66 Op. Att'y Gen. 280 (1977)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 83-77,

26 September 1977.

Amendment, Appropriations and Expenditures,
Compensation; Constitution; Legislation;
Legislature, Public Officials, Salaries
And Wages; Current statutes require that
members of both houses of the Legislature
receive the same basic salary.

Amendment to Section 20.923, Subsections
20.923(1) and 20.923(2), Stats., is
required to change this requirement.

FRED A. RISSER, Chairman
Committee on Senate Organization

The 1977 Committee on Senate Organization has
requested my opinion as to whether members of
both houses of the Legislature must receive
the same basic salary.

The Committee also requests an opinion
concerning the procedure for changing the
present salary scheme in the event that the
basic salary is not required to be the same.

It is my opinion that until Section 20.923,
Subsections 20.923(1) and 20.923(2), Stats.,
are amended, senators and representatives
to the Assembly must be salaried at
the same level.

Amendment or repeal of this statutory
provision and any subsequent appropriation
can only be made with the concurrence
of the Assembly.

Furthermore, it is my opinion that any
amendment or repeal of Section 20.923(2)(b)
could not affect the salary of any member of
the Legislature for his or her current term
of office.

In the past, several statutory procedures
were used, including direct appropriation.

With appropriate legislation, these or others
could be used in the future.

Since the repeal in 1929 of Wisconsin
Constitution Article IV, Section 21, the
only constitutional provisions which limit
the power of the Legislature to determine the
level of compensation for its members are:
Article IV, Section 26; Article VIII,
Section 2; Article IV, secs. 1 and 17.

The first named, as it applies to members
of the Legislature, prohibits changes
in compensation during the term
of office of any member.

See 55 Op. Att'y Gen. 159 (1966),
and references contained therein.

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Article VIII, Section 2. states:

   No money shall be paid out of
   the treasury except in pursuance
   of an appropriation by law.

Article IV, Section 17, provides:

   no law shall be enacted except by bill.

Finally, Article IV, Section 1, makes it
clear that no bill can be passed without
the concurrence of both houses of the
Legislature:

   The legislative power shall be
   vested in a senate and assembly.

Thus any appropriation, including the
salaries of legislators, requires the joint
action of both houses of the Legislature.

The two statutory provisions which control
the level of compensation to legislative
members are Sections 20.923 and 20.002,
Stats. The former sets the level of
compensation, the latter controls the time
during which that level remains in effect.

Section 20.923, Stats., reads
in pertinent part:

20.923 STATUTORY SALARIES.

   It is the finding of the legislature
   that the current wide diversity of
   salary-setting authority has resulted in
   inequitable and disparate relationships
   between and among administrative
   positions in the several branches of
   government, and that a consistent and
   equitable salary setting mechanism
   should be established for these
   positions.

   To effectuate this finding, all elected
   officials . . . unless specifically
   excepted by law, shall be assigned to
   the appropriate executive salary group .
   . . and all such included positions
   shall be subject to the same basic
   salary establishment, implementation,
   modification, administrative control and
   application procedures.

   The salary-setting mechanism contained
   in this section shall be directed to
   establishing salaries that are
   determined on a comprehensive systematic
   basis, bear equitable relationship to
   each other . . . and be reviewed and
   established with the same frequency as
   those of state employes in the
   classified service.

20.923(1)

   Establishment of executive salary
   groups. . The dollar value of the
   salary range minimum and maximum for
   each executive salary group shall be
   reviewed and established in the same
   manner as that provided for positions
   in the classified service under
   Section 16.086(3).

   The salary-setting authority of . . .
   elective and appointive officials
   elsewhere provided by law is subject
   to and limited by this section, and
   the salary rate for these positions upon
   appointment and subsequent thereto shall
   be set by the appointing authority
   pursuant to this section unless the
   position is subject to Article IV,
   Section 26 of the state constitution.

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Section 20.923, Stats., further provides:

20.923(2)

   Constitutional officers and other
   elected state officials.

20.923(2)(a)

   The annual salary for each of the
   following positions shall be set at the
   midpoint of the assigned salary range
   for its respective executive salary
   group in effect at the time of taking
   the oath of office, except as provided
   in Paragraphs 20.923(2)(b) . . . shall
   become effective immediately for all . .
   elected state officials, subject to
   Article IV, section 26 of the Wisconsin
   constitution and for any subsequently
   elected official who takes his or her
   oath following August 5, 1973 . . . .

   5.

   Legislature, member:
   executive salary group 2. . . . . .

20.923(2)(b)

   The annual salary of each state senator
   and representative elected to the
   assembly shall be set at 65% of the
   midpoint of the salary range for
   executive salary group 2.

Thus, the clearly expressed intent and the
statutory schedule, Section 20.923(2)(b),
Stats., require equality in the basic salary
for state senators and representatives to the
Assembly. This equality in basic salary has
deep historic roots beginning with Wis.

Constitution Article IV, Section 21,
and continuing to the present.

In this regard the history of Article IV,
Section 21, and its statutory successors
is instructive.

The original version of Section 21 read:

   Compensation of members.

   SECTION 21.

   Each member of the legislature shall
   receive for his services two dollars and
   fifty cents for each day's attendance
   during the session, and ten cents for
   every mile he shall travel in going to
   and returning from the place of the
   meeting of the legislature, on the most
   usual route.

As amended in November of 1867.

it read:

   Compensation of members.

   SECTION 21.

   Each member of the legislature shall
   receive a yearly salary plus mileage.

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The section was amended again
in 1867 and read:

   Compensation of members.

   Each member of the legislature shall
   receive an annual sum greater than that
   specified in the 1867 amendment. . . .

   No stationery, newspapers, postage or
   other prerequisite except the salary
   and mileage . . . .
   shall be received from the state . .
   by any member of the legislature . .

Finally, in 1929 the section was
repealed in its entirety.

The successive amendments suggest, however.
that the purpose of the repeal was to
eliminate the need for amending the
constitution every time a salary change
is needed, not to eliminate the need for
the same basic salary for senators and
representatives to the Assembly.

In addition, the repeal made it possible to
compensate members for expenses other than
salary or mileage.

The constitutional provision was replaced by
a series of statutory appropriations:

20.01 (1929);
20.01 (1931-1943);
20.01(1) (1945-1953);
20.530(1) (1955-1963);
20.530(1)1. (1955);
20.765(1)(a) (1967); and
16.09 (1969-1973).

The operative language for the first and last
of these is "member of the legislature."

For all the rest it is: "compensation .
for each member of the legislature."

Hence, the long-standing practice has been
equal compensation even though no
constitutional language presently
exists to require that result.

Section 13.121, Stats., is also instructive.

First, it too speaks of "each member."

Second, it makes it clear what type of
appropriation the Legislature
intended for its members.

13.121 Legislators' salaries.

13.121(1) Current Member.

From the appropriation under
Section 20.765(1)(a), each member
of the legislature shall be paid...
the salary provided under
Section 20.923.

The appropriation under Section 20.765(1)(a),
Stats., is not limited with respect to time,
for example, as an annual or biennial
expenditure; it is qualified only
as being a sum sufficient.

As a consequence, legislative salaries fall
under the heading, general appropriations,
in the sense that that phrase is used in
Section 20.002, Stats.

20.002 General appropriation provisions.

20.002(1) Effective period of appropriations.

If the legislature does not amend or
eliminate any existing appropriation on
or before July 1 of the odd-numbered
years, such existing appropriations
provided for the previous fiscal year
shall be in effect in the new fiscal
year and all subsequent fiscal years
until amended or eliminated by the
legislature. . .

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Hence, the present scheme remains
in force until appropriate
legislative action is taken.

BCL:RR

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