Wisconsin Attorney General Opinions

Opinion # OAG 40-78

1 June 1978.

County Judge; Discrimination,
Employer And Employe,
Public Officials,
Register In Probate;

A register in probate is protected by the
Fair Employment Act, which protection is not
affected by a defect in the appointment.

MICHAEL T. SOLOVEY,
District Attorney Juneau County

You requested my opinion on the
following two questions:

1. Whether a register in probate
   (Section 253.31, Stats.) is entitled to
   the protection of the Fair Employment
   Act (Section 111.31-37 Stats.)?

2. Whether a defect in the appointment of a
   register in probate (Section 253.31
   Stats.) has any bearing upon the
   application of the Fair Employment
   Act (Section 111.31-37 Stats.)
   to this position?

67 OAG 169 170 171 172 173 174 175 176 177

You indicate that Juneau County has a
population of approximately 18,000 people
and its employes are not covered by union
contract or civil service.

Your questions are based on the
following factual setting.

The judge of the Juneau County Court
appointed a woman as register in probate
pursuant to Section 253.31, Stats.

Her job is listed in the county salary
schedule and she received county benefits.

The register in probate, who was
unmarried, became pregnant and
was dismissed by the judge.

A Register In Probate Is Protected
By The Fair Employment Act.

The Fair Employment Act, Subchapter II
of Chapter 111, Stats., makes it

   unlawful for any employer, labor
   organization, licensing agency or person
   to discriminate against any employe or
   any applicant for employment or
   licensing.

Section 111.325, Stats.

Section 111.32, Stats., defines
"discrimination" and "discrimination
because of sex."

111.32(5)(a)

Discrimination" means discrimination
because of age, race, color, handicap,
sex, creed, national origin or ancestry,
by an employer . . against any employe .
. . in regard to his hire, tenure or
term, condition or privilege of
employment . . . . . . .

111.32(5)(g)

It is discrimination because of sex:

1. For an employer. . on the basis of
   sex where sex is not a bona fide
   occupational qualification, to
   refuse to hire, employ, admit or
   license, or to bar or to terminate
   from employment or licensing any
   individual;

Prohibition of sex discrimination
in employment and activities
affecting the employment process is
thus the declared public policy.

Virtually all employers (and employes)
are covered by the Act.

The Act's definitions of "employer" and
"employe" are extremely broad.

The term "employer" shall include this
state and any employer as defined in s.
41.02(4), but shall not include a social
club, fraternal or religious association
not organized for private profit.

Section 111.32(3), Stats.

67 OAG 169 170 171 172 173 174 175 176 177

By reference to Section 41.02(4), Stats.,

any city, village, town, county, common
school district . . or any other unit of
government" is included within the
definition of employer.

Section 111.32(2), Stats., states:

The term "employes" shall not include
any individual employed by his
parents, spouse or child.

Failure to define "employe" directly creates
no ambiguity, and in the absence of
ambiguity, language normally is to
be given its ordinary and accepted meaning.

See

Vigil v. State,
76 Wis.2d 133, 142,
250 N.W.2d 378 (1977).

Under Section 990.01(1), Stats., however,
"employe" is to be construed according
to its common and approved usage unless
such construction would produce a result
inconsistent with the manifest intent
of the Legislature.

Webster's New World Dictionary, Second
College Edition, defines "employe" to
mean "a person hired by another, or by
a business firm, etc., to work for
wages or salary."

Although a register in probate clearly
qualifies under this dictionary definition of
employe, it is equally clear that a register
in probate enjoys a status different from the
status associated generally with the ordinary
and accepted meaning of the word employe.

That is, the register in probate is not only
an employe of the county but the person
appointed register in probate also
is a county official.

The leading case in Wisconsin establishing
criteria to determine whether one is
a public officer or an employe is

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

The court stated at page 332:

   To constitute a position of public
   employment a public office of a civil
   nature, it must be created by the
   constitution or through legislative act;

   must possess a delegation of a portion
   of the sovereign power of government to
   be exercised for the benefit of the
   public;

   must have some permanency and
   continuity, and not be only temporary or
   occasional;

   and

   its powers and duties must be derived
   from legislative authority and be
   performed independently and without the
   control of a superior power, other than
   the law, except in case of inferior
   officers specifically placed under the
   control of a superior officer or body,
   and be entered upon by taking an oath
   and giving an official bond, and be held
   by virtue of a commission or other
   written authority.

67 OAG 169 170 171 172 173 174 175 176 177

The office of register in probate
as created by legislative act
requires taking of the official oath.

Section 253.31(1), Stats.

See

Wisconsin Constitution
Article IV, Section 28.

Register in probate is a permanent office
even though any individual holding such
office serves for an undefined term.

See

Burton v. State Appeal Board,
38 Wis.2d 294, 302,
156 N.W.2d 386 (1968).

The statutory duties and powers of registers
in probate, Sections 253.32 et seq.,
Stats., clearly involve the exercise
of some sovereign powers of the state
free from the control of a superior
power except that the judge can direct
performance of general administrative duties.

Section 253.32(6), Stats.

Such persons are appointed by
the county judges.

Section 253.31(1), Stats.

County judges also are county officials.

State ex rel. Sachtjen v. Festge,
25 Wis.2d 128,
130 N.W.2d 457 (1964).

While registers in probate exercise some of
the sovereign powers of the state, they
are primarily local officers carrying out
statutorily defined duties and exercising
statutorily defined powers under the general
supervision of the county judge.

It is, therefore, my opinion that registers
in probate should be considered county
officers rather than county employes.

Although the status of registers in probate
as county officers suggest exclusion from the
common and approved definition of employe
above cited it is, nevertheless, also my
opinion that the register in probate comes
within the meaning of "employe" in the Fair
Employment Act.

Although Section 253.31, Stats., vests in the
county judge authority to appoint and remove
a register in probate, such person,
nevertheless, is "employed" by the county.

The salary of the register in probate
is fixed by the county board and
paid by the county.

Section 253.31(3), Stats.

The position is included in the county salary
schedule and the person appointed receives
other county benefits.

The county board has the power to
set or change the salaries of
county employes generally.

See, e.g., Sections
59.15, 59.16, 59.19 and 59.38, Stats.

Included within the county's general powers
enumerated in Chapter 59, Stats., is the
power to establish a county civil service
system for the selection, tenure and
status of county personnel.

Section 59.07(20), Stats.

In 35 Op. Att'y Gen. 69 (1946) it was stated
that civil service rules can apply to all
county personnel not expressly excluded
from Section 59.07(20), Stats.

Registers in probate are not
specifically excluded.

See also
63 Op. Att'y Gen. 147 (1974);
41 Op. Att'y Gen. 105 (1952)
and
38 Op. Att'y Gen. 21 (1949).

67 OAG 169 170 171 172 173 174 175 176 177

Status as an officer, therefore, does
not necessarily disqualify an individual
as an employe as that word is used or
defined in any particular statute.

State ex rel. Sheets v. Fay,
54 Wis.2d 642, 646,
196 N.W.2d 651 (1972).

See also
62 Op. Att'y Gen. 20 (1973).

As previously noted, the manifest intent
of the Legislature as stated in the act
is to prohibit discrimination by
any employer or person.

Section 111.325, Stats.

The Legislature's extension of the Act's
coverage to virtually all employers
and employes evinced comprehensive
and equal treatment.

The declared public policy is

   to encourage and foster to the fullest
   extent practicable the employment of all
   properly qualified persons regardless of
   their age, race, creed, color, handicap,
   sex, national origin or ancestry.

Section 111.31(3), Stats.

Our supreme court has declared that it will
liberally construe the Act in order to foster
full employment without discrimination.

See

Chicago, M., St. P. & P. R.R. v. ILHR Dept.,
62 Wis.2d 392, 397, 215 N.W.2d 443 (1974).

The Act's legislative history supports the
comprehensive coverage intended.

In
State ex rel. DPI v. ILHR,
68 Wis.2d 677, 684,
229 N.W.2d 591 (1975),

before Section 111.32(3) of the Act was
amended to include the state as an employer,
the court urgently suggested that the
Legislature make the Act applicable
to all employers.

   . . The legislative purpose or public
   policy as set forth in the Fair
   Employment Act should apply to
   all employees whether hired
   by the state or others.

If the legislature does not include
them, questions of constitutional equal
protection could be raised.

A simple amendment to the act could
include the state and its agencies as
an employer or person so that all
employees (with stated exceptions)
may enjoy the protection of our
antidiscrimination statutes."

The Act was amended by Chapter 31, Laws of
1975, to include the state as an employer
and all state employes without exception.

In view of the manifest broad coverage it is
my opinion that "employe" includes such
appointed officials as registers in probate.

To construe employe narrowly to exclude such
persons would frustrate legislative intent.

67 OAG 169 170 171 172 173 174 175 176 177

A further question remains, however.

Is the Fair Employment Act applicable to
the discretionary authority of the
county judge to appoint and remove
registers in probate?

I believe it is applicable.

The general rule is that an employer or
appointing authority, see Moses v. Board of
Veterans Affairs, 80 Wis.2d 411, 259 N.W.2d
102 (1977), may discharge for any reason or
no reason in the absence of contrary
statutory or contract provisions.

Yanta v. Montgomery Ward & Co., Inc.,
66 Wis.2d 53, 63,
224 N.W.2d 389 (1974).

The statutory appointive powers in Section
253.31, Stats., were in existence when the
Legislature adopted the Fair Employment Act.

It is presumed that the Legislature was aware
of the appointive powers when the Act was
adopted and amended, and those powers are
subject to modification by subsequently
passed statutes.

Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B.,
35 Wis.2d 540, 556-558,
151 N.W.2d 617 (1967).

The reason is that, even where there is an
otherwise absolute statutory power to hire
and fire, the

modification of statutes is a
question of legislative policy,

id., and the Fair Employment Act constitutes
a modification of the otherwise discretionary
power to hire and fire.

As already noted the Act prohibits
discrimination by any "employer" or "person."

Section 111.325, Stats.

Delegating to county judges the authority to
appoint and remove is no more significant
than similar delegation to persons in
other areas of government employment.

Compare, e.g., Section 62.13(4)(a), Stats.

(police chief's statutory power to
appoint and promote subordinates)

and

Section 17.07, Stats.

(removal by appointing authority of
legislative and appointive state officers).

Cf.

Glendale Professional Policemen's Association
v.
City of Glendale,
83 Wis.2d 90,
264 N.W.2d 594 (1978),

and

Moses v. Board of Veterans Affairs, supra.

In stating the public policy against
discrimination in employment, the Legislature
made no exception for appointed positions.

Nothing in the Act's legislative history
suggests that county judges are to be exempt
from the Act's prohibitions when making
statutory appointments.

In this regard, a county judge enjoys no
special status and is bound by the law
as is any other person.

Section 111.325, Stats.

It is important to keep in mind that the
removal from office in the instant case
does not involve the exercise of inherent
powers of a court or the principle of
separation of powers.

See

In re Appointment of Revisor,
141 Wis. 592, 612, 613,
124 N.W. 670 (1910).

67 OAG 169 170 171 172 173 174 175 176 177

The office of register in probate was
created by statute as are the duties
and powers of the office.

As already noted, they are subject to
legislative modification.

Cf.

62 Op. Att'y Gen. 269 (1973);
30 Op. Att'y Gen. 148 (1941);

State ex rel. Sachtjen v. Festge, supra.

Assuming, however, one considers removal an
inherent power of the court under a theory
that it may be necessary to protect the
judicial system and the integrity of the
court, the Legislature, by prohibiting
discrimination, has imposed a reasonable
qualification on the county judge's
exercise of such power.

State v. King, et al.,
82 Wis.2d 124,
262 N.W.2d 80 (1978);

Upper Lakes Shipping v. Seafarer's I. Union,
22 Wis.2d 7,
125 N.W.2d 324 (1963);

Jos. Schlitz Brewing v. Washburn Brewing
122 Wis. 515,
100 N.W. 832 (1904);

State ex rel. Attorney General
v.
Circuit Court for Eau Claire County,
97 Wis. 1,
72 N.W. 193 (1897).

Consequently, a county judge may remove the
register in probate but not for reasons
proscribed by the Fair Employment Act.

Although it is my opinion that the Fair
Employment Act applies to the appointment
and removal of a register in probate,
the Department of Industry, Labor and
Human Relations has been given primary
responsibility for determining whether
actual discrimination has occurred.

Section 111.33, Stats.

Because dismissal in the instant case may
involve disputed questions of fact, such
matters should be resolved by the Department
of Industry, Labor and Human Relations.

I therefore express no opinion on whether
removal in the instant case violated the
Act's proscription against sex
discrimination.

Cf.
Ray-O-Vac v. ILHR Department,
70 Wis.2d 919,
236 N.W.2d 209 (1975);

Wisconsin Telephone Co. v. ILHR Dept.,
68 Wis.2d 345,
228 N.W.2d 649 (1975).

A Defect In The Appointment of A
Register In Probate Has Limited Bearing
Upon The Application of The Act.

In your second question you ask whether a
defect in the appointment of a register in
probate has any bearing upon the application
of the Fair Employment Act to the position.
In my opinion such defect has only incidental
effect upon the application of the Act.

67 OAG 169 170 171 172 173 174 175 176 177

Section 253.31(1), Stats., provides in part
that before entering upon his or her duties a
register in probate

shall take and subscribe the
constitutional oath of office
and file it, together with the
order of appointment, in the
office of the clerk of circuit court.

Unintentional failure to comply with these
statutory requirements renders the office
vacant (Section 17.03(7), Stats.), but would
not prevent a person from assuming office.

See
1908 Op. Att'y Gen. 736 (1907);

See also

Burton v. State Appeal Board, supra, at 304.

   It would mean, however, that the person
   appointed is a de facto rather than a de jure
   register in probate.

   . . . As a general rule, all that is
   required to make an officer de facto
   is that the individual claiming the
   office be in possession of it,
   performing its duties, and claiming
   to be such officer under color of
   an election or appointment. . .

State ex rel. Reynolds v. Smith,
22 Wis.2d 516, 522,
126 N.W.2d 215 (1964).

It is well established that the official acts
of a de facto officer, as to third persons,
are valid and cannot be questioned
collaterally.

In re Burke, 76 Wis. 357, 362,
45 N.W. 24 (1890).

See also

Burton v. State Appeal Board, supra, at 304;

Walberg v. State,
73 Wis.2d 448, 463, 464,
243 N.W.2d 190 (1976).

Where there is no de jure officer claiming
the office, a de facto officer is entitled
to the salary of the office when the de facto
officer has entered upon the duties of the
office in good faith and pursuant to
apparent authority.

State ex rel. Reynolds v. Smith, supra,
at 522, 523.

In the instant case any defect would likely
be corrected promptly by the appointing
authority through reappointment, thereby
making that person a de jure officer.

Obviously the county judge could simply
withdraw the appointment of a register in
probate if that person refuses to take and
subscribe the constitutional oath of office.

As already noted the policy of making
discrimination unlawful extends to all
employes and prospective employes including,
in my opinion, de facto employes.

See Sections 111.325 and 111.31, Stats.

Therefore, when a person is a de facto
employe, he or she is entitled to the
protection of the Act.

BCL:JN

67 OAG 169 170 171 172 173 174 175 176 177