73 Op. Att'y Gen. 108 (1984)
 
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OPINION NO. OAG 33-84,

Wisconsin Attorney General Opinions

15 October 1984

VOCATIONAL, TECHNICAL AND ADULT EDUCATION,
BOARD OF;

The State Board of Vocational, Technical and
Adult Education may by rule require that the
record concerning appointment of district
board members show compliance with statutory
procedural requirements, and the state board
may disapprove appointments because of
procedural irregularities except those
involving the Open Meetings Law.

Also, appointment by the appointment
committee and approval by the state board
is required to move a previously approved
candidate from one membership category to
another.

ROBERT P. SORENSEN, PH.D., State Director
Board of Vocational, Technical and Adult
Education

You have asked a number of questions relating
to the appointment of persons to a district
vocational, technical and adult education
board (district board).

Several sections of chapter 38 of the
Wisconsin statutes are involved, as well as
chapter A-V 2 of the Wisconsin Administrative
Code, all of which provide for the
composition of a district board and the
appointment of district board members.

With respect to the composition of a district
board, section 38.08(1), Stats., provides:

38.08(1)(a)1.

A district board shall administer the
district and shall be composed of 9 members
who are residents of the district, including
three employers who have power to employ and
discharge, three employes who do not have
power to employ or discharge, two additional
members and a school district administrator.
 

38.08(1)(a)2.

The employer and employe members of the
district board shall be representative
of the various businesses and
industries in the district.

The school district administrator shall be
employed by the school board of a school
district located in the district.

At least two of the members of the district
board shall be elected officials of a county
board of supervisors, common council, village
board of trustees, town board of supervisors
or school board, but no two members of the
district board may be officials of the same
governmental unit nor may any district board
member be a member of the school board that
employs the school district administrator
member.

 
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With respect to the appointment of members to
a district board, section 38.10 provides:

38.10(1)

District board members shall be appointed by
an appointment committee consisting of school
board presidents of school districts, or
county board chairmen of counties, having
territory within the district . . . . .

38.10(2)(a)1.  . . . . .

38.10(2)(a)2.

The chairperson of the appointment committee
shall fix a date . . . no later than 60 days
after receipt of notification of the vacancy
or term expiration, and a time and place for
a public hearing and meeting of the
appointment committee to approve a
representation plan and to appoint
district board members . . . . . .

38.10(2)(c)

At the meeting and prior to the appointment
of district board members, the appointment
committee shall formulate a plan of
representation for the membership
of the district board.

The plan shall give equal consideration to
the general population distribution within
the district and the distribution of women
and minorities within the district.

The plan shall form the basis upon which
membership of the district board is
determined . . . . . .

38.10(2)(d)1.

Upon receiving notice of the vacancy or term
expiration . . . and at least 14 days before
publication of the notice required under
subdivision 38.10(3), the appointment
committee shall publish a notice announcing
the intent to appoint district board members,
including the criteria for selection, and
soliciting the submission of names and
qualifications of candidates.

38.10(2)(d)2.

In order to be eligible for consideration
for  appointment to the district board, a
candidate shall submit his or her name and
qualifications to the appointment committee
within 14 days of the date of publication of
the notice under subdivision 38.10(2)(d)1.

 
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38.10(2)(d)3.

Notwithstanding Section 19.84(3), the
appointment committee shall publish a notice
of any meeting or public hearing at which the
appointment committee will consider the
filling of any vacancy on the district board
or any other matter pertaining to the
appointment of district board members
at least 14 days before the meeting
or public hearing.

The subject matter of the meeting or public
hearing as specified in the notice shall
contain the names of individuals being
considered for appointment.

Prior to the meeting at which an appointment
is made, the appointment committee shall hold
a public hearing at which the names and
qualifications of individuals being
considered for appointment to the district
board shall be discussed.

No person may be appointed to a district
board by an appointment committee unless his
or her name appeared in at least one notice
of a public hearing or meeting of the
committee. . . . . . . .

38.10(2)(f)

Selection of district board members and
approval of a representation plan by the
appointment committee shall be by majority
vote of a quorum               . . . . . .

Section 38.10(2)(c) empowers the State Board
of Vocational, Technical and Adult Education
(state board) to "require that district board
appointments comply with the provisions of
the plan of representation."

If an appointment committee cannot reach
agreement on a plan of representation or
appointment of district board members within
thirty days after the committee's first
meeting, the state board is required by
section 38.10(2)(f) to

     formulate the plan of representation and
     appoint district board members in
     accordance with the plan.

Finally, section 38.04(15), provides that the

     state board shall, by rule, establish
     criteria and procedures for the review
     of the district board member
     appointments by the state board.

Pursuant to this grant of rule-making
authority, the state board has
promulgated chapter A-V 2 of the
Wisconsin Administrative Code.

Section A-V 2.04 (1)-(3) requires appointment
committees to submit a plan of
representation, an affidavit of each
candidate containing vital information
(including the candidate's status as an
employer or employe), and a statement
explaining how employer and employe members
are representative of businesses and
industries in the district.

Section A-V 2.04(4) enumerates the standards
which the state board applies when reviewing
a plan of representation and proposed
appointments of district board members.

 
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With the foregoing background regarding the
statutory authority of the state board and
the administrative rules concerning review of
district board member appointments by the
state board in mind, I will address the first
of your questions which states:

1.   When allegations of procedural
     irregularities on the part of the local
     appointment committee are made to the
     state board, and where the record
     supports the appointments as made by the
     appointment committee, does the state
     board have the authority to inquire
     beyond the evidence submitted to it
     under Section A-V 2.04(3)(a) to A-V
     2.04(3)(c), WI Section Adm. Code,
     when a complaint is received from
     a citizen of that VTAE district?

The answer to this question is no.

The decision made by the board must
be made on the record as defined
by section A-V 2.04(1)-(3).

Although the state board informally requires
appointment committees to submit notices,
minutes and other documents dealing with the
procedure followed by the committees, the
rules of the state board do not presently
require that the record submitted to the
state board show compliance with the
procedural requirements of sections
38.08 and 38.10.

In my opinion, in order for the state board
to inquire into alleged procedural
irregularities by appointment committees,
the state board must promulgate a rule
requiring that the record show compliance
with the procedural requirements of the
statute Section This is because section
38.04(15)provides that the state board
"shall, by rule, establish criteria and
procedures for the review of the district
board member appointments."

Your second question states:

2.   Can the state board reject an
     appointment based upon a procedural
     impropriety, e.g., a defective notice
     at the local level, a violation of the
     Open Meeting Law, a defective affidavit,
     etc., or can it only reject an
     appointment because the appointment on
     its face based upon evidence and the
     record submitted to the state board by
     the appointment committee, does not
     comply  with the provisions of the plan
     of representation?

 
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Although section 38.10(2)(c) only
empowers the state board to

     require that district board
     appointments comply with
     the provisions of the plan
     of representation,"

it is my opinion that the grant of
rule-making authority contained in
section 38.04(15), which authorizes
the state board to

     establish criteria and procedures for
     the review of district board member
     appointments,"

is broad enough to authorize the state
board to disapprove an appointment based upon
a procedural impropriety.

As noted in response to your first question,
however, the board first must promulgate a
rule requiring that the record show
compliance with the procedural
requirements of the statutes.

The state board may disapprove appointments
based upon procedural irregularities
including, but not limited to, failure of an
appointment committee to formulate a plan of
representation, failure to publish timely
notice of intent to appoint district board
members, failure to publish criteria for
selection, and failure to hold a public
hearing prior to making an appointment.

Section 38.10(2)(c)-(d), Stats.; cf.
Fraser v. Mulaney,
129 WI Section 377,
109 N.W. 139 (1906).

The state board, however, may not disapprove
appointments based upon a violation of the
Open Meeting Law, Sections 19.81-19.98,
because courts have exclusive authority
to weigh the various public interests
involved and to void any committee action
which violates the law.

Section 19.97(3), Stats.

Your third question states:

3.   Can the state board establish
     administrative rules allowing it to
     disapprove appointments based upon
     procedural improprieties?

For the reasons stated in response to your
first question, the answer to your third
question is yes.

Your fourth question states:

4.   If the state board does not have the
     authority to disapprove an appointment
     based upon a procedural defect, then
     who can challenge this kind of defect
     when it occurs at the local
     appointment committee?

The answer to this question is two-fold.

First, as noted in response to your second
question, except as to violations of the Open
Meetings Law, the state board does have
authority to disapprove an appointment based
upon a procedural defect, provided that the
state board promulgates a rule requiring that
the record show compliance with the
procedural requirements of the statute
Section With respect to alleged violations of
the Open Meetings Law, challenges may be made
in a court action brought by the Attorney
General, the district attorney or, if the
district attorney refuses to commence an
action, by any person who files a verified
complaint with the district attorney.

Section 19.97(3)-(4), Stats.

 
73 OAG 108 109 110 111 112 113 114

Your fifth question states:

5.   Can an appointment committee shift a
     candidate, previously approved in a
     specific category to a different
     category prior to the effective date of
     that candidate's term of office, without
     first removing that candidate from
     office and then appointing that
     candidate to a new category and
     without seeking new state board
     approval?

The answer to this question is no.

Section 38.08(10)(a)1. requires that district
boards consist of three employers, three
employes, two elected officials and
a school district administrator.

A candidate previously appointed by the
committee and approved by the state board
in one category cannot be "shifted" to a
different category unless the candidate is
formally appointed by the appointment
committee and formally approved by the state
board in the different category pursuant to
section 38.10 and the related administrative
rule sections.

Appointment and approval are unnecessary,
however, with respect to elected official
members who move from one qualified public
office to another.

I cannot comment more specifically on the
authority of an appointment committee or
the state board to adjust district board
membership in order to achieve the required
balance between employer and employe members,
because such matter presently is in
litigation and because it is the policy of
the Department of Justice not to render an
opinion with respect to matters in
litigation.

BCL:JWC


 
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