Officials ask if contract votes should be part of public record

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Monday, December 19, 2011
— When Janesville School Board members voted last year to ratify union contracts, the public knew Kevin Murray voted "yes" and Bill Sodemann voted "no."

The public knows how individual Rock County Board members voted on contracts because they voted in open session.

When the city of Janesville rushed to ratify contracts earlier this year to beat legislation that stripped away most public employee collective bargaining rights, however, no council vote was taken in open or in closed sessions.

Rather, the city manager approved the contracts based on "parameters" set months earlier by council members in closed sessions.

That's how it's been done at City Hall for as long as anyone can remember.

Now, council members are questioning the transparency of the process, and City Manager Eric Levitt, who was hired three years ago, said it makes him uneasy. He doesn't believe it's good public policy.

It also might be illegal.

Media lawyer Bob Dreps said the city's practice is contrary to a 1993 attorney general's opinion.

When he was the state attorney general, Jim Doyle wrote an opinion that governmental bodies can meet in closed session to formulate negotiating strategies, but after a tentative agreement is reached, the body must continue deliberations leading up to ratification in open session.

Councilman Tom McDonald, who is an attorney, agrees that Janesville's method of negotiating violates the spirit and perhaps the letter of the Wisconsin Open Meetings Law.

The law's purpose is to ensure that governmental bodies conduct business in public view, McDonald said.

"Certainly, in terms of the spirit and intent of the law, there's not a lot happening in view of the public," he said.

Statutes allow a governmental body to transfer power of negotiations, McDonald said. In Janesville's case, the city manager has the power, but the transfer must be done in open session, and McDonald has not been able to find proof that was done.

"Maybe it's something that's always been," McDonald said.

Or maybe it's something that happened during the last city manager's tenure, he said.

"But even if there is no policy or ordinance, there should be meeting minutes about a discussion," McDonald said. "At some point, the governing body would have had to convey that authority to a city employee."

If that was not done, the city is violating statutes, he believes.

Regardless, the city violates the spirit of the open meetings law, McDonald said.

Here, the council verbally sets contract parameters in closed session, and the city manager negotiates within those parameters, McDonald said.

The city manager and the negotiating team keep the council advised of progress, McDonald said.

City Attorney Wald Klimczyk told the Gazette that no policy or ordinance regulates the process. It's just the way it's always been.

The city manager updates the council on what's happening in negotiations either verbally or by memo, he said.

The council never votes on the contracts. Rather, the council's vote on the budget authorizes funding for the contracts, Klimczyk said.

Of course, it would be a problem if the council opted not to fund the agreements, and Klimczyk acknowledged that legal challenges likely would follow.

Klimczyk said he is familiar with Doyle's opinion, but he doesn't believe the city violates law.

Janesville has a strong manager form of government, he said.

McDonald believes that no matter the circumstances or violations, the process should be changed.

Contracts "should be approved by the governing body in a public meeting," McDonald said.

"It's all about transparency and open government, what we've been trying to clean up the past four years," he said. "There's still work to be done, and hopefully the new city council will continue that work of a more transparent government."

This past year, not all council members were in favor of finalizing contracts before the new state law took affect, McDonald said.

Former council President George Brunner said that's when he started questioning the process.

The council sets the budget and the tax levy, Brunner said.

"The burden of the responsibility (of settling contracts) should not be placed on the city manager. The manager is a city employee, and the council still has final authority.

"I think under the previous city manager, he was a strong city manager, and I think he took that responsibility," Brunner said.

Union negotiations remain relevant in Janesville despite current law: Three of the four city unionsófirefighters, police and transit workersóretain most of their collective bargaining powers.

Levitt will bring the issue to the council for discussion before negotiations begin next year. He will ask the council to consider voting on contracts in open session and perhaps to serve on negotiating teams, similar to how the school board does business.

Union bargaining teams go back to their memberships for approval, and city negotiators should go to the council, Levitt said.

"It was a difficult situation for me this year," Levitt said.

"It is better from a public policy point of view to have the council have the final approval."

Last updated: 7:04 pm Thursday, December 13, 2012

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