Based on the City Attorney’s email, everything pertaining to the Confluence Project may now be discussed in closed session because the public is generally aware of the Confluence project, there were previous open meetings on the project, and there were referenda on the $5 million City and the $3.5 million County confluence pledges.  The fact that there were open meetings on a project in the past, does not provide the Council with license thereafter to go into closed sessions on every aspect.  The only decision made through the referenda was that the elected officials would ultimately make the decision; it was not a mandate for the elected officials to handle matters in secret.

The City Attorney misinterprets the Milton case.  He maintains it does not apply to the Confluence project in Eau Claire based on the use of the word, “all” found in the Court’s holding:

Developing a negotiation strategy or deciding on a price to offer for a piece of land is an example of what is contemplated by "whenever competitive or bargaining reasons require a closed session." See WIS. STAT. § 19.85(1)(e). However, just because those concerns were present for portions of some of the meetings does not mean the entirety of the meetings fell within the narrow exception under § 19.85(1) (e). Thus, we do not agree that Milton was justified in closing all parts of all meetings concerning the proposed ethanol plant based on the reasons it has asserted. [Emphasis added]

Man Thinking - Closed Session Concerns

The City attorney read this holding to mean that the “narrow” exception would apply to Eau Claire’s Confluence situation only if the City had excluded the public from all meetings on the Confluence.  Effectively, he is maintaining that the court has provided carte blanche to hold closed hearings in some rather than all meetings even when the narrow exception is not applicable.  Thus under the Attorney’s interpretation, once a City has held a public hearing on a topic, it is free to exclude the public from all future meetings.  That reading makes no sense if one views the above paragraph in context.  The court stressed both the narrowness of the exception and the word, “require” which further limits the authorization to close a session.  Not only must some aspect of bargaining be part of the meeting, but that aspect must require a closed session.  The Court then provided specific instances when a closed meeting would be required - “developing a negotiation strategy or deciding on a price to offer for a piece of land. “  As written, the Milton decision applies to each individual session in which bargaining actually requires a closed session.

Note, as well, the attorney’s belief that the closed session is acceptable as there will probably be a hearing before the Council’s adoption of the development agreements:

. . . there will almost certainly be another public discussion prior to any public vote by Council on adoption of the development agreements.

The City in the Milton case excused its secret sessions in part because the agreement “included contingencies in the final approval of the ethanol plant development to allow for public input.”  That is effectively what the attorney is advocating here, although he does not promise an open hearing, only an open Council vote.  This Council has already shown its unwillingness in connection with the design of the North Barstow Parking Ramp to conduct timely public hearings.  Click here to read more about the issues with the ramp.

Under a correct reading of the case, before going into a closed session on negotiation, the following should at a minimum be disclosed and discussed in an open meeting setting:

1)  The subject of the transaction to be negotiated.

2)  The benefits, risks etc. of the transaction to the City.

3)  The method that the City would use to finance the transaction.

Using a process of elimination, it is reasonable to believe that the subject matter of the July 7, 2014 closed meeting was the $5.9 million subsidy that Haymarket Concepts, LLC had requested to build the student housing building.  If that is the case the following questions arise:

Question 1:   What competitive or bargaining reasons would require the Council to keep secret the fact that it is considering providing a subsidy to Haymarket?

Surely, that information can and should be revealed to the public.  Arguably, the public is unaware of the proposed subsidy.  During the referenda campaigns, the media, most City officials and Confluence backers maintained that 100% of the project would be paid from property taxes on the privately built student housing building, and there would be no subsidy.

Question 2:   What competitive or bargaining reasons require that there be no public discussion about whether it is appropriate for the City to subsidize Haymarket?

Many would question the use of public funds to build private student housing intended for wealthy upper classmen, particularly as there are private entities already providing this kind of housing in Eau Claire.  Moreover, these other private entities have not received any city subsidies.  The subsidy merits public discussion.

Question 3:   What competitive or bargaining reasons would prevent a discussion on timing?

Originally, the critical aspect of the project was the proposed Performing Art Center, which was to contain both classrooms and stages.  The intent was that fine arts students would live in adjacent student housing so they would be close to the Center.  Is the student housing even desired without a Performing Art Center?  The Confluence project is supposed to revitalize downtown.  Will the building of a student residence hall accomplish that goal?  Is student housing so desirable that the City should subsidize it, while the status of the Performing Art Center remains uncertain?

Question 4:   What is there to bargain or negotiate in connection with a subsidy?

A subsidy is a gift.  The City holds all of the negotiation cards.  It is its choice whether to offer that gift.  Surely, the public should have input in this process.  Effectively, the Council is asking that it be allowed to provide largesse to Haymarket Concepts.  In effect, it is favoring one citizen over another, using public funds.

The City Attorney should have borne in mind the public policy behind the open meeting law:

In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.

In keeping with this policy, the closed meeting should not have occurred. The public has a right to be informed.