The Stevens Point Common Council held a special meeting Tuesday, Aug. 7, with one agenda item, a closed session “granting possible incentives to developer relating to a certain site.” The closed session lasted about 30 minutes. No open session was held and no decisions were made publically on the item.
City Attorney Louis Molepske, who drafted the meeting notice, Mayor Andrew Halverson and Alderpersons Randy Stroik and Mike Wiza would not clarify who the developer is or what site is being considered.
Asked for a general category of business the development falls into, Wiza said, “They’re an employer.”
Halverson said competitive reasons, specifically the chance that another municipality would compete for the development, were why the meeting was closed and more specific information could not be shared.
Molepske said more information about the developer’s identity and the site were intentionally left off of the notice. “It’s one of those things where if I tell you, you’ll know what it is,” he said. Halverson agreed with this interpretation, noting that there are very few developers in the business this developer is in. “You have to trust us,” he said.
Molepske said details would be made public later if the deal progressed. “If they’re actually interested in us, we’ll make it public,” he said.
“I think it’s unfortunate that they’re operating with this degree of secrecy in terms of who they’re dealing with,” said Bill Lueders, president of Wisconsin Freedom of Information Council (FOIC), noting that it was difficult to know exactly what part of the city’s negotiations may be exempt from the state’s Open Meetings Law without additional information. “I think it’s of questionable legality to operate with that degree of secrecy.”
The city claimed an exemption to the Open Meetings Law that allows “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.”
A 2007 appellate court interpretation of that exemption, among other things, specifically shot down the idea that a city could close meetings to protect itself against competition from other municipalities.
The case involved the city of Milton’s use of closed sessions to negotiate an agreement to bring an ethanol plant to Milton. A citizen’s group challenged the city’s approach and prevailed on most points. The court held that the reasons given for closing the meetings did not justify closing all parts of all the meetings.
As Christa Westerberg, an attorney for the plaintiff’s in the Milton case and vice president of the FOIC, explained in a Feb. 2009 article in Wisconsin Lawyer, “The court rejected several reasons the city gave for closing the meetings… validating only the city’s claim that the closed sessions were necessary to avoid disclosing its bargaining position to the plant developer and a landowner from whom the city was considering purchasing property… The court… rejected the developer’s request for confidentiality as a reason for closing the meetings. The court also concluded that the city’s desire to close the meetings to avoid losing the development to another municipality was insufficient, noting that ‘all Wisconsin municipalities are governed by Wisconsin’s Open Meetings Law.’ If all governmental bodies must meet in open session, the logic goes, no such body can be placed at a competitive disadvantage by keeping its doors open.”
The court also rejected the city’s rationale that any agreement reached in closed session would be subject to public input at a later date.
Westerberg explained that while it is legitimate to close some portions of meetings for competitive or bargaining purposes, “the closed session must be limited to the portion of the meeting when the government body’s competitive and bargaining interests will be discussed.”
Or, as it is stated in the state attorney general’s 2010 Open Meetings Law Compliance Guide, “The exemption is restrictive rather than expansive…When a governmental body seeks to convene in closed session… the burden is on the body to show that competitive or bargaining interests require closure.”
The attorney general further notes that “mere inconvenience, delay, embarrassment, frustration, or even speculation as to the probability of success would be an insufficient basis to close a meeting.”
Westerberg explained in her article that openness and economic development need not be at odds with each other. “With a little care, open government and economic development can coexist, with the public reaping the rewards of both,” she said.