OAG 5-14

DNE

(See PDF for image)     STATE OF WISCONSIN

    DEPARTMENT OF JUSTICE

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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).