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Court of Appeals overturns ruling in Habhegger case

WAUSAU -- In a decision filed Tuesday, the District III Court of Appeals found that a former New Richmond zoning administrator can't be fined for violating the open meetings law because there was no meeting.

The appeals panel ruled that it would be "absurd" to require officials such as Wallace Habhegger, the only member of his department, to hold open meetings to discuss the reasoning for denying a building permit. The case never should have gone to a jury, said the court.

The jury shouldn't have found Habhegger guilty of the violation and he shouldn't have been fined $150 because, said the court, "the law does not apply to committees of one person."

Habhegger was the city's building inspector, zoning administrator and assessor. As building inspector he was the only member of the Department of Building Inspection.

The original complaint was brought by Lawrence J. Plourde, whose company Olympic Housing, wanted to open a car wash on property it owned in the city. Habhegger told Plourde a permit couldn't be issued unless the company built a street to connect the land to an existing street.

Plourde believed that decision was reached after an Oct. 8, 2002 meeting involving Habhegger and five members of the 14-member Supervisory and Safety Committee. Plourde's complaint alleged these six men violated the law by meeting secretly to discuss his permit.

Judge Edward Vlack dismissed the complaint against the other five, but asked a jury to decide if Habhegger, as the only member of the inspection department, violated the open meetings law.

In his appeal, Habhegger raised the legal question of whether or not there had been a meeting.

The appeals court said there hadn't been.

"While Plourde asserts there was no notice or open session, Habhegger asserts there was no meeting. We agree with Habhegger," wrote the court.

The judges found that the Supervisory and Safety Committee had no authority over or responsibility for issuing building permits.

Because only Habhegger could grant or deny the permit, the first requirement for a "meeting" wasn't met, ruled the court.

The appeals court found that "the open meetings law is not meant to apply to single-member governmental bodies."

Wisconsin law requires that the public have access to discussion among government body members so citizens can observe the decision-making process.

"But it would be absurd, if not impossible, to require an open meeting notice whenever a body of one would set out to contemplate a pending issue," wrote the court. "We do not believe the Legislature intended to require public soliloquies by single-member government bodies."

The Appeals Court reversed the fine and an order awarding costs and attorney fees to Plourde.