Public participation in government takes a hit in Wyoming

To its credit, the Wyoming Supreme Court has often gone the extra mile to defend the state’s open meetings law. The high court has even noted that with some necessary exceptions already appropriately recognized by records and meetings acts, “State agencies must act in a fishbowl.”

But justices recently made a baffling decision to allow a blanket to be placed over the fishbowl. Their decision allows the city of Cheyenne and other local and state government agencies to keep the public out of meetings that should be open. This unfortunate change in the court’s attitude occurred in its Dec. 23 ruling against the Wyoming Tribune Eagle.

The case emerged from a 3-years’ dispute over public access to the deliberations of a city-appointed team directed to make recommendations about city employee pay. The newspaper — and other members of the public — never got to sit in on the meetings regarding employee pay.

The Tribune Eagle’s decision to take Cheyenne’s city government to court was part of the journalism community’s long-standing responsibility to serve as a watchdog of the public’s right to know how its government is being operated.

Wyoming Supreme Court Justice Kate Fox, who wrote the unanimous opinion backing the city, noted that the Wyoming Open Meetings Law was passed in 1976 “after the crisis of confidence in American politics occasioned by Watergate.” The new state law was intended to open the decision-making process of elected officials to the public. The law, she wrote, also protects the ability of the government to carry out its responsibilities.

Sometimes those two vital duties may seem at cross-purposes, and courts are asked to sort out how to maintain the public’s right to know along with the government’s responsibility to perform efficiently. It’s not an exact science, and judges often come to different conclusions about how to maintain a fair balance.

In 2013 the city of Cheyenne commissioned a report about appropriate staffing levels and employee pay from the Mercer Group, a consulting firm. The Cheyenne City Council then formed a group called the Employee Investment Study Implementation Team to consider Mercer’s recommendations and advise the council how to proceed to implement or reject the firm’s advice.

The team included Mayor Rick Kaysen, two city council members, the city treasurer and six city employees. The latter group represented the City Public Works Division, the City Police Department, City Parks & Recreation Department, the City Clerk’s Office, the City Treasurer’s Office and the City Human resources director.

Since the newly created team was assigned to study and recommend how public money would be spent, the management of the capital city’s Tribune Eagle reasonably expected its meetings would be open for public scrutiny. When it learned that city officials planned to close the meetings, the newspaper sued the city in an attempt to force public access.

Only a ‘recommendation’

The city’s defense was that the team would only make recommendations to the city council, not formal policy decisions that were in the hands of the full council. In March 2016 Laramie County District Court Judge Thomas Campbell sided with the city. The Tribune Eagle appealed his ruling to the Wyoming Supreme Court, where it also struck out.

The Supreme Court’s reasoning, as articulated by Fox, started with a conclusion that seemed to bode well for public access. An initial question was whether the EISI team comprised an “authority, bureau, board, commission, committee or sub-agency” of the city. The high court determined that the new entity met the qualifications for a committee.

But next, the justices had to decide if the EISI team was created pursuant to the Wyoming Constitution, state statute or an ordinance. If not, the team would not be covered under the Wyoming Public Meetings Act.

The city sought to sidestep this requirement by creating the EISI team through a city council resolution instead of an ordinance. It’s a distinct difference: a resolution deals with matters “of a temporary or special nature,” not a permanent decision. The fact that the EISI team was created to respond to a specific, temporary problem gave the city, and the court, an out that could allow the team to meet behind closed doors.

The problem with the court’s ruling is that it completely ignores the fact that, unlike many specially-appointed committees that bring an outside perspective to an issue they are asked to study and resolve, the EISI team created by the city council has 10 members who are all significantly impacted by the recommendations of the Mercer Group.

Four of these members are publicly elected officials. The mayor, two city council members and city treasurer have a public responsibility to be held accountable for their actions. The other six members of the team are all paid by the city of Cheyenne and obviously have a direct financial stake in the decisions that the city council will ultimately make.

It’s not difficult to imagine a situation in which a team member who is employed by a certain department implores other members to make a recommendation that could have a positive salary or benefit impact on themselves or co-workers. The public should have the right to see the process first-hand to determine if the EISI team’s recommendations have been made with either government efficiency or personal gain in mind.

Even if the public is allowed to attend the deliberations of the full city council, when the council finally makes a decision on the matter, those observers will be at a severe disadvantage because they would have no frame of reference to understand how the EISI team reached its recommendation.

Cheyenne attorney Bruce Moats, who has won dozens of open meetings and public records lawsuits on behalf of the Wyoming Press Association and its individual members, was reportedly confident the justices would overturn the district court’s decision. Who wouldn’t be, given the Supreme Court’s consistent record of backing open meetings in recent years?

However, the high court has now made two decisions in a row — less than a month apart — that Tribune Eagle Managing Editor Brian Martin said have “sided with government secrecy, rather than openness.” First there was the ruling allowing state and local government to charge the public requests for digital data, even though a lot of public money has already gone into the technology to create that data. Then there’s this decision.

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The two cases, taken together, are an ominous signal to Wyoming news organizations that they must continue to be vigilant in taking these cases to court, using all of the resources they can muster.

“I understand Justice Fox’s arguments in this decision that the city’s committee was formed to make recommendations and had no authority to take final action on city salaries,” Martin told Tribune Eagle reporter James Chilton. “But we still believe this kind of group should meet in the open, not behind closed doors.”

The alternative would be to simply let each government entity decide whether to open its meetings — and that’s a dangerous and untenable public policy. The reason Wyoming and other states have strong open meetings and public records laws on the books is to ensure that the public isn’t simply asked to trust public officials without being able to observe their work. Protections must be in place.

Jim Angell, former Associated Press reporter and outgoing executive director of the Wyoming Press Association, has championed open meetings legislation throughout his long journalism career. He told Chilton how disappointed he is to see the court rule that “a team of public employees making recommendations on how to spend public funds to pay those same public employees could rightfully be kept from the public.”

What the Wyoming Supreme Court has effectively done is to tell local government and state agencies that if they want to skirt or dodge the open meetings law, all they have to do is pass a resolution to set up a temporary committee to study an issue.

The court’s ruling curbs the public’s right to know and to participate in government’s decision-making processes. It’s worth asking the Legislature to close what amounts to a loophole that prevents transparency in government.

The Wyoming Public Meetings Act should be amended in the 2017 general session of the Legislature so that the requirements to keep meetings open apply to any entity created by a public body, whether pursuant to the Wyoming Constitution, state statute, ordinance, or resolution.