40 OAG 416 (1951)  TOP  416 417 418  END

KEY WORDS: Counties
           Board Member
           Public Officers
           Malfeasance

Where committee, pursuant to authorization
delegated under Section 75.35(2)(d), Stats.,
sells tax deeded land or standing timber
thereon, the county board retaining no
right to ratify or confirm the sales but
merely approving annual report of committee
which does not list individual sales, Section
348.28 does not prohibit county board member
who is not a member of the committee from
purchasing land or timber.

November 9, 1951.

HARRY E. WHITE, District Attorney,
Marinette County.

You have requested an opinion with reference
to the following facts: The Marinette county
board of supervisors has delegated to its
conservation and land committee the
administration of all matters pertaining to
county-owned lands acquired on tax title,
including the power to sell the lands. The
power of the county board to do this is set
out in Section 75.35(2)(d), Stats., which
provides in part as follows:

     75.35(2)(d)

     The governing body of any municipality
     may delegate its power to manage and
     sell tax deeded lands to a committee
     constituted of such personnel and in
     such manner and compensated at such
     rate as such governing body may by
     ordinance determine, provided that
     the compensation and mileage of
     county board members serving on
     such committee shall be limited
     and restricted as provided in
     section 59.06(2) . . . "

40 OAG 416 (1951)  TOP  416 417 418  END

     Such ordinance shall prescribe the
     policy to be followed in the
     acquisition, management and sale
     of tax deeded land and shall prescribe
     generally the powers and duties
     of such committee . . .

     Such governing body may appropriate such
     sums money as may be necessary to carry
     out the provisions of this section.

In selling such county-owned tax deeded
lands the conservation and land committee
has complied with the requirements of
Section 75.69, Stats., and has made
it a practice of selling at public
auction to the highest bidder.

The county board takes no part in the
handling of such sales nor are the
individual sales reported to the
board for confirmation or ratification.

The board does approve the annual reports
of the committee which do not itemize
individual sales but merely summarize
the year's financial transactions.

You inquire whether these circumstances a
member of the county board who is not a
member of the conservation and land committee
is prohibited by Section 348.29, Stats., from
purchasing county-owned lands at such public
auctions at a price exceeding $1,000 in any
one year.

Chapter 70, Laws 1951, increased the
former figure of $300 to $1,000,
effective April 18, 1951.

Section 818.28, among other things,
prohibits public officers, agents or clerks
from acquiring any pecuniary interest in any
purchase or sale or any personal or real
property, or in any contract, proposal
or bid in relation thereto, or in any tax
sale, tax title, bill of sale, or deed

     made by, to or with him in his official
     capacity or employment, or in any
     public or official service. "

A criminal penalty is provided and any
contract made in violation of the statute
is declared to be absolutely null and void.

The statute provides certain exceptions,
including

     Any contract, not exceeding
     $1,000 in any one year.
 

Since the county board has no official
functions to perform in connection with sales
of county-owned lands, having delegated that
power absolutely to the conservation and land
committee pursuant to Section 75.25(2)(d), it
seems clear that the county board member in
question has no official duties to
perform and that the sale is not made

     by to or with him in
     his official capacity.

40 OAG 416 (1951)  TOP  416 417 418  END

The purchase by him of such lands for amounts
exceeding $1,000 in any one year is therefore
not within the prohibition of the statute.

State v. Bennett, (1934)
213 Wis. 456;
29 OAG. 415.

You state further that the conservation and
land committee has also been granted
authority to sell timber on county-owned
lands and has been acting under that
authority in making sales of timber stumpage.

In this case no public auctions are held,
but sales are based on sealed bids which
cannot be altered after the time announced
for the opening of bids.

Notices of such sales are published in a
newspaper well in advance of the time set
for the opening of bids and the committee
announces in connection with such
advertisement the minimum bid acceptable
for each type of timber.

You inquire whether a county board member who
is not a member of the committee may purchase
timber from the county on such sealed bid in
an amount exceeding $1,000 in any one year.

We give no consideration to whether there is
compliance with Sections 28.12 and 28.13,
Stats., if the sales of timber are from
county-owned tax deeded lands that were
under and have been withdrawn from the
forest crop law, and assume the same.

Nor do we pass upon any question as to
whether the sale of timber from tax deeded
lands constitutes a sale of part of the
land so that Section 75.69, Stats., would
be applicable, or such sale is in the nature
of the sale of crops that might be deemed
within the delegated "management" authorized
by Section 75.35 (2) (d), Stats.

Whatever may be the case, it is our opinion
that, for the reasons mentioned in answer to
your first question, Section 348.28, Stats.,
does not apply to purchase of such timber
by a county board member who is not a
member of the committee, when the sale
is conducted in the manner you state.

WAP

HHP
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