Douglas Oitzinger v. City of Marinette

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.
February 18, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP51 Cir. Ct. No. 2021CV238

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. DOUGLAS OITZINGER,

PLAINTIFF-APPELLANT-CROSS-RESPONDENT,

V.

CITY OF MARINETTE AND MARINETTE COMMON COUNCIL,

DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS.

APPEAL from a judgment of the circuit court for Marinette County:
JAY N. CONLEY, Judge. Affirmed in part; reversed in part and cause remanded
with directions.

Before Stark, P.J., Hruz and Gill, JJ.
No. 2024AP51

¶1 STARK, P.J. The City of Marinette discovered PFAS in its water
supply.1 It is undisputed that Tyco Fire Products LP, which is now a subsidiary of
Johnson Controls, Inc. (collectively, Tyco), was responsible for introducing the
PFAS into Marinette’s groundwater. As a result, Marinette’s Common Council
(the Council)2 discussed issues regarding PFAS at several Council meetings. The
specific issue in this case is whether the Council violated Wisconsin’s Open
Meetings Law by entering into closed sessions on October 6 and 7, 2020, to
discuss two issues related to the PFAS problem.

¶2 Marinette and the Council appeal and Douglas Oitzinger3
cross-appeals from the circuit court’s summary judgment decision dismissing
Oitzinger’s complaint alleging that the Council’s October 6, 2020 meeting
violated Wisconsin’s Open Meetings Law, granting judgment against Marinette
and the Council because the October 7, 2020 meeting was held in violation of the
Open Meetings Law, and denying Oitzinger’s request for attorney fees. Based on
this court’s prior decision in State ex rel. Citizens for Responsible Development v.
City of Milton, 2007 WI App 114, 300 Wis. 2d 649, 731 N.W.2d 640, and our
determination that the plain language of the Open Meetings Law’s exemption in

1
Per- and polyfluoroalkyl substances (PFAS) “are widely used, long lasting chemicals,
components of which break down very slowly over time.” U.S. ENVIRONMENTAL PROTECTION
AGENCY, PFAS Explained, https://www.epa.gov/pfas/pfas-explained (last visited Feb. 7, 2025).
“Scientific studies have shown that exposure to some PFAS in the environment may be linked to
harmful health effects in humans and animals.” Id.
2
The Council is the governing body of the City of Marinette and is made up of nine
members.
3
Oitzinger is a citizen of Marinette and a Council member. His official title on the
Council is alderperson. Oitzinger was serving on the Council at the time of the closed sessions.

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WIS. STAT. § 19.85(1)(e) (2021-22)4 does not apply, we conclude that the Council
violated the Open Meetings Law by going into closed session on October 6 and 7,
2020. Accordingly, as the prevailing party, we conclude that Oitzinger is entitled
to his reasonable attorney fees for privately enforcing the Open Meetings Law.

¶3 Therefore, we affirm the circuit court’s judgment in part, reverse the
judgment in part, and remand this case to the circuit court to determine Oitzinger’s
reasonable attorney fees award.

BACKGROUND

¶4 The factual background of this case is largely undisputed. Tyco
owned a Fire Technology Center (FTC) located in Marinette. The FTC was a
multi-function facility containing research, testing, and training facilities for
firefighting technologies. According to the record, “[f]or a significant period of
time, the [FTC] flushed its firefighting foam down Marinette’s sanitary sewers and
into the [w]astewater [t]reatment [p]lant. It also discharged its firefighting foam
into the surrounding outdoor environment[,] letting it seep into the soil.” As a
result, in 2017, it became apparent that PFAS had permeated the ground and the
groundwater.

¶5 Two issues relevant to this case developed as a result of Tyco’s
conduct. First, PFAS contaminated Marinette’s wastewater biosolids, which are

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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formed as part of the wastewater treatment process.5 Before learning of the PFAS
contamination, Marinette would dispose of the biosolids by spreading them on
agricultural fields as manure. However, in September 2018, the Wisconsin
Department of Natural Resources (DNR) requested that Marinette stop spreading
those biosolids. As a result, Marinette began storing the contaminated biosolids in
a holding tank. The DNR later asked Marinette to safely dispose of the biosolids,
leaving Marinette to determine how to do so safely and economically.

¶6 Second, PFAS contaminated well water to an unsafe level in the
neighboring Town of Peshtigo. In January 2018, the DNR sent Tyco a
“responsible party letter” identifying Tyco’s responsibility for the PFAS and
directing Tyco to produce a remedial action options report in conformity with
WIS. ADMIN. CODE § NR 722.13 (Nov. 2024). Tyco hired an engineering
consultant to create the “Remedial Actions Options Report for Long-Term
Drinking Water Supply, Town of Peshtigo, Wisconsin” (hereinafter, the RAOR).
The RAOR identified and examined eight “long-term drinking water supply
alternatives” it deemed to be “potentially feasible options for the residences with
affected private water supply wells within the Town of Peshtigo.” The RAOR

5
“When domestic sewage is transported and conveyed to a wastewater treatment
plant …, it is treated to separate liquids from the solids, which produces a semi-solid,
nutrient-rich product known as sewage sludge. The terms ‘biosolids’ and ‘sewage sludge’ are
often used interchangeably by the public; however, the U.S. Environmental Protection Agency
[(EPA)] typically uses the term ‘biosolids’ to mean sewage sludge that has been treated to meet
the [EPA’s] requirements … to be applied to land as a soil conditioner or fertilizer.” U.S.
ENVIRONMENTAL PROTECTION AGENCY, Basic Information about Sewage Sludge and Biosolids,
https://www.epa.gov/biosolids/basic-information-about-sewage-sludge-and-biosolids (last visited
Feb. 7, 2025).

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ultimately recommended that the affected residences in Peshtigo be connected “to
the City of Marinette public water system.”6

¶7 As a result of the PFAS problem, Marinette reached two
reimbursement agreements with Tyco. Under the first agreement, Tyco would pay
the costs to partially dehydrate the biosolids that Marinette was currently storing
(to reduce their volume) and ship them to a landfill in the state of Oregon. The
second agreement obligated Tyco to give Marinette $75,000 toward “fees relate[d]
to professional services rendered by attorneys and an environmental consultant” to
research “providing water service to those [Peshtigo] residents” affected by the
PFAS contamination “from the perspective of” Marinette. The Council had
previously retained Attorney Paul Kent as “outside counsel for PFAS [w]ater
issues.”

¶8 Meanwhile, Marinette continued to seek a long-term and more
cost-effective solution for the biosolids. Its solution included purchasing
equipment that would reduce the biosolids’ disposal costs by drying them out to
substantially lower their volume prior to transporting them. Marinette asked Tyco
to pay for this equipment, and this request became the impetus for, what Marinette
calls, the “donation agreement” at issue during the October 6, 2020 meeting
(hereinafter, October 6 meeting).

¶9 For approximately four months, Kent negotiated the donation
agreement with Tyco. Marinette’s mayor and utilities operations manager

6
The details of the RAOR are not relevant to this appeal, except that alternative one
suggested expansion of Marinette’s water system to include the relevant Peshtigo service area and
alternative two suggested that Marinette provide wholesale water service to Peshtigo.

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provided input for the negotiations, and they saw all the drafts of the donation
agreement. It appears undisputed, however, that the Council never directly
participated in these negotiations, although at least a few Council members knew
that the negotiations were occurring; the Council never saw the drafts; and the
Council was not included in discussions with Kent.

¶10 On October 5, 2020, public notice of the October 6 meeting was
posted. After consulting with Marinette’s attorneys, the mayor decided to provide
notice of a closed session for the portion of the meeting discussing the donation
agreement. According to his deposition testimony, he did so in order to protect
Marinette’s bargaining position by avoiding public discussion of the donation
agreement’s terms and compromising Marinette’s ability to further negotiate any
additional terms the Council requested. The notice included a closed session
agenda item, pursuant to WIS. STAT. § 19.85(1)(e), that stated as
follows: “negotiations and review of an agreement with … Tyco regarding
bio-solid equipment” and “[p]ursuant to … § 19.85(2), the Common Council may
reconvene in open session immediately after conclusion of the closed session to
take action, if any, on any closed session agenda item.”

¶11 Based on the minutes of the October 6 meeting, no discussion of the
donation agreement occurred on the record before the Council immediately voted
to convene in closed session. At the beginning of the closed session, the Council
members were provided with copies of the donation agreement, and it is
undisputed that this was the first time the Council members were shown a copy of
the agreement. During the closed session, the utilities operations manager
explained that due to the continuing PFAS contamination of the biosolids,
Marinette would need to continue disposing of the biosolids in a landfill rather
than spreading them on agricultural fields. The utilities operations manager

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detailed the proposed equipment purchase, the process of drying the biosolids, and
why that process was necessary (because it would reduce the expense of shipping
the biosolids). Kent then explained the terms of the donation agreement to the
Council.

¶12 Oitzinger averred in his affidavit that he “asked how much added
expense there would be for shipping out the dried biosolids compared to
Marinette’s previous expenses for spreading the biosolids on fields,” and “[the
utilities operations manager] answered that they were budgeting an extra $20,000”
annually. Oitzinger also stated that he “questioned additional ongoing costs of
operating and maintaining the equipment, to which the [utilities operations
manager] responded that he was not sure how much more it would be.” And,
according to Oitzinger, when he “suggested that Marinette should ask for more
money [from Tyco] to cover those increased ongoing costs, Kent responded that
they had finished negotiating and they believed this was the best deal they could
get.” One other Council member also raised concerns about whether the donation
agreement prevented Marinette from coming back in the future for additional
funds or taking further action related to the biosolids.

¶13 The Council then returned to open session and, without any
discussion of the donation agreement, voted eight-to-one (Oitzinger dissenting) to
approve the donation agreement. The donation agreement was fully executed on
November 3, 2020.

¶14 Around the same time the donation agreement was being negotiated,
the Council retained Ruekert & Mielke, Inc. (hereinafter, R/M) to independently
analyze the RAOR alternatives “and identify operational, financial, and legal
challenges associated with each alternative from [Marinette’s] standpoint.” R/M’s

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analysis was to proceed in two phases: (1) R/M would evaluate the RAOR
alternatives with respect to their impact on Marinette but would not make any
recommendations; and (2) R/M “would take a closer look at the operational,
technical[,] and legal aspects of … Marinette providing water service to” Peshtigo.
Phase two would only occur if the result of phase one was that the best solution
was for Marinette to provide water to Peshtigo.

¶15 On July 9, 2020, R/M provided Kent with its phase one draft memo
(hereinafter, the R/M Memo), but the R/M Memo was never provided to the
mayor or the Council.7 Again, after consulting with Marinette’s attorneys, the
mayor determined that the R/M Memo should be discussed in closed session
during the Council’s October 7, 2020 meeting (the October 7 meeting). According
to the mayor’s deposition testimony, he reasoned that a closed session would be
“appropriate based on the … negotiations that were ongoing” because “Tyco had a
vested interest in what option is most economical for them, the town had their own
interest, the City of Peshtigo had some involvement with prior reports, and
[Marinette] had [its] own concern and interests, and it all came down to money.”

¶16 On October 6, 2020, public notice of the October 7 meeting was
posted. That notice announced that the Council would conduct a “discussion with
legal counsel regarding the status of [the] water supply alternative analysis.”
According to the minutes, when the October 7 meeting began, the Council moved
immediately after role call to convene in closed session without any discussion on
the record. Once the Council convened in closed session, the record reveals that
the mayor gave a brief introduction and “set the context” of the meeting, and Kent

7
The contents of the R/M Memo are not relevant to the issues on appeal.

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No. 2024AP51

and the R/M representative then presented the phase one analysis, including “a
synopsis of the technical and water quality issues along with the economic and
political issues.” According to the R/M representative’s deposition:

[Kent] talked about [what] the focus of the study w[as], to
look at the conclusions of the [RAOR], were they
reasonable, were there any other items from the [RAOR]
that were missing, for example, items such as fire
protection and water quality, and then how the report, you
know, talked about implications … for [Marinette]
associated with the alternatives or what the implications for
the city were for the alternatives.

And then [the R/M representative] followed up with
taking a deeper look at each of the alternatives one by one.

¶17 The R/M representative stated that Kent also “raised some liability
issues” surrounding Marinette providing water to Peshtigo, but Kent’s discussion
“wasn’t a legal analysis.” Both presentations were interactive, with the Council
members asking Kent and the R/M representative questions. Oitzinger explained
at his deposition that this was a “very high-level kind of summary type of
discussion. [We w]eren’t digging down very deep at that point.” Based on the
record, the R/M representative did not discuss what R/M thought was the best way
to provide water to Peshtigo. Ultimately, the Council voted unanimously to
adjourn the meeting without taking any further action.

¶18 Pursuant to WIS. STAT. § 19.97(1), Oitzinger filed a verified
complaint with the Marinette County District Attorney, alleging that the October 6
and 7 closed sessions were illegal. The district attorney declined to prosecute the
alleged violations. See § 19.97(4).

¶19 Oitzinger, acting on “his … relation in the name, and on behalf, of”
the State of Wisconsin pursuant to WIS. STAT. § 19.97(4), then filed this action

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against Marinette and the Council. Thereafter, the parties filed cross-motions for
summary judgment.

¶20 After a nonevidentiary hearing, the circuit court issued a written
decision granting in part and denying in part the parties’ motions. The court found
no genuine issues of material fact. As to the October 6 meeting, the court
reasoned that the donation agreement involved ongoing negotiations and because
“the Council had not seen the document, no one could predict their reaction to it;
they could have found it unacceptable and wanted more money, or different terms
and conditions.” Thus, the court concluded that it was proper to discuss the
donation agreement in closed session. In terms of the October 7 meeting, the court
reached the opposite conclusion. According to the court, providing water to
Peshtigo “was a potential problem for [Marinette] in the future, but there were no
negotiations or bargaining position to protect at the time of the meeting.”

¶21 The circuit court also declined to award attorney fees to Oitzinger,
stating only that “[t]he [c]ourt is not going to award attorney fees or costs to either
side given the split [d]ecision.” The court dismissed Oitzinger’s complaint as to
the October 6 meeting and granted judgment against Marinette as to the October 7
meeting. Oitzinger appeals; Marinette cross-appeals.8

8
We held oral argument in this case on January 7, 2025. The Wisconsin Freedom of
Information Council, the Wisconsin Newspaper Association, the Wisconsin Broadcasters
Association, and the Society of Professional Journalists all filed a collective amicus brief in this
case. Counsel for the amici also attended oral argument and made a short statement.

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DISCUSSION

I. WISCONSIN STAT. § 19.85(1)(e)

¶22 Wisconsin’s Open Meetings Law is designed to ensure transparency
and accountability to the electorate by providing the public with the right to attend
meetings of governmental bodies so the public may have “the fullest and most
complete information regarding the affairs of government as is compatible with
the conduct of governmental business.” WIS. STAT. § 19.81(1). Further, “[t]o
implement and ensure th[is] public policy,” the law provides the unmistakable
directive that “all meetings of all state and local governmental bodies shall be
publicly held in places reasonably accessible to members of the public and shall
be open to all citizens at all times unless otherwise expressly provided by law.”
Sec. 19.81(2) (emphasis added). Importantly, we are to “liberally construe[]” this
directive “to achieve the purposes set forth in this section.” Sec. 19.81(4).

¶23 WISCONSIN STAT. § 19.83(1) directs that “[e]very meeting of a
governmental body shall be preceded by public notice as provided in [WIS. STAT.
§] 19.84, and shall be held in open session.” (Emphasis added.) This subsection
further explains that “all discussion shall be held and all action of any kind, formal
or informal, shall be initiated, deliberated upon and acted upon only in open
session except as provided in [WIS. STAT. §] 19.85.” Sec. 19.83(1). However, the
Open Meetings Law also contains eleven exemptions to the general rule that all
meetings are to remain open. Sec. 19.85 (1)(a)-(h). Our supreme court has stated
that courts should strictly construe these exemptions. State ex rel. Hodge v. Town
of Turtle Lake, 180 Wis. 2d 62, 71, 508 N.W.2d 603 (1993).

¶24 The parties agree that the exemption at issue in this case is WIS.
STAT. § 19.85(1)(e), which provides that “[a] closed session may be held

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for … the following purpose[]”: “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.”9 (Emphasis added.) For ease of reading, we will at times refer to WIS.
STAT. § 19.85(1)(e) in this decision as “the bargaining exemption.” Our role is to
interpret the bargaining exemption and apply it to the circumstances of this case.
Given that the parties do not dispute the material facts, only questions of law are
before us on appeal, which we review de novo. See Milton, 300 Wis. 2d 649, ¶5.

¶25 In this case, the circuit court granted partial summary judgment to
each of the parties. Appellate courts “review a grant or denial of summary
judgment independently, applying the same standard employed by the
[circuit court], while benefitting from [its] discussions.” Westmas v. Creekside
Tree Serv., Inc., 2018 WI 12, ¶16, 379 Wis. 2d 471, 907 N.W.2d 68. “Summary
judgment is appropriate only when there is no genuine dispute of material fact and
the moving party has established his or her right to judgment as a matter of law.”
Id.; see also WIS. STAT. § 802.08(2).

¶26 This court previously had occasion to determine the meaning of the
bargaining exemption in Milton, and we therefore begin with the foundation that
has already been laid for us in that case. There, the City of Milton held ten closed
meetings concerning United Cooperative, L.L.C.’s (hereinafter, United Coop)
interest in building an ethanol plant in the city. Milton, 300 Wis. 2d 649, ¶2. The
minutes from the closed sessions reflected that the following items were

9
The parties further confirmed at oral argument that the relevant provision of WIS. STAT.
§ 19.85(1)(e) is “conducting other specified public business.”

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discussed: negotiations to build the plant and purchase land, possible problems
associated with having an ethanol plant in the community, and other possible
projects for Milton’s industrial park. Id. “At the final meeting, Milton approved a
[d]eveloper’s [a]greement between Milton and United Coop.” Id. After these
plans became public, the plaintiff brought an action alleging a violation of the
Open Meetings Law. Id., ¶3. The parties filed cross-motions for summary
judgment, and the circuit court granted summary judgment to Milton. Id.

¶27 Ultimately, the Milton court concluded “that the reasons Milton
articulated for closing the entirety of its meetings regarding the proposed ethanol
plant do not satisfy the requirements under WIS. STAT. § 19.85(1)(e),” and,
therefore, “Milton’s competitive or bargaining reasons did not require closed
sessions for the entirety of its meetings discussing the proposed ethanol plant.”
Milton, 300 Wis. 2d 649, ¶12. We began our analysis by citing State ex rel.
Journal/Sentinel, Inc. v. Pleva, 151 Wis. 2d 608, 445 N.W.2d 689 (Ct. App.
1989), for the proposition that “the burden is on the governmental body to show
that competitive or bargaining interests require closed sessions
under … § 19.85(1)(e).” Milton, 300 Wis. 2d 649, ¶¶9-10. Citing Pleva, we
further explained that “[m]erely stating that the meetings would involve
competitive or bargaining issues is a blanket approach in closing
such … sessions.” Milton, 300 Wis. 2d 649, ¶9 (alteration in original; citation
omitted). Rather than employing such a blanket approach, we stated that the
record should “reflect the [governmental body’s] basis for determining that their
meetings fell within the exemption delineated in [§] 19.85(1)(e).” Milton, 300
Wis. 2d 649, ¶9 (citation omitted).

¶28 As relevant to the issues here, we next considered the definition of
the word “require” in WIS. STAT. § 19.85(1)(e). Milton, 300 Wis. 2d 649, ¶14.

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We acknowledged that the word was not defined under the statutes, and we
therefore applied the “common definition.” Id.; see also State ex rel. Kalal v.
Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
According to this court, “‘Require’ is defined as: ‘To have as a requisite: NEED’;
‘To call for as appropriate: DEMAND’; ‘To impose an obligation on: COMPEL’;
and ‘To command: order.’” Milton, 300 Wis. 2d 649, ¶14 (citation omitted).
Accordingly, we explained that “[t]he legislature’s choice of the word
‘require’ … connotes its intent to limit the ex[em]ption under § 19.85(1)(e) to
those situations where the government’s competitive or bargaining reasons leave
no other option than to close meetings.” Milton, 300 Wis. 2d 649, ¶14. Thus, we
explained that “a government may have a valid reason for desiring to close its
meetings that nevertheless fails to establish closed meetings are required.” Id.

¶29 We then addressed the parties’ specific arguments. In particular, we
addressed Milton’s argument “that it was allowed to close all meetings concerning
the ethanol plant for fear of losing United Coop to another municipality.” Id., ¶15.
We noted, however, that “[t]here is no indication that holding closed meetings
deterred United Coop from seeking a better financial package from some other
municipality.” Id. Similarly, Milton’s asserted interest in keeping negotiations to
purchase land secret also did not justify its closed meetings. Id., ¶16. According
to this court, “[p]ossible competition … did not justify closed meetings.” Id. We
went on to explain that “even if secrecy somehow deterred competition from other
municipalities,” it was “not apparent that such a reason would support holding
closed meetings.” Id., ¶17. We further explained that “[p]ermitting the governed
to express opinions about prospective purchases may be time consuming,
frustrating, counterproductive and might increase costs. But the Wisconsin
legislature has decided that complete information regarding the affairs of

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government is the policy of Wisconsin.” Id. Saving costs alone does not justify
“closing the door to public scrutiny.” Id.

¶30 We also were not persuaded by Milton’s argument that it included
contingencies in the final approval of the ethanol plant development to allow for
public input. Id., ¶18. We explained that there was no statutory provision
allowing the city to overcome the requirements of WIS. STAT. § 19.85(1) by
including the opportunity for future public input. Milton, 300 Wis. 2d 649, ¶18.

¶31 Finally, we stated that revealing a negotiation strategy could qualify
under WIS. STAT. § 19.85(1)(e). As we explained,

Developing a negotiation strategy or deciding on a price to
offer for a piece of land is an example of what is
contemplated by “whenever competitive or bargaining
reasons require a closed session.” However, just because
those concerns were present for portions of some of the
meetings does not mean the entirety of the meetings fell
within the narrow ex[em]ption under § 19.85(1)(e).

Milton, 300 Wis. 2d 649, ¶19. Accordingly, we determined that Milton was not
“justified in closing all parts of all meetings concerning the proposed ethanol plant
based on the reasons it ha[d] asserted.” Id.

¶32 We are bound by this court’s decision in Milton. See Cook v. Cook,
208 Wis. 2d 166, 185-90, 560 N.W.2d 246 (1997) (the court of appeals is bound
by published decisions of the court of appeals). As noted above, the Milton court
interpreted the meaning of the word “require” as used in the bargaining exemption
and determined that it was intended “to limit the ex[em]ption … to those situations
where the government’s competitive or bargaining reasons leave no other option
than to close meetings.” Milton, 300 Wis. 2d 649, ¶14 (emphasis added). We are

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bound by this definition, and it is the standard that we must apply to the facts of
this case.

¶33 The parties do not question the meaning of the remainder of the
terms in the bargaining exemption. Further, the parties opined at oral argument
that the bargaining exemption is not ambiguous, and we agree. Using the accepted
dictionary meanings of the words “whenever,” “competitive,” and “bargaining,”10
we conclude that the plain language of the text at issue in this case provides that a
closed session may be held to conduct other specified public business at any or
every time that negotiating the terms of a contract or transaction is involved,
including competing for more favorable terms, such that those circumstances leave
no other option than to close the meeting.

¶34 The implication of the bargaining exemption is that the closed
session must be necessary to protect the public’s competitive or bargaining
interests. Further, the Milton court’s decision, as well as the fact that WIS. STAT.

10
“Whenever” is defined as “at any or every time that,” which is a very broad definition
suggesting no limitation. Whenever, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/whenever (last visited Feb. 7, 2025); see also State v. Boyd, 2012 WI
App 39, ¶7 n.2, 340 Wis. 2d 168, 811 N.W.2d 853 (defining “[w]henever” as “at any or all times”
or “in any or every instance”). “Competitive” is defined as “relating to, characterized by, or
based on competition,” Competitive, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/competitive (last visited Feb. 7, 2025), and “competition” is defined as
“the act or process of competing: RIVALRY: such as” “the effort of two or more parties acting
independently to secure the business of a third party by offering the most favorable terms,”
Competition, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-
webster.com/dictionary/competition (last visited Feb. 7, 2025); see also Competitive Advantage,
BLACK’S LAW DICTIONARY (12th ed. 2024) (“The potential benefit from information, ideas, or
devices that, if kept secret by a business, might be economically exploited to improve the
business’s market share or to increase its income.”). “Bargaining,” in contrast, is defined as
“[d]iscussion for the purpose of reaching an agreement about a contract, sale, deal, etc.;
[specifically], the process of negotiating the terms of a contract or transaction.” Bargaining,
BLACK’S LAW DICTIONARY (12th ed. 2024).

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§ 19.85(1)(e) uses the term “required,” illustrates that the language of the
bargaining exemption does not support having a closed session where the
competitive or bargaining reasons are speculative or merely helpful, rational,
appropriate, or justified based on the government body’s preference. See Milton,
300 Wis. 2d 649, ¶16.

¶35 Furthermore, as relevant to this appeal, the Open Meetings Law
contains two procedural requirements for closed sessions. First, WIS. STAT.
§ 19.84(1) provides that “[p]ublic notice of all meetings of a governmental body
shall be given” “[b]y communication from the chief presiding officer of a
governmental body or such person’s designee to the public,” and § 19.84(2) states
that the public notice “shall set forth the time, date, place and subject matter of the
meeting, including that intended for consideration at any contemplated closed
session, in such form as is reasonably likely to apprise members of the public and
the news media thereof.”11

¶36 The second requirement is found in WIS. STAT. § 19.85(1), which
provides:

Any meeting of a governmental body, upon motion duly
made and carried, may be convened in closed session under
one or more of the exemptions provided in this section.
The motion shall be carried by a majority vote in such
manner that the vote of each member is ascertained and
recorded in the minutes. No motion to convene in closed
session may be adopted unless the chief presiding officer
announces to those present at the meeting at which such
motion is made, the nature of the business to be considered
at such closed session, and the specific exemption or
exemptions under this subsection by which such closed

11
In this case, the record reflects that Marinette’s mayor created the public notices.
There is no dispute that the public notices for both the October 6 and the October 7 meetings
complied with the terms of WIS. STAT. § 19.84; thus, we will not discuss the notices further.

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No. 2024AP51

session is claimed to be authorized. Such announcement
shall become part of the record of the meeting. No
business may be taken up at any closed session except that
which relates to matters contained in the chief presiding
officer’s announcement of the closed session.

¶37 Based on these requirements, we conclude that all meetings, and
discussions at all meetings, must begin in open session. We reach this conclusion
based, first, on the provisions of WIS. STAT. §§ 19.81(2) and 19.83(1), which
unequivocally state that meetings of governmental bodies “shall” be held in open
session. See State v. Cox, 2018 WI 67, ¶11, 382 Wis. 2d 338, 913 N.W.2d 780
(“The general rule is that the word ‘shall’ is presumed mandatory when it appears
in a statute.” (citation omitted)). For this reason, the default status is that
governmental body meetings and all discussions at such meetings are open to the
public. Further, the language of WIS. STAT. § 19.85(1) requires that the chief
presiding officer announce “to those present at the meeting … the nature of the
business to be considered at such closed session, and the specific exemption or
exemptions under this subsection by which such closed session is claimed to be
authorized.” (Emphasis added.) The “announcement” becomes “part of the
record of the meeting,” and “no motion to convene in closed session may be
adopted unless” that announcement occurs on the record. Id. Accordingly, if at
least some discussion is not held on the record regarding a proposed closed
session, the governmental body fails to comply with § 19.85(1).12

¶38 The Milton court’s holding and the natural consequence of that
decision also support our conclusion that all discussions must begin in open

12
Our statement here is not intended to suggest or describe exactly what information
must be provided during an open session to establish a basis for a governmental body’s vote and a
closed session. That issue is not before us, as no attempt was made to provide that information in
open session in either of the meetings at issue.

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No. 2024AP51

session. In Milton, we reiterated that the burden was on the governmental body
“to show that competitive or bargaining interests require closed sessions,” and we
specifically rejected a “blanket approach” to closing sessions. Milton, 300
Wis. 2d 649, ¶10 (emphasis added). Then, we limited the bargaining exemption
“to those situations where the government’s competitive or bargaining reasons
leave no other option than to close meetings,” and we clarified that “a valid reason
for desiring to close” a meeting is not sufficient to “establish [that] closed
meetings are required.” Id., ¶14. Lastly, the Milton court confirmed that even
when there is a demonstrated “competitive or bargaining reason[] [to] require a
closed session,” that fact “does not mean the entirety of the meetings fell within
the narrow ex[em]ption under [WIS. STAT. §] 19.85(1)(e).” Id., ¶19. Thus, Milton
contemplates and supports the idea that the governmental body must begin its
discussions in an open session, place the initial discussion of the subject matter on
the record, and clarify why a specific topic within that discussion requires a closed
session prior to voting to go into closed session.

¶39 Marinette, in contrast, presents several challenges to our initial
interpretation of the bargaining exemption. First, Marinette disputes Oitzinger’s,
and now our, assertion that we are bound by Milton. Marinette argued during oral
argument that we are “not bound by [Milton’s] language” because we need not
overrule, modify, or withdraw Milton’s holding, we need only “clarify and add to
Milton.” According to Marinette, the Milton court merely stated the dictionary
definitions of “require,” but then it failed to actually choose one of those
definitions. Instead, Marinette claims that the “‘no other option’ [language] was
intended as another way of stating the uncontroversial principle that ‘requires’ is
not synonymous with ‘desire.’” Marinette also faults the Milton decision for “not

19
No. 2024AP51

delineat[ing] which portions of which meetings were properly closed” and for
failing to “determine what qualifies as a ‘competitive or bargaining’ reason.”13

¶40 We disagree with Marinette’s above-stated position that Milton’s
definition of “require” is not binding precedent. Milton’s use of the phrase “no
other option,” see Milton, 300 Wis. 2d 649, ¶14, was not, as Marinette argues,
merely another way to say that “‘requires’ is not synonymous with ‘desire.’” The
“no other option” language was the court’s answer to the meaning of the word
“require.” Id. We are not persuaded by Marinette’s strained attempt to argue
around the Milton court’s statutory interpretation.

¶41 Relatedly, Marinette seeks to apply a different definition of
“require” to the bargaining exemption than that determined by the Milton court.
Marinette argues that

“whenever competitive or bargaining reasons require a
closed session” means something similar to “anytime a
rational justification renders closed session sufficiently
appropriate to be more compelling than a desire, provided
the justification is not speculative and arises from either
(1) competition with other entities seeking the same
business or (2) bilateral discussions regarding the terms of
an agreement affecting their relationship.”

(hereinafter, the rational justification definition). Marinette also contends that the
definition “‘to call for as suitable or appropriate’ … is the closest approximation
of ‘require’ because it is easily harmonized with the … Milton formulation.” It
13
Marinette also argues that the language of the bargaining exemption has changed from
“which for competitive or bargaining reasons require closed sessions” to “whenever competitive
or bargaining reasons require a closed session.” Compare WIS. STAT. § 14.90(3)(d) (1959-60)
and WIS. STAT. § 66.77(4)(d) (1973-74) with WIS. STAT. § 19.85(1)(e) (1975-76); see also 1975
Wis. Act. 426 (July 1, 1976). However, Marinette does not explain how the different language
would change the analysis. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992) (we need not address undeveloped arguments).

20
No. 2024AP51

also postulates that “[a] non[]mandatory construction” of the term “require” “is
not unique, as other courts have interpreted ‘require’ as meaning something less
than absolute necessity.”

¶42 We cannot accept Marinette’s alternative definitions. Although
Marinette stated at oral argument that it was not asking us to overturn Milton,
asking us to apply a different definition to the word “require” would be, at best, a
modification of Milton, which is something we cannot do. See Wisconsin Voter
All. v. Secord, 2025 WI 2, ¶¶32-33, __ Wis. 2d __, __ N.W.3d __ (citing Cook,
208 Wis. 2d at 190). Regardless, we believe the Milton court applied an
appropriate definition, given the plain language and stated statutory purpose. The
Milton court considered a spectrum of definitions of the word “require.” Milton,
300 Wis. 2d 649, ¶14. The court could have chosen, as Marinette advocates, the
broadest or the most permissive definition of the word, but the court appropriately
chose the most restrictive definition. See id.; see also Hodge, 180 Wis. 2d at 71.

¶43 In terms of Marinette’s proposed rational justification definition, we
note that when asked about this definition at oral argument, Marinette did not
appear to continue to support that theory, advocating instead for another theory.
See infra ¶44. Regardless, Marinette’s rational justification definition includes
terms not found in the bargaining exemption, and if we were to accept that
reading, we would be impermissibly adding words to the statute that the
legislature did not see fit to include. See, e.g., Fond Du Lac County v. Town of
Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989) (“One of the
maxims of statutory construction is that courts should not add words to a statute to
give it a certain meaning.” (citation omitted)); see also State v. Wiedmeyer, 2016
WI App 46, ¶13, 370 Wis. 2d 187, 881 N.W.2d 805 (“It is not up to the courts to
rewrite the plain words of statutes ….”).

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No. 2024AP51

¶44 Instead of the rational justification definition, Marinette advocated at
oral argument, and for the first time on appeal, for “a multifactor test for objective
reasonableness.” According to Marinette, those factors would include the
following: (1) what was to be discussed at the meeting; (2) what was at stake;
(3) did the governmental body wish to confer with legal counsel; (4) what did the
governmental body know at the time the closed session was noticed and convened;
(5) were there identifiable competitive or bargaining concerns or were there
identifiable parties on the sidelines; (6) was the decision to notice a closed session
made by an elected official; (7) were negotiations active, reasonably anticipated,
or merely possible; and (8) a rebuttable presumption of good faith. According to
Marinette, its proposed test is appropriate because “this is the kind of test that was
adopted in” State ex rel. Buswell v. Tomah Area School District, 2007 WI 71,
301 Wis. 2d 178, 732 N.W.2d 804.

¶45 We reject Marinette’s suggestion that we adopt a reasonableness test
for WIS. STAT. § 19.85(1)(e). Initially, given that Marinette failed to raise this
argument until oral argument, we could refuse to reach the issue based on the
forfeiture rule. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492,
588 N.W.2d 285 (Ct. App. 1998). Nevertheless, we will address Marinette’s
assertion. Marinette’s primary impetus for advocating for a reasonableness test is
its belief that the bargaining exemption represents an inherent exercise of
discretion—a point that Oitzinger does not dispute. We also agree that the
bargaining exemption represents an exercise of discretion: a governmental entity
must determine whether, under the particular circumstances, a closed session is

22
No. 2024AP51

required, meaning that there is no other option.14 However, the governmental
entity’s use of a multi-factor reasonableness test in the exercise of its discretion is
unsupported by the statutory text.

¶46 For that reason, Marinette’s citation to Buswell is unavailing. In
Buswell, our supreme court determined “that the plain meaning of WIS. STAT.
§ 19.84(2) [(2003-04)] sets forth a reasonableness standard.” Buswell, 301
Wis. 2d 178, ¶3. Importantly, § 19.84(2) provides, in relevant part, that “[e]very
public notice of a meeting of a governmental body shall set forth the time, date,
place and subject matter of the meeting … in such form as is reasonably likely to
apprise members of the public and the news media thereof.” (Emphasis added.)
As the court explained, “The use of the word ‘reasonably’ suggests a balancing of
factors.” Buswell, 301 Wis. 2d 178, ¶22. The bargaining exemption, in contrast,
does not contain the word “reasonably,” see WIS. STAT. § 19.85(1)(e), and,
therefore, a reasonableness test is unsupported.

¶47 Finally, Marinette relies heavily on Friends of Frame Park, U.A. v.
City of Waukesha, 2022 WI 57, 403 Wis. 2d 1, 976 N.W.2d 263, in support of its
position that the Council properly applied the bargaining exemption.15 In Friends
14
WISCONSIN STAT. § 19.85(1) also provides that a meeting “may be convened” and
“may be held” in closed session under one or more of the enumerated exemptions. “The use of
the word ‘may’ in a statute implies discretionary authority.” Liberty Grove Town Bd. v. Door
Cnty. Bd. of Supervisors, 2005 WI App 166, ¶10, 284 Wis. 2d 814, 702 N.W.2d 33. In other
words, even if the statutory requirements for conducting a closed meeting are met, a
governmental body may still opt to hold that meeting in an open session.
15
Marinette also argues that its case is analogous to State ex rel. Herro v. Village of
McFarland, 2007 WI App 172, 303 Wis. 2d 749, 737 N.W.2d 55. In that case, the Village of
McFarland and the Town of Dunn were accused of violating the Open Meetings Law when their
joint committee created an agreement in a closed meeting. Id., ¶1. The town was in negotiations
with property owners to purchase their properties, and the town was concerned that if the property
owners knew the concessions the town was willing to make to the village, they would stop
negotiating with the town and begin negotiating with the village instead. Id., ¶4.
(continued)

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No. 2024AP51

of Frame Park, the plaintiff requested that the City of Waukesha release certain
records under Wisconsin’s Public Records Law relating to the city’s plans to bring
amateur baseball to Frame Park. Id., ¶¶5-7. The city released all requested
documents, except a draft contract. Id., ¶6. The city said it withheld the contract
to protect the city’s “negotiating and bargaining position,” pursuant to WIS. STAT.
§ 19.85(1)(e), until the common council had acted on the contract. Friends of
Frame Park, 403 Wis. 2d 1, ¶6. The plaintiff responded with an action under
WIS. STAT. § 19.37(1), seeking release of the draft contract as well as attorney fees
and other expenses. Frame Park, 403 Wis. 2d 1, ¶7. The city eventually released
the draft contract after a common council meeting, and the plaintiff amended its
complaint to seek an order stating that the draft contract was improperly withheld.
Id., ¶¶6-9.

¶48 Our supreme court released a divided opinion in the case. Justice
Brian Hagedorn authored the lead opinion, which reached a majority conclusion
on the issue of attorney fees. Id., ¶3. The court was not able to reach a majority
on the issue of “whether the [c]ity properly withheld the draft contract until after
the [c]ommon [c]ouncil meeting,” as Justice Rebecca Bradley’s concurrence
argued that the issue was moot. Id., ¶¶12, 43 (R. G. Bradley, J., concurring).

¶49 Nevertheless, Marinette argued at oral argument that the lead
opinion and the dissent in Friends of Frame Park supported its position that

We conclude that this case is materially distinguishable from Herro on its facts because
the Herro court never analyzed whether the town had a competitive or bargaining reason that
required a closed session. This court assumed the reason existed, ruling that “[i]t is … not
inconsistent with the open meetings law for a body to move into closed session under WIS. STAT.
§ 19.85(1)(e) when the bargaining position to be protected is not shared by every member of the
body,” without determining whether protection of the bargaining position was required. Herro,
303 Wis. 2d 749, ¶17. Herro does not help Marinette’s position.

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No. 2024AP51

Milton’s “no other option” language is too “narrow.” According to Marinette’s
reading of the decision, Justice Hagedorn’s lead opinion suggested that the
common council members’ “initial reactions [and] initial discussions to a proposal
justify a closed session.” We disagree with Marinette’s proposition.

¶50 First, Friends of Frame Park did not overrule Milton. Instead, the
lead opinion positively cited Milton in support of the proposition that “[i]t is not
uncommon for the state or local municipalities to negotiate certain contracts in
private, especially in competitive business environments.” Friends of Frame
Park, 403 Wis. 2d 1, ¶33. Second, Friends of Frame Park was a Public Records
Law case, not an Open Meetings Law case. Further, there was no majority
opinion on the issue of whether the draft contract was properly withheld.
Therefore, at best, Friends of Frame Park qualifies as persuasive authority.

¶51 Third, we do not read Friends of Frame Park like Marinette. The
lead opinion clearly supported the idea that while “[t]here is good reason for the
public to know how government spends public money,” “contract negotiation
often requires a different calculus.”16 Id., ¶33. We agree that different

16
Justice Jill Karofsky’s dissent, which Marinette references, explained:

[T]he City argues that the Council’s reactions to the proposed
contract terms would weaken its ability to further negotiate terms
with Big Top. But if the City wanted to hide the Common
Council’s reactions to proposed contract terms, the solution was
to have the Common Council go into a closed session, not
withhold disclosure of the proposed contract Big Top had
already seen and red-lined. In short, no qualifying competitive
or bargaining concerns regarding the proposed contract exist in
the record.

(continued)

25
No. 2024AP51

circumstances may require different levels of secrecy to protect a competitive or
bargaining position, especially when contract negotiation is involved. Our
conclusion in this case states (we think, uncontroversially) that the plain language
of the statute requires that the decision to enter into closed session be made with
actual knowledge of the circumstances and the interests requiring secrecy. Under
Milton and Friends of Frame Park, negotiating the terms of a contract is well
within the boundaries of the bargaining exemption, but nothing in Friends of
Frame Park overturns Milton’s holding that “just because [competitive or
bargaining] concerns were present for portions of some of the meetings does not
mean the entirety of the meetings fell within the narrow ex[em]ption under [WIS.
STAT.] § 19.85(1)(e).”17 See Milton, 300 Wis. 2d 649, ¶19.

II. October 6 meeting

¶52 Now that we have determined the meaning of the bargaining
exemption, the next question is whether Marinette met its burden of proving that
competitive or bargaining interests required a closed session at the October 6
meeting. See Milton, 300 Wis. 2d 649, ¶10. Based on our review of the

Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, ¶134, 403 Wis. 2d 1, 976
N.W.2d 263 (Karofsky, J., dissenting). The dissent did not specifically analyze the bargaining
exemption under this hypothetical scenario. Regardless, we do not agree that this discussion
supports Marinette’s argument that the possibility that a discussion may invoke “reactions”
always justifies a closed session.
17
We pause here briefly to note that the amici “urge [us] to reject Marinette’s attempt to
greatly expand the [b]argaining ex[em]ption to Wisconsin’s Open Meetings Law.” We agree
with their contention that the Open Meetings Law supports “[r]obust access to government
information [which] promotes democracy, and courts must strictly construe any limitation upon
that access. When deliberations occur in public view, it also puts pressure on officials to act
ethically, justify their positions, and be accountable to those they serve.”

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No. 2024AP51

circumstances in this case, we conclude that Marinette failed to comply with the
provisions of the Open Meetings Law.

¶53 As noted above, the circuit court concluded that the bargaining
exemption “fits the facts of the” October 6 meeting because the “Council saw the
proposed donation agreement for the first time” and “had a chance to discuss it
with legal counsel and voice their concerns and objections, including the amount
of Tyco’s donation.” According to the court, “no one could predict [the
Council’s] reaction to [the donation agreement]; they could have found it
unacceptable and wanted more money, or different terms and conditions.”
Relying on Friends of Frame Park for persuasive authority, the court found that
our supreme court’s logic in that case “applie[d] here”: “Defendants had a right to
vet this agreement in closed session with counsel without the other party, Tyco,
there.” Further, the court explained that “the donation agreement was not final or
binding until the Council approved it in open session,” see WIS. STAT. § 62.11(5)
(the common council has the power to act on behalf of the city), and it was
“proper to discuss [the donation agreement] in closed session” because Tyco
representatives were present at the October 6 meeting.

¶54 We conclude that the circuit court erred by determining that the
October 6 meeting’s discussion was properly held entirely in closed session. First,
the October 6 meeting’s discussion of the donation agreement did not begin in
open session, in violation of the law. Based on our review of the minutes, the
October 6 meeting involved several agenda items. While the October 6 meeting
itself began in open session, it does not appear that the discussion of the donation
agreement began, or was at least introduced, in open session, meaning that no
discussion of the reasons for going into closed session occurred before the Council
immediately voted to convene in closed session. This omission is important

27
No. 2024AP51

because it is undisputed that the Council had never seen a draft of the donation
agreement and had no idea about the terms of that contract. Thus, the Council had
no basis to conclude that a closed session was “require[d]” or to ascertain whether
“the nature of the business to be considered” qualified “under one or more of the
exemptions provided” in WIS. STAT. § 19.85(1)(a)-(h). As this court made clear in
Milton, the governing body must establish a clear record of the nature of the items
to be discussed to justify a vote to enter into a closed session. Milton, 300 Wis. 2d
649, ¶9 (citing Pleva, 151 Wis. 2d at 616).

¶55 Moreover, the information that the Council was aware of at the time
it voted to convene in closed session failed to meet the standard of the bargaining
exemption. Again, the Council lacked any information beyond what the mayor
had provided in the meeting notice: “negotiations and review of an agreement
with … Tyco regarding bio-solid equipment.” Without at least a general overview
of the substance of the donation agreement and the status of the donation
agreement negotiations, the Council was unable to properly determine whether
“competitive or bargaining reasons require[d] a closed session,” see WIS. STAT.
§ 19.85(1)(e), such that those “reasons [left] no other option than to” convene in
closed session, see Milton, 300 Wis. 2d 649, ¶14.

¶56 To that point, we agree with the reasoning of Oitzinger’s arguments
on appeal. He makes the following points:

Marinette was not in a position where it had “no other
option” but to hold its meeting secretly. The Council could
have explained the background of the problem in open
session—Tyco was aware of the problem. They could have
explained the terms of the agreement in open session—
Tyco was aware of those terms. They could have explained
how the equipment worked in open session—that would
not harm their bargaining position. They could have
discussed their increased disposal costs in open session—
Tyco was aware of those, having previously paid for

28
No. 2024AP51

disposal of the first load of contaminated biosolids in
Oregon.

…. The Council could have discussed the proposal in
open session and if somebody suggested making a
counter[]offer, then gone into closed session to develop a
negotiation strategy. The only significant difference
between Milton and this case was that Milton did discuss
its negotiation strategies, and those discussions were
properly held in closed session. The … Council never
discussed a negotiation strategy, so none of its discussions
were appropriate for closed session.

¶57 Even if the mayor and Kent had presented to the Council what they
knew and why they believed that a closed session was required, the specific facts
of this case reveal the fallacy of their belief. Prior to the October 6 meeting, the
mayor and Kent both knew that the entirety of the discussion that day would not
be devoted to negotiating the terms of the donation agreement. Kent had already
been negotiating the terms of the donation agreement with Tyco for months
without involving the Council, and his position was that the agreement was final
and all that remained was for the Council to vote to approve it. This fact is
demonstrated by Kent’s response when Oitzinger asked about Marinette’s added
expenses and whether “Marinette should ask for more money [from Tyco] to cover
those increased ongoing costs.” Kent told Oitzinger “that they had finished
negotiating and they believed this was the best deal they could get.”

¶58 Instead, as Oitzinger suggested, at the October 6 meeting, the
Council could have learned the background of the biosolids problem, learned the
terms of the donation agreement, learned how the equipment worked, and they
could have discussed Marinette’s increased disposal costs all in open session.
That information was not, or should not have been, secret. In fact, the citizens
who were now dealing with serious concerns about PFAS in their water supply
and the municipality’s costs to clean them up at taxpayer cost had a right to know

29
No. 2024AP51

this information. See Buswell, 301 Wis. 2d 178, ¶26 (“[T]he government must be
accountable to the governed. It must be accountable to the people who underwrite
government finances and provide its legitimacy. Having access to information
about the workings of government undercuts arguments of subterfuge and
ultimately promotes public trust and confidence.”); WIS. STAT. § 19.81(1).

¶59 Further, the above information did not need to be kept secret from
Tyco to protect Marinette’s bargaining position. Kent had already negotiated this
contract with Tyco on his own for four months. Tyco was aware of the PFAS
problem, it was aware of the terms of the donation agreement because it
participated in drafting the contract, and it would have been well aware that the
PFAS problem was going to cost everyone a lot of money, now and in the future.
Thus, Marinette was not in a position where it had “no other option” but to hold its
entire discussion of the donation agreement in closed session. See Milton, 300
Wis. 2d 649, ¶14.

¶60 To further demonstrate the necessity of the result reached here, we
must recognize what the members of the public who attended the October 6
meeting would have experienced. Without any discussion, the public would have
seen the Council vote to convene in a closed session, while having no concept of
what was to be discussed and why—other than what was contained in the notice.
The Council would have then come out of closed session and immediately taken a
vote on an unknown action item, with the public being told only that it was about
biosolids equipment. Any member of the participating electorate would have felt
confused and uninformed, which is in clear violation of the spirit, if not the letter,
of the Open Meetings Law. See WIS. STAT. § 19.81(1).

30
No. 2024AP51

¶61 Nevertheless, we are cognizant that the Council might have had
concerns about public discussion of the donation agreement itself, given that the
members had not previously seen a draft of that agreement. As Marinette argues,
the Open Meetings Law “does not mandate clairvoyance.” Under these
circumstances, it would have been reasonable to anticipate that a counteroffer to
Tyco and a negotiation strategy might have been on the table for discussion.
However, as Milton held, “just because those concerns were present for portions
[of] the meeting[] does not mean the entirety of the meeting[] fell within the
narrow ex[em]ption under [WIS. STAT.] § 19.85(1)(e).” See Milton, 300 Wis. 2d
649, ¶19. The possibility that the Council would discuss a counteroffer or a
negotiation strategy did not permit it to conduct the entire discussion of the
donation agreement in closed session.

¶62 Instead, what should have occurred was a more detailed evaluation
by the Council of the actual discussion rather than a blanket approach. The mayor
could have given public notice of a possible closed session—meaning notice that
the Council might go into closed session if a topic involving competitive or
bargaining reasons arose during the open session. Simply because the mayor gave
notice of a closed session, however, does not mean that the Council was required
to convene in closed session. If the Council learned about the donation agreement,
decided it was unhappy with it, and wanted to discuss further negotiations, it could
have voted to convene in closed session to protect its competitive or bargaining
interests.18 If not, then the Council could have immediately moved for a vote on

18
We recognize that the Council could not repeatedly come in and out of closed session
unless proper notice of such action was given. See WIS. STAT. § 19.85(2).

(continued)

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No. 2024AP51

the donation agreement. Or, as the amici argued, the Council could have “set[]
and follow[ed] an agenda.” According to the amici, “[i]t does not require
‘clairvoyance’ to set aside time for a closed session for the limited purpose of
discussing possible negotiation strategy after [Marinette] detailed the terms of a
proposed agreement in open session.”

¶63 Given our above examination, we conclude that the discussion of the
donation agreement at the October 6 meeting was not required to be held entirely
in closed session for competitive or bargaining reasons. Thus, Marinette violated
the Open Meetings Law.

III. October 7 meeting

¶64 We next consider whether the circuit court properly granted
summary judgment to Oitzinger and determined that the October 7 meeting did not
require a closed session. The court reasoned that while it was “not unsympathetic

We also note that we find support for our interpretation in the Wisconsin Open Meetings
Law Compliance Guide. There, when discussing the WIS. STAT. § 19.85(1)(f) exemption—which
addresses financial, medical, social, or personal information about a specific person—the guide
states the following:

[Section 19.85(1)(f)] applies only where a member of a
governmental body has actual knowledge of information that
will have a substantial adverse effect on the person mentioned or
involved. Moreover, the exemption authorizes closure only for
the duration of the discussions about the information specified
in … § 19.85(1)(f).

See WISCONSIN DEP’T. OF JUSTICE, WISCONSIN OPEN MEETINGS LAW COMPLIANCE GUIDE 28
(May 2024),
https://www.doj.state.wi.us/sites/default/files/office-open-government/Resources/OML%20Guide
_2024.pdf. The parties also cite various attorney general opinions discussing § 19.85(1)(e) for
support, but we conclude that we need not rely on those opinions. See City of Madison v. Town
of Fitchburg, 112 Wis. 2d 224, 237, 332 N.W.2d 782 (1983) (“[A]ttorney general opinions are
not controlling precedent ….”).

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No. 2024AP51

to [Marinette’s] position,” providing water to Peshtigo “was a potential problem
for [Marinette] in the future, but there were no negotiations or bargaining position
to protect at the time of the meeting.” Based on our review of the circumstances
surrounding the October 7 meeting, we agree and affirm the court’s conclusion
that Marinette violated the Open Meetings Law.

¶65 As discussed previously, the discussion at the October 7 meeting
involved the well water in the neighboring Town of Peshtigo and R/M’s
independent review of the alternatives presented in the RAOR. This time, neither
the mayor nor the Council had seen the R/M Memo prior to the October 7
meeting. The meeting notice stated generally that the Council would conduct a
“discussion with legal counsel regarding the status of [the] water supply
alternative analysis.” Nevertheless, at the meeting, the Council again immediately
voted to go into closed session without an understanding of what they would be
discussing and why said discussion might be required to be held in closed session.
The Council then conducted the entire discussion of the R/M Memo in that closed
session and voted unanimously to adjourn the meeting without taking any further
action.

¶66 As with the October 6 meeting, the Council violated the Open
Meetings Law, first, by failing to hold any discussions on the record prior to
voting to go into closed session. Again, the Council had no basis by which to
determine that the information that Kent and R/M planned to provide involved
competitive or bargaining interests such that a closed session was required to
protect those interests. Regardless of what was actually discussed during the
October 7 meeting, the Council was not provided sufficient information to assist it
in making a proper determination under WIS. STAT. § 19.85(1)(e).

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No. 2024AP51

¶67 Second, Marinette violated the Open Meetings Law because there
was no competitive or bargaining reason to enter into closed session. It is
undisputed that there were no negotiations between Marinette and Peshtigo, and it
is also undisputed that, at that time, Peshtigo had not even requested that Marinette
provide water to some of its residents. Thus, there were no competitive or
bargaining reasons present, let alone competitive or bargaining reasons that
required a closed session. The record is clear that phase one of R/M’s review was
never meant to facilitate the Council making any decisions about providing water
to Peshtigo.

¶68 Marinette argues, however, that circumstances surrounding
Peshtigo’s well-water concerns made the possibility of future negotiations more
likely. For example, the DNR supported Marinette providing water to Peshtigo;
members of a “PFAS advocacy group” and “steering committee” called SOH20
(“Save Our Water”) had been voted onto Peshtigo’s town board and the Council;
newspaper articles indicated that Peshtigo wanted to open discussions with
Marinette; Peshtigo’s town board hired a law firm to address “legal matters
pertaining to water contamination”; and Peshtigo’s counsel sent Marinette a letter
notifying it that Peshtigo was prepared “to begin discussion … regarding possible
extension of City of Marinette water to certain residents of [Peshtigo].”19

¶69 Initially, we observe that speculation about the possibility of the
need for future negotiations does not provide a basis to close a meeting within the
bargaining exemption. For example, WIS. STAT. § 19.85(1)(g) states that meetings
may be closed if a governmental body is “[c]onferring with legal counsel for the

19
There is no evidence in the record that Marinette responded to Peshtigo’s letter.

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governmental body who is rendering oral or written advice concerning strategy to
be adopted by the body with respect to litigation in which it is or is likely to
become involved.” (Emphasis added.) That paragraph recognizes that meetings
could be closed for the purpose of discussing litigation that “is likely” to occur.
Sec. 19.85(1)(g). Likewise, the bargaining exemption could have easily been
written to include “current or future” competitive or bargaining interests, but it
was not. See Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318,
801 N.W.2d 316 (“We decline to read into the statute words the legislature did not
see fit to write.”).

¶70 Regardless, we disagree that the above facts established that
negotiations were imminent or that Marinette, at this point, had a demonstrated
competitive or bargaining interest to protect. Based on our review of the record, at
the October 7 meeting, the Council heard a summary of the R/M Memo (the
Council did not see the entire memo), and much of the information was already
publicly available in the RAOR. R/M did not even make any recommendations as
to what alternative would be the preferred option for Marinette. It was simply an
information-gathering session.20 The public deserved to know R/M’s conclusions
that Marinette had paid to obtain.

20
Marinette asserts that during the meeting, Kent provided his legal opinion regarding
each of the alternatives and whether they would expose the City to greater liability. According to
Marinette, Kent also fielded questions from the Council “directly related to negotiations.”

(continued)

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¶71 In contrast, Oitzinger concurs with Marinette, and we agree, that if
Marinette had decided to negotiate with Peshtigo to provide water, there would
have been bargaining interests to protect. Like with the October 6 meeting, the
Council should have heard Kent and R/M’s presentation and asked the presenters
questions in an open session. If, however, the Council determined that it wanted
to discuss under what conditions it would offer water to Peshtigo, the Council
could have then moved to go into closed session. It would have been appropriate
to use closed sessions to protect those competitive or bargaining interests by
developing its negotiation strategy—including acceptable terms, limits, or
contingencies—secretly.

¶72 As Oitzinger observes, however, those were not the facts here. At
most, at the time of the October 7 meeting, there was a theoretical possibility that
negotiations might occur in the future. A theoretical possibility is not sufficient
under Milton’s requirement that there be “no other option” but to hold a meeting
in closed session. See Milton, 300 Wis. 2d 649, ¶14.

III. Attorney fees

¶73 The final issue is whether Oitzinger is entitled to his “actual and
necessary costs of prosecution, including reasonable attorney fees” under WIS.

First, Marinette does not cite to the record for these propositions. Regardless,
“[c]onferring with legal counsel for the governmental body who is rendering oral or written
advice concerning strategy to be adopted by the body with respect to litigation in which it is or is
likely to become involved” is addressed in WIS. STAT. § 19.85(1)(g), and Marinette affirmed that
it was not relying on para. (1)(g) to support its position. Furthermore, as noted above, if the
Council had wanted to move to hold specific discussions in closed session after explaining its
basis for determining that the meeting involved information covered by one of the exemptions in
§ 19.85(1), it could have easily done so if the public was given notice of the possibility of a
closed session. See supra ¶62; see also State ex rel. Citizens for Responsible Dev. v. City of
Milton, 2007 WI App 114, ¶9, 300 Wis. 2d 649, 731 N.W.2d 640.

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STAT. § 19.97(4). Section 19.97(4) provides that in actions where a person brings
a complaint under the Open Meetings Law on behalf of the state, “the court may
award actual and necessary costs of prosecution, including reasonable attorney
fees to the relator if he or she prevails, but any forfeiture recovered shall be paid to
the state.” In this case, the circuit court determined that it would not award
Oitzinger any attorney fees or costs because it had issued a split decision. We
review the court’s decision on entitlement to attorney fees de novo. See Friends
of Frame Park, 403 Wis. 2d 1, ¶12; Sands v. Menard, Inc., 2013 WI App 47,
¶53, 347 Wis. 2d 446, 831 N.W.2d 805 (noting that whether a party qualifies as a
“prevailing party” is a question of law).

¶74 On appeal, Oitzinger argues that the circuit court erred by applying
an improper standard of law to its decision on attorney fees because it did not
consider the Hodge standard. In Hodge, our supreme court addressed WIS. STAT.
§ 19.97(4) and determined that “a prevailing relator under the Open Meetings Law
should be awarded attorney[] fees if an award would advance the purpose of the
Open Meetings law: to ensure that the public has the fullest and most complete
information possible regarding the affairs of government.” Hodge, 180 Wis. 2d at
78-79. “If this condition is met, fees are awarded unless there is a showing of
special circumstances which would render an award unjust.” Id. at 79.

¶75 Marinette, for its part, conceded in its response brief that it “does not
contest that, if Oitzinger prevails on this appeal or the cross-appeal, then he is a
prevailing party entitled to attorney’s fees”; however, Marinette did not believe
that Oitzinger was the prevailing party as to either the October 6 or October 7
meeting. At best, Marinette fails to present an argument as to attorney fees under
the circumstance where Oitzinger prevails in this appeal. See Charolais Breeding

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No. 2024AP51

Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App.
1979) (arguments not refuted are deemed admitted).21

¶76 Given our determinations above that Oitzinger is the prevailing party
in this appeal as to both the October 6 and 7 meetings, we conclude that we need
not determine whether the circuit court erred by applying an improper standard of
law. We are to “decide cases on the narrowest possible grounds.” State v.
Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997). Because the case is no
longer subject to a “split decision,” we need not resolve the question of whether
the fact of a split decision was a proper consideration under WIS. STAT. § 19.97(4)
to determine whether Oitzinger is entitled to attorney fees.

¶77 Therefore, we remand this case to the circuit court with directions to
determine Oitzinger’s “actual and necessary costs of prosecution” in the circuit
court, including attorney fees. See WIS. STAT. § 19.97(4). We further conclude
that the court must include, in the determination of the award, reasonable attorney
fees for the prosecution of this appeal. See, e.g., Riley v. Isaacson, 156 Wis. 2d
249, 261, 456 N.W.2d 619 (Ct. App. 1990) (“It is a widely recognized feature of
fee-shifting statutes in general that, if a party prevails below and is entitled there to
a reasonable attorney’s fee, the entitlement extends to the fee reasonably incurred
in defending the award on appeal.”); see also Shands v. Castrovinci, 115 Wis. 2d
352, 359, 340 N.W.2d 506 (1983) (holding that, under WIS. STAT. § 100.20(5), “a
tenant who has suffered pecuniary loss because of a violation of WIS. ADMIN.

21
At oral argument, Marinette’s counsel appeared to partially walk back this concession
by stating, “I’m not sure that we would go so far as acknowledging the briefing says if appellant
wins outright, appellant gets fees,” but counsel noted that “the briefing on this point was perhaps
less than crystal clear.” Nevertheless, Marinette failed to provide any legal support or present a
cogent argument for its position. See Pettit, 171 Wis. 2d at 646-47.

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CODE ch. [ATCP] 134 shall recover reasonable attorney fees for appellate review
undertaken to attack or defend a trial court’s decision in the suit” (emphasis
added)).

By the Court.—Judgment affirmed in part; reversed in part and cause
remanded with directions.

Recommended for publication in the official reports.

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