54 OAG 191 (1965)
 
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County Board of Supervisors' Compensation -
County board of supervisors can increase the
number of days a supervisor can be
compensated for committee service even after
services have been rendered, but cannot
validate excessive payments.

A suit to recover such payments could be
started.

December 15, 1965

DANIEL J. MIRON

District Attorney
Marinette County

You indicate that the county board of
supervisors, by resolution enacted in 1944,
set the maximum number of compensable days
for supervisor committee work at 60 and that
the resolution is still in effect.

You state that certain supervisors have
claimed and have been paid for days
in excess of that figure.

Marinette county has a population
in excess of 34,000.

Your first question is whether the board of
supervisors may retroactively increase the
number of days a supervisor may be
compensated for committee work and
thereby legalize such payments.

The answer to your question is "no".

A related question was considered in 27 OAG
181, and the then attorney general was of the
opinion that then Section 59.06(2)(b) would
authorize a county board by a two-thirds vote
to increase the number of compensable days
even after the services were rendered.

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The opinion did not state that any other than
the present year could be considered or that
authorization could be given after payment
had been made.

In view of the statutes then existing,
the reasoning is sound.

It is necessary to review statutes dealing
with compensation for board services, by
salary or per diem, as well as compensation
for services on committees to determine
whether there can be any effective
retroactive action, before payment,
which would allow compensation for
services already performed.

Section 59.03(1)(c) provides that supervisors
in counties over 500,000 population shall
be compensated on a salary basis.

Compensation for supervisors in counties of
less than 500,000 and more than one town
shall be by per diem except where a county
board elects to establish a salary basis.

In counties where an annual salary is in
effect, such salary constitutes compensation
for all services including all committee
services, except the per diem allowance to
county highway committee members for services
in acquiring highway rights of way pursuant
to Section 84.09(4).

By reason of Section 59.03(2)(j), per diem
for committee meetings in excess of 40
committee and board meetings could be
authorized where supervisors are
on a salary basis.

Sections 59.03(2)(f), 59.03(2)(h)
(as amended by Chapter 20, Laws 1965),
59.03(2)(i) (as amended by Chapter 226,
Laws 1965), and 59.03(2)(j) provide:

59.03(2)(f) Compensation.

Each supervisor shall be paid a per diem
by the county for each day he attends a
meeting of the board. Any board may, at
its annual meeting, by a two-thirds vote
of all the members, fix  the compensation
of the board members to be next elected.

Any board may also provide additional
compensation for the chairman. . .

59.03(2)(h) Limitation on compensation.

Except for services as a member of a
committee as provided in Section 59.06
no  supervisor shall be paid for more days'
attendance on the board in any year than is
set out in this schedule: In counties
having a population of less than 25,000,
20 days; at least 25,000 but less than
100,000, 25 days; more than 100,000
but less than 500,000, 30 days.

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59.03(2)(i) Alternative compensation.

As an alternative method of compensation,
in counties having a population of less
than 500,000 including those containing
only one town, the board may at its annual
meeting, by a two-thirds vote of the members
entitled to a seat, fix the compensation of
the supervisors to be next elected at annual
salary for all services for the county
including all committee services, except the
per diem allowance for services in acquiring
highway rights of way  set forth in Section
84.09(4) The board may, in like manner, allow
additional salary for the members of the
highway committee and for the chairman
of the board.

In addition to the salary, the supervisors
shall receive mileage as provided in
Paragraph 59.03(2)(g) for each day's
attendance at board meetings or for
attendance at not to exceed 2 committee
meetings in any one day.

59.03(2)(j) Supplementary compensation.

The county board, in establishing an annual
salary, may provide by ordinance for a per
diem for all committee meetings attended in
excess of 40 committee and board meetings.

Section 59.06(2) provides:

59.06(2) Committeemen shall receive such
compensation for their services as the board
allows, not exceeding the per diem and
mileage allowed to members of the board and
such committee members shall receive such
compensation, mileage and reimbursement
for other expenses as the board allows
for their attendance at any school,
institute or meeting which the
board directs them to attend.

No supervisor shall be allowed pay for
committee service while the board is
in session, nor for mileage except
in connection with services performed
within the time herein limited.

The number of days for which compensation and
mileage may be paid a committee member in any
year, except members of committees appointed
to have charge of the erection of any county
building, and except as otherwise provided
by law, are limited as follows:

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59.06(2)(a)

In counties containing less than 25,000
population, to 20 days, not more than 10 of
which shall be for services on any one
committee, except that the board may increase
the number of committee meetings as provided
in Paragraph 59.06(2)(b) and similarly fix
the compensation of the members for
the additional meetings.

59.06(2)(b)

In other counties, to 30 days for services
on committees, except that the board may,
by a two-thirds vote of the members
present, increase the number of days for
which compensation and mileage may be paid
in any year and fix the compensation for
each additional day.

Assuming that the 1944 resolution was
effective to increase the compensable days to
60 for succeeding years, the present board
can take no action to attempt to legalize the
payments already made to supervisors for
committee services in this or other years
which exceed 60 per supervisor.

Certain supervisors may be entitled to
compensation for in excess of 60 days if they
were members of committees appointed to have
charge of the erection of a county building.
The excessive payments were unauthorized by
law and the county is entitled to be
reimbursed for the overpayments.

Henry v. Dolen, (1925)
186 Wis. 622,
203 N.W. 369;

St. Croix County v. Webster, (1901)
111 Wis. 270,
87 N.W. 302.

In the St. Croix case it is
stated at pages 273, 274:

     . . A public officer takes his office
     cum onere, and all services performed by
     him within the scope of his official
     duties, or which are voluntarily
     performed as such officer, are covered
     by his salary or compensation as fixed
     by law. A municipal corporation has no
     jurisdiction to allow to such officer
     additional compensation not authorized
     by law for the performance of such
     services, and if such allowance
     be in fact made it is a void act.

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     If such officer receives such additional
     compensation from the municipal
     corporation whose officer he is, even
     with its consent, he obtains no title
     thereto, but it may be recovered by the
     corporation in a proper action at law.

     If the proper corporate officers in such
     case refuse or neglect to bring such
     action, an equitable action may be
     successfully maintained by any taxpayer
     to recover such moneys for the benefit
     of the corporation, if the action be a
     timely one and there are no equitable
     considerations which  will operate
     as an estoppel. . .

Your attention is invited also to the
following sections of the criminal code:
 

Section 946.12, provides in part:

946.12 Misconduct in public office.

Any public officer or public employee who
does any of the following may be fined not
more than $500 or imprisoned not more than
one year or both: . . . . .

946.12(4)
In his capacity as such officer or employee,
makes an entry in an account or record book
or return, certificate, report or statement
which in a material respect he intentionally
falsifies; or

946.12(5)
Under color of his office or employment,
intentionally solicits or accepts for the
performance of any service or duty anything
of value which he knows is greater or less
than is fixed by law.

Also see Section 939.22(30).

Bill 31, A., 1961, as introduced, was
intended to prohibit the governing body in
counties of over 500,000 from increasing
salaries of supervisors in such a way
that the increase would be effective
during current terms of office.

As finally enacted, in the form of
Chapter 573, Laws 1961, it had
a much broader effect.

It created the last sentence of
Section 59.03(1)(c), to provide:

     Section 66.196 also applies
     to this paragraph.

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It also created Section 66.196 to provide:

     Compensation of governing bodies.
     An elected official of any county, city,
     town or village, who by virtue of his
     office is entitled to participate in the
     establishment of the salary attending
     his office, shall not during the term of
     such office collect salary in excess of
     the salary provided at the time of his
     taking office. This provision is of
     state-wide concern and applies only to
     officials elected after
     October 22, 1961.
 
 

The drafting record in the legislative
reference bureau dearly shows that Section
66.196 was in part adopted to prevent any
county hoard from increasing the salaries
of supervisors daring their respective terms
of office irrespective of the emergency
salary increase statute then in effect,
Section 66.195.

However, the limitation refers
only to salary.

Substitute amendments were offered to prevent
any increase in compensation, which would
include salary and per diem for board
services and services on committees,
however the words "compensation"
and "compensation or salary"
were rejected.
 

Section 59.15(1) requires the board to
establish the total compensation for
elective offices to be voted on in
the county prior to the earliest
time for filing nomination papers.

The section expressly excepts supervisors.

Section 59.03(2)(f) provides that a board in
a county under 500,000, may, at its annual
meeting by a two-thirds vote of its members,
fix the compensation of the board members
to be next elected.

The implication is clear that the board
cannot, absent some other express statute,
increase the compensation to be paid to
incumbent members for board services.

However, neither this section, nor Section
66.196, would prevent a county board from
increasing the number of days a supervisor
could be paid for committee services on a per
diem rate by reason of Sections 59.03(2)(h)
and 59.03(2)(i) and the special provisions
of Section 59.06(2).

The board could also fix the compensation to
be paid for additional days at a rate not to
exceed the per diem the respective supervisor
is entitled to receive for board meetings.

38 GAG 238.

The rate for the additional days of service
could be at a lesser rate than that
previously established.

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While a county board supervisor takes his
office cum onere and is obliged to fulfill
the duties of his office for the compensation
provided, and is subject to forfeiture for
refusal or neglect of duty by reason of
Section 59.10, the legislature evidently
intended that a county board could, within a
given year and by a two-thirds vote, increase
the number of days for which a supervisor
could be compensated for committee meetings.

In order to expedite the business of the
county, the board could increase the
number of compensable days before
the services were performed.

Retroactive increases in compensation are
not permitted absent a statute which
expressly or impliedly authorizes it.

Pugnier v. Ramharter,
(1957) 275 Wis. 70,
81 N.W. 2d 38.

I am of the opinion that Section 59.06(2) and
other statutes referred to permit an increase
on a retroactive basis even after the
services were performed.

Any such authorization could not have the
effect of validating excessive per diem
claims already paid for and could not
authorize an increase for a period
prior to beginning of the calendar
year in which the action was taken.

Both Section 59.03(2)(h) and Section 59.06(2)
use the word "year" without defining the
term. I am of the opinion that the
word year means calendar year.

Section 990.01 (49) provides:

     Year" means a calendar year,
     unless otherwise expressed; ...
 

The statutes do not state that year
shall be given any other meaning.
 

Counties are on a calendar year for financing
purposes which is further reason for saying
that any limitation relates to the calendar
year. Section 990.01(49) became law in 1951,
after the opinion appearing in 20 OAG 730
was rendered.

Your second question is whether supervisors
who received excessive compensation can
be compelled to refund such amounts
to the county.

The answer is "yes".

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A suit for recovery may be instituted by the
county on authorization of the board of
supervisors or any taxpayer could bring suit.

See Sections 59.01, 59.07(1)(b).

St. Croix County v. Webster, (1901)
111 Wis. 270,
87 N.W. 302;

Douglas County v. Sommer, (1904)
120 Wis. 424,
98 N.W. 249;

Henry v. Dolen, (1925)
186 Wis. 622,
203 N.W. 369;

Pugnier v. Ramharter, (1957)
275 Wis. 70,
81 N.W. 2d 38.

Laches and statutes of limitation are matters
of defense which must be asserted.

These matters are discussed in
the cases cited above.

It is not likely that the facts would permit
the defense of laches to be applied in case
the action were brought by a taxpayer.

Apparently no bond is involved which would
invoke the three year statute of limitations
provided in Section 330.20 (2).

In
Dodge County v. Kaiser, (1943)
243 Wis. 551, 561,
11 N.W. 2d 348,

the court held, in a somewhat similar action,
that the six year statute of limitations,
Section 330.19, was applicable.

The county board could properly authorize a
suit to be commenced for all overpayments,
regardless of their date, and if the defense
of limitations were asserted, could leave the
determination regarding the applicable
statute to the courts.

Your third question is whether a county board
of supervisors may raise the maximum of per
diem applicable to members of the county
highway committee after payment for
services has been made.

Section 83.015 (1)(a) provides in part:

     The members of such committee shall be
     reimbursed for their necessary expenses
     incurred in the performance of their
     duties, and shall be paid the same per
     diem for time necessarily spent in the
     performance of their duties as is paid
     to members of other county board
     committees, not, however, exceeding $500
     for per diem, in addition to necessary
     expenses, to any member in any year.
     A different amount may be fixed as a
     maximum by the county board.

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For the reasons stated above the board of
supervisors is without authority to raise the
maximum of per diems applicable to members of
the county highway committee after payment
for services has been made.

The board could increase the maximum $500 per
diem limit during any given year before
payment had been made, even though the
services had been rendered, but it could
not legalize excessive payments already
made in the current or previous years.

I note that you state that it does not appear
that Marinette county has ever raised
the $500 limit with respect to
highway committee members.

Your fourth question is whether the 1944
action in raising the number of per diems
supervisors could claim for regular committee
work would have the effect of increasing the
monetary limit for per diems allowed
supervisors for highway committee work.

In my opinion it would not.

Section 59.03(2)(f), 1943 Stats., expressly
limited the per diem a supervisor could be
paid to $4 per day with provision that the
county board by a two- thirds vote could
increase the per diem to $5.

At that time Section 83.015, limited the
county highway committeemen to "$500 for
both per diem and expenses" but
permitted the county board to
establish a different maximum.

Section 59.03(2)(f) was later amended to
remove the statutory per diem limits and the
county board was authorized to establish the
per diem for supervisors to be next elected.

While Section 83.015 was amended to provide
that expenses were not to be included in
the $500 limit, the $500 monetary
limit was retained.

It effectively limits the total amount a
highway committee member can receive
for services on the highway committee
for per diems, unless a larger amount
is specified by the board.

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In 1944 a Marinette county board supervisor
could have collected for 125 days of highway
committee work at the $4 rate.

I understand that Marinette county currently
has a $14 per diem rate for services prior
to April 1, 1965 and which is applicable
to supervisors who cannot qualify for the
$17.50 per diem rate which became
effective on April 1, 1965.

Either rate would allow a supervisor a much
lesser number of days for highway committee
services than he was entitled to under
the 1944 rate.

If the highway committeeman served on other
committees he could be paid per diems for
services on such committees over and
above the $500 limit applicable
to highway committee work.

A county highway committee is elected by the
county board, but its members need not be
supervisors.  It is an agency of the county
rather than a committee of the county board.

48 OAG 241.

Section 59.06(2) is applicable to county
highway committeemen in some respects
(see 51 OAG 183), however the limitations
on per diem services contained in Section
59.06(2) are limitations on service on
committees of the county board and are
separate and distinct from the limitations
on highway committee members.

You do not indicate that the 1944 resolution
increasing the maximum per diems for county
board committee work, pursuant to Section
59.06(2)(b) expressly or impliedly was
intended to cover highway committee services.

If the highway committee was referred to
therein, it could be argued that the
resolution effectively increased
the $500 maximum even though a
monetary figure was not included.

However, since no monetary limit was set, the
number of per diems being increased to 60,
and since at the then per diem rate of $4 a
highway committeeman could collect for 125
days, it is presumed that the resolution
did not apply to the highway committee.

RJV

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