January 14, 2003
Christopher P. Banaszak, Reinhart Boerner Van Deuren
Direct Dial: 414-298-8320
Attorney General
114 East State Capitol
P.O. Box 7857
Madison, WI 53707-7857
Dear Ms. Lautenschlager: Re: Open Meetings Regarding Qualified Economic Offers
I am writing on behalf of my client, Ronald Kossik, pursuant to Wis. Stats. § 19.98, to request your opinion under the Wisconsin Open Meetings Law on the question of whether a school board can deliberate and vote to impose a qualified economic offer (“QEO”) as that term is defined in Wis. Stat. § 111.70(1)(nc) in a closed meeting.
Mr. Kossik lives in the Manitowoc Public School District (the “School District”). It is Mr. Kossik's understanding that on September 6, 2002, the Manitowoc School Board (the "School Board") deliberated and voted in a closed meeting to make a QEO to the Manitowoc Education Association ("MEA") pursuant to Wis. Stat. § 111.70. (A copy of the notice of and minutes from the open portion of the September 6, 2002 meeting are enclosed.) On September 10, the School Board held an open meeting during which there were comments by the public regarding the contract negotiations with the MEA. (A copy of the notice for the September 10 meeting is enclosed). However, the School Board did not discuss or disclose its deliberation or vote regarding the QEO at the September 10 meeting. On October 8, 2002, the School Board voted in open session to accept a compromise labor agreement with the MEA. In response to the requests made both before and after October 8, the Superintendent of the School District has refused to provide access to the minutes or any other records related to the September 6, 2002 closed meeting.
Wis. Stat. § 19.81(1) declares the general policy 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." Consistent with that policy:
Every meeting of a governmental body shall be preceded by a public notice as provided in s. 19.84, and shall be held in open session. At any meeting of a governmental body, all discussion shall be held and all action of any kind, formal or informal, shall be initiated, deliberated upon and acted upon only in open session except as provided in s. 19.85.
Wis. Stat. § 19.83(1).
Wis. Stat. § 19.85 lists exemptions from the requirements of Wis. Stat. § 19.83. These exemptions include an exception for a meeting in which a governmental body is:
Deliberating 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.
Wis. Stat. § 19.85(1)(e). However, Wis. Stat. § 19.85(3) provides that:
Nothing in this subchapter shall be construed to authorize a governmental body to consider at a meeting in closed session the final ratification or approval of a collective bargaining agreement under Sub. Ch. I, IV or V of Ch. 111 which has been negotiated by such body or on its behalf.
As described above, the question on which Mr. Kossik seeks your opinion is whether a school board meeting to impose a QEO is required to be held in open session pursuant to Wis. Stat. § 19.85(3).
Wis. Stat. § 111.70 governs municipal employment relations. The statute provides guidelines that govern collective bargaining between Wisconsin municipal employers and the collective bargaining units with whom they negotiate. As part of this statute, the Wisconsin legislature created a mechanism to resolve deadlocks in negotiations between municipal employers and collective bargaining units. Specifically, the statute allows a municipal employer to unilaterally implement a QEO, as that term is defined in Wis. Stat. § 111.70(1)(nc), when it is deadlocked on all economic issues in its negotiations with a collective bargaining unit.
Although Wis. Stat. § 111.70(1)(nc) refers to a QEO as an “offer,” it is the equivalent of a final agreement with respect to the terms included in the QEO. By statute, as long as the requirements of Wis. Stat. § 111.70(1)(nc) are satisfied in the QEO and the parties are deadlocked with respect to all economic issues, a municipal employer can unilaterally implement the QEO and impose upon the collective bargaining unit all terms that are included in the QEO. See Wis. Stat. § 111.70(4)(cm)5s; Dodgeland Education Ass’n v. WERC, 2002 WI 22, ¶ 8 (describing the statutory procedure for a QEO). Implementation of a QEO does not require the agreement of the collective bargaining unit. Id. If the QEO satisfies the requirements of the statute, it becomes a binding agreement between the municipal employer and the collective bargaining unit with respect to the terms included in the QEO. Id. (See also enclosed copies of correspondence from the School District regarding its decision to implement the QEO).[1] Therefore, we believe that a QEO is the equivalent of a final offer that must be considered and voted upon in a meeting that is open to the public pursuant to Wis. Stat. § 19.85(3).[2]
An opinion from your predecessor supports this position. He issued an opinion letter dated June 10, 1994 interpreting Wis. Stat. § 19.85(3) (the “Opinion”). 81 Op. Att’y Gen. 139 (1994). That Opinion states that although a governmental body can meet in closed session to formulate collective bargaining strategy, Wis. Stat. § 19.85(3) requires that deliberations leading to ratification of a tentative agreement with a bargaining unit, as well as the ratification vote, must be held in open session. I have attached a copy of the Opinion for your convenience. The Opinion states that:
The purpose of the open meetings law is to provide the public with the fullest and most complete information regarding governmental affairs as is compatible with the conduct of governmental business. The Legislature explicitly provided that the provisions of the law must be liberally construed to promote that purpose. Sec. 19.81(4), Stats. Interpreting the law to require a governmental body to conduct its discussions and deliberations leading up to its vote on final ratification of a collective bargaining agreement in open session helps insure that the public not only has information about how the members of their local governing board voted but also the reasons they gave for doing so. That information is essential to enable citizens to make informed decisions about their elected officials.
81 Op. Att’y Gen. 139 (1994). Likewise, the Wisconsin Supreme Court has held that “the formal introduction, deliberation and adoption by the elected body of [] bargaining recommendations must be at open meetings.” Board of School Directors of Milwaukee v. WERC, 42 Wis. 2d 637, 653 (1969). The same reasoning should apply to a school board's deliberations and vote to impose a QEO.
We believe that prohibiting the public from observing the deliberations on and vote to impose a QEO is contrary to the requirements of Wis. Stat. § 19.85(3) and improperly deprives the public of its right to receive information regarding the operations of its local government. Because a QEO is the equivalent of a final agreement on the terms included in it, the deliberation and vote on a QEO should be conducted in a meeting that is open to the public.
We ask that you render your opinion on this question, which we believe to be of statewide importance. It is my understanding that this issue has come up in other school districts across the state and it will likely arise again. I have sent a copy of this request to counsel for the School District, and ask that you favor him with a copy of your opinion.
Christopher P. Banaszak
Reinhart Boerner Van Deuren
cc Paul Hemmer, Esq.
Asst. Atty. Gen. Mary Schlaefer
[1] The School District and the MEA eventually reached an alternative agreement on October 8, 2002. The fact that the parties are free to negotiate an alternative agreement does not render the decision to implement a QEO any less final. Parties are always free to renegotiate terms. That fact does not make their previous agreements any less final.
[2] The terms of a QEO itself are not confidential. They are set by statute and are disclosed to the collective bargaining unit. Here, the terms of the QEO were also posted on the School District’s Internet web site following the September 6, 2002 meeting. (See enclosed copy of September 12, 2002, announcement on the School District’s Internet web site).