66 Op. Att'y Gen. 226 (1977)
 
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OPINION NO. OAG 63-77,

Wisconsin Attorney General Opinions

29 July 1977

Cities,
Forfeitures;
Liability,
Municipalities;
Open Meeting,
Public Officials;
Reimbursement;

Pursuant to Section 895.35, Stats., a city
council can, in limited circumstances,
reimburse a council member for reasonable
attorneys' fees incurred in defending an
alleged violation of the open meeting law,
but cannot reimburse such member for any
forfeiture imposed.

Section 895.46(1), Stats., is not
applicable to forfeiture actions.

Such member could not be reimbursed,
indirectly, under liability insurance policy
procured by a municipality, for any
forfeiture imposed.

DOUGLAS E. BREISCH,
News Director WIZM, La Crosse

Pursuant to Section 19.98, Stats., you
request my advice whether a city council can
reimburse a council member for legal expenses
incurred in defending an action in which such
member has been charged with a violation of
the open meeting law.

 
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                                     Page 227

I am of the opinion that no reimbursement can
be made where a judgment of forfeiture is
entered except in a case where the
certificate of the trial judge states that
the action invokes the constitutionality of a
statute, not theretofore construed by a court
of record, which relates to the performance
of the official duties of such officer.
 

In such latter case, payment is at
the discretion of the council.

 Where action for forfeiture has been
commenced and discontinued or dismissed or
determined favorably to such officer, the
city council may in its discretion pay all
reasonable expenses of such officer in
defense of said officer.

I am of the opinion that Section 895.35,
Stats., would be applicable to a forfeiture
action brought under Section 19.96, Stats.,
but that Section 895.46, Stats.,
would not be applicable.

By reason of the express language of Section
19.96, Stats., I am of the opinion that a
city council could not directly pay a
forfeiture incurred by a member for violation
of such section and could not reimburse such
member for any forfeiture incurred.

The specific statute governs over the general
reimbursement statute, Section 895.35,
Stats., and would govern over the other
general reimbursement statute, Section
895.46(1), Stats., even if the latter
were applicable to forfeiture actions;
and I conclude it is not.

Section 19.96, Stats.,
provides in material part:

19.96 Penalty.

     Any member of a governmental body who
     knowingly attends a meeting of such body
     held in violation of this subchapter, or
     who, in his or her official capacity,
     otherwise violates this subchapter by
     some act or omission shall forfeit
     without reimbursement not less than $25
     nor more than $300 for each such
     violation . . . ."

Section 19.97(1) and (4), Stats.,
provides in material part:

19.97(1)

     In actions brought by the attorney
     general, the court shall award any
     forfeiture recovered together with
     reasonable costs to the state;
     and in actions brought by the district
     attorney, the court shall award any
     forfeiture recovered together with
     reasonable costs to the county.

19.97(4)

     If the district attorney refuses or
     otherwise fails to commence an action to
     enforce this subchapter within 20 days
     after receiving a verified complaint,
     the person making such complaint may
     bring an action under 19.97(1) and
     19.97(3) on his or her relation
     in the name, and on behalf, of
     the state.

     In such actions, the court may award
     actual and necessary costs of
     prosecution, including reasonable
     attorney fees to the relator if he
     or she prevails, but any forfeiture
     recovered shall be paid to the state.

 
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A suit to compel payment of a forfeiture is a
civil action. Where not set forth in Sections
19.97(1) and 19.97((4), Stats., procedure is
controlled by Chapter 288, Stats.
 

Also see
State v. Roggensack,
15 Wis.2d 625,
113 N.W.2d 389 (1962).

Section 895.35, Stats., would be applicable
to an action against a council member for
violation of the open meeting law, and
provides:

895.35  Expenses in actions against
        municipal and other officers.

        Whenever in any city, town,
        village, school district,
        vocational, technical and adult
        education district or county
        charges of any kind are filed or an
        action is brought against any
        officer thereof in his official
        capacity, or to subject any such
        officer, whether or not he is being
        compensated on a salary basis,
        to a personal liability growing out
        of the performance of official
        duties, and such charges or such
        action is discontinued or dismissed
        or such matter is determined
        favorably to such officer, or such
        officer is reinstated, or in case
        such officer, without fault on his
        part, is subjected to a personal
        liability as aforesaid, such city,
        town, village, school district,
        vocational, technical and adult
        education district or county may
        pay all reasonable expenses which
        such officer necessarily expended
        by reason thereof.

        Such expenses may likewise be paid,
        even though decided adversely to
        such officer, where it appears from
        the certificate of the trial judge
        that the action involved the
        constitutionality of a statute,
        not theretofore construed, relating
        to the performance of the official
        duties of said officer.

It is my opinion that the provision of
Section 895.46(1), Stats., would not require
or authorize a city council to reimburse a
member for the forfeiture or reasonable
expenses incurred in the defense of a
forfeiture action brought pursuant to
Section 19.96, Stats.

Section 895.46(1), Stats., is only applicable
where the action or special proceeding is
brought for the purpose of securing a
judgment for damages.

Section 895.46(1), Stats., was formerly
Section 270.58, Stats. (1973).

 
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In
Cords v. Ehly,
62 Wis.2d 31, 37, 38,
214 N.W.2d 432 (1974),

it was stated:

     . . . it is clear that in enacting
     Section 270.58, Stats., the legislature
     contemplated that state employees were
     subject to suit in tort under the law of
     Wisconsin and wished gratuitously to
     shield them from monetary loss
     in such suits. . .

     . . . Section 270.58 does not become
     applicable until after a judgment
     of liability is entered. . .
 

By the latter statement the court means that
any liability on the part of the state to pay
a claim for damages did not arise until after
entrance of a judgment of liability on the
part of the officer or employes.

A judgment imposing a forfeiture is not a
judgment of damages as that term is used
in Section 895.46(1), Stats. A forfeiture
does not constitute damages any more than
does a criminal fine.

A forfeiture, as used in Section 19.96,
Stats., and a criminal line are both
in the nature of a penalty.

Any forfeiture recovered under Section 19.96,
Stats., is payable, by reason of Section
19.97(1) and 19.97(4), Stats.,
to the state or county.

It never goes to a private person who
may sue to enforce its collection.

Section 288.01, Stats., provides:

     Where a forfeiture imposed by statute
     shall be incurred it may be recovered in
     a civil action unless the act or
     omission is punishable by fine
     and imprisonment or by fine or
     imprisonment. The word forfeiture, as
     used in this chapter, includes any
     penalty, in money or goods.

In State v. Mando Enterprises, Inc., 56
Wis.2d 801, 203 N.W.2d 64 (1973), it was
stated that this definition of forfeiture
applies only to Chapter 288, Stats.;
however, that is the chapter with
which we are concerned.
 

Section 895.46(1), Stats., does not refer to
forfeiture actions, directly or indirectly.

I am of the opinion that the Legislature
could not have intended that it apply to
forfeiture actions which involve state,
county or municipal officers or employes.

Statutes should be construed to
avoid an absurd result.

 
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Where the district attorney prosecutes a
forfeiture action under Section 19.97(1),
Stats., the forfeiture is payable to the
county which also bears the cost of
prosecution.  Construction of Section
895.46(1), Stats., to require the county to
also pay the judgment of forfeiture, costs,
and attorneys' fees of a county official
adjudged to be in violation of the open
meeting law would lead to an absurd result.

Similar absurdity would result if Section
895.46(1), Stats., were construed to require
a city to pay the judgment of forfeiture,
costs, and attorneys' fees of a city official
adjudged to be in violation of the open
meeting law even where such official had
timely requested and had been denied legal
representation.

A city may directly provide its officials
with legal representation to defend alleged
violations of the open meeting law, and may,
insofar as Section 895.35, Stats., permits,
reimburse such officials for reasonable
expenses incurred, but cannot reimburse for
any forfeiture imposed, and cannot utilize
the provisions of Section 895.46(1), Stats.,
with respect to the payment of judgments for
forfeitures, costs or attorneys' fees.

You also inquire whether a council member can
have legal fees incurred in defending an
action, in which such member has been charged
with a violation of the open meeting law,
paid by a liability insurance policy covering
city officials

Section 66.18, Stats., empowers
municipalities to procure liability insurance
to cover their officers, agents and employes.

If a policy were available it is my opinion
that the same tests as given above would
apply as to the payment of legal costs or
forfeiture.

It is my opinion that such officer could not
be reimbursed, indirectly, for payment of
the "forfeiture," from a policy purchased
by the municipality.

Section 19.96, Stats., prohibits the
municipality from direct reimbursement of any
forfeiture imposed, and that which is
prohibited directly cannot be accomplished by
indirect means involving payment of public
funds by the municipality.

BCL:RJV
 
 
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