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State ex rel. Zecchino v. Dane County

Court of Appeals of Wisconsin, District IV

February 27, 2018

State of Wisconsin ex rel Richard Zecchino and Adams Outdoor Advertising Limited Partnership, Plaintiffs-Appellants,
v.
Dane County, Dane County Board of Supervisors, Paul Rusk, Sharon Corrigan, David De Felice, George Gillis, Dorothy Krause, Jeff Pertl, Andrew Schauer, Robin Schmidt and Heidi Wegleitner, Defendants-Respondents.

         APPEAL from an order of the circuit court for Dane County Cir. Ct. No. 2016CV2210: FRANK D. REMINGTON, Judge. Affirmed.

          Before Kessler, Brash and Dugan, JJ.

          KESSLER, J.

         ¶1 Richard Zecchino and Adams Outdoor Advertising Limited Partnership (collectively, "Adams"), appeal an order of the circuit court dismissing its action against the Dane County Board of Supervisors and certain members of the Board regarding the renewal of a billboard lease. Adams's action alleged violations of the open meetings law and sought certiorari review and declaratory relief We affirm the circuit court.

         BACKGROUND

         ¶2 Adams leased three billboards near the Dane County Regional Airport. The lease expired on December 31, 2015. Prior to expiration, Adams sought to renew the lease and began negotiations with the Airport's business manager and director. The Airport Commission, the Public Works Committee, and the Personnel and Finance Committee all voted in support of renewing Adams's lease. However, on April 7, 2016, the County Board rejected the lease in an 18-16 vote.

         ¶3 Adams then brought the action underlying this appeal. In an amended complaint, Adams alleged that prior to the April 7, 2016 vote, a number of board members engaged in closed discussions with the purpose of negatively affecting the vote on the lease. Specifically, the complaint alleged that Board Supervisor Paul Rusk emailed multiple other board supervisors prior to the vote and that he tried to call another supervisor, Diane Krause, to discuss her vote. The emails at issue include:

• A December 2, 2015 email from Rusk to Supervisors Sharon Corrigan and Jeff Pertl asking "[w]hat do [they] think about doing away with these billboards?" and telling Corrigan and Pertl that he personally opposed them. Only Pertl responded, telling Rusk that he did not have a strong opinion about the issue and deferred to Rusk.
• A December 3, 2015 email from Rusk to Supervisors David de Felice, Andrew Schaer, and George Gillis, in which Rusk tells the other supervisors that he asked three neighborhood associations for input and all three opposed the billboards. Only de Felice responded, stating "I support removal."
• A December 16, 2015 email from Rusk to Supervisor Robin Schmidt, discussing the scheduling of the resolution before the Public Works Committee.
• A March 3, 2016 email from Rusk to a constituent, prior to a meeting of the Personnel and Finance Committee on the lease issue, asking the constituent to provide input on the billboards on behalf of the constituent's neighborhood association. The email courtesy copied Supervisor Heidi Wegleitner.
• An April 4, 2016 email from Rusk to Supervisor Dorothy Krause, telling her that he tried calling her and asking if she is "ok voting against the … billboards." Rusk wrote that he was trying to conduct a "vote count." Krause responded that she would rather not vote because Adams had accused her of bias in a pending litigation, but that if she did vote, she would vote against the billboards.
• Two emails sent to constituents after the April 7, 2016 County Board vote. In one, Rusk tells two constituents that "[w]e lost some votes who told me they were with us." In another, he states: "the Trump Card was the 1998 plan - that saved it. But … several didn't understand. But it secured my base - they had a strong argument to hang on to."

         ¶4 Based on these emails, Adams alleged that Dane County, the Dane County Board of Supervisors, and the supervisors named in the emails described above, violated the open meetings law. Specifically, Adams alleged an illegal "walking quorum."[1] Adams sought declaratory relief, asking the court to declare the Board's April 7, 2016 decision unlawful. Adams also sought certiorari review of the ...


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