73 Op. Att'y Gen. 53 (1984)
 
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OPINION NO. OAG 14-84,

Wisconsin Attorney General Opinions

9 April 1984

HISTORICAL SOCIETY, STATE;

OPEN MEETING; WORDS AND PHRASES;

The Historic Sites Foundation, Inc., created
under the provisions of chapter 181, Stats.,
by the Board of Curators of the State
Historical Society of Wisconsin acting in
their individual capacities, is a private
corporation and as such is not subject to the
requirements of the open meetings law,
section 19.81, Stats.

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RICHARD A. ERNEY,
Director State Historical Society

You have requested my opinion as to whether
the Historic Sites Foundation, Inc. (HSF), is
a governmental body subject to the
requirements of the open meetings law.

The answer to your question is no.

Section 19.81(2), Stats., provides: "To
implement and ensure the public policy herein
expressed, all meetings of all state and
local governmental bodies shall be publicly
held in places reasonably accessible to
members of the public and shall be open to
all citizens at all times unless otherwise
expressly provided by law."

Accordingly, under section 19.81(2) it is
necessary to determine whether the HSF
is a governmental body.

Section 19.82(1) defines the term
"governmental body" as "a state or local
agency, board, commission, committee,
council, department or public body corporate
and politic created by constitution, statute,
ordinance, rule or order; a governmental or
quasi-governmental corporation; or a formally
constituted subunit of any of the foregoing."

From the above definition it is obvious that
the only classifications relevant to your
question are:

(1)  a public body corporate and politic
     created by constitution, statute,
     ordinance, rule or order, and

(2)  a quasi-governmental corporation.

The answer to your question is based on the
conclusion that the HSF does not fall within
either classification.

In order to more fully appreciate the
rationale of this opinion, some understanding
of the history of the HSF is necessary.

During the fall of 1959 a special committee
of the Board of Curators of the State
Historical Society of Wisconsin (Society),
known as the Sites Management Committee, met
to consider the creation of an organization
to manage the Circus World Museum at Baraboo.

The Board recognized that the Society itself
had no statutory authority to create a
corporation.

Instead, a corporate foundation was created
in the manner passed upon and described in
46 Op. Att'y Gen. 83 (1957).

 
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That opinion stated in part:

     Your first question reads as follows:

               Does the act of incorporating
               the proposed nonprofit
               corporation require any act on
               the part of "The Regents of
               The University of Wisconsin?"

     The answer is "No."

     The corporation would be formed by
     friends of the university and not by any
     act on the part of the regents.

     The regents in their official capacity
     have no statutory authority to
     create a corporation.

     If individual members of the board
     wanted to be incorporators, it would
     have to be done in their individual
     capacities.

     46 Op. Att'y Gen. at 84.

Thus, the HSF was patterned after the
corporate foundations created by the
University of Wisconsin System.

The creation and use of such foundations
have been recognized, accepted
and approved by the court.

Glendale Development v. Board of Regents,
12 Wis.2d 120,
106 N.W.2d 430 (1960).

The court specifically noted:

     This court has repeatedly held that
     nonstock, nonprofit corporations
     organized by friends of the
     university for its benefit, could do
     things which neither the state nor the
     university could do directly, that such
     corporation is not an arm or agency of
     the state and does not engage the state
     in work of internal improvement or
     create a state debt.

Loomis v. Callahan (1928),
196 Wis. 518,
220 N.W. 816;

State ex rel. Wisconsin
University Bldg. Corp. v. Bareis (1950),
257 Wis. 497,
44 N.W.2d 259;

State ex rel. Thomson v. Giessel (1953),
265 Wis. 185,
60 N.W. (2d) 873;

State ex rel. Thomson v. Giessel (1954),
267 Wis. 331,
65 N.W. (2d) 529;

and

State ex rel. Thomson v. Giessel (1955),
271 Wis. 15,
72 N.W. (2d) 577.

As to creating a state debt, see

State ex rel. Thomson v. Giessel (1955),
271 Wis. 15,
72 N.W.(2d) 577.

Glendale, 12 Wis.2d at 133-34.

Since Glendale it has become increasingly
clear that foundations, building corporations
and independent bodies politic and corporate
are not considered by the court
as state governmental bodies.

See
Wisconsin Solid Waste
Recycling Auth. v. Earl,
70 Wis.2d 464,
235 N.W.2d 648 (1975);

State ex rel. Warren v. Nusbaum,
59 Wis.2d 391,
208 N.W.2d 780 (1973).

 
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The issue presented, then, is whether the
Legislature intended to include within the
open meetings law, by its definition of the
term "governmental body," corporate entities
that heretofore have not been treated by the
court as governmental bodies.

The reference in section 19.81(2) to public
bodies corporate and politic created by law
relates to those corporations that are
created directly by the Legislature or
indirectly through enabling legislation.

Examples of corporations that fall within
this statutory definition are the Wisconsin
Solid Waste Recycling Authority, Wisconsin
Housing Finance Authority and the now
extinct Armory Board.

See Sections 232.02 and 234.02, Stats.;
Majerus v. Milwaukee County,
39 Wis.2d 311,
159 N.W.2d 86 (1968).

The HSF and, apparently, the numerous
foundations of the University of Wisconsin
System, as noted in 46 Op. Att'y Gen. 83
(1957) and as discussed in Glendale, were not
created by the Legislature but were created
by private citizens under the
general corporation laws.

Moreover, the HSF could not possibly be
considered a body politic.

See
Watkins v. Milwaukee County
Civil Service Comm.,
88 Wis.2d 411, 418,
276 N.W.2d 775 (1979);

Burhop v. The City of Milwaukee,
21 Wis. 259 (1866).

Accordingly, it is my opinion that nonstock
corporations created by statute as bodies
politic, such as the Wisconsin Solid Waste
Recycling Authority and the Wisconsin Housing
Finance Authority, clearly fall within the
term "governmental body" as defined in the
open meetings law and are subject to the
provisions of the open meetings law.

The HSF and similar nonstock corporations do
not fall within the classification under
discussion because:

(1)  they were not created by the Legislature
     or by rule, etc., but were created by
     private citizens, and

(2)  they are not bodies politic.

Section 19.81(2) also expressly includes
quasi-governmental corporations within
its definition of a governmental body.

There are no reported Wisconsin decisions
that define the term "quasi-governmental."

The word "quasi" is defined in Webster's New
Collegiate Dictionary 700 (7th ed. 1977) as:

1.   having some resemblance . . . by
     possession of certain  attributes

and,

2.   having a legal status only by operation
     or construction of law and without
     reference to intent.

In
State v. Wisconsin Telephone Co.,
91 Wis.2d 702,
284 N.W.2d  41 (1979),
it was held that the ordinary and common
meaning of words may be established by the
definition in a recognized dictionary.

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Using the dictionary definition there seems
to be little doubt but that the nonstock body
politic corporations created by the
Legislature to perform essentially
governmental functions are quasi-governmental
corporations.

Corporations such as the Wisconsin Solid
Waste Recycling Authority and Wisconsin
Housing Finance Authority were essentially
created to achieve legitimate governmental
functions by means that could not be employed
by state agencies because of constitutional
restraints.

In
Rocap v. Indiek,
539 F.2d 174 (D.C. Cir. 1976),
the court was concerned with whether a
corporation created by congress
(the Federal Home Loan Mortgage Corporation)
was subject to the Freedom of Information
Act. 5 U.S.C. Section 552.

The court concluded that because of the
extent of the government's control over the
corporation it was a quasi-federal entity
subject to the Freedom of Information Act.

Also see
Eastern Service Corp. v. C.I.R.,
650 F.2d 379 (2nd Cir. 1981).

The activities of the Wisconsin Solid Waste
Recycling Authority and Wisconsin Housing
Finance Authority are largely
controlled by statute.

Thus, these corporations and similar entities
fall within the definition of a
quasi-governmental corporation.

In contrast, the functions of the HSF cannot
possibly be considered governmental.

It exercises no sovereign power and does not
engage in activity that is dependent on or
controlled by delegation from the
Legislature.

The functions pursued by the HSF under its
articles and by-laws are the same functions
that any private nonstock corporation could
engage in.

Its powers are derived from the
general laws of the state.

The HSF is a private corporation
with no governmental attributes.

While the members of the Board of Curators
are also directors of the HSF, they hold and
administer the position of director as
private citizens not as state officials.

It is therefore my opinion that the HSF
is not subject to the requirements
of the open meetings law.

BCL:CAB

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