Is it a walking quorum? Depends on which side of the county line you're on

Here are the facts of the case, as best I can explain them. (I am not a lawyer, in case there was any doubt about that.)

School board members, facing a tough decision, e-mailed each other about the issue. The whole board wasn't always included on the e-mails, but a majority participated at one time or another. Board members also discussed the issue outside of meetings.

A citizen filed a complaint, claiming the board had violated the state open meetings law.

The outcome? Well, it depends on where you live.

If you live in Milwaukee County, you've broken the law. If you live in Waukesha County, you haven't.

No, the cases involving the Wauwatosa and Waukesha School Boards are not identical. But they are close enough to invite a comparison of the outcomes, which were like night and day -- or guilty and not guilty, if you prefer.

Waukesha: No problem

In Waukesha, DA Paul Bucher said e-mails sent back and forth to various school board members and school district administrators in the days before an April 5 referendum didn't constitute a walking quorum.

"The e-mails didn't raise substantive issues that dealt with school board business," Bucher said. "This wasn't an open meetings issue."

Not school board business? The board members were discussing how to respond to a mailing from an anti-referendum group in order to try to win passage of the referendum.

Bucher's position, the Waukesha Freeman said,in a July 12 editorial:

" is the opposite of what is stated in a compliance guide for governmental bodies that is published by the Wisconsin Department of Justice Web site. The guide states that a quorum is created if a majority of board members receive the e-mails. That clearly was the case in what occurred with the school district. . .

"It certainly appears that the law has been broken. But if the enforcement side is unwilling to recognize that, then those who broke the law are not only not prosecuted but will likely feel such conduct is appropriate and legal in the future."

Bucher's defenders, including his wife, blogger Jessica McBride, point to AG Peg Lautenschlager's 'refusal to review the decision as evidence that Bucher was right. But actually, the story McBride/Bucher refers to says the AG didn't take it because of a conflict of interest; her office had advised the referendum opponents on the legality of their mailing.

Wauwatosa: Big problem

Now the Wauwatosa case, which had quite a different outcome, as the Journal Sentinel reports.

There, the citizen complaint went to the county corporation counsel, who found five board members had violated the law, engaging in a "walking quorum" by discussing a school closing issue by e-mail, home visits and other conversations.

County attorney Robert E. Andrews says he doesn't think the board broke the law on purpose, but the law doesn't require the showing of intent to break the law or that all members of the quorum be present at one time.

"It is only required that there be a series of gatherings whose participants agree to act in a sufficient number to determine the course of the board," the decision states.

As a remedy, the School Board must:

• Admit it violated the open meetings law by engaging in a walking quorum prior to the January meeting to discuss the closing of Wilson school.

• Get training on the open meetings law.

• Reimburse the citizen who complained $400 he paid for copies of e-mail correspondence among various School Board members.

So there you have it. Two school boards, two counties, two complaints, two different but similar sets of facts. And two totally different outcomes.

I'm sure the Bucher defenders will weigh in and nitpick this analysis. Some have said he should get credit for not caving in to the Citizens for Responsible Government anti-tax group, which filed the complaint, and siding with the Waukesha School Board. But this should be a legal, not a political question. And it seems like the law should be the same on both sides of the county line.

FOOTNOTE: If the term "walking quorum" sounds familiar, it is because I brought it up during the state budget process, when members of the Republican majority on Joint Finance were shuttling in and out of the room to hammer out agreement on budget items in secret. Here's the relevant post,"Walking quorums break the law."

So who's going to file that complaint against Joint Finance?

UPDATE: BUCHER RESPONDS. In a posting on his campaign blog, Bucher writes to the Waukesha Freeman to explain why the newspaper's editorial is "goofy" and he is right. Seems funny he waited more than a week.