*1 † Plaintiff-Respondent, Barbara Sands, v. The Whitnall School District,

Defendant-Appellant. Appeals

Court of argument No. 2005AP1026. Oral October Decided December 2007 WI 3App (Also 15.) reported in 728 N.W.2d † Petition to filed. review *2 defendant-appellant,

On behalf of the cause was *3 Jeffrey Schmeckpeper submitted on the briefs of A. Swietlik, S.C., Lewis & Kasdorf, Milwaukee. There was by argument Jeffrey Schmeckpeper. oral A. plaintiff-respondent, On behalf the cause was submitted on Hawks, the brief of Thomas Nelson of Perry Quindel, & S.C., Ehlke Milwaukee. There was by argument oral Thomas A. Nelson Wedemeyer, Curley PJ., Before Kessler, and JJ. ¶ WEDEMEYER, PJ. The Whitnall Dis- School appeals trict from a non-final order of the circuit court requiring provide discovery the District to answers to interrogatories regarding from Sands, Barbara Ph.D., during the substance of the discussion held a closed meeting.1 session school board The District contends 4, August 2005, On granted we petition the District's to appeal from the non-final order. All trial proceedings court have stayed been pending appeal. resolution of this compelling it to answer erred in the trial court that discovery seeking requests the substance Sands's place in school board two closed discussions which took meetings. place of what takes Because the substance meeting privileged from and disclosure a closed of the trial court non-discoverable, we reverse order proceedings consistent with and remand for further opinion. this

BACKGROUND by August ¶ hired 1998, In Sands was supervisor/facilitator of School District as the Whitnall Program. Gifted and Talented Education the District's dispute, signed a Sands contract As relevant to this July commencing 1,2001, for the term with the District alleges ending District June 2002. The and on job performance period, that time Sands's unsatisfactory, the Dis- and the efforts considered job perfor- improve her trict work with Sands were unsuccessful. mance met in closed result, a the school board 3. As May April 2002, and 29, 2002, on and

session employment District. Both with discussed pursuant were noticed conducted closed sessions (2001-02).2 19.85(l)(c) The board subse- Wis. May quently 13, 2002, and voted met in session for a contract of not to offer Sands year. decision was communicated school This 2002-03 *4 May on after to Sands or against April filed ¶ 24, 2004, Sands suit 4. On comply alleging with the District failed to District, 118.24(6), requires an "administra- which Wis. Statutes are the Wisconsin All references to noted. otherwise 2003-04 version unless tor" to receive four months' notice the District's intent not to renew his her contract of employment. The District denied that Sands was an administrator, and therefore no contended that violation of the notice requirements occurred. During discovery case, this District all

produced relating documents to the decision to not offer a all contract, Sands relating job documents her and all performance, documents relating to whether Sands an administrator. The District refused to all answer or part interrogatories, of three which sought the content from the two closed sessions held The three interrogatories issue, at board/district. with together the District's answers, are set forth below. INTERROGATORY 2: Separately, NO. for each person response identified in to interrogatory 1 [those sessions], present at the closed state the substance of person's knowledge about the decision not to renew Dr. Sands' contract.

ANSWER: Each the individuals identified in to interrogatory Petrie, answer except Dr. were members of the Whitnall School Board and all were present the Whitnall School Board's delibera- concerning tions of Dr. Sands. Those session, deliberations occurred are privileged closed subject discovery and not pursuant 19.85(l)(c), Stats., and the deliberative process privilege. The mo- vote, tion and which board, was the decision of the reflected on Exhibit H hereto. Identify

INTERROGATORY 5: person NO. each spoke during who the deliberations that resulted in school not board's decision to renew Dr. Sands' contract. During public meeting May 13,

ANSWER: *5 Dr. the Whitnall 2002 counsel for Sands addressed then All employment. of Dr. Sands' School Board the issue the Board's closed other discussions occurred subject are and therefore not to session deliberations 19.85(l)(c), Stats., and the discovery pursuant process privilege. deliberative NO. for each Separately 6: INTERROGATORY above, response state person question identified in renewing the of he or she said about Dr. substance what contract. Sands' response to number 5.

ANSWER: See the District's coun- addition, In counsel advised superintendent depose that he intended to sel of and at one member the board District and least regarding question of the content them would closed sessions. seeking compel

¶ an- a motion 6. Sands filed interrogatories The trial referenced above. swers appeals granted The District now court the motion. ruling.

DISCUSSION ¶ Sands is The in this case is whether issue sessions. Resolution the content of closed entitled to statutory interpretation, which is this issue involves of County independently. question law review of we a of Dodge 499, 502, J.K., 209 2d 564 N.W.2d v.Michael Wis. (Ct. 1997). statutory App. purpose construc- The of 350 legislature, our intent tion to ascertain language statutory step itself. State first is to review the (Ct. 255, 582 J.R., 2d N.W.2d v. Isaac Wis. 1998). App. Here, the statute at issue involves provisions

meetings chapter 19 of the Wisconsin particular, reviewing exceptions In we statutes. are *6 legislature's general requirement all that meet- ings governmental of bodies be held in session. See § legislature provided exceptions Wis. Stat. 19.83. The general in the rule Wis. 19.85, which allows Stat. "closedsessions" to be held in certain situations. Section provides pertinent part: 19.85 in (1) Exemptions. Any governmental a meeting body, of carried, upon duly may motion made and be convened in closed session under one or more exemptions of the provided in may this A closed section.... session be any for following held of the purposes: (c) Considering employment, promotion, compen- or performance any sation evaluation data of employee governmental juris- over which the body has or responsibility. diction exercises dispute ¶ 9. There no is that the closed sessions compliance held in in this case were with the statutes. dispute The is the whether substance the discussion during the closed sessions is discoverable when the person subject who was the of the discussions files a against lawsuit the that, District. conclude We based on plain language of the statute and the intent legislature, the substance of what was discussed at meetings closed is not discoverable. plain language clearly 10. The of this statute legislature's

indicates intent that some situations call for certain public. be discussions to shielded from the language clearly

The indicates that discussions occurring properly in a noticed closed are session not excep- subject no contains The statute disclosure.3 principle, litigation for none to the non-disclosure tions foregoing, any we other circumstance. Based or implicit privilege a conclude that non-disclosure (privileges See Wis. 905.01 within this statute. rule).4 may implicit statute, in Constitution, be supported by language ¶ 11. Our conclusion is public policy upon and the which of the statute legislature The right was created. closed session statute recognized governmental body's in to meet that a confidentiality of its and maintain the closed session paramount. matters on certain discussions Society's having in certain matters discussed interest society's "open outweighs interest closed session government." Library Co. v. Oshkosh See Oshkosh N.W. *7 (Ct. App. 480, 482-83, 373 459 Bd., 125 2d N.W.2d Wis. 1985). here at issue addressed The closed sessions performance, which fall 19.85(l)(c). Undoubtedly, squarely one into Wis. supporting policy a closed session discuss reason to allow a candid discussion without such matters is See is discussed will be disclosed. concern that what 132, Co., & 421 U.S. 150-52 v. Sears Roebuck N.L.R.B. 3 in distinguishable from the issue Oshkosh This case is Board, 480, Library 125 2d v. Wis. Northwestern Co. Oshkosh (Ct. 1985), request was for App. N.W.2d 459 wherein 373 votes, and roll call and not "substance access motions meetings." Id. at in the closed the discussions which occurred 4 Wisconsin specifically not address whether We need case is privilege because this adopt process the deliberate should 688, Blalock, 150 2d v. Wis. grounds. on other See State resolved 1989) (cases (Ct. be decided 703, 442 should App. N.W.2d 514 grounds). possible the narrowest

(1975). necessary part Such candid discussion ais decision-making process governmental agencies. As by noted counsel for the if District, we were to conclude that disclosure of the substance of the closed discussion permitted we, in essence, vitiate the need for the interpretation closed session at all. Such an would meaningless, render the statute which we cannot do. Employers See Liles v. Ins., Mut. Wis. 2d (Ct. 1985). App. 377 N.W.2d214 The closed session loses meaning filing opens its if a lawsuit the door to what presume was once legislature closed. We must that the interpreted intended the statute to be in a manner that purposes advances the of the statutenot defeats those purposes. Enters., Beard v. Inc., Lee 1, 22, Wis. 2d (1999). 591 N.W.2d156 If the closed session is rendered meaningless by filing purpose of a lawsuit, then the legislature of the law enacted is defeated. The crafting by balancing careful our lawmakers what should be place and what should take effectively destroyed. a closed session is agree ¶ 12. We with the District's counsel, who wrote:

There is a tension legitimate between the interest in public disclosure of information and the equally legitimate interest in keeping certain information con- fidential. How that is, balance is struck at least in this instance, within the purview of legislature. The fact legislature certain, has created specific circum- stances in governmental which a body may meet in *8 closed session and not disclose the content of its discus- sions and the fact that recognized it has exception no that right, litigation for otherwise, or is clear and compelling evidence of the balance which the Wisconsin Legislature has concluded is appropriate. nonetheless, contends, that Wis. 13. Sands 19.85(l)(b) position supports that the closed ses- her of the substance not intended to statute was

sion hide government em- therein from what was discussed ployee She the closed session. who was discussed 19.85(l)(b) requires argues em- notice to the that employee ployee an evi- can demand that so that the dentiary hearing decision be relative to the by persuaded open are not session. We held 19.85(l)(b) provides: argument. Section any following may be held for A closed session purposes:

(b) demotion, licensing or dismissal, Considering licensed any employee person or discipline charges investigation or commission or a board grant or denial considering the against person, such or member, faculty and the university of tenure for a matter; any provided action on such taking of formal or faculty public employee or other member that any evidentiary given actual notice of licensed is person being final action may be held hearing prior which may be final action any meeting at which taken and of a statement The notice shall contain taken. evidentiary right to demand that has the

person session. hearing meeting be held reject First, the closed sessions Sands's contention. We (c), pursuant to subsection here were conducted at issue (b). if closed sessions Second, even than rather (b), pursuant that section conducted have been could making argument on that based Sands is body only governmental applies con- if the subsection, ducts, City Epping hearing. evidentiary v. rel. State ex an *9 Neillsville Council, Common 218 Wis. 2d 581 (Ct. 1998). App. Epping, In N.W.2d 548 we concluded that: Epping's job per- discussion and evaluation of

formance and during status the closed "evidentiary hearing" sessions was not an as that term 19.85(l)(b), is used in we were to conclude Stats. If evidentiary hearings, "discussions" are we would "evidentiary hearing" render the term contained in 19.85(l)(b), Stats., superfluous because we cannot meeting envision a at which "discussions" would not take place. We must construe statutes so as to avoid rendering any of the statutory language superfluous. omitted). (emphasis Id. at added; citation It is clear evidentiary hearing from the record before us that no "[A]n was conducted the closed sessions at issue. evidentiary hearing taking must contain the of testi- mony evidence, not mere discussions." Id. Accord- ingly, evidentiary hearing because no conducted, right request Sands did not have the that the board openly argument conduct the sessions and her fails. ¶ 14. Sands also asserts that disclosure should be produce allowed, and contends that the District fails to any authority supporting privi- that the information is leged. authority privilege noted, however, As for the implicit in the statute itself. It is Sands who fails to any authority support position cite her that a closed really session should be made in certain circum- stances. She also asks this court to create a limited exception discovery to allow of the substance of the subject closed session when the individual who is the alleging wrongdoing the discussion files a lawsuit part of the District. We cannot make such an exception. any exceptions If to the closed session stat legis created, such must come from the ute should be statutory Reading exceptions into the clear lature itself. language legislature the role of enacted is not Schwarz, WI 34, 23, this court. See State DOC v. *10 2d 703. 279 Wis. N.W.2d ¶ sum, In we conclude that the trial court 15. ruling held in that the substance of the discussion erred therefore, in the closed sessions was discoverable. We compel order to and remand with directions reverse the denying an order to the trial court to enter any proceedings compel, to and for further motion opinion. the hold that based on consistent with this statutory language We § legislature 19.85, the

of Wis. Stat. remain for the substance of closed sessions to intended protected Accordingly, disclosure. the dis- from in at the closed sessions this cussions which occurred matter are not discoverable.5

By remanded the reversed and cause Court.—Order directions. with (concurring part;

¶ in dissent- KESSLER, J. Majority's ing part). I conclusion1 in concur with the informa- has failed to demonstrate that that "Sands alleges that Finally, note that the lawsuit Sands filed we entitled to four an administrator and was therefore she is defending the The District is months' notice before termination. an administrator. Sands on the that Sands is not lawsuit basis record, in that allege, any indication this does not nor is there any at the closed bore the substance of the discussion sessions interrogatory questions The whatsoever. relevance this issue an adminis or not Sands was do not address whether at issue well, failed to as Sands has Accordingly, on this basis trator. asked for even information she has that demonstrate of Wis. Stat. § relevancy requirement 904.01. satisfies 1 Majority, 15 n.5. See ¶ only has asked for" either relevant2

tion she litigation likely discovery in her or to lead to the of issue 804.01(2)(a). I admissible evidence under Wis. Stat. do any perceive possible in not may, relevance what the District may not, in or have discussed closed session and question was, not, an whether Sands thereby Administrator and entitled to additional notice Consequently, agree of termination. I that the trial improperly granted disputed discovery court ground concur reversal on that alone. Majority goes beyond I conclude the what is

necessary doing appeal3 to resolve this and in so, reads exceptions open meeting much too into the 19.85(l)(c). statute, Wis. is not the This case to employee public body decide whether an of a would be prohibited by obtaining statute from relevant evidence body's attempt prove deliberations, order to prohibited body specifically conduct directed at *11 employee. I However, fear that will be the unin- decision, tended effect of this and for those I reasons respectfully dissent. "

2 See Wis. 904.01: 'Relevant evidence' means evi having any tendency dence any to make the existence of fact consequence that is of to the determination of the action more probable probable less than it would be without evi dence." (1938) 296, 300, Hoffman, Gross v. 227 Wis. 277 N.W. 663 addressed); (only Blalock, dispositive issue need be State v. (Ct. 1989) (case App.

Wis. 2d 442 N.W.2d514 should be possible ground"). decided on the "narrowest