74 Op. Att'y Gen. 73 (1985)
 
74 OAG 73   74  75  76  77  78

OPINION NO. OAG 16-85,

Wisconsin Attorney General Opinions

9 May 1985

County Board;
County Executive;
Ordinances;
Words And Phrases;

A county board does not have power to amend a
resolution, ordinance or part thereof, vetoed
by the county executive, but can pass a
separate substitute for submission to the
executive. A county board has a duty to
promptly reconsider vetoed resolutions,
ordinances or parts thereof.

FRANK VOLPINTESTA, Corporation Counsel
Kenosha County

You request my opinion with respect to three
questions which relate to action a county
board may take in responding to the county
executive's veto of parts of the annual
budget.

You state:

Upon passage of the 1985 budget by the
Kenosha County Board, it was referred
to the county executive for approval.

The county executive approved certain
portions of the budget as presented,
including the total levy, and vetoed
other portions and line items.

In his message to the county board regarding
said vetoes, he gave his reasoning on the
items vetoed and intended that certain of the
vetoed line items be subsequently increased
by the board by way of transfers from other
line items in the budget or from the general
fund, thus leaving the total levy unaffected.

In some instances he asked that a line item
be decreased or eliminated with the transfer
of said funds to the general fund.

 
74 OAG 73   74  75  76  77  78

Your questions relate to Wisconsin
Constitution article IV, section 23a,
which provides:

Every resolution or ordinance passed by the
county board in any county shall, before it
becomes effective, be presented to the chief
executive officer.

If he approves, he shall sign it; if not, he
shall return it with his objections, which
objections shall be entered at large upon the
journal and the board shall proceed to
reconsider the matter.

Appropriations may be approved in whole or in
part by the chief executive officer and the
part approved shall become law, and the part
objected to shall be returned in the same
manner as provided for in other resolutions
or ordinances.

If, after such reconsideration, two-thirds of
the members-elect of the county board agree
to pass the resolution or ordinance or the
part of the resolution or ordinance objected
to, it shall become effective on the date
prescribed but not earlier than the date of
passage following reconsideration.

In all such cases, the votes of the members
of the county board shall be determined by
ayes and noes and the names of the members
voting for or against the resolution or
ordinance or the part thereof objected to
shall be entered on the journal.

If any resolution or ordinance is not
returned by the chief executive officer to
the county board at its first meeting
occurring not less than 6 days, Sundays
excepted, after it has been presented to him,
it shall become effective unless the county
board has recessed or adjourned for a period
in excess of 60 days, in which case it shall
not be effective without his approval.

The statutory counterpart as to veto power
for counties of less than 500,000 is
contained in section 59.032(6), Stats.,
and contains language substantially
identical to the constitutional provision.

In an opinion dated August 22, 1984, 73 Op.
Att'y Gen. 92 (1984), it was stated that the
veto power of the county executive was
similar to that of the Governor and extends
to any part of a county board resolution or
ordinance containing an appropriation and can
effect a change in policy as well as amount
if the net result of the partial veto is a
complete, entire and workable ordinance or
resolution which the county board could
have passed in the first instance.

See
State ex rel. Sundby v. Adamany,
71 Wis.2d 118,
237 N.W.2d 910 (1976);

State ex rel. Kleczka v. Conta,
82 Wis.2d 679,
264 N.W.2d 539 (1978).

 
74 OAG 73   74  75  76  77  78

1.   Does the county board have power to
     amend a resolution, ordinance or part of
     a resolution or ordinance containing an
     appropriation which the county executive
     has vetoed and returned to the board?

The answer is no.

However, the county board does have
the power to pass a separate substitute
for submission to the executive.

The power of the board on reconsideration
is whether to override the veto.

Section 59.032(5) and (6), Stats., and
62 Op. Att'y Gen. 238, 240 (1973).

If the matter is not brought to a vote, or if
less than two-thirds of the members-elect
vote to override, the veto stands and that
part of the resolution or ordinance either
fails to become law or becomes law as altered
depending upon the circumstances.

To promote orderly procedure, it is suggested
that vetoed items be considered promptly and
separately from legislative attempts to
provide the executive with a proposal
which might be approved.

If open meeting and any special statutory
notice requirements are satisfied, the board,
of course, has the power to pass a new and
separate resolution or ordinance to fill
any void caused by the executive veto.

After the budget hearings have been held and
the budget is approved by the county board
and submitted to the county executive, any
new appropriations or transfers would require
a two-thirds vote of the entire membership.

Section 65.90(5), Stats.

As a general rule the county board has
continuing power to reconsider its actions
and adopt an ordinance or resolution which
has previously been defeated.

56 Am. Jur. 2d Municipal Corporations
Section 352.

There may be a misunderstanding as to
the effect of the veto of the county
executive on the budget.

Your statement of facts states that the
county executive "approved the total levy."

I believe such conclusion is erroneous.

In my opinion, the act of a county executive
in deleting or in some manner reducing an
appropriation has the direct effect of
reducing the amount of total funds to
be raised and any necessary tax levy.

Section 70.62 establishes limitations
on tax levies.

The board cannot make tax levies for future
years or create a sinking fund.

Immega v. Elkhorn,
253 Wis. 282,
34 N.W.2d 101 (1948).

A veto does not have the effect of
transferring the budgeted amount to
surplus or to the general fund as
is made clear by section 59.032(5).

This is extremely important and ties
in with the purposes of section 65.90.

Where an entire budget is vetoed, a county
board might be expected to take prompt
action to approve another for
submission to the executive.

Where separate items are vetoed, the county
executive always runs the risk that the
vetoes will be overridden or that
further legislative action will
address the particular area.

 
74 OAG 73   74  75  76  77  78

The executive's influence as to amounts and
subjects to be included in a budget is
probably more direct and greater at
formulating time than at veto time.

Section 59.032(5) provides:

Notwithstanding any other provision of
the law, the county executive shall be
responsible for the submission of the
annual proposed budget to the county board
and may exercise the power conferred
under Subsection 59.032(6) to veto
any appropriation made by the
county board in the budget.

No money may be appropriated for any purpose
unless approved by the county board.

The failure of the county board, upon
reconsideration under Subsection 59.032(6),
to approve any appropriation vetoed
by the county executive does not
operate to appropriate the amount
specified in the proposed budget
submitted by the county executive.

Section 65.90 requires a listing of all
existing indebtedness, all anticipated
revenues, all proposed appropriations and
requires availability for public inspection,
publication of a summary and a public
hearing.

Subsection 65.90(5)(a) provides, in part:

Except as provided in paragraph 65.90(5)(b)
and except for alterations made pursuant to a
hearing under subsection 65.90(4), the amount
of tax to be levied or certified, the amounts
of the various appropriations and the
purposes for such appropriations stated in a
budget required under Subsection 65.90(1) may
not be changed unless authorized by a vote of
two-thirds of the entire membership of the
governing body of the municipality,
except that in the case of a city board of
education transfers may be authorized by a
two-thirds vote of the board for funds under
the board's control.

Any municipality, except a town, which makes
changes under this paragraph shall publish a
class I notice thereof, under Chapter 985,
within 10 days after any change is made.

Failure to give such notice shall preclude
any changes in the proposed budget and
alterations thereto made under
Subsection 65.90(4).

2.   Must the county board take action on a
     county executive's veto immediately upon
     its return or may it table the matter
     for consideration at a later time?

 
74 OAG 73   74  75  76  77  78

The constitutional and statutory provisions
provide that: "If he approves, he shall sign
it; if not he shall return it with his
objections . . . and the board shall
proceed to reconsider the matter."

In my opinion, the board has a duty to
promptly reconsider the matter at its first
meeting following its return with objections.

Neither the constitution nor statute
establish a time within which
the board must act.

The open meetings law would require that
rather specific notice of the reconsideration
after veto be given.

Section 19.84, Stats.

A court might hold that failure to reconsider
at the next meeting at which adequate notice
could be given would make the returned
ordinance, resolution or vetoed
part thereof void.

See
5 McQuillin Municipal Corporations
Section 16.46 (3rd Rev. Ed.).

A contrary view is stated in 62 C.J.S.
Municipal Corporations Section 424.

Tabling could be construed to be
rejection or failure to override.

Time constraints in the budget and tax levy
process require prompt reconsideration or
rejection where amounts appropriated
are to be financed by tax levy.

Budget hearings at the county level required
by section 65.90(3) are usually held in late
October or November, and the town, city or
village clerk must deliver the tax roll to
the respective municipal treasurer on or
before the third Monday in December.

Section 70.68(2), Stats.

3.   May the county board consider all line
     item vetoes of the county executive
     on one motion or must each veto
     be considered individually?

Wisconsin Constitution article IV, section
23a and section 59.032(6) require that
the "part" vetoed shall be returned:

     With his objections, which . . . shall
     be entered at large upon the journal and
     the board shall proceed to reconsider
     the matter . . . . If, after such
     reconsideration, two-thirds of the
     members-elect of the county board agree
     to pass the resolution or ordinance or
     the part of the resolution or ordinance
     objected to, it shall become effective .
     . . the votes of the members of the
     county board shall be determined by ayes
     and noes and the names of the members
     voting for or against the resolution or
     ordinance or the part thereof objected
     to shall be entered on the journal.

In my opinion, the board could consider all
line vetoes in one motion. Section 990.001(1)
is at least applicable to words in section
59.032(6), and the word "part" as used
therein can be construed as parts since
the singular includes the plural.

In most cases, a county board would be well
advised to consider each veto separately in
order to seriously consider the objections
which the county executive is required
to set forth as to each part.

 
74 OAG 73   74  75  76  77  78

In 70 Op. Att'y Gen. 189 (1981), it was
stated that failure of the Governor to
express objections which could be identified
as to several possible vetoes made
such possible vetoes ineffective.

A county board and county executive have
important legislative and administrative
powers. There is some room for give and take,
but efficient county government requires that
they cooperate.

BCL:RJV
 
74 OAG 73   74  75  76  77  78