Friday, June 19, 2009

Time for Open Government in Waukesha...

Filed Thursday, noon, at the Circuit Court of Waukesha County: A complaint and Summons alleging that the Water Utility Commission of Waukesha--naming six individuals--have repeatedly violated the Wisconsin Open Meetings Law.

SUBCHAPTER V
OPEN MEETINGS OF GOVERNMENTAL BODIES

19.81 Declaration of policy.

(1) In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state 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.
This citizen has twice taken this concern about a series of apparent egregious and long-standing violations of the public's right to the "fullest and most complete information regarding the affairs of government..." to the District Attorney of Waukesha. That official has declined--in both instances--to pursue an investigation.

In such cases, The Open Meetings Law provides for citizens to pursue the matter in Circuit Court EX REL the State of Wisconsin.

Read the Complaint:


STATE OF WISCONSIN CIRCUIT COURT WAUKESHA COUNTY

STATE EX REL. JAMES BOUMAN,

1909 Easy Street, Waukesha, WI 53188

Plaintiff,

Case No.____________________

v. Case Code: CV 30703 Unclassified CV 30607 Administrative Review

WAUKESHA WATER UTILITY COMMISSION,115 Delafield Street, Waukesha, WI 53188

PEGGY BULL,

223 Debbie Dr., Waukesha, WI 53189


JERRY COURI,

1215 Seitz Drive, Waukesha, WI 53186


LARRY NELSON,

201 N. Prairie Avenue, Waukesha, WI 53186

City Hall - Room 208, 201 Delafield Street, Waukesha, WI 53188


RICK TORTOMASI,

2827 Minot Lane, Waukesha, WI 53188


DANIEL WARREN,

1259 Lambeth Road, Waukesha, WI 53189


GREG ZINDA

206 Mandan Drive, Waukesha, WI 53188

Defendants,

Wisconsin oPEN mEETINGS cOMPLAINT

JURISDICTION

This Wisconsin Open Meetings complaint, taken on behalf of the State of Wisconsin, is in regard to the closed meetings held by the members of the Waukesha Water Utility Commission and actions taken in those meetings dealing with the City of Waukesha's water supply and affecting the citizens of the City, as well as the State of Wisconsin.

Furthermore, the Waukesha County Circuit Court has jurisdiction over this complaint under Wisconsin Open Meetings Law. According to Wis. Stat. § 19.97(4), a private action can be filed in court after a complaint is first filed with the District Attorney's Office and 20 days has passed. This complaint was previously filed with the Waukesha District Attorney's Office on May 15, 2009. The District Attorney?s Office has yet to respond to the previous complaint.

FACT ALLEGATIONS

1. On June 21, 2007, Jerry Couri, Commission Secretary (1215 Seitz Drive, Waukesha, WI 53186); Peggy Bull, Commissioner (223 Debbie Dr., Waukesha, WI 53189); and Greg Zinda, Commissioner (206 Mandan Drive, Waukesha, WI 53188) were members of the Waukesha Water Utility Commission.

2. Likewise, on November 14, 2007, Daniel Warren, Commission President (1259 Lambeth Road, Waukesha, WI 53188); Greg Zinda, Commissioner (206 Mandan Drive, Waukesha, WI 53188); Larry Nelson, Mayor (201 N. Prairie Avenue, Waukesha, WI 53186); and Peggy Bull, Commissioner (223 Debbie Dr., Waukesha, WI 53189) were members of the Waukesha Water Utility Commission.

3. Furthermore, on June 18, 2008, Daniel Warren, Commission President (1259 Lambeth Road, Waukesha, WI 53188); Greg Zinda, Commissioner (206 Mandan Drive, Waukesha, WI 53188); Larry Nelson, Mayor (201 N. Prairie Avenue, Waukesha, WI 53186); and Rick Tortomasi, Commissioner (2827 Minot Lane, Waukesha, WI 53188) were members of the Waukesha Water Utility Commission.

4. On these dates, the Commission was a governmental body within the meaning of

Wis. Stat. § 19.82(1). Likewise, on these dates, there was a majority of the Commission members present at the June 21, 2007, November 14, 2007, and June 18, 2008 meetings with the purpose of conducting governmental business. Therefore, the members of the Commission were in a meeting within the meaning of Wis. Stat. § 19.82(2).

5. On June 21, 2007 and November 14, 2007, the members of the Commission held closed meetings. For each of these closed meetings, the Commission cited that they were closed pursuant to § 19.85(1)(e) & (g), "to discuss strategy relative to our long term water options, as well as radium compliance, with legal counsel." Waukesha Water Utility Commission Meeting Minutes, 1-2 (June 21, 2007), available at http://www.ci.waukesha.wi.us/alfresco/service/api/node/content/workspace/SpacesStore/836a7e8e-c576-11dd-bf3d-b52a1b1f1ae9/SCSTEMP_162190.pdf?guest=true; Waukesha Water Utility Commission Meeting Minutes, 2 (Nov. 14, 2007), available at http://www.ci.waukesha.wi.us/alfresco/service/api/node/content/workspace/SpacesStore/9126c4a7-c7c3-11dd-a4ee-79531abc49a6/SCSTEMP_164800.pdf?guest=true.

6. Additionally, at the November 14, 2007 meeting, the Commission approved the 2008 Budget. The 2008 Budget contained a $300,000 expenditure for consulting services to assist in achieving a Great Lakes diversion. This expenditure was not discussed in public by the Commission.

7. The members of the Commission held another closed meeting on June 18, 2008 stating it was pursuant to § 19.85(1)(e), [for a] discussion of several potential municipal sources of Great Lakes water supplies, along with return flow options, and the potential costs associated with the supply and return flow options.? Waukesha Water Utility Commission Meeting Minutes, 1-2 (June 18, 2008), available at http://www.ci.waukesha.wi.us/alfresco/service/api/node/content/workspace/SpacesStore/7485b0cb-cb00-11dd-a0e9-ab2aa0157d05/SCSTEMP_187198.pdf?guest=true.

CLAIMS

The members of the Waukesha Water Utility Commission have consistently acted in violation of Wis. Stats. § 19.96, § 19.85(1)(e), and § 19.84(2) of the Wisconsin Open Meetings Law and their responsibilities to the public by frequently holding close meetings where they have discussed and made decisions on water supply policy, particularly regarding a potential Great Lakes diversion. The closed meetings on June 21, 2007, November 14, 2007, and June 18, 2008 were held with the purpose to prevent public debate and knowledge regarding the Commission's water supply discussions despite the tremendous public interest in the environmental, public health, and fiscal aspects of these water supply issues. Under Wis. Stat. § 19.81(1), the public would be entitled to the " fullest and most complete information" regarding these water supply concerns.

The Commission and its members violated Wisconsin Open Meetings Law in the following ways:

COUNT I ? Misuse of Wis. Stat. §19.85(1)(e) Open Meetings Exception

The Commission members have repeatedly misused the limited Open Meetings exemption Wis. Stat. § 19.85(1)(e) to justify their closed meetings. For the June 21, 2007, November 14, 2007, and June 18, 2008 closed meetings, the Commission members used broad language that does not cite, as required by § 19.85(1)(e) and case law, how "competitive or bargaining" interests are implicated and therefore give the Commission no other option than to move to a closed session. See State ex rel. Citizens for Responsible Development v. City of Milton, 731 N.W. 2d 640, 644 (Wis. App. 2007) and Wisconsin Department of Justice Wisconsin Open Meetings Law: A Compliance Guide 18 (2007).

COUNT II Insufficient Public Notice

The members of the Commission violated Wis. Stat. § 19.84(2) by giving insufficient notice to the public regarding the Commission's closed meetings. In particular, the notices for the June 21, 2007, November 14, 2007, and June 18, 2008 closed meetings fail to reasonably apprise the public on the subject matter of the closed session. § 19.84(2). These notices do not meet the reasonableness standard as set forth in Wisconsin Supreme Court decision, Buswell v. Tomah Area School District, 2007 WI 71, 732 N.W.2d 804 (2007). To determine whether a notice was reasonable, there must be a "balancing of factors that consider the burden of providing more detailed notice, whether the subject is of particular public interest, and whether it involves non-routine action that the public would be unlikely to anticipate." Id. at 814.

In the facts and circumstances of this case, the Commission's notices to the public did not meet this reasonableness standard because it would have only been a negligible burden on the Commission to give more specific notice detailing the matters that were to be discussed in the closed meetings. Additionally, there is strong public interest in water supply policy and its environmental, health, and fiscal ramifications. Furthermore, these long term water policy decisions are novel issues of which the public would be unaware.

DEMAND FOR RELIEF

Plaintiff demands the following relief:

1. Declaratory Relief Stating that Commission Violated Wisconsin Open Meetings Law.

Plaintiff requests that the Court enters a declaratory judgment, in accordance with Wis. Stat. § 19.97(2), stating that the Commission and its members violated the Wisconsin Open Meetings Law.

2. Public Disclosure of Discussions and Decisions Made in Closed Meetings.

Plaintiff also requests that the Court awards equitable relief, pursuant to Wis. Stat. §19.97(2), by ordering that the discussions and decisions made in June 21, 2007, November 14, 2007, and June 18, 2008 closed meetings that violated the Wisconsin Open Meetings Law be disclosed to the public. Such a disclosure would best fulfill the Open Meetings Law's purpose of fostering an "informed electorate" where the "public is entitled to the fullest and most complete information regarding the affairs of government." Wis. Stat. § 19.81(1). In the present case, the public should have access to the Commission's discussions and decisions made in these meetings since it would have otherwise been entitled to hear them if the Commission properly followed Wisconsin Open Meetings Law.

3. Void Any Actions Taken by the Commission in the Closed Meetings.

Furthermore, any action taken by the Commission made in the closed meetings held on June 21, 2007, November 14, 2007, and June 18, 2008 should be void. Under Wis. Stat.

§ 19.97(3), the actions of the Commission can be voided by the Court if it finds that the public interest in voiding the actions taken in an improper closed meeting outweighs the public interest in sustaining the actions. Here, there is significant public interest regarding the environmental, health, and cost consequences that relate to Waukesha's long term water supply issues. This public interest regarding these important issues outweighs the interest in sustaining the Commission's actions that were made on behalf of the public in improper closed meetings.

4. Forfeitures from each Commission Member to be paid to the State.

Also pursuit to Wis. Stat. § 19.96, the plaintiff is seeking a forfeiture of $300 from each member for each violation to be paid to the state under Wis. Stat. § 19.97(4). This amount of forfeiture is justified due to the Commission's repeated misuse of closed meetings and the sensitive nature of these closed meetings given the environmental, health, and fiscal implications of the Commission's water supply discussions which the public should have been part of under the Wisconsin Open Meetings Law.

5. Award Actual and Necessary Costs of Prosecution.

Plaintiff requests that the Court reimburses him for the "actual and necessary costs of prosecution," including "reasonable attorney fees." Wis. Stat. § 19.97(4).

Dated: June 19 , 2009

______________________________

Andrew R. Garman

Attorney for Plaintiff, James Bouman

State Bar No. 1070840

2914 Cone View Lane

Waukesha, WI 53188

608-358-9897




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Of the biblical allotment of three score and ten I have lived only three of them more than a bicycle ride from one of the Great Lakes. I grew up ten blocks from Lake Erie in the (once Irish/Italian ghetto, now newly-hip) "Near West Side" of Cleveland. I can still cycle to the Milwaukee lakefront in an hour and a half; but, a round-trip has always been more than I would (noror ever did) attempt. -0- I'm a "...somewhat combative pacifist and fairly cooperative anarchist," after the example of Grace Paley (1922-2007). -0- I'm always cheerful when I pay my taxes (having refused--when necessary--to pay that portion of them dedicated to war). -0- And I always, always vote.