"Walking quorum" breaks the law

This blog has (well, OK, I have) been asking for a month now whether the Joint Finance Committee is breaking the state's open meetings law while it puts the state budget together.

The answer appears to be yes. But no one in a position of authority is asking the question.

From WisPolitics budget blog on April 26: Budget deliberations hit a severe snag [Tuesday] afternoon as several items, mainly dealing with court issues, were set aside and the JFC wrestled behind closed doors for two hours with how to handle a list of DNR funding votes. . .. . .The co-chairs, staff and other legislative leadership scuttled in and out of a closed door meeting, always being careful not to reach a quorum, as they tried to hammer out a motion.

I asked at the time: "So if there are 16 members of Joint Finance and 12 are Republicans, eight of the Repubs can meet without being a quorum, then shuffle a few people in and out so there is a different set of eight. Without ever having a quorum, they could easily reach a consensus and put together a majority vote. Does that sound like an open meeting or like open government?When will someone -- the newspapers, the Democrats, the public -- speak up?"

Well, no one has spoken up. But someone did try to answer my question by pointing me to State Supreme Court decisions that say pretty clearly you cannot operate that way.

The court called such meetings "walking quorums" and said that if the intent was to reach a decision without having a quorum in the room, it is subject to prosecution under the law.

There are actually two cases, one called "Conta" in 1976, and another, called "Showers," in 1987.

The opinions are long and written in legalese. But Claire Silverman, legal counsel for the League of Wisconsin Municipalities, explained in plain English in a memo last month. (Note to Joint Finance: She was not my source for this item, so don't take it out on the League.)

Here's her explanation:

Local officials must also be aware that a series of gatherings, telephone calls, or e-mails between a small enough number of officers so as not to trigger the law at one specific gathering may constitute an illegal meeting This involves what is sometimes called a "walking quorum." A "walking quorum" is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum.

From the public's perspective, the danger of the walking quorum is that it may produce a consensus or predetermined outcome with the result being that the publicly-held meeting is a mere formality without any real discussion or consideration of the issue being conducted in public. The use of a walking quorum to conduct business is subject to prosecution under the open meeting law.

Does that sound familiar? Meetings where there is little or no discussion, but just a series of votes because everyone already has decided how they'll vote? Often, that is your Joint Finance Committee in action. Or inaction.

Back to quoting my favorite source, The Xoff Files, on April 11:

Well, how many state budget decisions do you suppose got made over the weekend? No, the legislature wasn't in session, and the Joint Finance Committee wasn't meeting. But the first batch of budget decisions were quietly being made on conference calls between Republican leaders in the Senate and Assembly and co-chairs of Joint Finance.

Decisions will be made long before items ever come to a vote in Finance, as the Republican leadership wheels and deals to try to find consensus or compromise on controversial items so they can pass both houses with a minimum of messiness.

Is this legal? Technically, maybe, if the GOPpers take care to make certain that no quorum of any committee is on the line at the same time. But does it meet the intent of state open meetings laws? Of course not. It flunks the smell test and may even flunk the legal test if someone (the attorney general, perhaps?) were to apply it.

Prediction: The closer it gets to final budget decisions, the more secret meetings and the more violations we'll see. And no one will even complain, let alone file a formal complaint that could end the practice. Secrecy marches on.