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Open Meetings Law FAQ 6
May a village or city clerk be excluded from a closed session?
Both village clerks and city clerks are
vested with the statutory duty to attend all meetings of their
respective village board or city council and keep a full record of all
proceedings thereof. Secs. 61.25(3) and 62.09(11)(b), Stats. The
statutory obligation imposed on village clerks and city clerks clearly
requires a record of minutes for closed as well as open sessions of
governing bodies be kept. However, this statutory obligation should not
be construed as an absolute right for clerks to attend a closed session.
The state legislature has limited a
governmental body's ability to exclude duly elected or appointed members
of that body from any meeting of that body. Wis. Stat. sec.19.89.
Similarly, unless contrary rules have been adopted by the governmental
body, that section also prohibits a subunit of the governmental body
from excluding any member of the governmental body from a meeting of the
subunit. However, since a village or city clerk is not an elected or
appointed member of their village board or city council, the sec. 19.89
limitations would not apply. Therefore, in the absence of a clear
legislative pronouncement prohibiting the exclusion of a village or city
clerk from the closed session of their respective governing body, such
exclusion is permissible so long as the clerk is not necessary to
conduct the business of the governmental body (this determination should
not be made without good reason in light of the statutory duty imposed
on the clerk to keep minutes and is made by the governing body or
subunit as a whole not by any individual member thereof).
As noted, a necessary aspect of a
governmental body's business during a closed session is the keeping of
minutes. Therefore, if the governmental body excludes the village or
city clerk from the closed session (thereby relieving the clerk of the
statutory duty to keep a record) it must appoint someone to take minutes
in the clerk's absence. This designation should be done before going
into the closed session, so that it is clear to the public and the clerk
that a particular person has been given the responsibility for taking
minutes and it can be made part of the record kept by the clerk.