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E-mails exchanged on Lake Geneva development proposal

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Kayla Bunge
June 13, 2010
— Lake Geneva City Council members have exchanged dozens of e-mails voicing opposition to the development of 710 acres owned by Robert Hummel on the city’s south side, according to copies of e-mails obtained by the Gazette.

The e-mails recently became central to the $99.8 million federal lawsuit Hummel and his development group have filed against the city. Hummel and his development group recently amended their federal lawsuit against the city to include information gleaned from e-mails obtained from city officials.


The amended lawsuit alleges some city officials held private meetings and exchanged e-mails with each other and with members of groups opposed to development of the property in an effort to retaliate against Hummel for taking action against the city.


“The (defendants) conspired among themselves and with others to orchestrate and carry out a fraudulent plan or scheme to prevent the orderly and permissible development of the property …” according to the amended lawsuit.


The Gazette filed requests under the open records law for copies of e-mails sent or received by city council members about the proposed Mirbeau-Hummel development or other development on the property. So far only one council member has turned over pertinent e-mails.


The Gazette sent requests to former Mayor Bill Chesen, former council members Penny Roehrer and Tom Spellman, and current council members Mary Jo Fesenmaier, Todd Krause, Arleen Krohn, Frank Marsala and Don Tolar.


The Gazette received responses from everyone:


-- Krause, Krohn, Marsala and Tolar said they do not have any e-mails that fit the request.


-- Chesen provided two e-mails.


-- Spellman said he is not required to comply with the request because he’s no longer in office.


-- Fesenmaier said the newspaper would need to get her e-mails from the attorney who is representing her and three others in the federal lawsuit. The attorney has not yet responded to the Gazette about the e-mails.


-- Roehrer turned over almost 150 e-mails, many of them to and from other council members.


The Lake Geneva Regional News also has requested e-mails from city council members and has requested help from the Walworth County District Attorney’s Office to force Fesenmaier to turn over her e-mails.


Development discussed

E-mails provided to the Gazette indicate Fesenmaier, Roehrer, Spellman and members of known opposition groups—including the Friends of Geneva Lake, Vote No Mirbeau-Hummel and Lower Density Development—frequently e-mailed each other to discuss their opposition to any development of the property and their preference that the property become part of a regional wildlife refuge.


For example:


-- Roehrer on April 13, 2009, e-mailed Friends of Geneva Lake members about the designation of the Hummel property on a map drafted as part of the city’s Smart Growth planning process.


“(The planners) still have the Hummel property as residential planned neighborhood or long-range urban growth area! And it says that is what (attendees at a recent) open house wanted as the alternative!” she wrote.


-- Roehrer the same day e-mailed Fesenmaier about the same issue.


“Do you have (the city planner’s) e-mail (address)? Have you seen the material for (the meeting) Tuesday night???? Hummel property is still residential!!!! I need to send (the planner) the wildlife refuge material before Tuesday night,” she wrote.


-- Fesenmaier on May 19, 2009, e-mailed Roehrer, Spellman and a handful of others about her desire to preserve the former Hillmoor golf course as well as the Hummel property.


“If the feds come through with money for the national wildlife refuge, maybe some of the leftover scraps can be used to save the last decent expanse of green space in the city,” she wrote. “It’s so totally ironic that the density of development in the approved (plan) for that piece is much (higher) than the (developers of the) contested piece south of town ever proposed.”


E-mails provided to the Gazette indicate Fesenmaier, Roehrer and Spellman mostly were party to e-mails from members of opposition groups. Roehrer was the most frequent contributor to the conversations, but she also was an active member of some of the groups and the only one of the three so far to turn over any e-mails.


The council members often were included in e-mails to schedule meetings, to recap discussions at city meetings, to share draft letters to the editor, to share local news articles about the matter and to discuss rumors.


Caution urged

More and more elected officials are using e-mail to communicate with each other, with municipal staff and with constituents.


But e-mail presents challenges for elected officials, said Bob Dreps, an attorney who represents members of the Wisconsin Newspaper Association and who is a public member of the Wisconsin Freedom of Information Council.


“The only line they have to walk is making sure they aren’t violating the open meetings law and talking about things that are supposed to be reserved for public meetings,” he said.


The Wisconsin Attorney General’s Office in its open meetings compliance guide advises governmental bodies, such as a city council, to be careful with e-mail because it could constitute a “convening of members” depending on how it is used.


“Although two members of a governmental body larger than four members may generally discuss the body’s business without violating the open meetings law, features like ‘forward’ and ‘reply to all’ common in electronic mail programs deprive a sender of control over the number and identity of the recipients who eventually may have access to the sender’s message,” the guide reads.


“Moreover, it is quite possible that, through the use of electronic mail, a quorum of a governmental body may receive information on a subject within the body’s jurisdiction in an almost real-time basis, just as they would receive it in a physical gathering of the members,” the guide reads.


The Attorney General’s Office in the guide urges governmental bodies to not use e-mail to communicate about government business.


“Nevertheless, because of the absence of judicial guidance on the subject, and because electronic mail creates the risk that it will be used to carry on private debate and discussion on matters that belong at public meetings subject to public scrutiny, the attorney general’s office strongly discourages the members of every governmental body from using electronic mail to communicate about issues within the body’s realm of authority.”


The League of Wisconsin Municipalities shares the same concerns.


“We advise officials to be aware that the use of e-mail without proper safeguards might constitute a walking quorum,” said Claire Silverman, legal counsel for the League. “We don’t think it’s realistic to ask local officials not to use e-mail. We just think they need to be cautious and make sure their use complies with the open meetings law.”


In none of the e-mails turned over to the Gazette do council members state how they plan to vote on development of the Hummel property. Most of the e-mails show a general opposition to development of the property and discuss options other than development.


Some people might be surprised, however, how freely some council members discussed city business with others through e-mail.


“People have a right to any opinion they want about what those communications show,” Dreps said. “There are a lot of ways they could potentially cross the line to an open meetings violation that you can’t turn up with an open records request.”


RECORDS REQUEST RESPONSES

The Gazette on April 21 requested from city officials copies of all e-mails they sent or received about the proposed Mirbeau-Hummel development or the 710-acre property Illinois developer Robert Hummel owns on the city’s south side.


Here were their responses:


Former Mayor Bill Chesen—Chesen on April 30 sent a letter to the Gazette. He included two personal e-mails found in a search of his home computer. He also said city e-mails could be obtained from the city clerk because he no longer has access to them.
Alderman Todd Krause—Krause on April 23 e-mailed the Gazette. He said he did not have any e-mails to provide.
Alderman Don Tolar—Tolar on April 24 sent a letter to the Gazette. He said he did not have any e-mails to provide.
Alderman Frank Marsala—Marsala did not respond to the request. The Gazette sent a follow-up letter May 13. Marsala on May 17 sent a letter to the Gazette. He said he did not have any e-mails to provide.
Alderwoman Mary Jo Fesenmaier—Fesenmaier on April 27 left a message for a Gazette reporter. She said she was working on the request. The Gazette sent a follow-up letter May 13. Fesenmaier on May 24 sent a letter to the Gazette. She said she did not have any e-mails to provide. The Gazette on June 1 sent another follow-up letter asking her why she had not fulfilled the request because it was clear she had e-mails to provide based on those received from another council member. Fesenmaier on June 3 left a message for a Gazette reporter. She said the newspaper would need to get e-mails from Amy Doyle, the attorney who is representing her and three others in the federal lawsuits. Doyle on June 4 said she would look through her files and get back to a Gazette reporter the following week.
Alderwoman Arleen Krohn—Krohn on April 26 talked to a Gazette reporter after a city council meeting. She said she does not have a computer or use e-mail.
Former Alderwoman Penny Roehrer—Roehrer on April 27 e-mailed the Gazette. She said she was working on the request. The Gazette sent a follow-up letter May 13. Roehrer on May 23 e-mailed the Gazette. She said she had given e-mails to Dan Draper, the city attorney, and the newspaper could get them from him. The Gazette picked up the records May 27.
Former Alderman Tom Spellman—Spellman did not respond to the request. The Gazette sent a follow-up letter May 13. But Spellman on May 7 left a message for a Gazette reporter. He said he does not need to fulfill the request because he no longer is in office. The Gazette on June 1 sent a letter to Attorney General J.B. Van Hollen seeking his opinion on whether Spellman is subject to the open records law and how the newspaper could get access to his e-mails. Van Hollen has not yet responded to the question.

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