67 Op. Att'y Gen. 164 (1978)
 
67 OAG 164  165  166  167  168  169

OPINION NO. OAG 39-78,

Wisconsin Attorney General Opinions

24 May 1978

Counties; County Board; County Clerk;
Ordinances;
Public Officials, Public Records;

Questions concerning proposed county code of
ethics ordinance answered.

1.   A county board may provide for a
     forfeiture but not a fine for violations
     of an ordinance.

     66 Op. Att'y Gen. 148 (1977).

2.   A county board lacks the authority to
     prohibit county clerk (election
     commission in Milwaukee County) from
     placing on ballot candidates who have
     not complied with code of ethics
     ordinance.

3.   County board lacks the authority to
     order the withholding of salary of
     elected officials who fail to comply
     with a code of ethics ordinance.

4.   The county board lacks authority to
     prohibit county officers from acting as
     agent or attorney for an entity other
     than the county in connection with any
     transaction involving the county in
     which such officers participate during
     the course of their service for a period
     of 12 months after leaving county
     service.

5.   A board created by the county board,
     unless it is a committee of the county
     board, lacks authority to issue
     subpoenas or administer oaths.

6.   A county ordinance cannot provide for
     blanket nondisclosure of county ethics
     board opinions contrary to the
     public records law.
 

ROBERT P. RUSSELL,
Corporation Counsel Milwaukee County

You request my opinion with respect to six
questions relating to the validity of certain
portions of a proposed code of ethics for
county officials and employes.

You state that the only authority granted to
counties to adopt a code of ethics is found
in Section 19.45 (11)(c), Stats., which
provides:

     Counties and municipalities may and
     should establish a code of ethics
     for local public officials.

 
67 OAG 164  165  166  167  168  169

Whereas this is the only express reference to
a code of ethics, and although counties have
only those legislative powers expressly
granted by statute or necessarily implied, it
is my opinion that counties have, by the
above statute and by implication from other
statutes, necessary power to adopt and
enforce a reasonable code of ethics.

By implication a county could include in such
code, requirements for financial disclosure
and prohibitions similar to those provided in
Sections 19.41-19.45, Stats.

By reason of Section 59.025, Stats., a county
board could create an office or commission
charged with administrative and limited
enforcement powers with respect to such code.

1.   Can a county board provide that
     violation of its ordinance is
     punishable by fine?

I am of the opinion that it cannot.

However, it can provide for a forfeiture.

This subject is discussed in 66 Op. Att'y
Gen. 148 (1977), a copy of which is attached.

2.   Does the county board have the authority
     to direct the county clerk or in the
     case of Milwaukee County, the election
     commission, not to place on the ballot
     the name of a candidate for an elective
     county office who has not filed a
     financial disclosure statement as
     required by the ordinance?

     [See Section 9.03 (5)]

I am of the opinion that it does
not have such authority.

This subject is discussed in
66 Op. Att'y Gen. 148 (1977)
referred to above.

3.   Does the county board have the authority
     to direct the county treasurer to
     withhold the payment of salary or
     compensation to an elective county
     officer who has failed to file the
     statement of economic interest as
     required by the code of ethics?
     [See Section 9.03 (6)]

I am of the opinion that it does not.

A duly elected and qualified county officer
is entitled, as an incident of the office, to
the salary established in accordance with
Section 59.15 (1)(a), Stats., which cannot be
diminished during the officer's term.

Right to salary would terminate in case of
resignation, death or removal for cause as
provided in Sections 17.09 and 17.16, Stats.

See Schultz v. Milwaukee County,
250 Wis. 18, 22,
26 N.W.2d 260 (1947),

and

65 Op. Att'y Gen. 62 (1976).

 
67 OAG 164  165  166  167  168  169

4.   Does the county board have the authority
     to prohibit any officer of the county,
     including an elected officer, from
     acting as an agent or attorney for any
     one other than the county in connection
     with any transaction involving the
     county in which such officer
     participated during the course of his or
     her service for the county for a period
     of 12 months after leaving the service
     of the county? [See Section 9.05 (9)]

There is no statute which expressly or by
implication grants the county board such
authority; and I am of the opinion that it
does not have such power.

It could not apply to any elected officer and
would probably result in a denial of equal
protection of the laws as to other officers
and employes unless it were a part of the
original employment contract.

5.   Would the provisions of Section 9.10(1),
     (2), (3) and (4), as adopted by the
     county board, be sufficient to enable
     the board of ethics to administer oaths,
     to issue subpoenas, to require any
     person or organization to submit in
     writing such reports and answers to
     questions relative to proceedings before
     the board and to order testimony to be
     taken by deposition before any person
     designated by the board?

     In other words, does the county board
     have the authority to grant these
     powers to the board of ethics?

I am of the opinion that the board of ethics
as presently proposed would not have the
power to administer oaths or issue subpoenas.

If the board were a committee of the county
board, it would have power to issue subpoenas
by reason of Section 885.01(3), Stats.

Whereas a county board has power to take
testimony under oath in certain special
circumstances, such as removal proceedings,
it is my opinion that it cannot delegate a
general power to an officer or commission it
creates to administer a code of ethics.

In order for the provisions of Section
885.01(4), Stats., to apply to a county
commission, there must be some other
statute authorizing such commission
to take testimony.

The Legislature deemed it necessary to
expressly provide that the State Ethics
Board have power to compel the
attendance of witnesses.

See Section 19.48(4), Stats.

I am of the opinion that it cannot be
implied from Section 19.48, Stats., or other
statutes, that a county board can authorize a
county board of ethics to perform the duties
granted by Section 19.48, Stats.

 
67 OAG 164  165  166  167  168  169

6.   Are the provisions of Section 9.15
     [9.14] (2) (a) and (b) sufficient
     authority for the board to refuse
     public inspection of records obtained
     in connection with a request for an
     advisory opinion, or obtained or
     prepared by the board in connection
     with an investigation of the violation
     of the code of ethics?

I am of the opinion that such provisions
could not be used by the board or its
custodian of records as a form of blanket
refusal to permit inspection and copying as
permitted by Sections 19.21(2) and 59.14(1),
Stats.

See

State ex rel. Youmans v. Owens,
28 Wis.2d 672,
137 N.W.2d 470 (1965),

139 N.W.2d 241 (1966);

Beckon v. Emery,
36 Wis.2d 510,
153 N.W.2d 501 (1967);

State ex rel. Journal Co. v. County Court,
43 Wis.2d 297,
168 N.W.2d 836 (1969);

and

67 Op. Att'y Gen. 12 (1978),
a copy of which is enclosed.

Whereas the Legislature has provided
that certain records of the State Ethics
Board are confidential and not open to
inspection (see Section 19.48(10), Stats.),
such statute does not apply to a county
ethics board and the Legislature has not
authorized counties to adopt similar
restrictions on access to public records.

Proposed Section 9.14(1) and (2), provides:

9.14(1)   Except as provided in paragraph
          (2), all records in the possession
          of the board are open to public
          inspection at all reasonable times.

          The board shall require a person
          wishing to examine a statement of
          economic interests to establish his
          or her identity and, if
          representing another person or
          organization, the person or
          organization he or she represents.

          No person may use a fictitious name
          or address or fail to identify a
          principal in making any request
          for inspection.

9.14(2)   Notwithstanding Section 19.21,
          Wis. Stats., the following records
          in the board's possession are not
          open for public inspection:

9.14(2)(a) Records obtained in connection
           with a request for an advisory
           opinion other than summaries of
           advisory opinions that do not
           disclose the identity of persons
           requesting advisory opinions;
           except that the board may make
           such records public with the
           consent of the officer who
           requests the advisory opinion.

 
67 OAG 164  165  166  167  168  169

           A person or organization who makes
           or purports to make public the
           substance of or any portion of an
           advisory opinion given to such
           person or organization by the
           board is deemed to have waived
           the confidentiality of the request
           for an advisory opinion and of any
           records obtained or prepared by
           the board in connection with
           such request.

9.14(2)(b) Records obtained or prepared by
           the board in connection with an
           investigation, except that the
           board shall permit inspection
           of an order for hearing under
           section 9.11(1) and records
           that are made public in the
           course of a hearing by the board
           to determine if a violation of
           this section has occurred and
           except that the board may, in its
           discretion make such records
           public following the conclusion
           of its investigation.

Even if it were necessary to give a pledge of
confidence to receive the records, and in my
opinion it would not be necessary, the
passage of time or nature of the information
on the record itself might require permission
to inspect and copy.

In any event, it is my opinion that the
custodian must in each case determine whether
there is a public interest in denying
inspection and copying which is paramount to
the right granted by the statute.

If it is initially determined that inspection
should be refused, an express reason must be
given, and the party seeking inspection can
resort to mandamus to test the reason.

Section 19.21, Stats., is to be construed in
pari materia with the open meeting law.

See 60 Op. Att'y Gen. 284 (1971).

Section 19.85(1)(f) and (h), Stats., allow
closed sessions for the following purposes:

19.85(1)(f)    Considering financial,
               medical, social or personal
               histories or disciplinary data
               of specific persons,
               preliminary consideration
               of specific personnel problems
               or the investigation of
               charges against specific
               persons except where paragraph
               19.85(1)(b) applies which, if
               discussed in public, would be
               likely to have a substantial
               adverse effect upon the
               reputation of any person
               referred to in such histories
               or data, or involved in such
               problems or investigations.

 
67 OAG 164  165  166  167  168  169

19.85(1)(h)    Consideration of requests for
               confidential written advice
               from the ethics board under
               Section 19.46(2), or from any
               local government ethics board.

I am of the opinion that provisions such as
Section 9.14(1) and (2) of the proposed
ordinance could, in view of the provisions
in Section 19.85(1)(f) and (h), Stats., be
relied upon in a given case as sufficient
reasons why the custodian could initially
refuse a request to inspect and copy the
records in question.

But, if the records involved are "books and
papers required to be kept in his office,"
access to inspection would be required by
reason of Section 59.14(1), Stats., and the
rule of State ex rel. Journal Co. v. County
Court, supra.

Section 59.14(1), Stats., is applicable to
officers, in addition to those specifically
set forth, who are required to keep their
offices at the county seat in offices
provided by the county.

BCL:RJV
 
 
67 OAG 164  165  166  167  168  169