61 Op. Att'y Gen. 108 (1972)
 
61 OAG 108  109  110  111  112  113  114  END

Wisconsin Attorney General Opinions

29 February 1972

County Board   Election of Chairman

County board cannot adopt a resolution which
infringes on the power of succeeding board
to elect its chairman and vice-chairman.

Supervisor can require that votes of county
board be taken in a manner in which the vote
of each supervisor may be ascertained and
recorded.

ROBERT P. RUSSELL,
Corporation Counsel, Milwaukee County

You have requested my opinion on the power of
the county board to adopt and implement a
resolution which purports to establish a
procedure for the election of the county
board chairman and two vice chairmen.

The entire board will be elected on
April 4, 1972.

Section 59.05(1), Stats., provides in part:

59.05(1)

   The board, at the first meeting after
   each regular election at which members
   are elected for full terms, shall elect
   a member chairman.....

Section 59.05(2), Stats.,
provides that the board

   . . at the time of the election of
   the chairman shall also elect a member
   vice chairman for the same term . .

and

   . . may also elect a member 2nd vice
   chairman for the same term . .

The proposed resolution pending before the
present board would require that, in each
year in which there is a regular election
for supervisors, beginning in 1972, each
candidate for chairman shall submit to
the incumbent chairman a statement of
his proposed policies and programs,
if elected, to include:

1. The nature and extent of his personal
   commitment to the office, including the
   amount of time he intends to devote to
   the exercise of its duties;

2. Specific objectives which he will strive
   to achieve during his term of office as
   chairman to expand, reduce, revise or
   eliminate existing county programs, or
   to introduce new programs, in order to
   improve the overall effectiveness of
   county government;

61 OAG 108  109  110  111  112  113  114  END

3. A specific plan for the selection of
   committee chairmen and membership,
   outlining the roles each such committee
   will be expected to carry out so that
   his legislative and organizational goals
   may be achieved."

A somewhat similar statement would be
required of candidates for vice chairmen.

The resolution would further require that
such statements be submitted between
March 1 and the county board caucus
beginning in 1972, and that such caucus
would be held not less than seven nor more
than 21 days following the general election.

Statements are to be made
available to the public.

The resolution also provides:

2. That the selection of the chairman and
   two vice chairmen in the caucus be by
   secret ballot, and that their election
   take place at the first meeting of the
   new board of supervisors, as prescribed
   in Section 59.05(1), Stats., and
   Section 1.03, C.G.O."

It is my opinion that the resolution, if
adopted, would not be binding on the new
board and that portions of the same
could not be legally implemented.

Our Supreme Court has, in effect, said
that the county board is a continuing
body with perpetual succession.

Thus, it is the same board that continues
from year to year despite periodic
changes in membership.

While the board is a continuing body,
one board cannot act in such a way
as to tie the hands of a future board.

26 OAG 313, 314 (1937); 28 OAG 588 (1939).

In the absence of statutory requirements, a
board may adopt its own rules of procedure to
govern the conduct of its meetings.

However, since the board is considered a
minor deliberative body, actions of the board
will be held valid if no statute requires a
set procedure, even though the board's own
rules of procedure were not followed.

52 OAG 57 (1963); 27 OAG 21 (1938).

Under Section 59.05(1) and (2), Stats., any
member of the board to be next elected is
eligible after filing his oath to stand for
election to the office of county board
chairman or vice chairman.

While the board may request aspirants to set
forth a program and statement of interest,
the board is without power to deny any member
the right to have his name placed in
nomination at the duly convened first meeting
of the board after the regular election.

61 OAG 108  109  110  111  112  113  114  END

Neither the present board nor the newly
elected board have power to establish
qualifications for the offices of
chairman or vice chairman.

The only statutory qualification is
that they be members of the board.

The resolution is also defective in that it
attempts to require that candidates for
chairman set forth a specific plan for
the selection of committee chairmen
and committee members.

Under Section 59.06(1), Stats., the board
has power to establish committees by
resolution and may designate their purpose,
prescribe duties and manner of reporting.

However, the same statute vests the power of
appointment solely in the chairman without
the necessity of confirmation.

While the board can change the size of
committees, prescribe their duties, abolish
them and limit the number of committees a
member may serve on, it cannot infringe on
the power of the chairman as to who shall
be appointed to authorized committees.

The procedure prescribed by the resolution is
also invalid in that it would establish a
meeting of the board in the nature of a
caucus, which might be attempted to be
secret, but which would in any event
be prior to the regularly regarded
first meeting of the board.

A court might well hold that the caucus
meeting was the first meeting of the board.

Whereas members of the county board may
gather informally as members, the board can
only exercise its corporate powers when it
meets as a board, or in pursuance of a
resolution or ordinance adopted by it,
Section 59.02(1), Stats.

Section 59.04(4), Stats., requires that:

59.04(4)

   The board shall sit with open doors,
   and all persons conducting themselves
   in an orderly manner may attend. . .

Section 66.77(2), Stats., requires:

   all meetings of all state and local
   governing and administrative bodies,
   boards, commissions, committees and
   agencies, shall be publicly held and
   open to all citizens at all times,
   except as hereinafter provided in
   Subsection 66.77(3),

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None of the exceptions in Subsection
66.77(3) would permit closing of a
meeting of the county board for the purpose
of electing a chairman or vice chairman.

This does not mean that a county board, at
the first meeting after the regular election,
cannot proceed by informal votes before
taking a formal vote on the election of
chairman.

The Supreme Court apparently approved
the use of an informal vote and,
in fact, a secret ballot in

State ex rel. Burdick v. Tyrrell (1914),
158 Wis. 425, 432,
149 N.W. 280,

where neither statute nor charter required an
aye or nay vote recording. At Page 434 the
court also stated:

   . . The election or appointment of a
   city attorney was `transaction of
   business,' and a majority of a quorum,
   in the absence of any statute to the
   contrary, was sufficient to elect. .

   . . Perhaps, accurately speaking, under
   Section 9, art. XIII, Const., and the
   provisions of the city charter in the
   instant case the council appoint and do
   not elect the city attorney.

   But whether the term "elect" or
   "appoint" be used in the charter
   the power of the council over the
   subject matter is the same.

   It is in reality an appointing power,
   and under the terms of the charter under
   consideration is to be exercised by the
   common council as a collective body, . .

In
McQuillan Mun. Corp. (3rd Ed.)
Section 13.43a, pp. 554, 555,
it is stated:

   A municipal council generally acts
   by vote. It is essential to a valid
   election that all those who are
   present and are constituent members
   of the elective body have an
   opportunity to vote.

   Where election by ballot is authorized
   if requested, refusal of such a request
   may invalidate an election.

   A vote is but the expression of the will
   of a voter; and whether the formula to
   give expression to such law be a ballot
   or viva voce the result is the same;
   either is a vote.

   Where no mode of voting is prescribed by
   law, any mode not expressly forbidden by
   law, which insures to each member the
   right to vote, and by which the will of
   the majority can be fairly ascertained,
   may be adopted.

   It may be by ballot, by resolution, the
   adoption of a verbal motion or in any
   other manner. . . ."

Citing

Coon Valley v. Spellum (1926),
190 Wis. 140,
208 N.W. 916;

The City of Green Bay v. Brauns (1880),
50 Wis. 204, 6 N.W. 503.)

61 OAG 108  109  110  111  112  113  114  END

Certain statutes require some municipal
governing bodies to take votes by ayes
and nays and record the same at least
as to certain questions.

See Section 62.11(3)(d), Stats., applicable
to cities requiring aye and nay votes on
confirmations and money questions and on
other questions when requested by any member.

In
McQuillan Mun. Corp. (3rd Ed.)
Section 13.45, p. 559, it is stated:

   Two principal reasons may be suggested
   in favor of the requirement that
   whenever a vote is taken by a local
   legislative body on a certain
   proposition, the yeas and nays
   must be taken and recorded:

   First, the most important is to obtain a
   definite and accurate record of the
   corporate action in order to determine
   whether all of the mandatory provisions
   of the charter have been observed.

Only in this way may it be ascertained
whether the particular act is
legal or illegal.

   Second, another purpose is to make
   the members of the body feel the
   responsibility of their action and
   to compel each member to bear his
   share in the responsibility by making
   a permanent written record of his
   action which should not be
   afterwards open to dispute.

   The inhabitants of the municipality are,
   as of right, entitled to know clearly
   the act and vote of every member, of
   their agents and servants, on every
   proposition relating to public duties,
   and a record of such acts and votes
   should be plainly made in a permanent
   form so that every inhabitant may have
   definite information.

Citing

State ex rel. Milwaukee
v.
Milwaukee E.R. & L. Co. (1911),
144 Wis. 386, 402,
129 N.W. 623.

The statutes do not, however, expressly
require that a county board vote on every
question by ayes and nays, nor do they
expressly authorize the board to use a ballot
or secret ballot in elections by the board.

They do require that the board act by voting.

61 OAG 108  109  110  111  112  113  114  END

Section 59.02(2) and (3), Stats., provides:

59.02(2)

   Ordinances and resolutions may be
   adopted by a majority vote of a
   quorum or by such larger vote
   as may be required by law.

   Ordinances shall commence as follows:

   "The county board of supervisors of the
   county of. . . do ordain as follows."

59.02(3)

   A majority of the supervisors
   entitled to a seat on the board
   shall constitute a quorum.

   All questions shall be determined by a
   majority of the supervisors present
   unless otherwise provided.

Section 59.17(1), Stats., which sets forth
the duties of the county clerk, does,
however, provide:

59.17(1)

   Act as clerk of the county board at all
   the meetings thereof; keep and record in
   a book therefor true minutes of all the
   proceedings of the board; make regular
   entries of their resolutions and
   decisions upon all questions;

   record the vote of each supervisor on
   any question submitted to the board,
   if required by any member present,

I am of the opinion that any member can
require that a vote be taken by some
form in which the vote of each supervisor
may be ascertained and recorded.

Such request would have to be made
before a vote was taken.

This would not preclude the use of a
signed or otherwise identified ballot
but would preclude a secret ballot.

Use of a signed or identified ballot would
lessen chances of members following the
leader during voting but would still permit
recordations for purposes of establishing a
definite and accurate record of the
proceedings and compel each member to bear
his share in the responsibility in recorded
form for information of the public.

I am of the opinion that the use of a secret
ballot is contrary to the spirit and intent
of Section 59.04(4), Stats., which requires
the board to sit with open doors, and
Section 66.77, Stats., which requires
open meetings of governmental bodies.

The legislative intent of the latter
statute is stated in Section 66.77(1),
Stats., as follows:

66.77(1)

   In recognition of the fact that a
   representative government of the
   American type is dependent upon an
   informed electorate, it is declared to
   be the policy of the state that the
   public is entitled to the fullest and
   most complete information regarding the
   affairs of government as is compatible
   with the conduct of governmental affairs
   and the transaction of governmental
   business.

61 OAG 108  109  110  111  112  113  114  END

Citizens attending public meetings are denied
the "fullest and most complete information"
regarding the actions of a governmental body
when such body attempts to vote in a manner
which precludes even citizens who are in
attendance from any chance of ascertaining
how individual members voted.

RWW:RJV

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