Shortly after Senate Republicans' surprise vote Wednesday to eliminate most collective bargaining rights for most public employees, protesters started collecting signatures from citizens in preparation for filing an open meetings complaint.
It is not yet clear where these complaints will be filed, but former Attorney General Peg Lautenschlager said they can be filed with either the Dane County District Attorney's Office or the Attorney General's Office. But, she added: "Frankly I don't know how either of those men would need a complaint to file an action in this. It's clear that the conference committee's meeting on its face violated Wisconsin's open meetings law."
Assembly Minority Leader Peter Barca, D-Kenosha, said at a news conference after the Senate vote that he had received notice of the conference committee meeting in an e-mail at 4:09 p.m. The meeting was at 6 p.m.
"I honestly do not believe this action will stand. We will seek every recourse available. Clearly what they did was improper and illegal," Barca said.
The 18-1 vote in the Senate on Gov. Scott Walker's budget repair bill and the earlier conference committee vote with Assembly members mark a new phase in a standoff that has lasted almost three weeks. On Feb. 17, all 14 Democratic state senators left the state to block a vote on Walker's bill, which has generated massive protests.
Twenty members of the Senate are required for a quorum to vote on fiscal matters, and up until Wednesday, the collective bargaining provisions had been treated as fiscal. The contention that they are not was an abrupt about-face by GOP leaders, but that is what paved the way for Wednesday's vote. The conference committee separated items identified by the GOP leaders as non-fiscal and voted on them; the Senate approved the measure shortly thereafter.
The conference committee action was necessary to reconcile the bill with what the Assembly has already passed. That body will take up the legislation again Thursday.
Attorney Bob Dreps, an expert in open meetings and open records law, said the state's open meetings law requires 24 hours notice before any government meeting can be held. It allows for shorter notice for "good cause" only when it would be "impossible" or "impractical" to wait 24 hours. But even in those situations there must be a two-hour notice for an emergency meeting, he said.
Dreps said from what he could see, the Senate Republicans "didn't give valid notice."
Senate Majority Leader Scott Fitzgerald responded to complaints by releasing a statement from Chief Senate Clerk Rob Marchant, who insisted no rules were broken.
"There was some discussion today about the notice provided for the Legislature's conference committee. In special session, under Senate Rule 93, no advance notice is required other than posting on the legislative bulletin board," Marchant said in the statement. "Despite this rule, it was decided to provide a 2 hour notice by posting on the bulletin board. My staff, as a courtesy, emailed a copy of the notice to all legislative offices at 4:10, which gave the impression that the notice may have been slightly less than 2 hours. Either way, the notice appears to have satisfied the requirements of the rules and statutes."
Lautenschlager, who is legal counsel for AFSCME Council 24, said that if a meeting is found to be in violation of the open meetings law, the members who participated in the meeting could be fined between $25 and $300. And any action taken at a meeting found to be in violation of the open meetings law "is voidable upon action brought by the attorney general or district attorney," Lautenschlager added.
But some Democratic staffers suggested that it is rare for the judicial branch to void an action by the Legislature because they are a co-equal branch of government.
Senate Republicans' intent to hold a vote on a revised version of Walker's budget repair bill caught not only legislators but law enforcement by surprise. Tim Donovan, spokesman for the Department of Administration, which includes the Capitol Police, said he was only given an hour or so notice of the 6 p.m. meeting. He quickly called for reinforcements but said they were not enough to handle the 5,000 to 8,000 demonstrators, some of whom came in through the windows and swarmed through a pair of unlocked doors at the Martin Luther King Jr. Boulevard entrance. Police had been guarding all the doors for most of the evening, but did not try to stop anyone from entering the building once the doors were breached.
Tom Spellman was at the Capitol most of the day Wednesday but he, too, was caught by surprise. "There was no notice for Pete's sake," said Spellman, a protester from Lake Geneva who added his name to the list of people willing to be witnesses for a formal open meetings complaint.
Spellman said the hasty moves by Republicans will ultimately backfire. "Scott Walker is going to go down in history as one of the greatest union organizers there ever was."
Jeff Hamm, associate dean with the University of Wisconsin-Madison School of Education, was also outraged. "The whole process was slimy," he said. "There was insufficient notice, no public knowledge or oversight. It's an embarrassment for our state."
The Assembly is scheduled to meet Thursday at 11 a.m., which also falls short of the required 24-hour notice. Barca said at the news conference he hoped Attorney General J.B. Van Hollen would take action on the conference committee meeting, but promised that the Assembly Democrats would "have a lot to say tomorrow" when the bill is taken up by the full Assembly.
"If they follow the rules and customs of the body, this will take a long time," Barca said, referring to his Republican Assembly colleagues.
The measure passed by the Senate also incorporates many of the controversial provisions that would give the state's health department more authority to revamp the state's Medicaid programs with less legislative and public input.
Note: The original version of this article had an incorrect first name for former Attorney General Peg Lautenschlager.