinks the City Council doesn't trust the CDA? Which might be okay, if there was someone more qualified on the Council to negotiate with developers than those that sit on the CDA??

    Is that the case Doug?

  2. The City Council doesn't trust CDA??? If trust is the issue (and I don't know that it is), then you have it backwards. The CDA is keeping council members from sitting in on the CDA's closed sessions. It's not like we are lined up at the door for every single CDA closed session.

    It's not about the council keeping an eye on the CDA. It's about me as a council member having timely access to information. Both bodies have "necessary, but not sufficient" roles. I have to decide whether to approve a several millions of dollars in TIF assistance; it seems to benefit all involved for the council to have the information. Developers always want a decision now, now now, NOW or the deal will surely die. Excluding the council from information earlier just delays the process (or cuts the council out of any meaningful role).