The Effect of the Wisconsin Supreme Court Open Meetings Decision on Local Government Ethics

According to the Wisconsin Supreme Court majority, a state legislature does not have to follow ethics laws, even ethics laws expressly designed to meet constitutional requirements. This shocking statement comes from the opinion in the case Wisconsin v. Fitzgerald, which I discussed in a recent blog post. The opinion came down on Tuesday, in a case about whether a legislative committee violated the state's open meetings act in passing the infamous government union collective bargaining bill with only two hours' notice. This post will consider this decision's effect on local government ethics, at least in Wisconsin.

The court said that it “will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments.” On separation of powers grounds, the court determined that it cannot do any more than determine whether the state constitution was itself violated.

One of the majority judges, concurring, went a step further, quoting from an earlier decision: "the legislature by statute or joint resolution cannot bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation."

Does this decision also apply to conflicts of interest, and also to local governments? Can no court, at least in Wisconsin, make any decision regarding ethics matters, since ethics matters too could be considered procedural and not constitutionally based? Will this decision add firepower to arguments based on the actually constitutional Speech and Debate Clause?

Imagine this situation. The council of a city in Wisconsin is considering the approval of a waste contract with a company, whose president is the council president's brother. The council president is asked by citizens to withdraw from the matter, but refuses to do so. In fact, he makes it clear to his colleagues that they better not question the contract, because this is very important to him. The contract is approved by a vote one short of unanimous. The one council member who opposed the contract files a complaint with the city's ethics commission, and the council president seeks an injunction from the local superior court, arguing that the state's Speech and Debate Clause (to the extent it applies to council members) prevents the proceeding from going forward and, in any event, the council is not bound to follow the ethics code with respect to the passage of legislation.

Will the court give the council president an injunction, which would effectively remove the council (and other councils) from the EC's jurisdiction and make them self-regulating with respect to ethics? If so, should Wisconsin ECs simply recognize they have no effective jurisdiction over council members? Going one step further, do Wisconsin council members have an obligation to make jurisdiction over them clear, that is, to debate the issue and, if they want the EC to have jurisdiction over them, to expressly give the EC jurisdiction over them both through legislation (which is, according to the Supreme Court, non-binding on council members) and through express individual waivers of any right to question the EC's jurisdiction over them?

I think they have this obligation. But I doubt that a single council will do this. Why should they? The Supreme Court has arguably given them a blank check, which can be ripped up only by voters again and again voting them out of office until they give their EC jurisdiction over them.

Of course, this decision may not be applied to councils, and it may not be applied to conflicts of interest. But on the other hand, I would be surprised not to see this decision cited in briefs all over the country when ethics matters come before courts. The decision adds one more weapon to the growing store of arms in opposition to EC jurisdiction over officials involved in legislative activity.

Robert Wechsler
Director of Research-Retired, City Ethics

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