January 14, 2003
Douglass K. Jones
Manitowoc County Special
Prosecutor
1010 South Eighth Street
Manitowoc, WI 54220-5398
Dear Mr. Jones,
This letter and the attached
documentation is submitted in support of the Request for Mandamus filed on my
behalf by Christopher Banaszak of Reinhart Boerner Van Deuren.
I am requesting the
Manitowoc County District Attorney’s Office defend the state’s interest in open
government and an informed electorate as declared in Wisconsin Statutes 19.31
and 19.81(1). I am a resident of the Manitowoc Public School District, the City
of Manitowoc and the County of Manitowoc. I am the parent of three children who
attend district schools. I am a candidate for the Manitowoc Public School
District Board.
This document describes recent
events based on the best information available and known to me. Some aspects of
actions taken cannot be authoritatively ascertained due to continuing secrecy
by the school board and school district.
According to a September 13
newspaper account, on September 6, 2002, the school board acted in closed
session to impose the QEO. There was no known disclosure of this action. On
September 10, the school board held a regularly scheduled board meeting that
was heavily attended and included a public comment period during which several
citizens addressed the board regarding the ongoing contract dispute with the
teachers’ union. There was no discussion or disclosure of the board’s QEO
action during the regularly scheduled board meeting. On September 13, the Herald
Times Reporter ran a story in which Superintendent Wayne Johnson disclosed the
school board had taken action to impose the QEO during a closed meeting on
September 6. This is the first known disclosure of the board action. Various
subsequent requests for information regarding the QEO action taken in closed
session were wholly denied by the school district. On October 8, the school
board voted in open session to accept a compromise labor agreement. The school
district continues to wholly deny requests for information regarding the QEO
action taken in closed session.
Why was the decision made to
impose the QEO during a special closed session, when the regularly scheduled
board meeting, also including a closed session, was just 4 days away? Why was
the board’s QEO action kept secret until September 12? The imposition of the
QEO is wholly at the discretion of the school board. The narrowly drawn
exemptions to the open records and open meetings requirements contemplate
situations where public knowledge of official actions could have adverse
consequences to the public interest. There is no such adverse outcome to
fear pursuant to the decision to impose the QEO. The exemptions are not
intended to shield representatives from accountability to their electorate.
The September 13 article in
the Herald Times Reporter reports on the QEO action, apparently taken in closed
session on September 6. Apparently Superintendent Dr. Wayne Johnson selectively
disclosed information to the media regarding the closed meeting. This information
included the disclosure that the entire board had endorsed the letter sent to
the teachers. Because the action was taken in closed session, and because the
board and district refuse to disclose any information regarding the closed
session, the public’s knowledge of the board’s actions is based solely on this
selective disclosure to the media. There was no possibility an ordinary citizen
could directly observe the board’s actions by attending the meeting, and there
is no information available to the citizen who attempts to obtain authoritative
information from the district via an open records request.
The article also quotes
Manitowoc Education Association Chief Negotiator Gary Bents, who mistakenly
refers to the board action taken after the public comment period during
the regularly scheduled September 10 board meeting. Mr. Bents presumably has
substantial expertise and first hand experience regarding these contract
negotiations, and even he apparently misunderstood such basic information
regarding the chronology of events. What chance could an ordinary citizen have?
Such is the price of secret government.
On September 10, several
citizens, including this complainant, addressed the school board in the belief
the decision to impose the QEO was under consideration by the board. The
decision by the board to act under the protection of a closed meeting and the
apparent decision by all attendees to maintain secrecy regarding such action
precluded any possibility that any citizen could be informed at the time of the
public meeting on September 10. It was well known that citizens interested in
negotiations would attend this public board meeting, and in recognition of
this, the venue of the meeting was changed to accommodate the large audience.
Members of the public were unaware their comments regarding the possible
imposition of the QEO to the board during the public comment period on
September 10 were futile because the board had already imposed the QEO in
secret. The board’s unexplained intent to maintain secrecy manipulated the
attempted participation of the electorate, resulting in the estrangement and
embarrassment of those citizens legitimately attempting to participate in their
government. The concealment of the QEO vote also prevented the electorate from
influencing their elected representatives based on knowledge of how they voted
on the QEO. This subversion of the representative process is the most serious
consequence of the secrecy maintained by the board regarding the QEO vote.
The board acted to impose the QEO in secret on September 6 and made no disclosure of this action until September 12, knowing that the electorate would be offering public input on this issue during the regularly scheduled public meeting on September 10. This was a powerful and effective statement by the board to the electorate that the board controls the levers of government and effort by the electorate to influence or even comment on the operation of their government is utterly meaningless.
Can there be a more
effective example of the type of government that Statutes 19.31 and 19.81(1)
were intended to prevent?
Statute 19.36(4) and the
district’s own open records policy requires that information not subject to
disclosure be deleted from information subject to disclosure, whereupon the
record shall be released. In response to this complainant’s open records
requests, the school district released virtually no information regarding the
QEO vote. The district’s balancing test concludes virtually all information is
exempt from public disclosure, including that information already released to
the local media, bargaining unit, teachers, and posted on the district web
site.
The board acted to impose
the QEO in secret on September 6 and acted to accept the compromise labor
agreement in open session on October 8. During this interval, I, as well as any
other citizen, could not interact with my representatives based on knowledge of
their vote on the QEO. The district responses to my open records requests claim
broad exemption from disclosure because the district would disclose its
collective bargaining strategy. There is no indication the district performed
its statutory duty to separate disclosable information, in particular, who
introduced and seconded the motion to impose the QEO, and the vote of each
member. The district’s response makes no attempt to explain how disclosing
these separable elements of information would compromise its negotiating
strategy or otherwise be in the public interest to conceal. The district does
not explain how its balancing test concluded that disclosing how individual
board members voted would be more detrimental to the public interest than the
severe consequences of depriving the electorate knowledge of this information
as described elsewhere in this complaint.
Even though Statute 19.26(4)
requires the district, on its own initiative, separate disclosable information,
my open records request of September 16th specifically requests 5
precise and separate pieces of information. The 4th requested
element is the outcome of the vote, which the district refused to disclosed
even though the district publicly announced the board had acted to impose the
QEO. The district’s balancing test somehow concluded the public did not have
the right to know the outcome of the vote, which had already been disclosed to
the public via the media. The 2nd, 3rd and 5th
elements request identification of who introduced and seconded the motion, and
the vote of each member, respectively. Given that the board action taken had
been already been publicly disclosed, the refusal to disclose individual votes
only has the effect of depriving the public of their right to be informed as
declared in 19.31.
Despite extraordinary
effort, this complainant could not and cannot obtain any information regarding
the secret motion to impose the QEO.
Finally, in a letter dated
October 17, 2002, Manitowoc County District Attorney James FitzGerald cautioned
the school board, “I very strongly urge the MPSB to change their method of
providing notice of the subject matter of any closed session,… The contested
notice complies with the letter of the law but ignores the spirit of the Open
Meetings Law.” (The agenda giving notice to the public of the topic of the
closed meeting consisted of the single word “Negotiations.”) In flagrant
defiance of the District Attorney’s opinion, the rule of law, and the
district’s own voters, a topic on the agenda for tonight’s closed session
consists of the single word “Negotiations.” Ironically, tonight the school
board is deliberating a proposed Code of Conduct, while their own conduct says,
“Do whatever you can get away with.”
Sincerely,
Ronald Kossik
702 New York Ave.
Manitowoc, WI 54220