Heather Holmes v. City of Rhinelander City Council

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 23, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP433 Cir. Ct. No. 2019CV172

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. HEATHER HOLMES
C/O THE LAKELAND TIMES,

PLAINTIFF-APPELLANT,

V.

CITY OF RHINELANDER CITY COUNCIL, ANDREW LARSON,
DAVID HOLT, STEVE SAUER, RYAN ROSSING AND CHRIS FREDERICKSON,

DEFENDANTS-RESPONDENTS.

APPEAL from a judgment of the circuit court for Oneida County:
MICHAEL H. BLOOM, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Heather Holmes appeals from a judgment dismissing her
complaint for failing to state a claim upon which relief could be granted. Holmes’
complaint alleges that Rhinelander City Council members Andrew Larson,
No. 2020AP433

David Holt, Steve Sauer, and Ryan Rossing (herein referred to as the “members”)
violated the Wisconsin Open Meetings Law, WIS. STAT. §19.83(1).1 Specifically,
Holmes alleges that through emails and personal meetings, those members formed
a “walking quorum”—and thus they held a “meeting”—and took action to censure
City Council president George Kirby without proper notice and a public hearing as
required under § 19.83(1).

¶2 We conclude that Holmes’ complaint fails to allege facts, as opposed
to mere legal conclusions. In particular, the complaint does not allege sufficient
facts to support Holmes’ claim that the four members improperly conducted
government business by agreeing to or voting on action to be taken regarding
Kirby. Accordingly, the circuit court correctly determined that the complaint did
not allege sufficient facts to show that the four members violated Wisconsin’s
Open Meetings Law, and we therefore affirm.

BACKGROUND

¶3 In July 2019, Holmes filed the instant lawsuit against the Council,
and Chris Frederickson, Rhinelander’s mayor. The following factual allegations
are taken from Holmes’ complaint. Holmes is an employee of the local
Lakeland Times newspaper. The Council is a “body politic” that governs the City
of Rhinelander, a Wisconsin municipality. At the time of the events at issue in
this appeal, the Council had a total of seven elected members or alderpersons, four
of whom were Larson, Holt, Sauer and Rossing.2 As mayor, Frederickson was a
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Although there were eight total aldermanic districts, there was a vacancy that was
eventually filled by Lee Emmer who was not a council member at the time relevant to this appeal.

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member of the Council for purposes of breaking tied votes, but was not counted
when determining whether a quorum existed to conduct City business.

¶4 The allegations in Holmes’ complaint flow from a January 28, 2019
Council meeting, in which Council member and president George Kirby refused to
participate. Kirby was upset that the Council had failed to place an item on the
agenda regarding office furnishings purchased by city administrator Daniel Guild
without approval from the Council. Kirby’s refusal to participate in the meeting
resulted in the Council failing to meet the quorum required to conduct business.

¶5 Following the meeting, the members met in sub-quorum sized
groups over the next several days to discuss Kirby’s actions. Those meetings
culminated in the delivery of a letter to Kirby, which was signed by the members
in their individual capacities as “fellow Council members.”

¶6 Prior to the filing of the complaint, but after the letter was delivered
to Kirby, the Division of Criminal Investigation within the Wisconsin Department
of Justice (DOJ) investigated the members’ actions. As part of that investigation,
all five of the letter’s signatories subsequently gave interviews to law enforcement
about the reasons for, and the events leading up to, the preparation of the letter. A
report concerning the investigation and its outcome was attached to the complaint
as Exhibit 2. The report contained the following facts that are relevant to Holmes’
claims.

¶7 After the January 28, 2019 Council meeting, Holt discussed Kirby’s
actions with Frederickson. Holt stated that he “was upset with Kirby’s actions and
said something about ‘why can’t we work together.’” On January 28 or 29, Sauer,
Rossing and Guild met to discuss “how to address Kirby” and what they would
like Kirby to “know and think about.” Either Guild or Rossing wrote down their

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thoughts at the meeting; however, Holmes’ complaint alleges no affirmative facts
relating to the contents of that writing.

¶8 Later that week, Holt spoke with Sauer in which Holt “vented his
frustrations” about Kirby, stating that the Council president should better support
the Council and that Kirby’s actions were “embarrassing and hypocritical.” After
the Council meeting, Holt asked Guild to add an item to the Council agenda
regarding the president’s position, although not specifically Kirby. However, Holt
subsequently retracted this request.

¶9 On January 30, 2019, Sauer went to Frederickson’s house to
socialize, but at some point they began to discuss Kirby. While at Frederickson’s
house, Sauer received an email from Guild that contained a draft letter3 to Kirby.
Sauer and Frederickson discussed the letter and later invited Rossing over for
further discussion. Sauer believes that Rossing called Guild to make a few
modifications to the letter. When Sauer received a second copy of the letter, he
went home to print it. Sauer then returned to Frederickson’s house, and the three
signed the letter. Sauer told Frederickson and Rossing that he asked Larson and
Holt to also sign the letter.

¶10 The next day, Holt met with Sauer and signed the letter. On the
same day, Guild sent an email to the members which attached an article from the
“League of Municipalities” explaining how to remove a council president.
Around the same date, Rossing called Larson and stated that he and others had
drafted a letter regarding Kirby’s actions. Larson later went to Sauer’s house, read

3
The author of the letter is unclear based on the record. Regardless of the original
author, the letter was ultimately signed by Larson, Holt, Sauer, Rossing, and Frederickson.

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the letter, and signed it. Thus, all four members and Frederickson signed the
letter.

¶11 Holt subsequently hand delivered the letter—which was attached to
Holmes’ complaint as Exhibit 1—to Kirby. The entire letter reads as follows:

Dear George,

We are writing to address the incident which occurred this
past Monday night at the Common Council meeting. We
are struggling to understand your conduct when it appears
to us there were so many preferable alternatives.

From your public comments, we are aware of a
disagreement between you and Administrator Daniel Guild.
Our questions include wanting to know why did you not
reach out to the Mayor, and/or your fellow Council
members about your concerns prior to the meeting? Why
did you choose not to seat yourself with us, allowing the
official meeting to proceed, and then stating your concerns
during public comment? Even after being compelled by
the Council to take your seat and perform your duties, both
on behalf of your constituents, and to us, your colleagues,
you made a conscious decision not to be seated, knowing it
could, potentially, affect our ability to convene and conduct
the City’s business.

Some of us are still unclear as to the reason behind your
course of action. You started to make a public statement,
which we know you were not able to finish, due to the fact
we were not convened into an official meeting. Since then,
many of us have not heard from you regarding these
concerns, nor have we had any suggestion of your wanting
to work with us to resolve them. We have been able to read
some [sic] your comments to local news reporters. Why
are you able to talk with reporters and not us, your fellow
Council members, about your concerns?

It is our thought that the City of Rhinelander is bigger than
any one City employee, or any one elected official. As a
group, we have spoken about the expectations we have for
each other as Council members. We have recently
discussed the need for us to talk with each other, first,
before we create unnecessary drama, which impacts the
City’s reputation and the community’s perception of us as a
governing body. Do you still agree with this principle?

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Should we not try to work together to solve problems and
attend to the business of the City[?]

Regardless of your motivations and intentions, this incident
does not reflect the level of leadership we are looking for
from a seasoned, experienced elected official, such as
yourself. As our Council President, we look to you for that
leadership and setting a standard of behavior and conduct
for the rest of the Council. Some of us would like to
inquire further if you feel you have the composure
necessary to continue to serve as Council President. Given
recent events, perhaps it would be more comfortable for
you to not continue in this capacity?

This forthcoming conversation may be uncomfortable. It is
not our intention for it to be so. As we have learned, as
individuals, we cannot act on our own on behalf of the
City. Rather it is the Common Council, as a group of
elected officials, together, which has the authority to
address problems.

It is our hope you would be willing to meet with us. It is
our desire to resolve any issues swiftly and then return our
attentions to the business of the City and moving the
community forward.

¶12 Exhibit 2 to the complaint (the DOJ investigative report) further
indicated that the signatories of the letter decided to sign it because it conveyed
their concerns and questions and might “stir conversation” but did not “present a
solution.” The members reviewed guidelines prepared by the attorney general in
order to ensure “there was no quorum” signing the letter and that there was no
“pre-determined” or “expected” outcome from the letter apart from asking Kirby
about his thoughts. The letter was intended “to ask Kirby questions,” such as
“[w]hat’s going on?” and “how do we work together?” It represented an effort to
try to get Kirby to discuss the situation with the Council members and “share his
thoughts,” and it was not asking Kirby to “step down.” In short, the report stated
that the signatories interpreted the letter as an “invitation” for Kirby to speak his

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mind and recall prior agreements to “work together, and talk to each other,” and
“no decisions were made or addressed.”

¶13 The members, Frederickson and the Council subsequently filed a
motion to dismiss Holmes’ complaint for failure to state a claim upon which relief
could be granted, pursuant to WIS. STAT. § 802.06(2)(a)6. At a hearing on the
motion, Holmes claimed the law enforcement interviews showed that the members
met privately and considered matters concerning the “possible and actual censure
and/or written reprimand” of Kirby and “potential further future action” against
him.

¶14 The circuit court issued a written decision granting the defendants’
motion. It concluded, as relevant to our opinion, that the investigatory reports did
not support Holmes’ allegations. The court reasoned that the facts alleged in
Holmes’ complaint did not establish: (1) “that the discussions among the
defendants which culminated in their agreement to draft, sign and distribute the
subject letter to Kirby were directed towards any proposition requiring a formal
vote by the Common Council to implement”; (2) that the discussions “resulted in
any agreement among the defendants to ‘take a uniform course of action,’ in their
capacity as members of the Common Council, relative to any proposition requiring
a formal vote by the Common Council to implement”; (3) “that the number of
defendants that actually engaged in the discussions that culminated in the
agreement to sign and distribute the letter to Kirby was sufficient to control formal
Common Council action relative to same”; (4) “that the contents of the subject
letter to Kirby addressed any proposition requiring a formal vote by the Common
Council to implement”; and (5) “that the contents of the subject letter to Kirby
manifested an agreement among the defendants to ‘take a uniform course of
action,’ in their capacity as members of the Common Council, relative to any

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proposition requiring a formal vote by the Common Council to implement.” The
court therefore concluded that Holmes’ complaint failed to allege sufficient facts
that, if true, would establish a violation of the open meetings law. This appeal
follows.

DISCUSSION

¶15 Holmes argues that the circuit court erred because the complaint
contains allegations sufficient to establish a violation of the open meetings law.
Whether a complaint fails to state a claim upon which relief can be granted is a
question of law that we review de novo. Doe v. Archdiocese of Milwaukee, 2005
WI 123, ¶19, 284 Wis. 2d 307, 700 N.W.2d 180. We accept as true all
well-pleaded facts in the complaint and the reasonable inferences drawn
therefrom. Data Key Partners v. Permira Advisers LLC, 2014 WI 86, ¶19, 356
Wis. 2d 665, 849 N.W.2d 693. However, we do not accord any weight or truth to
legal conclusions alleged in a complaint. Id. If documents are attached to the
complaint, we must consider them as part of the complaint. Peterson v.
Volkswagen of Am., Inc., 2005 WI 61, ¶15, 281 Wis. 2d 39, 697 N.W.2d 61. If
the facts alleged in the complaint conflict with those contained in the attached
documents, the contents of the attachments prevail over the complaint’s
averments. Id.

¶16 There is no dispute that the Council is a “governmental body” within
the meaning of WIS. STAT. § 19.82(1) and that the Council must provide public
notice in advance of a meeting and hold that meeting in open session as required
by WIS. STAT. § 19.83(1). The main dispute here is whether the emails and
personal meetings between the members and Frederickson leading up to the

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transmittal of the letter to Kirby constituted a meeting under the open meetings
law.

¶17 The term “meeting” is defined in WIS. STAT. § 19.82(2):

“Meeting” means the convening of members of a
governmental body for the purpose of exercising the
responsibilities, authority, power or duties delegated to or
vested in the body. If one-half or more of the members of a
governmental body are present, the meeting is rebuttably
presumed to be for the purpose of exercising the
responsibilities, authority, power or duties delegated to or
vested in the body. The term does not include any social or
chance gathering or conference which is not intended to
avoid this subchapter, any gathering of the members of a
town board for the purpose specified in s. 60.50(6), any
gathering of the commissioners of a town sanitary district
for the purpose specified in s. 60.77(5)(k), or any gathering
of the members of a drainage board created under s. 88.16,
1991 stats., or under s. 88.17, for a purpose specified in
s. 88.065(5)(a).

(Emphasis added.) In order to state a claim for an open meetings law violation,
Holmes had to allege sufficient facts tending to show two elements: (1) “a
purpose to engage in governmental business, be it discussion, decision or
information gathering”; and (2) “the number of members present must be
sufficient to determine the parent body’s course of action regarding the proposal
discussed.” See State ex rel. Newspapers, Inc. v. Showers, 135 Wis. 2d 77, 102,
398 N.W.2d 154 (1987). The Showers court, however, clarified that the
legislature did not intend to trigger the open meetings law “by automatically
applying the law to any deliberate meetings involving governmental business
between two or more officials.” See id. at 98.

¶18 In Holmes’ brief, she contends the second part of the Showers test is
met. In support of her argument, she relies on Showers and Lynch for the
proposition that a gathering that constitutes a quorum is presumed to be a violation

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of the open meetings law. Showers, 135 Wis. 2d at 100; State ex rel. Lynch v.
Conta, 71 Wis. 2d 662, 685, 239 N.W.2d 313 (1976), superseded on other
grounds by statute. We do not perceive Holmes as alleging that the presumption
in WIS. STAT. § 19.82(2) applies to the “walking quorum” at issue in this case.
Additionally, we need not decide the presumption’s application as we conclude
that, regardless, there was no “purpose to engage in governmental business.” See
Showers, 135 Wis. 2d at 102.

¶19 In order to plead a business purpose for the meetings sufficient to
survive a motion to dismiss, it is not enough to allege that there were
communications between the members regarding their personal positions, or that
they asked other members for their opinions. See State ex rel. Zecchino v. Dane
Cnty., 2018 WI App 19, ¶12, 380 Wis. 2d 453, 909 N.W.2d 203. Nor is it enough
to show that the members read and signed a pre-meeting resolution or document if
the document does not “discuss [] policy matters pending before the [body]” and
“expressly commit[] the signatories” to vote in a particular way. See Wis. Op.
Att’y Gen. Huff at 3 (2008), https://www.doj.state.wi.us/sites/default/files/dls/
ompr/20080115-huff.pdf. Instead, the complaint must plausibly suggest
that: (1) the members purposefully engaged in discussions regarding a specific
measure of governmental business; and (2) these discussions “were held between a
sufficient number of … members so as to affect the vote.” Zecchino, 380 Wis. 2d
453, ¶11. An express or tacit agreement is required. Id., ¶¶10, 12.

¶20 Regarding the first prong of the Showers test, the definition of
“governmental business” is embedded in the WIS. STAT. § 19.82(2) definition of
“meeting”—that is, “the convening of members of a governmental body for the
purpose of exercising the responsibilities, authority, power or duties delegated to
or vested in the body.” (Emphasis added.) Here, Holmes argues the law

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enforcement interviews incorporated into her complaint show the members
discussed government business regarding “the effectiveness, possible and actual
censure and/or written reprimand, and consideration of potential future further
action against … Kirby,” which amounted to a walking quorum sufficient to
require notice of a public meeting. The Council had the authority to remove or
suspend Kirby as president under WIS. STAT. § 17.12(1)(a) and (d). It also had
authority under the City of Rhinelander Code to take one of two disciplinary
actions against Kirby as Council president—that is, to fine him or to expel him for
neglect of duty. Compare RHINELANDER, WIS., CODE § 2.02.01(1)(d), with
§ 2.01.18(8)(b) and (9).

¶21 Certainly, the Council removing, suspending, fining, expelling,
censuring or reprimanding Kirby would involve governmental business. But, the
question is whether Holmes’ complaint alleges that the members convened a
meeting for any of those purposes. Holmes contends that the members’ actions
culminated in a plan to reach an explicit agreement to prepare and sign a document
calling Kirby’s actions as a Council member into question, which, Holmes
submits, effectively constituted a private reprimand.

¶22 We disagree. Holmes’ allegation about the members reaching an
explicit agreement is merely her own characterization of the members’
discussions, and that characterization conflicts with the documents attached to her
complaint. Again, if the facts alleged in the complaint conflict with those
contained in the attached documents, the contents of the attachments prevail over
the complaint’s averments. Peterson, 281 Wis. 2d 39, ¶15.

¶23 The attachments to the complaint do not indicate that any of the
members discussed censuring or reprimanding Kirby. Rather, the investigative

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documents reveal the members met to discuss what happened at the prior Council
meeting and questioned why Kirby acted in the manner he did. The documents
further indicate that the members agreed to send an individually signed letter
questioning Kirby’s actions at the prior Council meeting and asking Kirby for his
input on how to resolve their questions and concerns about his actions. The
documents do not indicate that the members arrived at any agreement about what
to do in response to Kirby’s actions other than to ask what happened and why.
The fact that the members read and signed a pre-meeting resolution or document
does not constitute gathering for a business purpose under the open meetings law,
if the document did not discuss policy matters pending before the body and
expressly commit the signatories to vote in a particular way.

¶24 Holmes refers to the members discussing Kirby’s “effectiveness.”
These discussions do not violate the open meetings law unless the members agreed
on a uniform course of government action to take in response to their effectiveness
discussions. See Zecchino, 380 Wis. 2d 453, ¶10. Here, the documents attached
to Holmes’ complaint show that the members identified the purposes of their
questions to Kirby as trying to understand what motivated his actions at the
meeting, to remind him of their agreement to work together, and to “stir
conversation” in order for Kirby to think about his actions. The plain purpose of
the letter was not to censure or reprimand Kirby or to “kick out Kirby,” as the
complaint claims.

¶25 Our supreme court has held that “[w]hen the members of a
governmental body gather ... and then intentionally expose themselves to the
decision-making process on business of their parent body—by the receipt of
evidence, advisory testimony, and the views of each other—an evasion of the
[open meetings] law is evidenced.” Lynch, 71 Wis. 2d at 685-86. While Holmes’

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complaint may be construed as alleging that the members met and received “the
views of each other,” it cannot be construed as alleging that the members received
“evidence” or “advisory testimony” against Kirby. The use of the conjunctive
“and” means that the supreme court in Lynch intended that there be more than just
the receipt of “the views of each other” to constitute the conduct of governmental
business under the open meetings law. Rather, Lynch clearly envisions a
deliberative process much as would occur at a properly noticed meeting, including
meeting for a proper governmental purpose.

¶26 The Lynch court further explained:

To impose open session requirements on all government
business discussion between at least two members of the
same body, merely on the basis that such discussion
somewhat enhances the possibility that mutual interests
will be furthered and possibly carried out in the form of
some future official action, would virtually impede much of
the preliminary labor involved in any government action
and thus be incompatible with the necessary “conduct of
governmental affairs and the transaction of governmental
business.”

Id. at 689. Here, the complaint’s allegations demonstrate that the discussions
between the members fall squarely within this articulation of the scope of the open
meetings law.

¶27 This court’s decision in Zecchino is also instructive. There,
Zecchino’s business, Adams Outdoor Advertising, leased three billboards near the
Dane County Regional Airport. Zecchino, 380 Wis. 2d 453, ¶2. Prior to the
lease’s expiration on December 31, 2015, the Dane County airport commission,
the public works committee, and the personnel and finance committee all voted in
support of renewing Adams’ billboard lease. Id. On April 7, 2016, however, the
county board rejected the lease in an eighteen to sixteen vote. Id.

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¶28 Adams then brought an action alleging a violation of the open
meetings law through an illegal walking quorum and relief seeking a declaration
that the board’s April 7, 2016 decision was unlawful. Id., ¶3. Adams’ complaint
alleged that prior to the April 7 vote, a number of board members engaged in
closed discussions with the purpose of negatively affecting the vote on the lease.
Id. Specifically, the complaint alleged that board supervisor Paul Rusk emailed
multiple other board supervisors prior to the vote and that he tried to call another
supervisor to discuss her vote. Id.

¶29 After setting forth the details of Rusk’s emails, this court observed
that the entire factual basis for Adams’ complaint was the series of emails sent by
Rusk either to other board supervisors or to constituents. Id., ¶12. Adams’
argument relied primarily on Rusk’s emails indicating that he was trying to
“keep[] track” of the votes and emails to other supervisors in which Rusk
expressed discontent with the billboards. Id. Most of Rusk’s emails were
one-way messages, garnering few, if any, responses from other supervisors. Id.
None of the emails reflected a “tacit agreement” between the defendants to vote
against the lease. Id. The emails all either dealt with scheduling matters, were
communications with constituents, asked other supervisors for their opinions, or
expressed Rusk’s personal position. Id.

¶30 In affirming the circuit court’s dismissal of Zecchino’s complaint for
failure to state a claim upon which relief could be granted, this court held:

The essential feature of a “walking quorum” is the element
of agreement among members of a body to act uniformly in
sufficient numbers to reach a quorum. Where there is no []
express or tacit agreement, exchanges among separate
groups of members may take place without violating the
open meetings law. The signing, by members of a body, of
a document asking that a subject be placed on the agenda of
an upcoming meeting thus does not constitute a “walking

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quorum” where the signers have not engaged in substantive
discussion or agreed on a uniform course of action
regarding the proposed subject.

Id., ¶10.

¶31 As in Zecchino, Holmes’ complaint does not allege any express or
tacit agreement among the members to take any action against Kirby other than to
deliver a letter to him expressing their frustration with his refusal to participate in
the Council meeting. Holmes’ complaint clearly fails to allege that the members
engaged in substantive discussion or agreed on a uniform course of action
regarding removing, suspending, fining, expelling, censuring or reprimanding
Kirby, or any other governmental business for that matter. Rather, in the words of
the Lynch court, the members’ discussion may have “somewhat enhance[d] the
possibility that mutual interests [would] be furthered and possibly carried out in
the form of some future official action.” See Lynch, 71 Wis. 2d at 689. That,
however, does not constitute a meeting at which governmental business was
conducted under the open meetings law.

¶32 Instead, the members agreed to individually sign and deliver to
Kirby a letter relating to his recent actions as Council president at an attempted
Council meeting. Without more, it cannot be said that the members agreed on a
“uniform course of action” on behalf of the Council. See Zecchino, 380 Wis. 2d
453, ¶10. The letter merely asked Kirby what was going on and if he would
provide input on how to resolve the issue. The open meetings law does not apply
to mere “discussions or brainstorming of a tentative nature preliminary to focusing
on a specific outcome.” See 68 Wis. Op. Att’y Gen. 171, 175 (1979),
https://www.doj.state.wi.us/sites/default/files/dls/ompr/19860428-clifford.pdf.

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This is precisely what occurred here. Therefore, the allegations in Holmes’
complaint fail the first prong of the Showers test.

¶33 For the foregoing reasons, we conclude Holmes’ complaint failed to
allege sufficient facts that, if true, would demonstrate a violation of the open
meetings law. We therefore affirm the circuit court’s judgment dismissing
Holmes’ complaint.

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.

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