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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.
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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
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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.
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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.
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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.
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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
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