On June 13, 2007, the Wisconsin Supreme Court addressed for the first time “the degree of specificity required in identifying the subject matter of a meeting in order to comply with the notice provision of the open meetings law.” Wisconsin ex. rel. Buswell v. Tomah Area School District, 2007 WI 71. By its decision, the Court increased the information which must be included in public notices to comply with the public notice requirement of Wis. Stat. § 19.84(2). Wisconsin’s public notice statute requires, in relevant part, that “[e]very public notice of a meeting of a governmental body shall set forth the time, date, place, and subject matter
, of the meeting … in such a form as is reasonably likely to apprise members of the public … thereof.” Wis. Stat. § 19.84(2).
In Buswell, the plaintiff alleged that the school board gave insufficient notice regarding two meetings; the first meeting on June 1, 2004, concerned the Tomah Education Association (“TEA”) master contract, and a provision in that contract pertaining to the hiring procedures for athletic coaches. The second meeting held on June 15, 2004, concerned the ratification of the master contract discussed in the first meeting. The master contract discussed at the June 15th meeting included the new and controversial hiring procedure for athletic coaches. Prior to the June 1st meeting, members of the community had expressed concern about the provision of the proposed master contract which addresses the hiring procedure for athletic coaches.
The notice given for the June 1st meeting stated “[c]ontemplated closed session for consideration and/or action concerning employment/negotiations with District Personnel pursuant to Wis. Stat. § 19.85(1)(c).” The notice given for the June 15th meeting stated “New Business—Consideration and/or Action on the Following: TEA Employment Contract Approval.”
The Supreme Court held that the notice for the June 1st meeting was insufficient and violated the “reasonableness standard” implicit in § 19.84(2) with regard to the discussion of the TEA master agreement. The June 1st notice should have, in the Court’s view, referenced the TEA contract directly. On the other hand, the Court concluded that the notice need not include a reference to specific provisions (like the coaches hiring procedures) contained in the TEA. The Court found that “providing notice that a contract will be discussed at a meeting is not burdensome, but specifying the particular provisions of a multifaceted contract [such as a TEA master contact] is significantly more burdensome.” Moreover, the Court held that the notice given for the June 15th meeting was sufficient.
In making these determinations, the Court outlined a non-exhaustive list of factors that government entities should consider when providing notice about future meetings:
the burden of providing more detailed notice;
whether the subject is of particular public interest; and
whether [the meeting] involves non-routine action that the public would be unlikely to anticipate.
According to the Court, the “crucial point” about the first factor is that “the demands of specificity should not thwart the efficient administration of governmental business.” Regarding the second factor, more specificity is required when the “number” and “intensity” of the people interested is greater. The main consideration in the third factor is that meetings concerning more novel subjects should provide more detail as opposed to meetings concerning mundane matters. Moreover, these factors should be analyzed to determine a notice’s sufficiency when the meeting is noticed and not when the meeting actually takes place.
In so holding, the court explicitly overruled H.D. Enterprises II, LLC v. City of Stoughton. In H.D. Enterprises the general topic item “Licenses” was deemed sufficient notice regarding a controversial license application. Thus, the Court in Buswell rejected the former “bright line” or “one-size-fits-all” approach to determine whether notice is sufficient and adopted a new “reasonableness” approach that necessitates a fact intensive inquiry with sufficient notice being determined on a case-by-case basis. The Court, however, decided to apply this three-factor analysis prospectively, thus precluding claims of insufficient notice for meetings that may have failed the reasonableness standard, but have already taken place. All meetings noticed as of June 13, 2007, will be evaluated under the Buswell standard.
After Buswell, government boards giving notice about future meetings should provide more detail to prevent subsequent challenges as to the notice’s sufficiency. Overall, more detail about a meeting, especially a meeting that tends to peak the public’s interest, will make a challenge as to its sufficiency less likely.