65 Op. Att'y Gen. 292 (1976)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 98-76

3 December 1976

Law Enforcement; Police;
Criminal Law; Rule-Making;
Sheriffs; Public Officials; Constables;

Convicted felons may not serve as
sheriffs, deputy sheriffs, patrolmen,
policemen, or constables as these law
enforcement officers are "public officers"
within the meaning of that term in
Section 17.03(5), Stats., and they hold an
"office of trust, profit or honor in this
state" within the purview of Wisconsin
Constitution Article XIII, Section 3.

HOWARD G. BJORKLUND,
Secretary Law Enforcement Standards Board
Department of Justice

You have requested my opinion whether
nonpardoned felons may be certified and
employed as law enforcement officers under
the Wisconsin Constitution and statutes.

As you indicate in your request, convicted
felons are presently disqualified from
certification by virtue of Wisconsin
Administrative Code Section LES 2.01 (1)(d),

"unless the applicant has been granted
an absolute and unconditional pardon."

I understand that the Law Enforcement
Standards Board has been asked to
consider repeal of this rule, and
wishes to know the consequences of repeal.

Wisconsin Constitution Article XIII,
Section 3, provides in part:

   . . no person convicted of any
   infamous crime in any court within
   the United States . . shall be eligible
   to any office of trust, profit or honor
   in this state. .
 

In

Becker v. Green County,
176 Wis. 120,
184 N.W. 715 (1922),

the court defined an "infamous crime" as one
punishable by imprisonment in a state prison.

Since Section 939.60, Stats., defines a
felony in the same way, it follows that
an infamous crime within the meaning of
Wisconsin Constitution Article XIII,
Section 3, is a felony.

The question remains whether law enforcement
offices are offices of "trust, profit or
honor" in Wisconsin.

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In

Martin v. Smith,
239 Wis. 314,
1 N.W.2d 163 (1941),

the court held that the president of the
University of Wisconsin does not hold an
office of trust, profit or honor because he
is appointed by and serves at the will of the
Board of Regents, which may withdraw at any
time the powers it has conferred upon him.

The court noted that the line between
an officer and an employe is often
a fine one, but stated:

An office is where, for the time
being, a portion of the sovereignty,
legislative, executive or judicial,
attaches, to be exercised for the
public benefit.

239 Wis. at p. 330.

The court noted further that, in general.
an officer serves for a definite time and
is required to take an oath of office upon
assuming his responsibilities, but that the
primary characteristic of an officer is that

there is devolved upon him by law
the exercise of some portion of
the sovereign power of the state
in the exercise of which the
public has a concern.

239 Wis. at p. 332.

In consequence, in determining whether a
law enforcement officer holds a position of
public trust under Wisconsin Constitution
Article XIII, Section 3, it is necessary to
look to the nature of the duties conferred
upon him by law and to determine whether a
portion of the sovereign power attaches to
him by virtue of his position.

1. CONSTABLES

Town constables are elected biennially at
town meetings to serve for a two-year term.

As a precondition to serving, they must take
an official oath and file an official bond.

See Sections 60.19-60.22, 60.53, Stats.

The duties of a constable are set forth in
Section 60.54, Stats., and include
the duties to:

60.54(1)

Serve within his county any writ,
process, order or notice, and
execute any order, warrant or
execution lawfully directed
to or required to be
executed by him by
any court or officer.

60.54(5)

Impound cattle, horses, sheep, swine
and other animals at large on the
highways in violation of any duty
published order or bylaw adopted
at an annual town meeting.

60.54(6)

Cause to be prosecuted all violations
of law of which he has knowledge
or information. . .

60.54(7)

Perform all other duties
required by any law.

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Pursuant to Section 59.24, Stats.,
constables may

   "call to their aid such persons
   or power of their county as
   they may deem necessary"

   for service of processes and the
   apprehension of persons for breach
   of the peace or for felony.

Under Section 947.06(1), Stats., they have
a duty to "suppress unlawful assemblies"
within their jurisdiction and for that
purpose may order persons unlawfully
assembled to disperse.

Given the nature of their powers and duties
set forth above, constables exercise a
portion of the sovereign power of the
state since they are required to use
the police power of the state to
apprehend violators of the law.

That being the case, they are public officers
as that term is defined in Martin v. Smith,
supra, and therefore nonpardoned felons
may not serve as constables.

Section 61.29, Stats., provides that
village constables

   "shall be governed in every respect
   by the law prescribed for
   constables in towns."

Consequently they, too, hold an
office of "trust, profit or honor" within
the meaning of Wisconsin Constitution
Article XIII, Section 3.

II. COUNTY SHERIFFS

Wisconsin Constitution Article VI, Section 4,
provides in part:

   Sheriffs. . . and all other county
   officers. . . shall be chosen by the
   electors of the respective counties
   once in every two years . . . .

pursuant to Section 59.13, Stats., a
sheriff must file an official bond
and take an official oath following
his election to office.

He shares many of the duties of a constable,
among them, the duties to serve processes in
civil and criminal actions, to apprehend
persons for felonies and breaches of the
peace, and to prevent unlawful assemblies.

See Sections 59.23, 59.24, 264.07, and
947.06, Stats.

In addition, under Section 59.24, Stats. a
sheriff is responsible for preserving peace
and for suppressing riots and insurrections
within his county.

In view of the similar duties which they
exercise it is my opinion that sheriffs, like
constables, are public officers within the
meaning of Wisconsin Constitution Article
XIII, Section 3. Consequently, nonpardoned
felons may not serve as county sheriffs.

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III. DEPUTY SHERIFFS

Pursuant to Section 59.21, Stats., a sheriff,
within 10 days of entering upon the duties
of his office, shall appoint deputy sheriffs
for his county in the manner set forth in
that statute.

Although deputy sheriffs hold office "on good
behavior" rather than for a fixed term (see
Section 59.21(8)(b), Stats.), they may be
required to file an official bond.

Section 59.22, Stats.

In 3 OAG 672 (1914), it was stated:

   That a deputy sheriff is an officer
   has often been held by the courts.

   The deputy sheriff is an officer
   coeval in point of antiquities
   with the sheriff.

   The creation of deputies arises from
   an impossibility of the sheriff's
   performing all the duties of his
   office in person . . .

Furthermore a deputy sheriff is among
those persons empowered by
Section 59.24, Stats., to

   "keep and preserve the peace. . and
   quiet and suppress all affrays,
   routs, riots, unlawful assemblies
   and insurrections"

in their respective counties.

Consequently the legislature has delegated to
deputy sheriffs some portion of the sovereign
police power of the state, and I adhere to
the opinion of my predecessor, set forth
above.

Therefore, nonpardoned felons may
not serve as deputy sheriffs.

IV. APPOINTED POLICEMEN AND PATROLMEN

Policemen and patrolmen present a more
difficult class of law enforcement officers
to categorize as either public officers or
public employes.

They are not elected; they normally serve
permanently rather than for a fixed term; and
they neither take an official oath nor file
an official bond upon assuming their duties.

However, as the court stated in Martin v.
Smith. supra, the principal characteristic of
an officer is that he exercise some portion
of the sovereign power for the public
benefit.

It is my opinion that some of the powers and
duties of police and patrolmen are of a
sovereign nature, and consequently that they
are officers within the meaning of Wisconsin
Constitution Article XIII, Section 3.

Policemen clearly have been given authority
to exercise certain powers of the sovereign
for the benefit of the public.

Section 62.09(13)(a), Stats.,
provides in part:

62.09(13)(a)

   . . . The chief of police and each
   policeman shall possess the powers,
   enjoy the privileges and be subject
   to the liabilities conferred and
  imposed by law upon constables . . .

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Thus to the extent that a constable exercises
some part of the sovereign power, policemen
have been given the same authority.

In addition, policemen have the authority to
"arrest with or without process" any person
violating any state law or city ordinance,
Section 62.09(13)(a), Stats.

Sections 968.24 and 968.25, Stats., permit
law enforcement officers, including
policemen, to stop persons whom they suspect
have committed or are about to commit a
crime, to question those persons, and to
search them for weapons.

See also Sections 968.07(1)(d) and 968.08,
Stats., giving policemen the authority to
arrest and release persons without a warrant
on the basis of probable cause.

These statutes clearly give to policemen
powers which are exercised "on the street"
and which by their very nature call for
substantial independent judgment and
discretion on the part of the policeman.

As the Illinois Supreme Court found in
Coursey v. Greater Niles Township Publishing,
40 111.2d 257,
239 N.E.2d 837 (1968):

   . . Although as a patrolman [the
   plaintiff] is "the lowest in rank of
   police officials" and would have
   slight voice in setting departmental
   policies, his duties are peculiarly
   "governmental" in character and highly
   charged with the public interest.

   It is indisputable that law enforcement
   is a primary function of local
   government and that the public has a far
   greater interest in the qualifications
   and conduct of law enforcement officers,
   even at, and perhaps especially at, an
   "on the street" level than in the
   qualifications and conduct of other
   comparably low-ranking government
   employees performing more
   proprietary functions . . .

The court held that patrolmen are within
the "public official" classification.

Our own supreme court has decided the
question of whether policemen are public
officers or employes in both ways.

In

Heffernan v. Janesville,
248 Wis. 299,
21 N.W.2d 651 (1946),

the court held that police officers
(patrolmen) are not public officers, and
therefore are ineligible for back pay
for a period of improper suspension.

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However, five years later in

Larson v. Lester,
259 Wis. 440,
49 N.W.2d 414 (1951),

the court found that the term "public
officers," as used in Section 270.58, Stats.
(1951), included police officers, who
consequently could be indemnified for
judgments obtained against them for acts
committed in their official capacity.

In

Matczak v. Mathews,
265 Wis. 1,
60 N.W.2d 352 (1953),

Justice Currie distinguished the results in
the two cases, on the following basis:

Some words and phrases are subject to
more than one meaning, depending upon
the context in which used.

The term "public officer" falls
within this category.

A city police patrolman is not a public
officer in the sense of having a salary
attached to his position which would be due
to him if he were wrongfully suspended or
ousted from such position irrespective of
whether he had sustained any actual damage
thereby.

On the other hand, a police patrolman is
commonly referred to as a police officer and
in this sense is a public officer.

We are satisfied that it was the intention of
the legislature to include police officers
within the term "public officers" appearing
in Section 270.58, Stats.

For the reasons set forth above, I am
satisfied that policemen are also "public
officers" in the constitutional sense.

Therefore, a felon who has not received an
absolute and unconditional pardon may not be
appointed to serve as a policeman.

In summary, law enforcement officers in
Wisconsin enumerated herein have been
delegated some portion of the sovereign power
of the state by virtue of their authority to
make arrests and to engage in other
peace-keeping activities.

Whether or not their actions are or may be
subsequently nullified by a superior officer
or a prosecutor or a court, by apprehending
criminals and engaging in similar related
activities, they are exercising the police
power of the sovereign.

In consequence they hold office within the
meaning of Wisconsin Constitution Article
XIII, Section 3, as interpreted.

and a convicted felon who has not received an
absolute and unconditional pardon is
ineligible for all such positions.

BCL:WHW

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