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City Attorney Michael May, in an investigation directed by Mayor Paul Soglin, determined that two Madison City Council members recently ran afoul of the state’s open meetings law by discussing a plan to make changes to the structure of city governance without posting the required public notice.

May said then-council president Denise DeMarb and Ald. Mark Clear engaged in a single “clear violation” of the law, while serving on a three-member Subcommittee on Strategic Plans and Priorities that developed the plan to shift certain mayoral powers to the council.

In addition, May said, the actions of Ald. David Ahrens, co-sponsor of the plan along with Clear, may have broken the law when Ahrens polled each subcommittee member by phone about the developing plan, in an apparent attempt to circumvent the need for a public meeting.

Both incidents, along with vague meeting agendas and other procedural problems, were part of a “distinct pattern of avoiding public scrutiny,” May charged, as a small group of members considered the proposal that would strip Soglin of some of his powers prior to the March 16 public announcement of the plan by Clear and Ahrens.

“The development of the (plan) shows a disregard for the public’s right to know about a major proposal to change the operations of city government,” May said in a memo released this week about the investigation, for which he interviewed council members and examined records. “This is not consistent with Madison’s history of openness.”

In response, Ahrens told the Wisconsin State Journal that the investigation was overblown and politically motivated.

“My view is that this whole thing is (for Soglin) to avoid discussion on the actual issue,” Ahrens said.

Soglin has made no secret of opposing the proposed changes — which would shift his ability to appoint council members to city committees to the council president and remove the mayor’s seat on the council’s finance committee. He has said the plan came in retaliation for his firm posture on finances since retaking office in 2011.

Last week, Soglin countered with a proposal to appoint a citizen task force and hire a consultant for $250,000 to study how city government is structured.

Before that, he directed May to investigate the actions of the subcommittee, which also included Ald. Ledell Zellers, for possible violations of the state’s open meetings law.

A key problem was that the subcommittee developing the proposal had only three members. That gave it a legal quorum — requiring advance public notice of a meeting — any time two members discussed the issues together.

May found that Clear and DeMarb clearly violated state law when they once spoke together about some of the proposal’s issues on a conference call for about 10 minutes with a city staffer, legislative policy analyst Heather Allen.

In an interview with the State Journal, DeMarb noted that Clear realized the mistake he and DeMarb were making and didn’t try to cover it up. Instead, he disclosed it and quickly ended the call, she said, and at a subsequent City Council meeting he also told May about it.

May’s report references Clear doing that, but May did not appear to find the admission sufficient in his report.

“These are not new Alders who may still be learning the rule for open meetings, but veterans who have both served as (council) President,” May noted, adding that the Dane County District Attorney could impose any fines provided under state law.

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