Attorney General J.B. Van Hollen
Wisconsin Department of Justice
P.O. Box 7857
Madison WI 53707-7857
Dear Attorney General:
I am writing on behalf of the Freedom From Religion Foundation to request an investigation into the legality and propriety of the sale of the Star Hill property by the Village of Holmen to the Holmen Lions Club. We believe multiple violations of Wisconsin’s Open Meetings Law may have occurred. The Freedom From Religion Foundation is a national not-for-profit organizaation with more than 12,000 members, which works to protect the Constitutional principle of the separation between church and state.
In early March 2008, a resident of the Village of Holmen, Professor Eric Barnes, complained informally about the lighted star and cross structure on village property in Holmen. A local March 10 newspaper report indicated that the village was “dealing with the situation right now.” The story also indicated that Village President, Mr. John Chapman, was “hesitant to talk about the issue at all.” Shortly thereafter, on March 11, 2008, the Village Administrator/Clerk, Ms. Catherine Schmit, reported to the Finance and Personnel Committee, as was recorded in the meeting minutes of the closed session, that “some Lions Club representatives had expressed interest in the purchase of the property where the star is located on Star Hill. The Executive Committee of the Lions Club is scheduled to meet 3/17. Formal discussion of the issue is expected.”
Subsequently, on March 13, 2008, as is indicated in the Board Proceedings, a representative of the Holmen Lions Club was present. Under the Finance and Personnel Committee listing, the Board Proceedings state that the Board decided to go into closed session per WI Statute 19.85(1)(e) to discuss “property sales/acquisition.” Unlike the earlier closed session of March 11, 2008, no indication was made of the nature of the subject matter, except that it was a “lengthy discussion.” These same Board Proceedings include the following, under the Other listing:
President Chapman stated that the Holmen Lions Club submitted a letter of intent to the Village to purchase from the Village of Holmen sufficient land to encompass the display of the star and cross on Village property generally known as Star Hill assuming that a satisfactory purchase agreement can be agreed to between the Village and the Holmen Lions Club.
The transaction between the Village of Holmen and the Holmen Lions Club has the appearance, at the very least, of impropriety, and, perhaps, illegality, and we respectfully request that your office look into the matter. It is unclear if the Lions Club representative was allowed to enter into the closed session discussion on March 13, 2008, of “property sales/acquisition.” First and foremost, Wisconsin’s Open Meetings Law explicitly requires a liberal construction, in order to ensure the greatest possible transparency. The asserted exemption, WIS. STAT. 19.85(1)(e), permits a closed session only for the purposes of “deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.”
Likewise, the recent Wisconsin Court of Appeals decision, Citizens for Responsible Development v. City of Milton, 2007 WI App 114, 300 Wis.2d 649, 731 N.W.2d 640, requires that Wisconsin’s Open Meetings Law be liberally interpreted while the exemption for a closed meeting to secure a competitive or bargaining advantage for the municipality must be strictly construed. In fact, the Court limits closure to those situations where “the government’s competitive or bargaining reasons leave no other option than to close meetings.” The Court reiterates, “Thus, a government may have a valid reason for desiring to close its meetings that nevertheless fails to establish closed meetings are required.”
The Wisconsin Court of Appeals detailed explicit stipulations, which would justify and permit such a closure. The Court clearly stated that closure is only justified in such situations where the government’s competitive and bargaining interests would be disserved otherwise. Additionally, the Court was explicit in denouncing the closure of all discussion surrounding a transaction based on the aforementioned exemption. Moreover, the Court indicated that an exemption for closure requires an explanation, including a description of the nature of the items, which were discussed. Finally, the Court stated that avoidance of “an acrimonious debate” is not a “permissible reason” for closing meetings.
It is difficult to understand how this situation impacted the Village of Holmen’s competitive or bargaining position in any way whatsoever, since, at the time, there existed but a single party “expressing” an interest in purchasing Star Hill, which would have been the only justification for a meeting closure under WIS. STAT. 19.85(1)(e). And, perhaps, the Village of Holmen’s competitive and bargaining position was disserved by closing the meeting, and, likewise, it would have been improved by leaving it open. Also, the Board Proceedings of March 13, 2008, neglect to describe the nature of the items discussed during the closed session. Most tellingly, the Village of Holmen ultimately chose the lowest bid amongst three offers, which evidences, unequivocally, that, whatever their reasons for claiming the exemption and closing the meeting, their own competitive and bargaining interests were not considered in making this step, and, therefore, this step was not authorized by WIS. STAT. 19.85(1)(e), as affirmed by the Court of Appeals.
Subsequently, upon the incipient transaction having been revealed in the media, two more offers were submitted from ourselves, as well as another humanist organization. Both organizations offered substantially more monies (in our case, twice the amount ultimately bid by the Lions Club). Both organizations made clear their intent to remove the star and cross from the parcel of land. Unsurprisingly, summary actions to both recommend and accept the Holmen Lions Club’s offer to purchase Star Hill occurred on May 6th and 8th, 2008, without, seemingly, any public discussion whatsoever of the two additional offers. There is no public record of any discussion of the two subsequent offers, of which we are aware. It is difficult to believe that no one discussed these two offers with anyone else on the Village Board at all.
We believe there may have been multiple violations of Wisconsin’s Open Meetings Law, which took place in the Village of Holmen, surrounding the sale of Star Hill to the Holmen Lions Club. The transaction is, ostensibly, set to be finalized by the end of this month, on June 29th. We respectfully request that your office look into the matter as soon as possible, in order to avoid an illegal sale of public property and the misuse of taxpayers’ funds. We would also request that an immediate injunction be imposed on the sale.
Thank you very much for your time and attention. We look forward to hearing from you shortly.
Best regards,
Annie Laurie Gaylor
Co-President
Freedom From Religion Foundation
