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    Appeals Court: County Board Did Not Engage in Illegal Walking Quorum

    Joe Forward

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    March 3, 2018 – The Dane County Board of Supervisors in 2016 voted against renewing a billboard lease near the airport in Madison, prompting a lawsuit for violations of the open meetings law. Recently, an appeals court said no such violation occurred.

    Adams Outdoor Advertising Limited Partnership (Adams) alleged that several board supervisors engaged in an illegal “walking quorum,” which involves a series of meetings between separate members of a body that together affect the vote of the body.

    Adams had produced emails that board supervisor Paul Rusk, who was against renewal, sent to other supervisors. Rusk was gauging other supervisors’ position on the billboard lease renewal issue and indicating his desire that it should not be renewed.

    Adams argued that these emails evidenced a “walking quorum” and a violation of the state’s open meetings law, but the Dane County Circuit Court dismissed the case.

    In Adams Outdoor Advertising Limited Partnership v. Dane County, 2017AP2 (Feb. 27, 2018), a three-judge panel for the District IV Appeals Court affirmed, concluding that Adams could not state a claim upon which relief could be granted.

    That is, the numbers alleged did not add up. The appeals court noted the necessary elements to trigger an open meetings violation, as established in State ex rel. Newspapers, Inc. v. Showers, a 1987 decision from the Wisconsin Supreme Court.

    First, there must be a purpose to engage in government business through discussion outside a public meeting. Second, “the number of members present must be sufficient to determine the parent body’s course of action regarding the proposal discussed.”

    In order for Adams to establish a walking quorum, the panel noted, Adams had to allege that a sufficient number of board members engaged in purposeful discussions.

    Adams relied primarily on emails that Rusk sent to various supervisors, but most recipients did not respond. And some emails dealt with scheduling or communications with constituents, not the specific issue of who might vote yes or no on the lease.

    In addition, “the complaint fails to establish that a sufficient number of supervisors engaged in discussions capable of affecting the vote,” Judge Joan Kessler noted.

    Adams’s complaint alleged that Rusk emailed eight supervisors. But 34 supervisors ultimately voted, rejecting the lease renewal by an 18-16 vote

    “Rusk did not email or otherwise reach out to a majority of the supervisors (18 supervisors),” Kessler noted, and he only directly asked one if she was ok to vote “no.”

    “Simply put, the numbers do not add up and Adams’s assertion that the defendants engaged in illegal activity to affect the vote is purely speculative,” Judge Kessler wrote.

    The panel also rejected Adams’s assertion that Rusk and another supervisor were required to recuse themselves because they were impermissibly biased.