Facing mounting protests and backlash against their draconian tactics, Wisconsin Republican Senate Majority Leader Scott Fitzgerald claims no law was broken last night when the Republicans pushed through a bill killing collective bargaining rights for union members with just two hours notice given via bulletin board. Fitzgerald is citing a Senate rule which he apparently believes overrides the state law regarding open meetings. Open meeting law typically requires twenty four hours notice.
Wisconsin Politics Budget Blog reported:
Senate Majority Leader Scott Fitzgerald tonight released the following message from Chief Clerk Rob Marchant to support his argument the conference committee meeting was properly called.
Here’s the message:
There was some discussion today about the notice provided for the legislature’s conference committee. In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board. Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legisaltive (sic) offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes.
They better hope that suffices, though it’s odd that the Republicans are attempting to use a Senate rule to defend against a state law, as if Senate rules supersede the law. It seems likely that the Senate Republicans will be given plenty of time in court to defend their actions, but the question is whether or not a stay will be granted while the matter is under consideration.
While the forfeiture penalty for knowingly (see Wisconsin Senate Republicans Ignore Warning That They Are Breaking Law) violating open meeting laws is not financially costly for a senator (between 25-300 dollars for each violation), Wis. Stat. § 19.97(3) provides that a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action. A court may also award any other appropriate legal or equitable relief, including declaratory and injunctive relief, and that could get quite expensive should the Senate Republicans be found guilty of knowingly violating open meeting law.
According to the Open Meetings Compliance Guide PDF on the Wisconsin DOJ website:
The Wisconsin Supreme Court has defined “knowingly” as not only positive knowledge of the illegality of a meeting, but also awareness of the high probability of the meeting’s illegality or conscious avoidance of awareness of the illegality. Swanson, 92 Wis. 2d at 319. The Court also held that knowledge is not required to impose forfeitures on an individual for violating the open meetings law by means other than attending a meeting held in violation of the law. Examples of “other violations” are failing to give the required public notice of a meeting or failing to follow the procedure for closing a session. Id. at 321.
Even if the Senate rule overrides the state law, there is still the issue that the bill the Republicans pushed through last night involved the fiscal matter of charging public employees more for pensions and healthcare, and fiscal matters require a quorum of 20. The Republicans, who initially claimed that they needed to strip unions of their collective bargaining rights due to a “budget crisis”, decided last night that collective bargaining is not a fiscal matter, and hence called a committee meeting to strip the original bill of all fiscal matters, leaving only the killing of collective bargaining rights along with changes to pensions and healthcare costs.
Democratic Minority Leader Barca has filed a complaint with Dane County District Attorney seeking to void last night’s action. The complaint seeks an injunctive relief “to avoid irreparable injury to the public.”
This fight is far from over.