Assistant Attorney General responds

By Scott Bellile

A New London School Board policy regarding who can place items onto meeting agendas does not violate open meetings law, according to Wisconsin’s assistant attorney general.

District Administrator Dennis Krueger shared the news during the Sept. 25 school board meeting held at Readfield Elementary School.

On April 10, the board wrote a letter to Wisconsin Attorney General Brad Schimel to ask for his opinion on the legality of New London School District Policy 171.2, which states, “The agenda for Board of Education meetings and work sessions shall be prepared by the District Administrator and the School Board President.”

Adopted in 2016, the policy further states “administrators or other persons within the District” may suggest an item of business to be included on the agenda by contacting the district administrator’s office. Agenda items cannot be suggested on the floor at a meeting.

Board member Chris Martinson did not join the six other school board members in signing the April 10 letter because he felt it did not reflect his side of the issue fairly.

Martinson argued at the April 10 board meeting that by allowing the president and district administrator to put together the agenda, they hold more power because they ultimately have discretion over what does or does not make the final cut.

The rest of the board must take the extra step of contacting the administrative office before a meeting to suggest an agenda item, whereas the president and district administrator do not, Martinson said.

At that time, the district administrator was Kathy Gwidt. Kim Schroeder was and still is the board president.

On Aug. 25, Assistant Attorney General Paul Ferguson replied to the board’s letter instead of Schimel because Ferguson stated the attorney general is not authorized to issue formal opinions to municipality-level governments.

Ferguson concluded New London’s policy is appropriate because the act of setting an agenda itself is not considered a “meeting” that is subject to open meetings law.

Agenda planning is not a “meeting” because the act does not require participation by a quorum of a majority of board members, Ferguson wrote.

In other words, planning an agenda is not the same as voting on an item at a school board meeting, which does require a quorum. In New London, at least four of the seven board members must be in attendance at a meeting to establish a quorum.

Ferguson called his response “advice” and stressed it is not “an informal or formal opinion of the Attorney General.”

“I respectfully disagree with the letter from the assistant attorney general where he stated the policy was, in his opinion, not a violation,” Martinson told the Press Star on Sept. 27. “Even though I disagree with him, I do welcome the fact that since last spring there has been a more collaborative approach to develop the agenda [among New London School Board members].”

The school district’s attorney, Tony Renning, stated in an Aug. 10, 2016 memo that he also believes District Policy 171.2 is lawful. Renning stated the policy “is consistent with the way a number of school districts operate” and someone “ultimately has to be responsible for setting the Agenda – This is one of the ‘benefits’ of being elected the Board President.”

In addition, Renning noted a board member whose proposed agenda item is rejected has a course of action: He or she can call together a special meeting where, if a majority vote is achieved, board members can override the president’s omission and place the item on a future meeting agenda.

According to the board’s April 10 letter to Schimel, the unnamed Martinson had suggested reserving time at every meeting for “Input for Future Agenda Items.”

However, the letter states “a majority of committee members” believed this would be inappropriate. The concern was the input session could veer into unlawful territory if it turned into extensive conversation about a proposed topic that did not appear on that meeting’s adopted agenda.

The school board’s policy committee is drafting a school district policy that would offer more clarity on District Policy 171.2. The draft is expected to appear before the board this month.

Martinson told the board on Sept. 25 that even if Ferguson is right and District Policy 171.2 is legal, Martinson still thinks it is “a wrong policy” ethically. Martinson questioned how much weight Ferguson’s advice has given it is not a formal opinion.

“I still believe that [District Policy 171.2] would have a good chance of being turned in a court, but I don’t see the need to do that if the policy committee is reviewing policy,” Martinson told the school board. “Because if it can be corrected without any contention, I think that would be the most important thing.”

To read an April story containing more coverage of the April 10 school board meeting where District Policy 171.2 was debated, go to https://waupacanow.wpengine.com/2017/04/26/agenda-policy-questioned/