State ex rel. Buswell v. Tomah Area School

• Decision Date: 13 June 2007
• Docket Number: No. 2005AP2998.,2005AP2998.
• Citation: 732 N.W.2d 804,2007 WI 71
• Parties: STATE of Wisconsin ex rel. Brian L. BUSWELL, Plaintiff-Appellant-Petitioner, v. TOMAH AREA SCHOOL DISTRICT, Defendant-Respondent.
• Court: Wisconsin Supreme Court

732 N.W.2d 804

2007 WI 71

STATE of Wisconsin ex rel. Brian L. BUSWELL, Plaintiff-Appellant-Petitioner, v. TOMAH AREA SCHOOL DISTRICT, Defendant-Respondent.

No. 2005AP2998.

Supreme Court of Wisconsin.

Argued January 11, 2007.

Decided June 13, 2007.

For the plaintiff-appellant-petitioner there were briefs by Jack D. Buswell and Arndt, Buswell & Thorn, S.C., Sparta, and oral argument by Jack D. Buswell.

For the defendant-respondent there was a brief by Lori M. Lubinsky, Brian C. Hough, and Axley Brynelson, LLP, Madison, and oral argument by Lori M. Lubinsky.

An amicus curiae brief was filed by Thomas C. Bellavia, assistant attorney general, on behalf of Attorney General Peggy A. Lautenschlager.

An amicus curiae brief was filed by Melissa A. Cherney and Christine L. Galinat, Madison, on behalf of the Wisconsin Education Association Council.

An amicus curiae brief was filed by Michael J. Julka, Richard F. Verstegen, and Lathrop & Clark LLP, Madison, on behalf of the Wisconsin Association of School Boards, Inc.

¶ 1 ANN WALSH BRADLEY, J

The petitioner, Brian Buswell, seeks review of an unpublished court of appeals decision affirming a judgment that dismissed his claims that the Tomah Area School District violated the public notice requirements of Wisconsin's open meetings law.¹ He asserts that the court of appeals erred when it concluded that the Tomah Board of Education provided adequate notice that it would be considering the Tomah Education Association's master contract at its June 1, 2004, meeting and a new hiring procedure for coaches at both its June 1 and June 15, 2004, meetings.

¶ 2 Buswell advances that the notices violated Wis. Stat. § 19.84(2) because they were not reasonably likely to apprise members of the public of the subject matter of the meetings and that the notices are inconsistent with the policies for the open meetings law as set forth in Wis. Stat. §§ 19.81(1) and (4). In essence, Buswell contends that this court should adopt a reasonableness standard for determining the degree of specificity required in identifying the subject matter of a meeting in order to comply with the notice provision of the open meetings law.

¶ 3 We conclude that the plain meaning of Wis. Stat. § 19.84(2) sets forth a reasonableness standard, and that such a standard strikes the proper balance contemplated in Wis. Stat. §§ 19.81(1) and (4) between the public's right to information and the government's need to efficiently conduct its business. Applying that standard, we determine that the June 1 notice was insufficient under § 19.84(2) and contrary to the policies in §§ 19.81(1) and (4) because it failed to reasonably apprise members of the public that it would consider the Tomah Education Association's master contract at that meeting. We further determine, however, that the failure to detail the new hiring procedure for coaches contained in the new master contract renders neither the June 1 nor the June 15 notice insufficient because it would not be reasonable to require such detail in these circumstances. Accordingly, we reverse the court of appeals and remand the cause to the circuit court for further proceedings.

I

¶ 4 In June 2004, the Tomah Board of Education ("Board") held two meetings regarding a new master contract between the Tomah Education Association ("TEA") and the Tomah Area School District ("School District") for the 2003-04 and 2004-05 school years. Prior to the June meetings, Tomah community members had expressed concerns over a proposal to include a provision giving priority to TEA members over other candidates for athletic coaching positions in the new TEA master contract. The record reflects that no previous TEA master contract contained a procedure for hiring athletic coaches.

¶ 5 Prior to the June 1 meeting, 16 community members, including Buswell, sent a letter to the Board regarding the School District's policy for hiring coaches. The letter expressed concern about the possibility that the Board would adopt a new hiring policy for coaches and objected to including any such policy in the new TEA contract.

¶ 6 On June 1, 2004, the School Board held a special meeting in closed session to discuss the provisions of the new TEA master contract. The Board had issued a public notice of the agenda which stated:

Contemplated closed session for consideration and/or action concerning employment/negotiations with District personnel pursuant to Wis. Stat. § 19.85(1)(c).²

¶ 7 During the June 1 closed session, the Board tentatively approved the TEA master contract subject to TEA ratification and ratification by the Board in open session. The new master contract included the preferential hiring procedure for coaches given to TEA members over other applicants who were not members of TEA.

¶ 8 On June 15, 2004, the Board held a regular meeting preceded by a public notice stating, in relevant part:

New Business — Consideration and/or Action on the Following:

...

TEA Employee Contract Approval

During the open session of the June 15 meeting, the Board officially ratified the TEA master contract that had been tentatively approved at the June 1 meeting.

¶ 9 Buswell filed suit against the School District, alleging it had violated the open meetings law by failing to: give adequate notice that (1) the Board would consider the TEA master contract at the June 1 meeting; (2) the Board would consider the new hiring procedure for coaches contained within that contract at the June 1 meeting; and (3) the Board would consider ratification of the new hiring procedure for coaches at the June 15 meeting. The circuit court granted the School District's motion to dismiss for failure to state a claim, basing its ruling on the court of appeals decision in State ex rel. H.D. Enter. II, LLC v. City of Stoughton, 230 Wis.2d 480, 602 N.W.2d 72 (Ct.App.1999). The court of appeals affirmed the circuit court, concluding that notice of the meeting met the standard under H.D. Enterprises. State ex rel. Buswell v. Tomah Area School Dist., No.2005AP2998, unpublished slip op., ¶ 7, 2006 WL 1843324 (Wis. Ct.App. July 6, 2006). Buswell petitioned for review.

II

¶ 10 This case comes to the court on review of a motion to dismiss for failure to state a claim. In such a posture, a reviewing court takes as true the facts alleged in the complaint. Methodist Manor of Waukesha, Inc. v. Martin, 2002 WI App 130, ¶ 2, 255 Wis.2d 707, 647 N.W.2d 409.

¶ 11 Our focus here is on the interpretation of Wisconsin's open meetings statutes. We must discern whether the notices provided for the two meetings complied with the open meetings law. The interpretation of a statute presents questions of law that we review independently of the determinations rendered by the circuit court and court of appeals. Haferman v. St. Clare Healthcare Found., Inc., 2005 WI 171, ¶ 15, 286 Wis.2d 621, 707 N.W.2d 853.

III

¶ 12 Although the current version of Wisconsin's open meetings law has been in force for over 30 years, this court has never addressed the issue of the degree of specificity required in identifying the subject matter of a meeting in order to comply with the notice provision of the open meetings law. Buswell contends that the notices provided by the Board for its June 1 and June 15, 2004, meetings were too general and did not comply with § 19.84(2). That section provides in relevant part:

Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof....³

¶ 13 With respect to the June 1 meeting, Buswell claims that the notice was deficient because it did not indicate that the Board would act upon a new master contract with the TEA, and it did not state that the Board would act upon the new procedure for hiring coaches within the master contract. He argues that the notice would have had to mention both the TEA contract and the new hiring provision in order to be "reasonably likely to apprise members of the public" of the subject matter of the meeting. With respect to the June 15 meeting, Buswell claims that the notice was deficient because it did not state that the Board would act upon the new hiring provision for coaches.

¶ 14 Buswell further argues that the failure to indicate that the meetings would consider the TEA contract and new hiring provision is contrary to the polices of the open meetings law, as set forth in Wis. Stat. § 19.81(1) and (4). Section 19.81(1) provides:

In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.

Section 19.81(4) adds that the open meetings subchapter "shall be liberally construed to achieve the purposes set forth in this section ...." Buswell maintains that these policies require more specific notice than that provided in the notices for the June 1 and June 15 meetings. At the heart of Buswell's argument is his contention that the court of appeals erred in failing to adopt and apply a reasonableness standard in determining whether the notices complied with Wisconsin's open meetings law.

¶ 15 The cornerstone of the court of appeals' analysis is the interpretation of § 19.84(2) in H.D. Enterprises. It involved a grocery store's application for a liquor license from the city of Stoughton. The city published notice of a council meeting at which it would consider the application. The published agenda for the meeting indicated that the council would discuss the application by listing the item as "licenses." At the meeting, the council denied the license. 230 Wis.2d at 482, 602 N.W.2d 72. The...