The Administrator The Administrator Form of County Form of County Government and Government and Open Meetings BasicsOpen Meetings Basics

Calumet County

April 16, 2013

The Peculiar Nature of Wisconsin County Government

County Structure• County authority comes from Chapter 59

Municipal authority comes from the Constitution

• Counties are a body corporate that can sue and be sued Does that mean that counties resemble private

corporations in business structure?

• Powers are limited by state statute Administrative Home Rule

• Counties are governed by a board of supervisors

Administrative Home Rule

Sec. 59.03(1) - Every county may exercise any organizational or administrative power, subject only to the constitution and to any enactment of the legislature which is of statewide concern and which uniformly affects every county.

• Traditional Governance: The board approves staff action plans and then exercises oversight by monitoring all aspects of the operation. The board tries to keep up with and to instruct management.

• Policy Governance: The board states what the organization must achieve and holds management accountable. The board must lead. Also the board describes what means will not be acceptable. The work of the board is focused on revising the desired results and means. Consequently its attention is given mainly to attending to the needs of the community served.

Forms Of Governance

QUIZ• Name the 3 branches of Federal Government

Legislative (House and Senate) Executive (President) Judicial (Federal Courts)

• Name the 3 branches of State Government Legislative (Assembly and Senate) Executive (Governor) Judicial (State Courts)

• Name the 3 branches of City Government Legislative (City Council) Executive (Mayor) Municipal Courts

QUIZ• Name the 3 branches of County Government

Legislative (County Board) Executive?? (Executive, Administrator, Administrative

Coordinator) Judicial??

WHY ARE COUNTIES DIFFERENT THAN EVERY OTHER LAYER OF GOVERNMENT??

DOES THAT MEAN THAT COUNTIES MUST OPERATE DIFFERENTLY THAN OTHER LAYERS??

Forms of County GovernmentThree types

• County Executive

• County Administrator

• County Administrator Coordinator

County Executive (s. 59.17)• Appoints and supervises department heads subject

to board confirmation

• Appoints members to Boards and Commissions

• Submits an annual budget to the county board

• Has veto authority

- may veto ordinances and resolutions

- county board can override veto with 2/3 vote

County Administrator (s. 59.18)

• Chief administrator of the county

• Responsible for coordinating all administrative and management functions not vested by law with other officers

• Appoints and supervises Department Heads

• Appoints members to boards and commissions

• Submits annual budget

County Administrator (cont’d)• Sec. 59.18(6) - The county administrator shall

be appointed solely on merit. In appointing the county administrator, the board shall give due regard to training, experience, administrative ability and general qualifications and fitness for performing the duties of the office, and no person shall be eligible to the office of county administrator, who is not by training, experience, ability and efficiency qualified and generally fit to perform the duties of such office. No weight or consideration shall be given by the board to residence, to nationality, or to political or religious affiliations.

Administrative Coordinator (s. 59.19)

• Similar to county administrator but does not have appointment authority and coordinates rather than supervises

• Some counties meet the requirement by appointing an elected official

Recent Attorney General Opinion• OAG 01-11

Attorney General opined that the office of Administrative Coordinator is incompatible with office of board supervisor

Presents problem for 19 counties whose board chair is also the administrative coordinator

County Board Supervisors• Supervisors serve primarily a legislative function

• The legislative function is largely limited to policy making, law making, budgetary approval and cooperative decision making

• No operational control resides with individual supervisors

County Board Functions• Involve, represent and be accountable to the public

• Determine services to be provided

• Adopt budget – levy taxes

• Regulate within statutory authority

• In other words, ENACT POLICY

County Board Supervisors• Supervisors authority is collective versus

individual

• When appointed to a committee chair position, a supervisor has the authority to set the agenda for committee meetings, preside at meetings and make reports and recommendations on the committee’s behalf

• So do “supervisors” actually “supervise” anything?

Thank you legislature for creating confusion with the name!

Board Sets PolicyPlans

Comprehensive, capital improvement, parks, farmland preservation, transportation

Budgets

Most important document – determines what services are provided, how funded and level of funding

Board Roles & ResponsibilitiesCounty Board

• Has overall budget authority

• Relationship to county offices and departments must be consistent with statutes and constitution

• Role is that of “visionary”

Board Roles & Responsibilities• County board supervisors and department head/staff have vastly different responsibilities

• Board supervisors serve primarily a legislative role

• Department heads and staff serve in an operational and advisory role

An Alternative – the Commission form of Government• Common in Western States as well as Illinois

• Usually 3, 5 or 7 members

• Well paid, with their own offices and staff

• Have absolute authority over operational aspects

• Incredibly inefficient – detracts from legislative and policy role

• Wisconsin does not allow for the commission form of county government

Standing Committee Functions• Supervisory and policy oversight for departments, offices and other entities

• Monitor performance

• Review and make budget recommendations

• Draft ordinances and resolutions

• In other words, assist in POLICY DEVELOPMENT

Policy vs. Administration•Policy (Board) = “What” and “Why”

•Administrative/Operations (Staff) = “Where,” “When” and “How”

Policy vs. Admin/OpsPolicy

“What” – Will the county establish a hiking trail system?

“Why” – Will the system benefit the county?

Admin/Ops “How” – Who will build and maintain the system? “When” – What is the timeframe for

implementation? “Where” - Where will the system need to be

maintained?

The dividing lines blur when implementing a plan, but once the plan is complete, the “hand off” occurs

How Our Courts View the Distinction Between Policy and Administration• The county boards function is primarily policy making

and legislative, while the county executive functions as an administrator and manager. See, e.g., 80 Op. Atty Gen. 49 (1991). Policy has been defined as “a high-level overall plan embracing the general goals and acceptable procedures esp. of a governmental body.” Webster's New Collegiate Dictionary 890 (1977). “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them, or appoint the agents charged with the duty of such enforcement.” See 2A MCQUILLIN, MUNICIPAL CORPORATIONS § 10.06 at 311 (3d ed. 1996). “The crucial test for determining what is legislative and what is administrative has been said to be whether the ordinance is one making a new law, or one executing a law already in existence.” Id.

Schuette v. Van De Hey, 205 Wis.2d 475 (Ct. App. 1996).

What, if anything, can be learned from the private sector?• Who are the shareholders in county government?

Taxpayers Employees State

• Who is the Board of Directors in county government? County Board

• Who is the CEO in county government? County Executive, Administrator, Administrative

Coordinator

• Where do Department Heads fall in the organizational chart?

Wisconsin County Organizational Chart (for counties without Exec)

County Board

Administrator

Dept. Head Dept. Head Dept. Head Dept. Head

County Staff

Committee

Committee

Staff vs. BoardStaff Board

Education Elected by people

Experience Local connection

Background checked

Bonded

Professionally current

Professional associations

Leadership Roles

Chapter 59 of the Wisconsin Statutes implies the following for county board supervisors:

“Thou Shalt Not Micro-Manage”

• When issues are raised before County Board members, they should be referred to the appropriate source for handling.

• County Board members should avoid engaging in individual initiatives to investigate or address issues unless authorized to do so by committees or the county board.

Following an appropriate chain of command will ensure that issues are addressed in an open and deliberate manner that is fair to all involved.

Chain of Command

Open Meetings Overview

Open Meetings• Public Policy Behind Open Meetings . . .

Wis. Stat. s. 19.81 All meetings shall be publicly held, § 19.81(2),

Wis. Stats: “To implement and ensure the public policy herein expressed, all meetings of all state and local govern mental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.”

Liberal construction, § 19.81(4), Wis. Stats. State ex rel. Lawton v. Town of Barton, 2005 WI App 16, ¶ 19.

• The purpose of the Open Meeting Law is to give the public the fullest and most complete information concerning the affairs of government. Martin v Wray, 473 F. Supp. 1131 (E.D. Wis. 1979).

Open Meetings – Scope of the Law• Scope of the Law

• Applies to Governmental Bodies, which are defined as: “[A] state or local agency, board, commission,

committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district under sub ch. II of ch. 229; a family care district under s. 46.2895; a nonprofit corporation operating the Olympic ice training center under §42.11(3); or a formally constituted subunit of any of the foregoing, but excludes any such body or committee or subunit of such body which is formed for or meet ing for the purpose of collective bargaining under Subch. I, IV or V of Ch. 111.”

Open Meetings – Scope of the Law• The key test is the source of authority from

which the body obtains its power.

• Coverage is determined by the method of its creation.

• Governmental bodies are created by “constitution, statute, ordinance, rule or order” where collective power is conferred and defined. This includes formally constituted sub – units. See State ex rel. Lynch v Conta, 71 Wis. 2d 622, 681, 239 N.W. 2d 313 (1976):

• Even bodies that are purely advisory are subject to the law if they are created by constitution, statute, ordinance, rule or order. State v. Swanson, 92 Wis. 2d 310, 317, 284 N.W.2d 655 (1979).

Open Meetings – What types of meetings are covered? • Definition of meeting:• “[T]he convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body.” § 19.82(2), Wis. Stats.

Open Meetings – What types of meetings are covered?• Judicial and Attorney General interpretation.

• The Showers Test – The above definition of a “meeting” applies whenever a convening of members of a governmental body satisfies two requirements: (1) there is a purpose to engage in governmental business; and (2) the number of members present is sufficient to determine the governmental body’s course of action. State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 398 N.W.2d 154 (1987).

Open Meetings – What types of meetings are covered?Purpose to Engage in Governmental Business:

•“governmental business” refers to any formal or informal action, including discussion, decision or information gathering, on matters within the governmental body’s realm of authority. Showers, 135 Wis. 2d at 102-03.

•A governmental body is engaged in governmental business when its members gather to simply hear information on a matter within the body’s realm of authority. State ex rel. Badke v. Greendale Village Board, 173 Wis. 2d 553, 573-74 (1993).

•Nonetheless, the Court of Appeals concluded in Paulton v. Volkmann, 141 Wis. 2d 370, 375-77 (Ct. App. 1987), that no meeting occurred where a quorum of school board members attended a gathering of town residents, but did not collect information on a subject the school board had the potential to decide.

Open Meetings – What types of meetings are covered?Number of Members Present Requirement.

It is critical to remember that the power to control a body’s course of action can refer either to the affirmative power to pass a proposal or the negative power to defeat a proposal, i.e., a “negative quorum.” The size of a negative quorum is smaller than a majority in situations where a super-majority (2/3 or 3/4) vote is required for a body to pass a measure.

Open Meetings – What types of meetings are covered?Technological Advances have changed what constitutes a meeting:

Telephone Conferences - In 1980, the Attorney General opined that a telephone conference involving a governmental body constituted a meeting and was subject to the provisions of the Open Meetings Law. 69 Op. Att’y Gen. 143 (1980).

Open Meetings – What types of meetings are covered?Video Conferences•In order to comply with the Open Meetings Law, the video conference must be “reasonably accessible” to the public. •A video conference may be “reasonably accessible” if it is broadcast at a location open to the public. •Therefore, at a minimum, it would seem prudent that an accessible room be reserved for the public viewing of the meeting.

Open Meetings – What types of meetings are covered?Electronic Mail

•Communications via electronic mail may constitute a “meeting” and be subject to the Open Meetings Law.

•Electronic mail features such as “reply all” and “forward” make it possible for a message to be instantaneously transmitted to a sufficient number of members of the governmental body to determine the body’s course of action on the matter, thus satisfying the definition of a meeting. DOJ Correspondence, October 3, 2000.

•While there is no applicable precedent that addresses the use of electronic mail in the context of the Open Meetings Law, members of governmental bodies are strongly discouraged from communicating via electronic mail on matters within the realm of their authority.

Open Meetings – What types of meetings are covered?• Interesting caveat . . .

• While the “reply all” and “forward” features of e-mail may run amok of the open meetings law, note that written correspondence is not viewed as convening a “meeting”.

Open Meetings – QuorumsWalking Quorums:•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. Showers, 135 Wis. 2d at 92.

•The critical element of a walking quorum is an agreement to act uniformly.

•If there is no tacit or express agreement, exchanges among separate groups of members may take place without violating the Open Meetings law.

Open Meetings – QuorumsProblems with Walking Quorums:

•The danger is that walking quorums produce a predetermined outcome and may render publicly-held meetings a mere formality. See State ex rel. Lynch v Conta, 71 Wis. 2d 622, 239 N.W. 2d 313 (1976).

•Proxies or surrogates cannot be used to circumvent the open meetings law. Clifford Correspondence, April 28, 1986.

“Petitions” and Walking Quorums• The signing, by members of a body, of a

document asking that a subject be placed on the agenda of an upcoming meeting does not constitute a “walking quorum.” Kay Correspondence, April 25, 2007; Kittleson Correspondence, June 13, 2007.

• 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. Huff Correspondence, January 15, 2008.

Open Meetings – Recording • The Open Meetings law explicitly provides that a governmental body must make a reasonable effort to accommodate anyone who wants to record, film or photograph an open session meeting, provided the activity does not interfere with the conduct of the meeting. § 19.90, Wis. Stats.

• The same right does not extend to closed session meetings.

Open Meetings – Who Can Close?• Only the board may exercise the right to convene into executive session; the public does not have the right or power to close a meeting.

• Even under § 19.85(1)(b), Wis. Stats., an employee cannot close a meeting.

Open Meetings – Who May Attend Closed Session• In general, the open meetings law gives

wide discretion to a governmental body to admit to a closed session anyone whose presence the body determines is necessary for the consideration of the matter that is the subject of the meeting. DOJ Correspondence, December 15, 1988.

• Cannot exclude any elected or appointed member of the governmental body.

• However, it is important to remember that where enough non-members of a subunit attend the subunit’s meetings that a quorum of the parent body is present, a meeting of the parent body occurs, and the notice requirements of § 19.84, Wis. Stats., apply. Badke, 173 Wis. 2d at 579.

Additional Resources• Attorney General’s Open Meetings Compliance

Guide - http://www.doj.state.wi.us//dls/open-government

• The UW-Extension Local Government Center has many resources on the topics covered in this presentation and contributed content to this presentation.

Additional Resources• Wisconsin Counties Association

www.wicounties.org (866) 404-2700

• Phillips Borowski, S.C. www.phillipsborowski.com (262) 241-7788