January/February 2025 Issue

Also in this issue: Cell Tower Leases: What to Do When You Get “The Letter”     |     Attorneys Brian P. Goodman and Jared Walker Smith Named Partners

Wisconsin’s Open Meetings Law: Three Cautions

Aiyanah Simms | 01.23.25

Wisconsin law strongly favors transparency regarding government affairs. Wisconsin’s Open Meetings Law requires governmental bodies to conduct official business in a meeting open to the public that is posted, as required by law, and provides specific notice of the matters to be addressed. Governmental bodies can only convene in closed session if a specific statutory exception applies. Here are three key areas of caution with respect to the Open Meetings Law for municipalities to have on their radar.

No Meetings Over Email

Some electronic communications may constitute a meeting under Wisconsin’s Open Meetings Law, requiring public notice. Under the law, the definition of ​“meeting” requires only one-half or more members of the governmental body to convene to exercise their duties and responsibilities. The definition of a meeting under the Open Meetings Law does not require members to gather in the same physical location. Therefore, some electronic communication, such as email and instant messaging, may constitute a ​“convening of members” if multiple members are messaging back and forth in a way that resembles an in-person discussion. The courts may consider this a meeting, triggering the requirements under the Open Meetings Law. Information can be shared with governmental bodies via email without violating the law. But such one-way distribution of information should include a reminding not to ​“reply all” to the message to avoid a potential violation of the Open Meetings Law.

Proper Notice

Wisconsin’s Open Meetings Law allows certain items to be discussed in closed session under Wis. Stat. 19.85. However, the governmental body must provide proper notice of the closed session. Closed session notices must be specific and detailed. A closed session notice that simply lists or quotes from the applicable statutory exception does not satisfy this requirement. The notice must include the subject matter to be considered in the closed session and must provide enough information for the public to determine if it falls under one of the authorized exceptions.

Closed Sessions

Generally, members of a governmental body should only take action in open session. In the Wisconsin Open Meetings Law Compliance Guide, the Wisconsin Attorney General advises that a vote should only be taken in closed session if the vote ​“is clearly an integral part of deliberations authorized to be conducted in closed session under Wis. Stat. § 19.85(1).” If there is not a legal basis to act in closed session, the board must return to an open session to conduct a vote to take action on matters discussed in closed session, which itself must be properly noticed.

Wisconsin’s Open Meetings Law reflects the state’s commitment to transparency and public participation in government affairs. By understanding and adhering to the cautions outlined above, officials can uphold the principles of this law while conducting their work effectively.