Wisconsin Attorney General Opinions

Opinion # OAG 35-86

23 September 1986

Compatibility;

Office of county supervisor and position
of assistant state public defender
are compatible.

JAMES C. BABLER,
District Attorney Barron County

You request my opinion whether the office of
county supervisor and the office or position
of assistant state public defender are
compatible so as to permit the same person to
serve in both capacities at the same time.

I am of the opinion that they are compatible.

Your statement of facts indicates that one
person has been serving as a member of the
Barron County Board of Supervisors and
as an assistant state public defender
at the same time.

This person, licensed to practice law in
Wisconsin, was elected to the Barron County
board and has served as a member of
that board since April 1982.

On or about September 1, 1985, this same
person was appointed as an assistant
state public defender to handle cases in
Barron, Polk and Rusk counties.

He is currently supervisor of the Barron
office and primarily handles criminal,
criminal traffic, delinquency, paternity,
children in need of protection (CHIPS) and
child support cases in Barron County.

You note that the Barron County Board of
Supervisors appoints a corporation counsel
for the county, and you are concerned that
this is a source of potential conflict
because the county board supervisor-public
defender represents interests opposed to
those of the corporation counsel in
court and administrative cases.

Specifically, you've pointed out that the
county board supervisor-public defender and
corporation counsel could represent opposing
interests in paternity, child support and
CHIPS matters.

You also note that the Barron County Board of
Supervisors votes on salaries for county
officials and employes, as well as on budgets
for the offices of district attorney,
corporation counsel, sheriff and county
department of social services.

As to the board's fiscal power, your concern
is that the county board supervisor-public
defender may have an interest in having
district attorneys and corporation counsels
who do not vigorously prosecute their cases
and that the board's budgetary decisions can
directly affect the quality of investigation
and prosecution.

75 OAG 178 179 180 181 182

My finding of compatibility is strongly
influenced by the fact that the two posts
occupied by the individual in question exist
in different units of government, which,
although related, have substantially
separate structures of organization.

The constitution authorizes the
Legislature to

confer upon the boards of supervisors of
the several counties of the state such
powers of a local, legislative and
administrative character as they shall
from time to time prescribe.

Wisconsin Constitution
Article IV,Section 22,
Section 59.02(1), Stats.,
provides that

   the powers of a county as a body
   corporate can only be exercised by the
   board thereof, or in pursuance of a
   resolution or ordinance adopted by it.

A county supervisor is a county officer
elected for a definite term who takes
an oath of office.

Sections. 59.025(3), 59.03(3)(d) and
59.13, Stats.

The assistant public defender is either
a state officer or he holds a
position of state employment.

In either event, the common law doctrine
of incompatibility is applicable.

Otradovec v. City of Green Bay,
118 Wis.2d 393,
347 N.W.2d 614 (Ct.App. 1984).

Otradovec served as a member of the common
council which had power to vote on contracts
setting the terms of his employment as an
appraiser in the city assessor's office and
to vote on approval of the appointment of the
city assessor in whose office he must work.

The court stated, 118 Wis.2d at 397

   These potential conflicts are
   substantial and establish the
   incompatibility of the public office and
   the position of public employment
   Otradovec holds.

   It does not matter that he may be
   permitted to abstain from voting in
   these areas or whether conflicts exist
   in all or a greater part of the
   functions of his office and position . .
   . . It is sufficient that substantial
   conflicts might arise that would be
   detrimental to the public.

Otradovec and the cases cited on page 397 of
that opinion were concerned with a single
governmental unit and with conflicts which
could occur between an office which was
superior in some respect to another
position or office.

In the Barron County situation, the office of
county board supervisor is not superior with
respect to the position of assistant state
public defender.

Potential conflicts cited by you are indirect
as to that state position and are primarily
concerned with conflict not as between the
office of county board supervisor and
assistant state public defender, but with
respect to possible animus which might be
directed at certain county officers and
departments, because of work associations
they might have with the assistant state
public defender.

75 OAG 178 179 180 181 182

Possible conflict from such work associations
would be similar to that which might exist
if a private attorney who specialized in
criminal defense work were to also
serve on the county board.[1]

Similarly, this office has recently received
citizen inquiries questioning the propriety
of teachers' spouses, retired teachers and
teachers from other districts sitting on
school boards.

The complaining citizens feel strongly that
those involved with the teaching profession
have an inherent bias in favor of increased
educational expenditures and against
property taxpayers.

Though our courts have not had occasion to
deal with the issue, decisions from other
jurisdictions suggest that it is lawful for
such individuals to sit on school boards.

See, e.g.,

Jones v. Kolbeck,
119 N.J. Super. 299,
291 A.2d 378 (1972)

and

Petitpren v. Wayne-Westland
Community Schools,
91 Mich. App. 590,
283 N.W.2d 812 (1979).

The court in Otradovec, 118 Wis.2d at 396-97,
recognized that the public policy served by
the doctrine of incompatibility is avoidance
of substantial conflicts that would be
detrimental to the public.

There is, however, a countervailing public
policy favoring the right of electors to be
represented by persons of their own choice.

See generally,
O'Malley v. Macejka,
44 N.Y.2d 530,
378 N.E.2d 88, 89-90 (1978).

In the absence of conflicts of the type
evident in Otradovec, it is my opinion that
the ultimate determination of whether the
assistant state public defender's presence
on the county board presents a threat to law
enforcement services ought to be reserved to
the voters of Barron County.

Nonetheless, the county supervisor-assistant
state public defender would have to attempt
to avoid situations in which the county
was the opposing party in a lawsuit
or administrative proceeding.

In 72 Op. Att'y Gen. 61 (1983), it was stated
that the state public defender does not have
authority to represent indigents in civil
forfeiture actions including traffic
violations.

75 OAG 178 179 180 181 182

Some county ordinances are enforced
through civil forfeiture actions.

The duties of the state public defender are
set forth in section 977.05(4) and I am
not aware that the county would be the
plaintiff in situations there involved.

You may wish to inquire of the Board of
Professional Responsibility with respect
to attorney-client ethical considerations
and of the state public defender as to any
employment rules such office may have with
respect to office holding by assistant
state public defenders.

It can be argued that an assistant state
public defender may place a client at a
disadvantage if he or she cannot plea
bargain to have a charge changed to a
county ordinance violation because of a
conflict or the appearance of a conflict.

BCL:RJV

[1]

In 62 Op. Att'y Gen. 118 (1973), it was
stated that under the then statutes
appointment of counsel for an indigent
involving a public contract and a county
board supervisor who was also an attorney
would risk violation of section 946.13 if
he or she entered into a contract exceeding
the $2,000 maximum annual receipts and
disbursements figure.

An officer or employe cannot avoid violation
of Section 946.13(1)(a) by abstention from
voting where such person enters into or
negotiates for a non-exempt public contract
in which such person has a private pecuniary
interest if

at the same time he is authorized or
required by law to participate in his
[official] capacity as such officer . .
. in the making of that contract or to
perform in regard to that contract some
official function requiring the exercise
of discretion on his part . . . .

Your statement of facts does not indicate any
public contract involvement and specifically
none in which the county supervisor-assistant
state public defender is alleged to have a
private pecuniary interest.

75 OAG 178 179 180 181 182