What is a walking quorum?
Answer: First, it is helpful to define “quorum.” A quorum is the minimum number of a governmental body’s membership necessary to act. One governmental body may define what constitutes a quorum differently than another governmental body. For example, a quorum for a seven member town council may be a simple majority of four members while a quorum for a neighboring town’s seven member council may be a super majority of five members.
A “walking quorum” is a series of gatherings among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum. A walking quorum may produce a predetermined outcome and thus render a publicly-held meeting a mere formality. The Wisconsin Supreme Court has commented that any attempt to avoid the appearance of a meeting through the use of a walking quorum is subject to prosecution under the open meetings law. Furthermore, the requirements of the open meetings law cannot be circumvented by using an agent or surrogate to poll the members of governmental bodies through a series of individual contacts. The series of gatherings need not be face-to-face. For example, phone calls, email exchanges, and other electronic messaging may suffice.
The essential feature of a “walking quorum” is the element of agreement among members of a body to act uniformly in sufficient numbers to reach a quorum. Where there is no such tacit or express agreement, exchanges among separate groups of members may take place without violating the open meetings law. Thus, the signing, by members of a body, of a document asking that a subject be placed on the agenda of an upcoming meeting likely does not constitute a “walking quorum” where the signers have not engaged in substantive discussion or agreed on a uniform course of action regarding the proposed subject. In contrast, where a majority of members of a body sign a document that expressly commits them to a future course of action, a court could find a walking quorum violation.
Walking quorum issues are complex and fact specific. If a member of a governmental body or a citizen has questions or concerns regarding a possible walking quorum, they should consult with their legal counsel.