74 Op. Att'y Gen. 38 (1985)
 
74 OAG 38 39 40 41 42 43 44 45

OPINION NO. OAG 7-85,

Wisconsin Attorney General Opinions

8 March 1985

Open Meeting;
Public Records;
Radio;
Television;

Open meetings and public records laws are
not applicable to independently created and
independently operated non-stock, non-profit
"friends" corporations organized to provide
financial and other support to radio and
television stations licensed to
governmental agencies.

TIMOTHY F. CULLEN,
Chairperson Senate Organization Committee

The Senate Organization Committee requests my
opinion as to whether the open meetings and
public records laws apply to "friends"
organizations which provide financial
and other support to public television
and radio stations which are licensed to
governmental units. Your inquiry states:

For example, the Wisconsin Public Radio
Association exists to support the activities
of the state radio network; the Friends of
WHA-TV support Channel 21, which is part
of the University of Wisconsin-Madison;

Channel 10/36 Friends supports the activities
of the two television stations licensed to
the Milwaukee Area Technical College;

and FM 90 friends is affiliated with WUWM-FM,
the public radio station of the
University of Wisconsin-Milwaukee.
74 OAG 38 39 40 41 42 43 44 45

On the basis of the limited facts furnished
and information available to me, it is my
opinion that, assuming the entities are
organized as nonprofit educational or
charitable corporations, neither the
corporations nor their governing boards
are subject to the open meetings
or public records laws.

I do not have sufficient information with
respect to any formal organization FM 90
Friends may have which would form the basis
for an opinion. A search of the Office of
Secretary of State has failed to disclose any
corporate filings with respect to that name.

The open meetings law is only applicable to
organizations which fall within the
definition of a governmental body set forth
in section 19.82(1), Stats., which provides
in material part:

     "Governmental body" means 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 . . .

Similarly, the public records law is only
applicable to officials or organizations
which fall within the definition of
"authority" in section 19.32(1):

     "Authority" means any of the following
     having custody of a record: a state or
     local office, elected official, agency,
     board, commission, committee, council,
     department or public body corporate and
     politic created by constitution, law,
     ordinance, rule or order; a governmental
     or quasi-governmental corporation; any
     court of law; the assembly or senate;
     a nonprofit corporation which receives
     more than 50% of its funds from a county
     or a  municipality, as defined in
     Section 59.001(3), and which provides
     services related to public health or
     safety to the county or municipality;
     or a formally constituted subunit of
     any of the foregoing. . .

None of the organizations referred to was
created by the Wisconsin Constitution,
statute or ordinance.

I have no information which would lead me to
conclude that any organization referred to
was created by or pursuant to "rule or order"
of some governmental body, such as the Board
of Regents. Educational Communications Board
or Board of Directors of the Milwaukee Area
Technical College. Furthermore, I have no
information which would lead me to conclude
that any one of the organizations is a
formally constituted subunit of a
parent governmental body.

 
74 OAG 38 39 40 41 42 43 44 45

Generally speaking a subunit would be a
separate body created by the parent body
and composed of members who are also
members of the parent body.

Section 36.25(5) provides that:

The board of regents, as licensee, shall
manage, operate and maintain broadcasting
station WHA and WHA-TV and shall enter into
an affiliation agreement with the educational
communications board pursuant to Section
39.14 to provide that the board of regents
shall grant the educational communications
board the part-time use of equipment and
space necessary for the operations of
the state educational radio and
television networks.

Section 39.11 empowers the Educational
Communications Board to manage, operate
and maintain broadcasting station WLBC
and to establish and operate a statewide
educational radio network.

Subsection 39.11(1) empowers the board
to receive and disburse state,
federal and private funds."

Subsections 39.11(6) and 39.11(14)
provide that the board shall:

39.11(6)

     Furnish leadership in securing adequate
     funding for statewide joint use of
     radio and television for educational
     and cultural purposes, including
     funding for media programming for
     broadcast over the state networks.

     The educational communications board
     may  submit joint budget requests with
     state agencies and other nonstate
     organizations or corporations for
     the purposes stated above. . . .

39.11(14)

     Coordinate the radio activities of the
     various educational and informational
     agencies, civic groups, and citizens
     having contributions to make to the
     public interest and welfare.

The Wisconsin Blue Book 1983-84 at 408 in
setting forth the structure of the
Educational Communications Board states:

     The Development and Public Awareness
     Unit seeks funding from listeners,
     viewers and private funding sources for
     the purpose of funding and promoting the
     programming broadcast on the networks.

In an opinion at
70 Op. Att'y Gen. 163 (1981), it was stated
that the Educational Communications Board
could contract with "friends organizations"
(nonprofit entities incorporated for the
purpose of assisting and promoting the
activities of Educational Communications
Board as a licensee of educational radio
and television programs) to raise funds
for educational radio and television.

 
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The opinion further stated that funds
contributed directly to the "friends"
did not become state funds until
transferred to the Educational
Communications Board by the
friends organization.

The records of the Office of Secretary
of State indicate the following:

WISCONSIN PUBLIC RADIO ASSOCIATION, INC.
is incorporated under chapter 181 as a
non-stock, non-profit corporation for
educational purposes to assist public
radio stations in Wisconsin including
WHA and those operated by the
Educational Communications Board.

It claims exempt status under
I.R.C. Section 501(c)(3) (1954).

It has members who pay dues and who
elect a board of directors
consisting of nine members.

FRIENDS OF WHA-TV, INC., is a chapter 181
non-stock nonprofit membership corporation
organized for charitable and educational
purposes.

It claims income tax exemption under
I.R.C. Section 501(h) (1954).

On December 14, 1982, it claimed 23,000
members and the certificate states that
thirty members constitute a quorum and
that fifty-five were present at the
meeting to adopt restated articles.

It was originally incorporated by
John F. Whitmore on January 10, 1969, as
Community Council for Public Television,
Inc., and later changed its name to Friends
of Channel 21, Inc., and to its present name
on June 28, 1982.

CHANNEL 10/36 FRIENDS, INC., was originally
Community Broadcast Council, Inc. It is a
chapter 181 non-profit member corporation
having 6987 members on October 18, 1976.

It claims to be organized for purposes
"exclusively charitable, scientific, literary
and educational," and claims exemption under
I.R.C. Section 501(c)(3) (1954).

Its particular purpose is to support
public television broadcasting
by stations WMVS/WMVT.

Neither the open meetings law nor public
records law is applicable to independent
private associations or non-profit
corporations which have a public purpose
and are organized by friends of the
university or other state agencies.

73 Op. Att'y Gen. 53 (1984);
46 Op. Att'y Gen. 83 (1957).

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

AS indicated earlier, the Friends of WHA TV
Inc., Channel 10/36 Friends, Inc. and
Wisconsin Public Radio Association, Inc.,
appear to be non-stock non-profit
corporations created by private citizens.

 
74 OAG 38 39 40 41 42 43 44 45

They are corporate bodies but not bodies
corporate and politic and are not
quasi-governmental corporations.

Their powers are derived from the general
laws of the state and they differ from
quasi-governmental corporations such as the
Wisconsin Solid Waste Recycling Authority
and Wisconsin Housing Finance Authority.

The latter were created by the Legislature
by statute or pursuant to statutory
direction and have delegated powers
largely controlled by statute.

In
73 Op. Att'y Gen. 53 (1984),
it was stated that the Historic Sites
Foundation, Inc., which by contract managed
Circus World Museum, and which was organized
by friends of the State Historical Society,
was not a governmental body subject to the
open meetings law.

The opinion discussed the term
"quasi-governmental corporation"

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.

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. . . . .

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.

 
74 OAG 38 39 40 41 42 43 44 45

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.

Our conclusion that the term
"quasi-governmental corporation" is limited
to nonstock body politic corporations created
by the Legislature to perform essentially
governmental functions is supported by the
discussion of a somewhat related term,
"quasi-municipal corporation," in
McQuillin Municipal Corporations
Section 2.13 (3rd Ed. 1971):

The terms "quasi-municipal," as applied to
corporations, "quasi-corporations,"  "public
quasi-corporations," and other similar terms,
are often used as meaning the same thing.

Better designation, it would seem, would be
to confine the term "quasi-corporation" to
organizations not strictly corporations at
all, and to designate as "quasi-municipal"
those organizations which are deemed
corporations but which are held not
municipal corporations, strictly speaking,
but which resemble municipal corporations
in some respect.

As the term is used herein, what is meant is
a corporation created or authorized by the
legislature which is merely a public agency
endowed with such of the attributes of a
municipality as may be necessary in the
performance of its limited objective.

In other words, a quasi-municipal corporation
is a public agency created or authorized by
the legislature to aid the state in, or to
take charge of, some public or state work,
other than community government, for
the general welfare.

"Quasi-municipal" corporations are public in
nature, but not, strictly speaking,
municipal corporations.

They are bodies which possess a limited
number of corporate powers and which are low
down in the scale or grade of corporate
existence, and consist of various local
government areas established to aid the
administration of public functions.

 
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Section 19.32(1) makes the public
records law applicable to

     a non-profit corporation which receives
     more than 50% of its funds from a county
     or a municipality, as defined in
     Section 59.001(3).

The latter statute defines "municipality" to
include "cities, villages and towns."

The non-profit corporations in question do
not receive more than fifty percent of their
funds from a municipality and do not fall
within the definition of "governmental body"
in section 19.82(1) or of "authority"
in section 19.32(1).

We are not aware that any specific persons
employed by the Educational Communications
Board, Board of Regents or University of
Wisconsin System hold offices or positions of
employment with any of the non-stock
corporations or friends associations
referred to.

If there were dual office or position
holding, Section 36.23, which is applicable
to the Board of Regents and university
employes, might be applicable.

Conflict of interest.

No regent or officer or other person
appointed or employed in any position in the
system may at any time act as agent for any
person or organization where such act would
create a conflict of interest with the terms
of the person's service in the system.

The board shall define conflicts of
interest and adopt rules related thereto.

If a public contract were involved between
the Board of Regents, Educational
Communications Board, Board of Directors of
the Milwaukee Area Technical College or one
of their subunits and a non-profit friends
organization, section 946.13, which prohibits
public officers and employes from having
private pecuniary interests in public
contracts, might be applicable.

Certain organizations and professional fund
raisers seeking contributions from the
general public are required to be
registered with the
Department of Regulation and Licensing.

Section 440.41, Stats.

That department has advised that Wisconsin
Public Radio Association, Inc., Friends of
WHA-TV. Inc. and Channel 10/36 Friends, Inc.,
are registered pursuant to section 440.41(2)
and (4), and file annual financial reports as
therein required.

The department advises that FM 90 Friends is
not separately registered, since it claims
exemption because of its association with
UW-M Foundation and that its reporting is
done in connection with filings by that
organization.

 
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You may wish to inquire of that department
concerning such filings and information
available therefrom.

BCL:RJV