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Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org

Participate in National Depression Screening Day

Lieutenant Governor Barbara Lawton invites you to join AWSA –and many other organizations across Wisconsin—in a simple strategy to improve employee productivity, your bottom line and Wisconsin’s economic outlook: participate in National Depression Screening Day (NDSD) on October 11th.

Untreated depression has far-reaching implications for us all. Medical costs of depressed persons average twice those who are non-depressed, and those suffering from depression (an estimated 16% of all Americans) are seven times more likely to be unemployed or underemployed. Dr. Philip Wang, author of a recent National Institute of Health study, found that “depression exacts economic costs totaling tens of billions of dollars annually in the United States, mostly from lost work productivity.”

We can change those statistics. The quickest path to change is to provide your employees a very simple, cost-free way to be screened for depression.  The office of the Wisconsin Lieutenant Governor will offer online screening (through a link to the NDSD) hosted on its state website (www.ltgov.wisconsin.gov).  We ask you to promote the opportunity to employees in direct email communications, in employee newsletters and/or in posters placed in high traffic areas.

Employees will simply complete an online survey of twelve questions. It can be done in total privacy from his or her personal computer, it takes only minutes and, at the end of the screening, s/he will be provided immediate feedback as to indicators for depression. Where indicated, the employee will receive a menu of options for ways to address this. 

The text for a sample email letter to employees appears at left.

Last year nearly 450,000 screenings were completed nationwide. The goal is to set a record for Wisconsin’s participation on NDSD – and eliminate the stigma attached to depression and reduce its effect on our economy.

Become part of the leadership team working proactively toward a healthier, more productive Wisconsin.   End
 

Interim Principals

If you are retired, or retiring, and are interested in keeping “your hand in” the school business, let us know. AWSA maintains a list of those interested in serving as interim administrators, that is available by request to any Wisconsin School District. 

If you would like to be included on the interim list, please email Robin Herring at robinherring@awsa.org.

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legal update

By Sara E. Spiering, Attorney, DeWitt Ross & Stevens SC

At the close of an internal investigation conducted by or on behalf of a public authority, including a school administrator, no blanket exception against disclosure of the records generated therein applies.  Rather, the public authority’s records custodian should conduct a thorough weighing of policy interests for and against disclosure to determine whether the public’s interest in the confidentiality of such records outweighs that in favor of access to information about public employees’ misconduct, the public authority’s disciplinary response, if any, to that conduct and its investigatory procedure.

I. TO DETERMINE WHETHER RECORDS GENERATED IN AN INVESTIGATION SHOULD BE DISCLOSED IN RESPONSE TO AN OPEN RECORDS REQUEST, PUBLIC POLICIES FOR AND AGAINST DISCLOSURE MUST BE WEIGHED. 

a. The Same Balancing Test Applies To All Investigation Records.

The same public policy balancing test must be applied to all records generated in or as a result of an investigation.  Interview transcripts, tapes and exhibits are subject to that balancing, regardless of the ultimate creation of a report summarizing those records.  See Youmans v. Owens, 28 Wis. 2d 672, 680, 137 N.W.2d 470 (1965).  In Youmans, the Wisconsin Supreme Court held that all records generated during the city attorney’s investigation into misconduct by members of the Waukesha police department were subject to disclosure,^[1] despite the fact that no official report had been created:

We deem it wholly immaterial, on the issue of whether defendant was in legal custody of the papers sought to be inspected, that here the city attorney did not submit a formal report stating the conclusions he had reached as a result of his investigation, but instead merely filed with the mayor the statements of persons interviewed and interdepartmental memoranda.

A public authority’s records custodian should review any open records requests related to an investigation carefully.  A request asking for “all records from the investigation,” for example, is one seeking all transcripts,

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Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org

legal update

b. In Responding to Any Open Records Request Related To An Investigation, the Public Authority’s Records Custodian Must Weigh Public Policies For and Against Disclosure. 

Wisconsin public policy presumes that the state’s citizens have a right to inspect government records:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.  Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information.  To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.  The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

Wis. Stat. § 19.31 (emphasis added). 

In accord with that policy, an open records request must be analyzed under a two step process.  First, does a statutory exception bar disclosure?  Second, if no exception applies, as is the case with internal investigation records sought after the investigation’s conclusion, public policies for and against disclosure must be weighed:

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Back to Beginning

Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org

legal update

[E]xceptions to the open records law are to be narrowly construed; unless the exception is explicit and unequivocal, we will not hold it to be an exception.  Thus, prior to releasing a public record pursuant to an open records request, the records custodian, mindful of the strong legislative policy of public access to public records, must first determine whether a specific statutory or common law exception applies, preventing disclosure.  Once the records custodian determines that no specific exception prevents disclosure, then the custodian must determine “whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure.” 

Kroeplin, 2006 WI App 227, at ¶ 13 (internal citations omitted; emphasis added). 

Whenever a records custodian denies access to an open record based on his or her policy analysis, he or she must specify reasons for the denial:

[T]he custodian must specifically state the public policy reasons for the refusal.  There is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary.  Mere assertion of a statutory exemption by the custodian for nonaccess to public records is insufficient unless coupled with a public policy reason or reasons for refusal.  The duty of the custodian is to specify reasons for nondisclosure and the court's role is to decide whether the reasons asserted [for nondisclosure] are sufficient.  The custodian of the records must satisfy the court that the statutory public-policy presumption in favor of disclosure is outweighed by even more important public-policy considerations.

Pangman, 163 Wis. 2d at 1079-80 (internal citations and quotations omitted; emphasis added). 

In determining whether particular responses to open records requests were proper, Wisconsin courts have historically reviewed a number of public policies as they relate to the facts of each particular case.  While Hempel v. City of Baraboo, 2005 WI 120, ¶ 64, 284 Wis. 2d 162, 699 N.W.2d 551, and Kroeplin, 2006 WI App 227, both address whether records related to investigations into public employee misconduct should be disclosed upon an open records request, the facts of each case lead to different conclusions. 

In Hempel, the Wisconsin Supreme Court held that the public policies in favor of confidentiality outweighed those for disclosure.  2005 WI 120, at

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Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org

legal update

1) The city’s policy of conducting “confidential investigations” when presented with harassment complaints;

2) Interference with the city’s ability to conduct thorough investigations, endangered if witnesses believed the information they provided would be made public;

3) Interference with the city’s ability to provide satisfying careers to its police force and retain competent law enforcement personnel;

4) The need to protect the privacy rights of individuals who cooperated in the investigation;

5) The city’s desire to avoid a loss of morale among its force; and

6) A risk that the records contained mistaken, unsubstantiated, untrue or irrelevant information.

See id at ¶ 15. 

Two years after Hempel, the Wisconsin Court of Appeals in Kroeplin held that the policies in favor of disclosure outweighed those against with respect to records generated in an internal investigation of DNR employee misconduct.  2006 WI App 227, at ¶ 52.  That “law enforcement officers necessarily relinquish certain privacy and reputational rights by virtue of the amount of trust society places in them and must be subject to public scrutiny” was a policy factor weighing in favor of disclosure  Id. at ¶ 46.  The Kroeplin court held that the public had an equally strong interest in knowing that an authority’s investigation into employee behavior was conducted fairly and thoroughly:

The public has a particularly strong interest in being informed about public officials who have been derelict in their duty.  The denial of public access generally is contrary to public interest, and only in an

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Back to Beginning

Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org

legal update

exceptional case may access be denied.  Wis. Stat. § 19.31.  This is not such an exceptional case.  The DNR and Kroeplin have failed to establish that under the particular facts of this case, the policy reasons for nondisclosure outweigh the strong presumption of openness and critical importance of public access to information regarding the investigation into possible misconduct by Kroeplin and of the disciplinary action taken as a result thereof.  Not only is the public entitled to know about Kroeplin’s actions, but, perhaps even more critically, there is a strong need for public oversight to ensure that the DNR’s investigation was thoroughly conducted as well.  Public access to records of completed investigations of misconduct by public officials and employees in critical in helping ensure that public employers, in this case the DNR, conduct thorough and meaningful investigations.  Openness and disclosure are conducive to better accountability.  If public employers know that the investigations they perform are subject to public review, common sense dictates that they will be more diligent in ensuring that charges of potential misconduct are thoroughly investigated, and that the appropriate discipline is imposed, than they would be if they were not so accountable to the public.” 

Id. at ¶ 52 (internal citations and quotations omitted; emphasis added). 

A public authority’s investigation’s records might implicate many of the public policy concerns at issue in Hempel and Kroeplin.  Certainly, a risk exists that witness interview transcripts contain mistaken or unsubstantiated statements that warrant protection from public scrutiny and that their disclosure would discourage the kind of candid responses necessary to conduct a proper and thorough investigation.  

However, the records may also contain specific allegations against particular public employees and include questions presented to witnesses that would provide insight into the propriety of the investigation itself.  Thus, there is also a public interest in knowing specifically what types of misconduct have been alleged, the public authority’s ultimate response to those allegations and the propriety of the investigation itself.  Clearly, whether the records custodian ultimately decides to release the records for public inspection depends heavily on the circumstances surrounding the records and will differ on a case-by-case basis.

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^[1] Only draft reports created for the drafter’s personal use need not be disclosed: “A determination that a document is a draft prepared for the originator’s personal use creates an exception to the general rule of disclosure.  It is a draft if it is prepared for and utilized for the originator’s personal use.  …[A] document prepared for something other than the originator’s personal use, whether it is in preliminary form or stamped ‘draft,’ whether recommendations of the document are implemented or not, is by definition a record.”  Fox v. Bock, 149 Wis. 2d 403, 412-13, 438 N.W.2d 589 (1989) (emphasis added). End

Back to Beginning

Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org

legislative update

The following items were covered in the July issue of the Capitol Report of the School Administrators Alliance:

• Assembly GOP Ponders K-12, Levy Limits Session

• Doyle Says He Won’t Accept Piecemeal Budget

• Doyle Orders $50 Million Transfer to “Rainy Day” Fund

• WISTAX: Since 2000, Wisconsin Population Growth Moderate

• WISTAX: Different Approaches, State Finances Compared

• Legislative Hearings

For a complete SAA Capitol Report, please see http://www.wsaa.org.
 

What is the School Administrators Alliance?

The School Administrators Alliance (SAA) is a statewide organization established to provide four associations of public school administrators with government relations services and a unified political voice. The SAA is an alliance of: Association of Wisconsin School Administrators (AWSA); Wisconsin Association of School Business Officials (WASBO); Wisconsin Association of School District Administrators (WASDA); Wisconsin Council of Administrators of Special Services (WCASS). As the combined government relations arm of these four associations, the SAA represents the interests of Wisconsin school children and Wisconsin public schools before the State Legislature, the Office of the Governor and the state agencies. The SAA supports legislation that improves Wisconsin public schools and the quality of education for Wisconsin school children.  End

Back to Beginning

Published by
The Association of Wisconsin School Administrators
4797 Hayes Rd.,
Suite 103
Madison, WI 53704
Phone: (608) 241-0300
Fax: (608) 249-4973
Web: www.awsa.org