Court of appeals reverses Brad Schimel in open meetings case

By Alexandria Staubach
 
Wisconsin Court of Appeals District 2 last week reversed Wisconsin Supreme Court hopeful and Waukesha Circuit Court Judge Brad Schimel’s decision siding with Elmbrook School Board leaders on open meeting violation allegations.
 
Elmbrook School Board members Scott Wheeler and Jean Lambert face fines after the three-judge panel unanimously ruled in favor of plaintiff Leanne Wied.

Gundrum

Presiding Judge Mark D. Gundrum wrote for the panel, joined by Judges Shelly A. Grogan and Maria S. Lazar.
 
The appeals court found that the school board operated under a “cloak of secrecy” in filling a vacant school board seat during COVID.
 
Gundrum characterized the case as “an excellent example of the real-world impact of failing to adhere to open meetings law requirements.”
 
In 2020, the school board sought to fill a vacancy during a meeting held by Zoom during the pandemic. Four candidates, including Mushir Hassan and Wied, vied for the job. During the meeting, Wheeler asked each board member to rank their first and second choices by email and send him their preferences. The email votes did not constitute formal votes but were intended to narrow the field, Wheeler said.
 
According to Gundrum's opinion, no candidate received enough votes to be the first choice of four or more of the candidates. Nevertheless, Wheeler presented Hassan and Wied as the candidates for the board to consider. He did not announce or subsequently volunteer the results of the email vote.
 
Ultimately the board was deadlocked three to three. Wheeler consistently voted for Hassan.
 
On a third vote between Hassan and Wied, board member Glen Alliger, who had previously voted for Wied, switched his vote to Hassan.
 
Before receiving all votes, Wheeler announced “We’ve got four votes for Mushir (Hassan) and two votes for Leanne (Wied),” which Wheeler said constituted a “consensus.”
 
In fact, another member had also switched, but from Hassan to Wied, so the board was still deadlocked three to three.
 
Wheeler then called for a formal vote, which Hassan won with five votes and one member abstaining.
 
At no point were the results of any email votes read aloud or published in the online meeting to the entirety of the board or the public.
 
Further, Wheeler never corrected the email vote tally, which after the meeting he characterized as an oversight. The actual numbers were disclosed only through subsequent open records requests, which produced the emails.
 
Wied sued Wheeler and Lambert, alleging violations of the open meeting laws and another claim against the school district. Schimel sided with the defendants in circuit court.
 
The court of appeals found that Schimel incorrectly removed Wied as the plaintiff because she had a “personal interest” in the case after having initiated a different suit against the district.
 
Schimel also had found that Wheeler and Lambert’s actions did not constitute an “intent to hide something.” In reversing, the appeals court wrote that “Board members sharing their preferences with Wheeler in a manner that hid the same from the public and other board members was concealment that was initiated and invited by board president Wheeler.”
 
Gundrum wrote that “the secrecy of Wheeler’s process allowed him to erroneously announce his own preferred candidate, Hassan, as having received four email preferences to advance for the subsequent up-or-down vote, and no one was in a position—at the time when it mattered, as opposed to after Hassan had already been selected, voted on, and seated as a new board member—to monitor the process.”
 
Wheeler and Lambert remain on the Elmbrook school board with terms expiring in April 2026 and April 2027, respectively. Hassan's term ended in 2024.

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