65 Op. Att'y Gen. 243 (1976)
65 OAG 243   244   245


Wisconsin Attorney General Opinions

28 October 1976

Anti-Secrecy; Open Meeting; Municipalities;
Public Utilities; A municipal public utility
commission managing a city owned public
electric utility is a governmental body under
Section 19.82(1), Stats., and its meetings
are subject to secs. 19.81-19.98, Stats.

District Attorney Winnebago County

You state that the City of Menasha owns an
electric generating plant which operates as
an electric public utility. By reason of
charter ordinance, approved by the
electorate, management and control has been
delegated to a five-person commission as
permitted by Section 66.068, Stats.

You request my opinion on the following

1.   Is the commission a governmental body
     within the meaning of Section 19.82(1),
     Stats., as created by Chapter 426
     Laws of 1975?

It is my opinion that it is.

2.   Do the provisions of Sections
     19.81-19.98, Stats., as created by
     Chapter 426, Laws of 1975, apply to
     the municipal electric utility
     commission when it conducts
     utility business meetings?

65 OAG 243   244   245

It is my opinion that they do.

Section 19.82(1), Stats., as created by
Chapter 426, Laws of 1975, provides:

     "Governmental body" means 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; 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 meeting for the purpose of collective
     bargaining under Subchapter IV or V of
     Chapter 111.

The utility commission you refer to meets the
express terms of the statutory definition.

Section 66.068(1), (2), (3) and (7), Stats.,
provides in material part:


66.068(1) In cities owning a public utility,
          the council shall . . . provide for
          a nonpartisan management thereof,
          and create for each or all such
          utilities, a board of 3 or 5 or 7
          commissioners, to take entire
          charge and management of such
          utility, to appoint a manager and
          fix his compensation, and to
          supervise the operation of the
          utility under the general control
          and supervision of the . . council.

66.068(2) The commissioners shall be elected
          by the board or council for a term
          . . . .

66.068(3) The commissioners shall choose from
          among their number a president and
          a secretary. They may command the
          services of the city engineer and
          may employ and fix the compensation
          of such subordinates as shall be
          necessary. They may make rules for
          their own proceedings and for the
          government of their department.
          They shall keep books of account,
          in the manner and form prescribed
          by the public service commission,
          which shall be open to the public.
          . . . .

66.068(7) In cities of the second, third or
          fourth class the council may
          provide for the operation of a
          public utility or utilities by the
          board of public works or by another
          officer or officers, in lieu of the
          commission above provided for.

65 OAG 243   244   245

A municipal utility commission is not
a body corporate separate from the city.

It is an agency or department of city
government which has power to carry
out a proprietary function.

Flottum v. Cumberland (1940),
234 Wis. 654, 664,
291 N.W. 777,
holds that a municipal utility
commission is a city commission.

Richmond v. Lodi (1938),
227 Wis. 23, 25,
277 N.W. 620,
it was stated:

     . . The management, as between itself
     and the village, sustains a relation
     described as governmental, even though
     in the relations of the utility with
     others, its character is proprietary . .

Section 66.068(3), Stats., provides that the
books of account shall be open to the public,
and Sections 19.81-19.98, Stats., require
that the meetings of the utility shall be
open to the public except in those cases set
forth in the exemptions in Section 19.85,
Stats. Whereas Section 66.068(3), Stats.,
permits the commission to make rules for
its own proceedings, such rules cannot
be in conflict with the provisions of
Sections 19.81-19.98, Stats.

Bronson C. La Follette
Attorney General