The Wisconsin Court of Appeals recently issued a decision that appears to create new obligations under Wisconsin’s open meetings law. Specifically, in State ex. rel. Oitzinger v. City of Marinette, 2025 WI App 19, the Court found that a municipal government violated the open meetings law because “discussion of [the agreement for which closed session was contemplated] did not begin in open session, in violation of the law.” The open meetings law’s closed session authorization says nothing about the obligation to start discussing closed session items in open session.
However, the application of this decision is in fact quite narrow, as it was driven to a significant degree by the facts that were unique to this case. The takeaway from this decision is that exclusively in the context of the bargaining exemption to open meetings, the reason for going into closed session must be the only option available to the body and it must be clear at the meeting that the closed session, on the specific element of the negotiation process, absolutely has to be done in closed session.
In any given circumstance, if the background information regarding the negotiations is not known to the public and each of the board members, then by necessity there has to be discussion in open session at the meeting that provides background, negotiation status, and other pertinent information that can be publicly discussed to evaluate whether the scope of proposed discussions in closed session are appropriate.
Facts of the Case
The Court was reviewing two separate alleged incidents of inappropriate closed session meetings held by the board relative to an agreement between the city and a corporate entity in the city. The agreement at issue involved the resolution of chemical contaminants produced by a manufacturer, and expenses associated with clean up. According to the Court, when the governmental body went into closed session, it did so to allow the board members an opportunity to review the agreement.
One board member proposed that the city continue to negotiate on the monetary aspects of the agreement. According to the board member (Oitzinger), the city’s negotiator advised the board that this was the best deal they could get with the company. In fact, the purpose of the meeting was to give the board members the chance to review the agreement, ask questions, and ultimately vote on the agreement.
Board Member Oitzinger then brought an action against the board for meeting in closed session despite there being no competitive bargaining reasons justifying doing so. In other words, the final agreement could have been discussed in open session.
The Court’s Decision
The Court held that the closed session violated the open meetings law. The Court noted that, while establishing negotiation strategy, or establishing parameters for negotiating may very well be justifiably discussed in closed session, reviewing essentially a final agreement, does not necessarily need to be handled in closed session. Further, the vast majority of the provisions in the agreement were not unknown to the other party, nor would discussing the background of the agreement compromised competitive bargaining. The Court also noted that there was no public knowledge of the agreement, the purpose for the agreement, or any of the background circumstances of the agreement. Likewise, the Council members were unaware of the details. The Court explained:
Even if the mayor and Kent [the attorney] had presented to the Council what they knew and why they believed that a closed session was required, the specific facts of this case reveal the fallacy of their belief. Prior to the October 6 meeting, the mayor and Kent both knew that the entirety of the discussion that day would not be devoted to negotiating the terms of the donation agreement. Kent had already been negotiating the terms of the donation agreement with Tyco for months without involving the Council, and his position was that the agreement was final and all that remained was for the Council to vote to approve it. This fact is demonstrated by Kent’s response when Oitzinger asked about Marinette’s added expenses and whether ‘Marinette should ask for more money [from Tyco] to cover those increased ongoing costs.’ Kent told Oitzinger ‘that they had finished negotiating and they believed this was the best deal they could get’. Id. at ¶56 (emphasis in original).
The Court explained several ways the discussion could have those aspects of the proposed agreement that did not require secrecy. In the course of such discussions, if the need for secrecy on a topic is the “only option” to protect the city’s interest, the board members would be sufficiently apprised of the circumstances to determine the necessity for closed session.
The purpose of the closed session in this case was not known until the board was in closed session. During the closed session discussion, it became clear that there was in fact no longer a competitive bargaining need for secrecy (i.e., the agreement was ready for board approval). Accordingly, entering into closed session was unlawful.
Narrow Scope of the Decision
The impact of the Court’s decision appears limited to only one of the bases for closed session found in the law. Wisconsin statute section 19.85(1)(e) permits a government body to meet in closed session when “[d]eliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.”
The case focused on two questions: (1) what is the meaning of the word “require” and (2) what constitutes sufficient notice for the public and the board members to be able to assess whether closed session is appropriate?
Closed Session “Required” to Protect Interests
The Court determined that, in the context of this exemption, the word “require” means that there is “no other option” than to go into closed session. Accordingly, the Court stated that “a governmental entity must determine whether, under the particular circumstances, a closed session is required, meaning that there is no other option.” To do so, the Court explained that its “conclusion in this case states (we think, uncontroversially) that the plain language of the statute requires that the decision to enter into closed session be made with actual knowledge of the circumstances and the interests requiring secrecy.”
The closed session discussion must be limited only to that for which there is no option but to be in closed session. For example, in Oitzinger, representatives of the company that the city was negotiating with were present at the meeting. If the board wanted to discuss a counter offer, closed session would be the only option. However, a significant amount of other detail was already known to the company, such that discussing those aspects of the agreement in open session did not jeopardize the city’s bargaining position.
Distinction Regarding Sufficiency of Notice
With respect to the question of sufficient notice, the Court drew an implicit distinction between the Wisconsin Supreme Court’s decision in State ex. rel. Buswell v. Tomah Area School District, 2007 WI 71, and the issue in the Oitzinger case. In Buswell, the Court established a multi-factor test to determine whether sufficient notice had been given to the public, such that the public was reasonably informed of what would be discussed. In Oitzinger, the Court was focused on whether the public – and the board members – had sufficient notice of the circumstances present and the scope of the proposed closed session discussion to determine whether there was no other choice but to go into closed session.
The analysis of whether public notice of a closed session topic is sufficient remains governed by the Supreme Court’s reasonableness analysis in Buswell.
Application of the Decision in the Real World
The importance of this decision is for board members and administrators to remember that the closed session authority for competitive bargaining is narrowly limited to those discussions where there is “no other option” but to discuss them in closed session. In order to determine whether that is the case, there must be ample public notice, in the form of discussion or description, regarding the necessity for closed session.
Closing a meeting under this exception (Wis. Stat. § 19.85(1)(e)) requires (a) due to historical meetings or discussions, there are sufficient background details surrounding a negotiation that are known or communicated to the public and to all of the governmental body’s members and/or that public discussion at a board meeting precedes closed session that provides necessary background details; (b) closed session discussions are only those for which there is no other option, but to be in closed; and (c) the notice and surrounding discussion enable both the public and the board members to determine whether the closed session will be narrow in scope and is necessary under the circumstances.
There is nothing in the law that requires open session discussion of agenda items prior to closed session. Nonetheless, it may be wise for the time being to preface any anticipated closed session under Wis. Stat. § 19.85(1)(e) with an open session discussion that provides background and status of negotiations and specifies the topic(s) for which there is no other option but to discuss in closed session.
Conclusion
The Court’s decision in Oitzinger should not be viewed as having more significance than it does. Effectively, the decision clarifies that closed session discussions, for competitive bargaining reasons, are extremely narrowly defined to apply only to those aspects of a contract negotiation process that cannot be discussed publicly. Further, the decision specifies that there has to be sufficient knowledge of the background, scope, and status of the negotiation, and of the specific item(s) that have to be discussed in closed session. The actual discussion too, must only be about those items for which there is no other option but to discuss in closed session.
