OAG 5-14

J.B. VAN HOLLEN

ATTORNEY GENERAL

Kevin M. St. John

Deputy Attorney General

114 East, State Capitol

P.O. Box 7857

Madison, WI 53707-7857

608/266-1221

TTY 1-800-947-3529

October 15, 2014       OAG-05-14

Mr. Kevin J. Kennedy

Director and General Counsel

Government Accountability Board

212 East Washington Avenue, Third Floor

Madison, WI 53703

Dear Mr. Kennedy:

¶ 1.

In your official capacity as Director and General Counsel of the State of Wisconsin Government Accountability Board (“the GAB”), you ask several questions about the applicability of Wisconsin’s open meetings law to the activities of the election canvassing boards. These boards are statutorily charged with examining election day records for completeness and accuracy and making official determinations and certifications of election results at the local, municipal, school district, county, and state levels.

¶ 2.

Your primary inquiry asks, for each level of canvassing, whether the canvassing activities constitute a “meeting” of a “governmental body” subject to the open meetings law under Wis. Stat. § 19.82(1) and (2). Relatedly, you also ask whether the requirements of the open meetings law apply to the activities of permanent and temporary municipal employees who are hired by some larger municipalities for the purpose of conducting post-election administrative activities in preparation for the meetings of the municipal, school district, and county canvassing boards. Finally, for those canvassing activities that are a meeting of a governmental body, you ask to what extent such meetings are subject to a variety of specific open meetings requirements.

¶ 3.

I conclude that canvassing boards are governmental bodies subject to the open meetings law—including the public notice, open session, and reasonable public access requirements—when they convene for the purpose of carrying out their statutory canvassing activities, but not when they are gathered only as individual inspectors fulfilling administrative duties. The state‑level canvass conducted by the chairperson of GAB or the chairperson’s designee is not a meeting of a governmental body subject to the open meetings law. The open meetings law also does not apply to the activities of municipal staff employees, whether permanent or temporary, who are conducting administrative activities. I further conclude that overlapping violations of the open meetings law and of election laws may be prosecuted under either or both bodies of law, with any possible conflicts between statutes being resolved in favor of the more specific provisions.

General Principles Governing the Applicability of the Open Meetings Law

¶ 4.

The requirements of the open meetings law generally apply to “[e]very meeting of a governmental body.” Wis. Stat. § 19.83(1). In order to determine whether the activities of the canvassing boards at each level are subject to the open meetings law, it is necessary to examine whether each level of canvassing board is a “governmental body” and, if so, whether its canvassing activities constitute a “meeting.”

¶ 5.

The open meetings statutes define a “governmental body” as “a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order.” Wis. Stat. § 19.82(1). This definition contains two elements: (1) the body’s creation by constitution, statute, ordinance, rule or order; and (2) the form of “a state or local agency, board, commission, committee, council, department or public body corporate and politic.” Id. The use of the terms “agency,” “board,” “commission,” “committee,” “council,” “department,” and “body corporate and politic” all suggest that a governmental body must be a multi‑member group that acts together as a collective unit to perform some common governmental purpose. Id.

¶ 6.

If a canvassing board is determined to be a “governmental body,” it conducts a “meeting” subject to the open meetings law when its members convene “for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.” Wis. Stat. § 19.82(2). The use of the phrase “in the body” in that definition suggests that a meeting subject to the open meetings law must involve powers and duties that are vested in the body as a collective unit, rather than in the members of the body separately considered as individual government officials. See 57 Op. Att’y Gen. 213, 217-18 (1968) (concluding that earlier version of open meetings law applied to a group that has powers or duties vested in it by law, or delegated to it by law, when it acts formally as a body).

1.   Local Canvassing Boards

¶ 7.

Canvassing at the local or polling place level is governed by Wis. Stat. § 7.51, which charges the election inspectors at each polling place with conducting a canvass of that polling place immediately after the polls close on election day.

¶ 8.

The election inspectors for each polling place are appointed by the governing body of the municipality where the polling place is located. Wis. Stat.
§ 7.30. Each polling place is required to have seven inspectors or, in specified circumstances, a greater or lesser number (but never fewer than three) determined by the governing body of the municipality. Id. The governing body of the municipality also may provide for different sets of inspectors to work at different times on election day and may appoint alternates to maintain adequate staffing at polling places. Id.

¶ 9.

Election inspectors are appointed under a dominant political party system. The two political parties whose candidates for governor or president received the largest number of votes at the polling place in the previous general election may submit lists of nominees from which election inspectors are appointed, with the first-place party receiving one more inspector at that polling place than is received by the second-place party. Wis. Stat. § 7.30(2) and (4)(c). Election inspectors serve for two‑year terms. Wis. Stat. § 7.30(6).

¶ 10.

Election inspectors have numerous administrative duties staffing the polling place on election day, including setting up the polling place, preserving order, registering electors, recording electors, resolving challenges to electors, issuing ballots, monitoring voting equipment, and properly completing required forms. See Wis. Stat. § 7.37. Immediately after the close of voting on election day, the polling place remains open to the public and the election inspectors are then charged with performing the specific post‑election canvassing duties set forth in Wis. Stat. § 7.51, which include reconciling voter lists, counting votes, preparing election returns, certifying certain election results, securing election materials, and delivering election materials to the municipal clerk. These canvassing activities must be conducted publicly and, with certain exceptions for absentee ballots, are to continue without adjournment until the canvass is completed and the return statement has been made. Wis. Stat. § 7.51(1).

¶ 11.

Under the above facts, does a local canvassing board constitute a “governmental body” within the meaning of Wis. Stat. § 19.82(1)? In your letter of inquiry, you express the view that the term “Local Board of Canvassers” is only a label appended to the election inspectors at each polling place who, in your view, act not as a collective body, but rather as an aggregate of individual election officials. In support of this view, you note that the term “Local Board of Canvassers” is set out only in the title of Wis. Stat. § 7.51 and is not defined or referenced elsewhere in the statutes. You also suggest that the canvassing duties under Wis. Stat. § 7.51 are not assigned to the election inspectors as a collective body, but rather are administrative duties assigned to them as a group of individual election officials. This conclusion, you suggest, is supported by the facts that different municipalities have different numbers of election inspectors serving a disparate number of polling places, that some individual polling places serve more than one ward and are staffed by more than one set of election inspectors, and that, in many municipalities, different election inspectors serve at different elections and the number of election inspectors may vary from one election to another.

¶ 12.

I respectfully disagree with that view.

¶ 13.

First, while it is true that the precise term “Local Board of Canvassers” is not used outside the title of Wis. Stat. § 7.51, Wis. Stat. § 7.37(12) provides that the election inspectors for each polling place “shall constitute the board of canvassers of their polling place and in that capacity shall perform the duties under s. 7.51.” Titling section Wis. Stat. § 7.51 “Local Board of Canvassers” instead of “Board of Canvassers of the Polling Place” does not change the fact that the statutes substantively create a board at each polling place that is composed of specific officials and charged with performing the canvassing duties under Wis. Stat. § 7.51. These local canvassing boards thus are “created by . . . statute” within the meaning of Wis. Stat. § 19.82(1).

¶ 14.

Second, the canvassing duties under Wis. Stat. § 7.51 are assigned to each local canvassing board as a collective body, not as a group of individual officials. While it is true that the composition of the local canvassing boards varies from one polling place to another, it is also true that each individual local canvassing board has a determinate size fixed by the municipal governing body and is composed of members serving definite terms of office. In addition, while it is true that some of the canvassing activities under Wis. Stat. § 7.51 are essentially ministerial in nature and have no necessary collective dimension, it is also true that Wis. Stat. § 7.51 assigns some of the most central and important canvassing functions to each local canvassing board as a collective body, rather than as a group of individual officials. Significant questions about how to treat two or more ballots that are folded together and about how to count a ballot that has not been properly or clearly completed are decided by a majority vote of the election inspectors. Wis. Stat. § 7.51(2)(a) and (b).

¶ 15.

These provisions for actions by majority vote of the election inspectors make it clear that central and important features of the canvassing functions under Wis. Stat. § 7.51 are assigned to the election inspectors not as individual officials, but as a collective body at each polling place. Each local canvassing board thus has the corporate character necessary for a “governmental body.”

¶ 16.

Because the local canvassing boards are “created by . . . statute” and because their members act together as a collective unit to perform some common governmental purpose, I conclude that each such board is a “governmental body” within the meaning of Wis. Stat. § 19.82(1).

¶ 17.

The next question is whether the post-election canvassing activities by the members of the local canvassing board—i.e., the election inspectors—constitute a “meeting” within the meaning of Wis. Stat. § 19.82(2).

¶ 18.

The key consideration here is whether the inspectors, when acting under Wis. Stat. § 7.51, are exercising powers and duties that are vested in the local canvassing board as a body, rather than in the individual members. For the reasons already discussed, it is my conclusion that the conduct of local canvassing activities under Wis. Stat. § 7.51—in particular, the making of majority decisions regarding the handling of questionable ballots—constitutes the exercise of powers and duties that are assigned to each local canvassing board as a collective body, rather than as a group of individual officials. The post-election convening of election inspectors for the purpose of conducting the local canvass thus is a “meeting” within the meaning of Wis. Stat. § 19.82(2).

¶ 19.

It does not follow, however, that every gathering of the election inspectors of a particular polling place constitutes a meeting of the local canvassing board. Election inspectors perform many administrative functions at the polling place throughout election day. Accordingly, there are likely to be frequent occasions when a sufficient number of inspectors will be gathered together in the polling place to constitute a quorum of the local canvassing board. Before the polls close, however, the inspectors are not exercising any powers vested in them as a body. Rather inspectors are performing administrative duties that are assigned to them as individual officials. See Wis. Stat. § 7.37.

¶ 20.

This is equally true of activities performed under Wis. Stat. § 6.88(3), which authorizes election inspectors, during voting hours, to open absentee ballot envelopes and to verify compliance with certain procedural requirements for absentee voting. Absentee ballots opened pursuant to that provision are not counted or examined for voter intent during voting hours, but rather are placed in the appropriate ballot box without being examined by the inspectors. Wis. Stat. § 6.88(3)(b). After the polls close, the canvassing of those absentee ballots is completed along with all other ballots pursuant to Wis. Stat. § 7.51. Only then are the inspectors convened for the purpose of exercising the powers and duties vested in the local canvassing board as a body.[1] I conclude, therefore, that the gathering of election inspectors in a polling place constitutes a “meeting” of the local canvassing board only after the polls close and the canvassing under Wis. Stat. § 7.51 begins.

¶ 21.

Based on all of the above considerations, I conclude that the canvassing activities conducted at the local polling place level pursuant to Wis. Stat. § 7.51 constitute a “meeting” of a “governmental body” and thus are subject to the requirements of the open meetings law.

2.   Municipal Canvassing Boards

¶ 22.

The duties of the municipal board of canvassers are to declare election results for municipal offices, to prepare statements showing the results of municipal elections and referenda, and to prepare statements after a primary certifying candidates who have been nominated for municipal office. Wis. Stat. § 7.53(2)(d).

¶ 23.

The statutes create two different categories of municipal canvassing boards, depending on whether all wards in the municipality vote at a single polling place. Each has its own composition, rules, and procedures.

¶ 24.

In municipalities with two or more wards that are not combined, the municipal board of canvassers is composed of the municipal clerk and two qualified electors of the municipality chosen by the clerk. Wis. Stat. § 7.53(2)(a). The municipal canvass may begin as soon as the board has received the returns from all polling places on election night and must begin no later than 9:00 a.m. on the Monday after the election. Wis. Stat. §§ 7.515(6)(b) and 6.97(4). The board must also reconvene if necessary for the purpose of processing any outstanding absentee or provisional ballots or amending election returns. Id.

¶ 25.

In a municipality with only a single polling place—i.e., a municipality with only a single ward or one in which all of the wards vote at a single polling place and results are combined—the election inspectors who conduct the
post-election polling place canvass under Wis. Stat. § 7.51 also constitute the municipal board of canvassers. Wis. Stat. § 7.53(1)(a). When municipal offices or municipal referenda are on the ballot, the inspectors must conduct both the polling place canvass and the municipal canvass on election night. Wis. Stat. § 7.53(1)(a). They complete the canvass statement, certify the municipal election results, and officially determine the winners. Id. The municipal board must also subsequently reconvene if necessary for the purpose of processing absentee or provisional ballots or amending election returns. Id. If the election inspectors acting as the municipal board of canvassers are unavailable for any such subsequent meeting, then the municipal clerk may replace the inspectors with a three-member municipal canvassing board consisting of the clerk, the chief election inspector of the municipality’s one polling place, and one other election inspector. Wis. Stat.
§ 7.53(1).

¶ 26.

In my opinion, for both categories of municipality, the municipal board of canvassers is a “governmental body” within the meaning of Wis. Stat. § 19.82(1) and the convening of its members for the purpose of carrying out canvassing duties under Wis. Stat. § 7.53 is a “meeting” within the meaning of Wis. Stat. § 19.82(2). The reasons supporting this opinion are similar to those already discussed in connection with local canvassing boards.

¶ 27.

First, the municipal board of canvassers in both categories of municipality is “created by . . . statute.” See Wis. Stat. § 7.53(1) (creating the board for municipalities with only one polling place) and (2) (creating the board for municipalities with two or more wards).

¶ 28.

Second, the canvassing duties under Wis. Stat. § 7.53 are assigned to each municipal canvassing board as a collective body. This is readily apparent for boards in municipalities with two or more wards because, in those municipalities, the municipal canvassing board is a discrete body with its own statutory responsibilities under Wis. Stat. § 7.53(2). In municipalities with only a single polling place, the municipal canvassing board is not a discrete entity because it is composed of the same election inspectors who form the local canvassing board and who also have various administrative duties at the polling place. Nonetheless, for the reasons already discussed with regard to local canvassing boards, I conclude that the canvassing activities assigned to those inspectors under Wis. Stat. § 7.53(1) are assigned to them in their collective capacity as the municipal canvassing board.