Friday, February 21, 2020
Judge Scott Horne looks on as attorney Jack Buswell questions Monroe County Board Supervisor Rod Sherwood on the stand Tuesday in a civil suit trail against 10 county board members. Buswell represents the plaintiffs, while Sherwood is one of the defendants. Herald photo by Pat Mulvaney

Jury sides with plaintiffs in Monroe County Board case

Judge to set date to decide on penalties

After deliberating for six hours, a  Monroe County jury found that 10 county board supervisors violated Wisconsin Open Meetings Law when they signed a petition in November 2017 to move the proposed Rolling Hills nursing home site from Sparta to Tomah.

The jurors also established that five of the 10 supervisors knowingly violated the open meetings law, but found the plaintiffs failed to meet the burden of proof that the other five knew they were violating the law.

The verdict in the case, which was filed in March 2018, came after two and half days of testimony in which 15 members and one former member of the county board were called to the stand.

The defendants found to knowingly violate the open meetings law included Pete Peterson, Rod Sherwood, Paul Steele, Carol Las and Doug Path.

In his opening argument, Sparta attorney Jack Buswell, who represented the plaintiffs,  said the Rule 5 petition and resolution at the heart of the case was part a plan to move the county nursing home site to Tomah, which was hatched by Tomah supervisors Pete Peterson and Rod Sherwood after they left an Oct. 9, 2017 Rolling Hills Committee meeting in which they felt Sparta officals were “putting up roadblocks” to the nursing home site in Sparta.

At the time, the county board had already approved the Sparta site but hadn’t approved financing the $16 million project, which would require at least 12 votes.

Buswell said Peterson and Sherwood knew the five Sparta supervisors would never approve borrowing money for the project if the site were moved to Tomah, so they had to keep their plan secret until the board passed the borrowing resolution.

Proof of their attempt to keep it secret, according to Buswell, was the fact that Pete Peterson, who was the chairman of the Rolling Hills Nursing Home committee at the time, cancelled a special Rolling Hills meeting scheduled for Nov. 21, the purpose of which was to discuss moving the nursing home to Tomah.

Buswell said instead Peterson decided to go with a Rule 5 resolution, which bypasses the committee process and allows a resolution to go to the county board as long as at least five supervisors sign it. However, Rule 5 requires the petition and resolution to go to the next available meeting of the committee of jurisdiction after the signatures are attained.

He pointed out that the title of the resolution indicated it was to move the nursing home site to Tomah,  conflicting with the text of the measure, which indicated it was only to explore the Tomah site as an option.

At the November 21, 2017 monthly county board meeting, the Rule 5 petition was circulated among the 10 supervisors named as defendants, but kept secret from the five Sparta supervisors, said Buswell. He said that action constituted a quorum of the county board carrying out county business without it being publicly noticed, a violation of the Open Meetings Law.

The Rule 5 resolution wasn’t placed on the next Rolling Hills committee meeting agenda in December as required, and on Dec. 20, 2017, the board approved borrowing the $16 million for the project.

Buswell said with the borrowing secured, the Rule 5 resolution was finally placed on the agenda for the Jan. 23, 2018 Rolling Hills Committee meeting, and went before the full board the following night where Tomah Supervisor Steele made a motion to amend the wording in the resolution to move the nursing home site to Tomah instead of merely exploring the Tomah site. All 10 defendants voted in favor of the amendment, while all five Sparta supervisors voted against it.

During the trial, all five Sparta supervisors testified had they known the nursing home site would be moved to Tomah, they wouldn’t have voted for the bonding resolution.

Defense attorney Bryant Klos argued that it was unlikely the Sparta supervisors had no knowledge before voting on the bonding resolution  that there was an effort to move the nursing home site to Tomah.

He said board members were aware that the city was “putting up roadblocks” as Sherwood expressed it, back in Sept. 2017. And at the Nov. 15, 2017 meeting of the nursing home building advisory committee meeting, former county administrator Jim Bialecki explained to the committee that moving the site to Tomah was an option.

“So, both sides knew there was a discussion about moving it to Tomah,” he said.

Klos argued that when the defendants passed around the Rule 5 petition at the Nov. 24 county board meeting, they didn’t have an agreement and it took three of his clients, Nodji VanWychen, Jim Schroeder and Mary Cook, completely by surprise, although they also signed it.

He said the petition was a “scheduling-type document” to get the matter before the county board and his clients testified that they never discussed the Rule 5 resolution but merely signed it at the Nov. 24 meeting.

“This case comes down to what the actual intent of my 10 clients was when they signed that rule 5 petition on Nov. 2017,” Klos told the jury. “They were just signing it with the idea that resolution would go before the county board without committing yes or no to it.”

Buswell said it was hard to believe that the defendants wouldn’t have questioned what was on the Rule 5 petition unless they already knew about it, especially since the title of the resolution conflicted with the text and that involved the most important county board matter at the time, a $16 million project.

Presiding Judge Scott Horne accepted the jury’s verdict and said he will set a date to hear arguments over the remedies the court will grant in light of the verdict.

The plaintiffs have asked the court to void the Dec. 20, 2017 bonding resolution and the Jan. 24, 2018 resolution moving the nursing home site to Sparta, which they say were products of the open meetings law violation. In addition, they have asked that the defendants pay forfeitures of up to $300 and attorney fees, which will likely be in the tens of thousands of dollars.

“This is a good day for open government in Monroe County,” said Buswell following the verdict.

The plaintiffs are listed as James Rasmussen, Bruce Humphrey, Barbara Rice, Pat Wall, Don Mulry, Dr. Richard Edwards and Kathryn Baird.

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