OAG 5-14

¶ 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.

¶ 29.

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

¶ 30.

Since a municipal canvassing board is a “governmental body,” I next consider whether the canvassing activities by the members of such a body constitute a “meeting” within the meaning of Wis. Stat. § 19.82(2).

¶ 31.

For the discrete municipal canvassing boards in municipalities with two or more wards, it is readily apparent that any time such a discrete, statutorily created body convenes for the purpose of exercising the powers and duties vested in the body under Wis. Stat. § 7.53(2), that gathering will constitute a “meeting,” as defined in Wis. Stat. § 19.82(2).

¶ 32.

For municipal canvassing boards in municipalities with a single polling place, the same election inspectors who compose the municipal canvassing board have additional duties: they compose the local canvassing board and they have various administrative duties in the polling place on election day. When the election inspectors in such a municipality convene for the purpose of exercising the specific powers and duties vested in the municipal canvassing board under Wis. Stat. § 7.53(1), that gathering is a “meeting” as defined in Wis. Stat. § 19.82(1). If they convene solely to exercise the powers and duties of the local canvassing board, that is a meeting of the local board, but not of the municipal board. If they gather to exercise the powers and duties of both the local and municipal boards, the gathering may be treated, for open meetings law purposes, as a joint meeting. But when the inspectors are gathered in the polling place solely to perform administrative duties that are assigned to them as individual officials under Wis. Stat. § 7.37, that gathering is not a “meeting” of a governmental body at all.

¶ 33.

For all of these reasons, I conclude that the canvassing activities conducted at the municipal level pursuant to Wis. Stat. § 7.53 constitute a “meeting” of a “governmental body” and thus are subject to the requirements of the open meetings law.

3.   School District and County Canvassing Boards

¶ 34.

The analysis for school district and county canvassing boards is straightforward. School district canvassing boards are created and assigned their duties by Wis. Stat. § 7.53(3). County canvassing boards are created and assigned their duties by Wis. Stat. § 7.60. Both types of board are created by statute and their duties are assigned to them as boards, rather than as groups of individuals. Both, therefore, are “governmental bodies” as defined in Wis. Stat. § 19.82(1). When those bodies convene for the purpose of exercising the powers and duties vested in them by Wis. Stat. §§ 7.53(3) and 7.60, respectively, the gathering is a “meeting,” as defined in Wis. Stat. § 19.82(2). The canvassing activities conducted by school district and county canvassing boards, therefore, are meetings of governmental bodies subject to the requirements of the open meetings law.

4.   State Canvass

¶ 35.

Under Wis. Stat. § 7.70(3)(a), state-level canvassing activities are conducted by the chairperson of the GAB or by a designee of the chairperson.
State-level canvassing duties are thus vested in a single election official, rather than in a collective body. The open meetings law defines “governmental body” using the terms “agency,” “board,” “commission,” “committee,” “council,” “department,” and “body corporate and politic,” suggesting that such a body must be a multi‑member group. See Wis. Stat. § 19.82(1). A public office occupied by a single person, therefore, is not a governmental body subject to the open meetings law. See Plourde v. Habhegger, 2006 WI App 147, 294 Wis. 2d 746, ¶¶ 12-14, 720 N.W.2d 130 (open meetings law does not apply to a governmental department with only a single member); 67 Op. Att’y Gen. 250 (1978) (open meetings law does not apply to the office of county coroner). Therefore, although the GAB chairperson or his or her designee is expressly required to “publicly canvass the returns,” Wis. Stat. § 7.70(3)(a), those canvassing activities are not subject to the separate requirements of the open meetings law.

¶ 36.

As a matter of agency practice, public notice of the state-level canvass that conforms to the notice of requirements of Wis. Stat. § 19.84 is routinely given. Although that practice is not required by the open meetings law, it is a reasonable method of ensuring that the public is notified of the precise time and location of the state canvass and serves the important public interest in transparency and accessibility in elections.

5.   Activities of Municipal Employees Organizing Election Materials

¶ 37.

Finally, you ask whether the open meetings law applies to the activities of permanent and temporary municipal employees who are assigned by some large municipalities to organize election materials that have been delivered to the municipal clerk or to the municipal election commission, and to prepare those materials for the municipal canvass and for delivery to the county clerk or the county board of election commissioners pursuant to Wis. Stat. § 7.51(5)(b). Such municipal employees are administrative staff personnel and do not constitute a governmental body. Moreover, the purely administrative organizational duties they are performing are not statutorily vested in any collective body. For these reasons, it is my opinion that the activities of such municipal employees are not subject to the requirements of the open meetings law.

Applicability of Specific Open Meetings Requirements to Canvassing Boards

¶ 38.

Because canvassing activities at the local, municipal, school district, and county levels are subject to the open meetings law, they are also subject to the specific statutory open meetings requirements.

1.   Public Notice Requirements

¶ 39.

First, for each level of canvassing board, you ask whether the board’s meetings are subject to the specific public notice requirements of Wis. Stat. § 19.84 and, if so, who is responsible for ensuring compliance with those requirements.

¶ 40.

Because meetings of local, municipal, school district, and county canvassing boards all are meetings of governmental bodies subject to the open meetings law, each such board must give notice to the public of each of its meetings. Wis. Stat. § 19.84(1)(b). This notice must be given at least 24 hours before the meeting begins unless, for good cause, it is impossible or impractical to give that much notice, in which case as little as two hours notice may be given. Wis. Stat.
§ 19.84(3). The notice must set forth the time, date, place, and subject matter of the meeting “in such form as is reasonably likely to apprise members of the public and the news media thereof.” Wis. Stat. § 19.84(2).

¶ 41.

The public notice must be given through the board’s presiding officer or the officer’s designee. For local canvassing boards and for municipal canvassing boards in municipalities with only one polling place, the presiding officer is the chief election inspector of the polling place in question. See Wis. Stat. §§ 7.30(6)(b), 7.37(12), 7.51, and 7.53(1). For all other municipal canvassing boards, the presiding officer is the municipal clerk. See Wis. Stat. § 7.53(2). For school district canvassing boards, the presiding officer is the school district clerk. See Wis. Stat. § 7.53(3)(a). For county canvassing boards, the presiding officer is the county clerk. See Wis. Stat. § 7.60(2).

¶ 42.

The open meetings law does not require a governmental body to provide public notice by any particular method, but rather permits the body to use any method of giving notice that is “reasonably likely to apprise members of the public” of the requisite information. Wis. Stat. § 19.84(2). The election notice that every municipality or special purpose district must publish pursuant to Wis. Stat. § 10.01(2)(d), however, is insufficient to satisfy Wis. Stat. § 19.84(2). That notice, termed a “Type D” notice, gives polling place locations and hours and thus provides the locations and times at which election inspectors will be performing their duties at the polls. But it does not notify the public that a post-election meeting of the local canvassing board will take place after the close of the polls or describe the subject matter of that meeting.

¶ 43.

The notice requirements of Wis. Stat. § 19.84 can be easily met for local canvassing boards, however, by simply adding a sentence to each Type D notice indicating that, immediately after the polls close, the election inspectors at each polling place will convene as the local canvassing board for the purpose of conducting the local canvass pursuant to Wis. Stat. § 7.51. Similarly, for municipalities with only one polling place, the Type D notice could also indicate that, after or jointly with the meeting of the local canvassing board, the election inspectors will convene as the municipal canvassing board for the purpose of conducting the municipal canvass pursuant to Wis. Stat. § 7.53(1). In order to ensure compliance with the notice requirements of the open meetings law, I recommend that the GAB advise all pertinent election officials that such information should be included in future Type D notices.

¶ 44.

According to your letter of inquiry, the GAB already advises that all other meetings of canvassing boards at the various levels should be noticed pursuant to Wis. Stat. § 19.84. That practice should continue in accordance with this opinion.

2.   Open Session Requirements

¶ 45.

Second, for each level of canvassing board, you ask whether meetings must be held in “open session,” as defined in Wis. Stat. § 19.82(3) and whether it is ever permissible for such a meeting to go into closed session, pursuant to Wis. Stat. § 19.85.

¶ 46.

The open meetings law generally requires that every meeting of a governmental body must be “reasonably accessible to members of the public” and “open to all citizens at all times.” Similarly, an “open session” is defined in Wis. Stat. § 19.82(3) as “a meeting which is held in a place reasonably accessible to members of the public and open to all citizens at all times.” Every meeting of a governmental body must initially be convened in “open session.” See Wis. Stat. §§ 19.83 and 19.85(1). All business of any kind, formal or informal, must be initiated, discussed, and acted upon in “open session,” unless a closed session is authorized by one of the exemptions set forth in Wis. Stat. § 19.85(1). See Wis. Stat. § 19.83. Accordingly, every meeting of a local, municipal, school district, or county canvassing board must begin in open session and must conduct all meeting business in open session unless a closed session is specifically authorized.

¶ 47.

In light of the very limited and specialized powers and duties that are statutorily vested in canvassing boards, with one exception, none of the collective activities of such a board fall within any of the authorized purposes of a closed session under Wis. Stat. § 19.85(1)(a) through (i). Nothing in the Election Code[2] suggests that any portion of the canvassing process can be conducted behind closed doors. To the contrary, various Election Code provisions require election canvasses to be conducted publicly. See, e.g., Wis. Stat. §§ 7.51(1), 7.53(1)(a) and (2)(d), and 7.60(3).

¶ 48.

The one exception relates to Wis. Stat. § 19.85(1)(g), which allows a governmental body to go into closed session for the purpose of “[c]onferring with legal counsel for the governmental body who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved.” As noted in your letter of inquiry, there can be some circumstances in which the actions of a board of canvassers will be challenged in litigation and, in such circumstances, it may be necessary and appropriate for a canvassing board to consult in closed session with its legal counsel. In that type of situation, a closed session of the canvassing board under Wis. Stat. § 19.85(1)(g) would be permissible. A closed session for the limited purpose of consulting with legal counsel about pending or anticipated litigation would not include conducting any actual canvassing activities in closed session and thus would not violate the Election Code requirements that the canvasses be conducted publicly.

3.   Access to Election Documents and Materials

¶ 49.

Third, you ask to what extent any applicable openness requirements compel election officials to permit members of the public to inspect election documents or materials during a meeting of a local, municipal, school district, or county canvassing board.[3] In order to respond to this question, it is necessary to consider the pertinent requirements of both the open meetings law and the Election Code, as well as general principles governing the proceedings of governmental bodies.