77 Op. Att'y Gen. 256 (1988)
 
77 OAG 256  257  258  259  260  261  262

Wisconsin Attorney General Opinions

Opinion # OAG 57-88,

12 October 1988

Compatibility;
Vocational, Technical And Adult
Education, Board of;
Criteria for appointment to district VTAE
boards discussed, including changes in status
of "employer," "employe" and "elected
official" representatives and incompatibility
between board membership and the offices of
sheriff and circuit judge.

Discussion of meeting notice requirements of
sections 38.10(2)(d)3. and 19.84(3), Stats.

Definition of "public officer" for purposes
of section 38.10(1m) relating to
participation on board appointment committee.

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

You ask numerous questions concerning
appointments to vocational, technical and
adult education district boards.

Your first, second and third questions are:

1.
If a sheriff is appointed to and
assumes a position on a vocational,
technical and adult education district
board, has the sheriff violated
Article VI, Section 4(3) of the
Wisconsin Constitution?

2.
If the answer is yes, would this create
a vacancy in the office of sheriff by
operation of the common law principles
applicable to holding incompatible
offices?

3.
If your answer is again in the
affirmative, would vacation of the
individual's sheriff office result in
vacation of his district board office by
operation of Section 38.08(2m), Stats.,
as created by 1987 Wisconsin Act 94?

The answer to each of these questions is yes.

Article VI, section 4(3) of the Wisconsin
Constitution deals with incompatibility
of offices and provides that "sheriffs
shall hold no other office."

The leading case in Wisconsin establishing
criteria to determine whether one is an
officer or a mere employe of the state is
Martin v. Smith,
239 Wis. 314,
1 N.W.2d 163 (1941).

Burton v. State Appeal Board,
38 Wis.2d 294, 299,
156 N.W.2d 386 (1968).

This office has often been called upon to
apply the Martin criteria to various factual
situations and indeed has already done so in
response to the same question you now ask.

60 Op. Att'y Gen. 178 (1971) concluded
that a member of a local district board of
vocational, technical and adult education
exercises some portion of the sovereign
power of the state and is therefore

a public officer and an officer
of a minor unit of government.

 
77 OAG 256  257  258  259  260  261  262

See also 63 Op. Att'y Gen. 453, 454 (1974).

By assuming a position on the district board,
a sheriff would hold a second public office
in violation of article VI, section 4(3) of
the Wisconsin Constitution.

The common law as to incompatibility of
offices was in force in the territory of
Wisconsin at the time the constitution was
adopted and continues in force until altered
or suspended by the Legislature.

See Wis. Const. art. XIV, Section 2.

Under the common law, if a person holding a
public office accepts another public office
or other public employment incompatible with
the position he or she holds, the person
ipso facto vacates the first office.

Martin, 239 Wis. at 326, and
Otradovec v. City of Green Bay,
118 Wis.2d 393, 396,
347 N.W.2d 614 (Ct.App. 1984).

By accepting the office of district board
member at the same time the person held the
office of sheriff, a person would thereby
vacate the latter.

(See, however, 73 Op. Att'y Gen. 83 (1984)
regarding possible de facto status of the
sheriff in such a position.)

Section 38.08(2m), Stats., as created by 1987
Wisconsin Act 94 states that "any member of a
district board serving as an elected official
under sub. (1)(a)2 shall cease to be a member
upon vacating his or her office as an elected
official."

Inasmuch as section 38.08(2m) applies only to
board members serving as elected officials, I
will assume that the sheriff in the situation
you describe is serving in that capacity.

Under the plain meaning of that statute, once
the person in the situation you describe
vacates the office of sheriff by operation
of the common law, he or she would cease
to be a member of the board.

Your fourth, fifth and sixth questions are:

4.
If a circuit judge is appointed to and
assumes a position on a vocational,
technical and adult education district
board, has the judge violated Article
VII, Section 10(1) of the Wisconsin
Constitution?

5.
If the answer is yes, would this create
a vacancy in the office of circuit judge
by operation of the common law
principles applicable to holding
incompatible offices?

6.
If your answer is again in the
affirmative, would vacation of the
individual's circuit judge office
result in vacation of his district
board office by operation of Section
38.08(2m), Stats., as created by 1987
Wisconsin Act 94?

 
77 OAG 256  257  258  259  260  261  262

The answer to each of these questions is yes.

Article VII, section 10(1) of the Wisconsin
Constitution also deals with incompatibility
of offices and provides that "no justice of
the supreme court or judge of any court of
record shall hold any other office of public
trust, except a judicial office, during the
term for which elected."

County judges are county officials.

State ex rel. Sachtjen v. Festge,
25 Wis.2d 128,
130 N.W.2d 457 (1964).

The term "office of public trust" is used
synonymously with "public office."

See, e.g., 50 Op. Att'y Gen. 6 (1961).

Again, assuming that the judge is serving on
the board as an elected official, the same
analysis applies as was undertaken in answer
to your first three questions, and my
conclusions are also the same.

Your seventh question is:

7.
When an individual is appointed to a
district board by the appointment
committee, is approved by the State
Board and then loses his or her status
as an employer or employe prior to
entering the office of district board
member, can the individual take the
oath of office and enter upon the duties
of district board member?

I am of the opinion that the
individual may not do so.

Article IV, section 28 of the Wisconsin
Constitution provides that "all officers,
executive and judicial, except such inferior
officers as may be by law exempted, shall
before they enter upon the duties of their
respective offices, take and subscribe
an oath or affirmation."

The law providing for vocational, technical
and adult education, including the creation
and duties of district boards is found at
chapter 38.

That chapter does not expressly require board
members to take and subscribe an oath, nor
does it exempt them from doing so.

However, section 19.01(4)(j) provides that
official oaths and bonds of all members of
a VTAE district board are to be filed with
the secretary of that district.

It is, therefore, apparent that district
board members are not exempted from
taking the oath.

Furthermore, section 19.01(5) states that

"every public officer required to file
an official oath or official bond shall
file the same before entering upon the
duties of his office."

The filing of an oath is thus an additional
qualification for taking office.

Accordingly, I conclude that when an
individual loses his or her prerequisite
status prior to filing the oath, that person
has not fully qualified for the office and
loses his or her eligibility for appointment.

 
77 OAG 256  257  258  259  260  261  262

Your eighth and ninth questions are:

8.
When an elected official member of a
district board vacates his or her
elected office, does that member
continue to serve until his or her
successor is appointed and qualified or
does the member immediately cease to be
a district board member?

9.
Would the same hold true if any of the
events that create a vacancy under
Chapter 17, Stats., occur?

In my opinion, once an elected official
district board member "vacates" his or her
elected office as that word is defined in
chapter 17, that person immediately
ceases to be a member of the board.

Section 38.08(2) provides that

"members of a district board shall
serve until their successors
are appointed and qualified."

1987 Wisconsin Act 94 created a new
subsection of that statute, section
38.08(2m), which reads as follows:

"Any member of a district board
serving as an elected official under
Subsection 38.08(1)(a)2 shall cease to
be a member upon vacating his or her
office as an elected official."

I see no ambiguity in these provisions,
and no conflict between the two.

Pursuant to newly created section 38.08(2m),
once an elected official board member
vacates his or her elected office, that
person "shall cease to be a member."

Once that person ceases to be a member,
section 38.08(2) no longer applies, inasmuch
as on its face it concerns itself only with
"members of a district board."

With respect to your ninth question, section
17.03 sets forth the circumstances under
which a public office shall be deemed vacant.

Clearly, when an individual vacates an
elected office in one of the ways enumerated
in section 17.03, the individual has vacated
his or her elected office for purposes of
section 38.08(2m).

Your tenth question is:

10.
Can an appointment committee change the
time of a previously noticed meeting
under Section 38.10(2)(d)3, Stats.,
within 14 days of that meeting without
publishing a new notice and once again
allowing for a 14 day period prior to
holding the meeting?

I conclude that it may not.

Section 38.10(2)(d)3. sets forth the minimum
time within which appointment committee
meeting notices must be published.

 
77 OAG 256  257  258  259  260  261  262

In pertinent part, it provides as follows:
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.

In addition, section 19.84(2) provides that

"every public notice of a meeting
of a governmental body shall set
forth the time, date, place and
subject matter of the meeting . ."

Taken together, these two statutes require
that notice of the time of upcoming meetings
or hearings must be given at least fourteen
days prior to holding the meeting.

Anything less would violate these provisions.

Your eleventh and final question is:

11.
Who is considered to be an officer
of a governmental unit eligible under
Section 38.10(1m), Stats., to represent
a county board chair or school board
president at an appointment committee
meeting?

In my opinion, any individual who meets
the test set forth in Martin is
eligible to do so.

Section 38.10(1m) states:

"An appointment committee member may
designate another officer of his or
her governmental unit to represent the
member at appointment committee
meetings."

The commentary attached to your request would
seem to imply that it is necessary that a
particular position be denominated in either
the statutes or Wisconsin Constitution as an
"officer" before it can be considered as such
for purposes of section 38.10(1m).

I do not believe this to be
a necessary prerequisite.

As was noted in answer to your first three
questions, Martin is the leading case in
Wisconsin establishing criteria to
determine whether one is a public
officer or instead an employe.

The Martin test has been utilized for
purposes other than analysis of
incompatibility of offices issues.

See, e.g.,
Heffernan v. Janesville,
248 Wis. 299, 307,
21 N.W.2d 651 (1946)
(whether a city patrolman was a public
officer for the purpose of determining
whether he was entitled to his salary
during the time he was improperly
suspended from duty);

Burton v. State Appeal Board,
38 Wis.2d 294, 299,
156 N.W.2d 386 (1968)
(whether members of an agency school
committee were state employes rather
than officers for the purpose of
determining whether a delegation
of legislative power to them was
unconstitutional);

and
Law Enforce Stds. Bd. v. Lyndon Station Vil.,
98 Wis.2d 229, 239,
295 N.W.2d 818 (Ct.App. 1980)
(whether a village police chief
was a public officer for the purpose of
determining whether a state constitutional
provision prohibiting convicted felons from
holding public office applied to him).

See also
60 Op. Att'y Gen. 178 and
74 Op. Att'y Gen. 208 (1985).

 
77 OAG 256  257  258  259  260  261  262

The Martin criteria are as follows:

"to constitute a position of public
employment a public office of civil
nature, it must be created by the
constitution or through legislative act;

must possess a delegation of a portion
of the sovereign power of government
to be exercised for the benefit
of the public;

must have some permanency and
continuity, and not be only
temporary or occasional;

and its powers and duties must derived
from legislative authority and be
performed independently and without
the control of a superior power, other
than the law, except in case of inferior
officers specifically placed under the
control of a superior officer or body,
and be entered on by taking an oath and
giving an official bond, and be held
virtue of a commission or other
written authority."

Martin, 239 Wis. at 332.

Among these criteria,
possession of "a delegation of the sovereign
power of government to be exercised for the
benefit of the public" has been recognized as
the sine qua non for public office.

Martin, 239 Wis. at 332;
74 Op. Att'y Gen. at 212.

For a position to be a public office, it
need not meet all of the Martin criteria.

Burton, 38 Wis.2d at 303.

The principal consideration is the
type of power that is wielded.

Burton, 38 Wis.2d at 300.

Whether any particular position qualifies
as a public office under the Martin test
must, of course, be addressed on a
case-by-case basis.

With the aid of Martin and the direction
provided in this and previous attorney
general opinions, I trust that your counsel
will be in a position to provide the
appropriate analysis as the need arises.

DJH:BLB

 
77 OAG 256  257  258  259  260  261  262