Oconto County judge finds closed meeting tied to PFAS contamination should have been public

Judge rules Marinette Common Council violated open meetings law

Aerial View Of Tyco's Fire Training Center In Marinette
An aerial view of Tyco’s Fire Training Center in Marinette. The DNR has said it has data showing that wastewater containing PFAS came from the training center. The chemicals are known to build up in biosolids generated by treatment plants, which were then spread on farm fields. Photo courtesy of Johnson Controls International

An Oconto County judge has ruled that a meeting about alternative water supplies to address PFAS contamination in the town of Peshtigo should have been open to the public.

The decision comes after Marinette alderman Doug Oitzinger filed a lawsuit against the city and the Marinette Common Council for holding the meeting in closed session.

According to the complaint, the council met behind closed doors on Oct. 7, 2020, to discuss a report by engineering consultant Rukert-Mielke on options for Peshtigo residents to obtain safe water. The town’s residents have been living with PFAS pollution of private wells stemming from Tyco Fire Products’ fire training facility.

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The council cited state statutes for “deliberating or negotiating the purchasing of public properties, the investing of public funds, or conducting other specified public business, whenever competitive or bargaining reasons require a closed session.”

During the closed meeting, council members didn’t discuss any bargaining matters. Instead, engineering consultants provided an overview of its report, which offered eight water supply alternatives. Two of the options included the sale of water to the town by the Marinette Water Utility. The city has since passed a resolution against providing water to Peshtigo.

In a decision issued Monday, Oconto County Circuit Court Judge Jay N. Conley said he wasn’t unsympathetic to the city and council’s position.

“They had a real problem and were aware that other parties wanted them to provide water to the Town of Peshtigo. It is understandable that they may have wanted to get ahead of the problem, but I cannot speculate on their intent,” Conley wrote. “This was a potential problem for Defendants in the future, but there were no negotiations or bargaining position to protect at the time of the meeting, October 7, 2020.”

An attorney for the city and Marinette Common Council declined to comment on the ruling Tuesday.

“A disturbing pattern of secrecy and manipulation was exposed during this litigation,” Oitzinger said in a statement. “City officials hid from the public – and members of the Council – that Ruekert Mielke had written a report concluding that Marinette providing municipal water to replace wells contaminated by PFAS was the ‘most feasible and most economical alternative.’”

Oitzinger had also raised concerns about another council meeting held in closed session the day before, citing the same statutes. The meeting involved review of an agreement between Johnson Controls International and Tyco regarding the donation of $1.3 million for equipment designed to dry out sewage sludge or biosolids. The equipment would decrease the volume of PFAS-polluted materials that would need to be shipped to Oregon. In exchange, the city would release the company of any future claims.

The judge found the Marinette Common Council had a right to vet the agreement behind closed doors before members approved it in open session.

Attorney Tom Kamenick, president and founder of the Wisconsin Transparency Project, represented Oitzinger in the case. Kamenick voiced concern about the court’s ruling on the agreement.

“It seems to suggest that if a government entity is in negotiations, it is entitled to hold all discussion related to that topic in closed session,” Kamenick said in a statement. “That’s not what the law says, and that is not consistent with prior cases that have ruled the government can only use closed sessions to protect a bargaining position. Negotiations with Tyco had already completed.”

The court didn’t award any attorney fees in the case or issue any penalties, since no action was taken during the Oct. 7 meeting.