60 Op. Att'y Gen. 98 (1971)
 
60 OAG 98   99   100   101   END

Wisconsin Attorney General Opinions

23 March 1971

County Supervisor

Conflict of Interest   Informal Opinion

County board member employed by engineering
and survey firm may be possible conflict
of interest in public contracts.

CHARLES H. PEHLIVANIAN,
Acting Corporation Counsel, Racine County

60 OAG 98   99   100   101   END

You have requested my opinion whether a
county board supervisor, who is employed
as business manager of an engineering and
survey company, which in the past has done,
and in the future expects to do considerable
surveying and engineering work for the
county, can legally serve on the highway
committee, on the planning committee or on
the county board when matters in which he
or his employer have a pecuniary interest
are considered by the board or the
respective committee.

We are concerned with a possible conflict of
interest problem as distinguished from a
compatibility of offices problem.

In general, it can be said that all
supervisors in our representative form
of government have a potential conflict
of interest problem.

I am not aware of any statute which would
prohibit the supervisor above referred to
from legally serving on the county board, or
on either of the committees mentioned.

It is good governmental practice, however,
for the electorate or appointing authority,
be it the board itself or board chairman,
to select supervisors and committee members
who have the least potential for conflict
of interest.

Two statutes are primarily in point,
Section 946.12, dealing with misconduct
in public office and especially Subsection
946.12(3) thereof, and Section 946.13, which
prohibits or strictly limits private interest
of public officers in public contracts.

The county has a definite interest,
even though the onus and primary
risk are on the officer.

Violation of the statute can result in fine
or imprisonment on the part of the officer.

However, the county has an interest in
seeing that the statute is not violated
by any officer, since Section 946.13(3),
Stats., provides:

946.13(3)

   A contract entered into in violation of
   this section is void and the state or
   the political subdivision in whose
   behalf the contract was made
   incurs no liability thereon.

Under Section 946.13(1)(a), Stats., it would
be necessary to determine whether there was a
contract involved, and whether or not the
public officer, in his private capacity,
negotiated or bid for or entered into
a contract in which he had a private
pecuniary interest, direct or indirect
and whether he was authorized or
required by law to participate
in the making of that contract.

60 OAG 98   99   100   101   END

Under Section 946.13(1)(b), Stats., it
would be necessary to establish that he
participated in the making of the contract or
that he performs in regard to that contract
some function requiring the exercise of
discretion on his part.

In

Heffernen v. Green Bay (1954),
266 Wis. 534, 542,
64 N.W.2d 216,

the court said:

   Such contract would have been void
   because of Rachals' indirect interest in
   it as proscribed by the statute.

   Under such circumstances it would have
   been immaterial that Rachals in his
   capacity as alderman did not vote upon
   the awarding of the contract.

This holding was based on then
Section 62.09(7)(d), Stats., which was
repealed by Chapter 603, Laws of 1959,
when the Criminal Code was revised.

In 52 OAG 367, 370 (1963), it is stated
that a public officer may avoid a violation
by refraining to vote or participate in
the negotiations.

The Heffernen case was not
discussed in that opinion.

It would appear that under Section
946.13(1)(b), Stats., it is a close
question as to whether an officer can
avoid a violation by abstaining.

Abstention from voting would not avoid a
violation under Section 946.13(1)(a), Stats.,
if the other elements could be proven.

The exceptions included in Section 946.13(2),
Stats., must always be considered.

Note that the exception in
Section 946.13,(5), Stats., runs only to
Section 946.13 (1)(b).

Your letter does not set forth specific
contracts, amounts involved, degree of
ownership or participation of the
supervisor in the company concerned, or
degree in which he might actually
participate, bid or negotiate.

While we are in part concerned with yearly
aggregate of contracts, each contract
situation must be studied before a
determination could be made as to whether
Section 946.13, Stats., was violated.

One of the burdens of public office can
be the foreclosure of participation in
certain public contracts which might
otherwise be available.

On the one hand, the supervisor may avoid
possible violation of Section 946.13, Stats.,
by abstention from voting or other
participation in making a contract in which
he is directly or indirectly interested.

60 OAG 98   99   100   101   END

On the other hand, he may avoid making
proposals in areas in which he
is financially interested.

And, lastly, the board or its committee may
reasonably in certain cases choose to do
business with individuals or firms which are
known to be free from potential conflict.

RWW:RJV

60 OAG 98   99   100   101   END