78 Op. Att'y Gen. 67 (1989)
 
78 OAG 67   68  69  70  71

OPINION NO. OAG 13-89,

Wisconsin Attorney General Opinions

28 April 1989

Natural Resources, Department Of;

Open Meeting;

Department of Natural Resources advisory
committees that have at least some members
who are not officers or employes of the DNR
and that are appointed by the board, the
secretary, district directors, bureau
directors or property managers are
subject to the open meetings law.

CARROLL D. BESADNY,
Secretary Department of Natural Resources

You have asked for my advice on the
applicability of the open meetings law
to Department of Natural Resources advisory
committees.

As you point out, the department has a
variety of advisory committees.

Some committees are created by statute, such
as the snowmobile recreation council created
by section 15.347(7), Stats., whose members
are appointed by the Governor with the advice
and consent of the Senate, and the
off-the-road vehicle advisory council created
by section 15.347(11), whose members are
appointed by the natural resources board.

Other advisory committees may be appointed by
a department district director, bureau
director or property manager who wants to
learn about public concerns regarding a
specific activity.

An example of such a committee was the
voluntary aquatic nuisance control review
panel composed of citizens appointed by a
bureau director.

The panel was designed to provide citizen and
local government advice to the department
assessment of the effect on the public of
program changes.

Also, the Winnebago comprehensive planning
project used several committees.

Department employes served on some of those
committees along with citizens.

All the committees discussed and referred to
in this opinion have at least some members
who are not officers or employes of the DNR.

The open meetings law applies to a
governmental body, as that term is
defined in section 19.82(1):

 
78 OAG 67   68  69  70  71

19.82(1)

     "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 except for the Bradley
     center sports and entertainment
     corporation created under
     Chapter 232;

     any public purpose corporation,
     as defined in Section 181.79(1);

     a nonprofit  corporation operating an
     ice rink which is owned by the state; or
     a formally constituted subunit of any of
     the foregoing, but excludes any such
     body or committee or subunit of such
     body which is formed for or meeting for
     the purpose of collective bargaining
     under Subchapter IV or V of Chapter 111.

The committee referred to in the definition
includes advisory committees as well as
committees that have been delegated
decision-making authority.

State v. Swanson,
92 Wis.2d 310, 317,
284 N.W.2d 655 (1979),
and
Wisconsin Open Meetings Law,
A Statutory Summary and a Digest of Opinions
of the Attorney General, July 31, 1978 at 9.

In Swanson, the supreme court stated that
a committee is not required to have the
authority to bind its parent body before
it is subject to the open meetings law.

The court explained that the "ultimate
question is whether the members of a
governmental body have convened for the
purpose of exercising the responsibilities,
authority, power, or duties delegated to or
vested in the body, Section 19.82(2), Stats.,
and not whether the governmental body is
empowered to exercise the final powers of its
parent body."

Swanson, 92 Wis.2d at 317.

The advisory committees created by statute
clearly fall within the definition in
section 19.82(1) because of the
manner in which they are created.

The committees created by the natural
resources board are included within
the definition because the board is a
governmental body and the committees it
creates by rule or order are, in turn,
governmental bodies.

The kind of order needed to create the
committees is not defined in the
open meetings law;

 
78 OAG 67   68  69  70  71

but by reason of section 990.01(1),
the word is to be construed according
to its common and approved usage.

Webster's Third New International Dictionary
1588 (1976) defines "order" to include: "an
authoritative mandate usually from a
superior to a subordinate."

The board would, therefore, be creating a
committee by order whenever it authorizes the
committee and assigns the duties and
functions of the committee.

Neither the statute nor the dictionary
definition require that the order be formal.
 All that is required to create a
governmental body is a directive creating
the body and assigning it duties.

If a formal order were required, the open
meetings law might be evaded by the
creation of "informal" bodies.

Therefore, the interpretation that the open
meetings law does not require that the order
be formal is consistent with the statement by
the Florida Supreme Court that the sunshine
law "should be construed so as to frustrate
all evasive devices."

Wood v. Marston,
442 So.2d 934, 940 (Fla. 1983).

Committees created by order of the secretary
of the department would be governmental
bodies, just as those created by the board,
because the secretary possesses many of
the powers and duties of the board.

Section 15.05(1)(b), Stats.

The committees created by the department
district directors, bureau directors and
property managers are also governmental
bodies and subject to the open meetings law.

The head of the department may delegate
and redelegate to any officer or employe
of the department any function vested
by law in the head.

Section 15.02(4), Stats.

Because public officials are presumed to act
within the law and within their authority,

Herro v. Dept. of Natural Resources,
67 Wis.2d 407, 426,
227 N.W.2d 456 (1975)

and

Ferguson v. Kenosha,
5 Wis.2d 556, 568,
93 N.W.2d 460 (1958),

it must be presumed that the district and
bureau directors and property managers
act within the scope of delegated authority
when they create committees and appoint
committee members.

 
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The advisory committees, therefore, are
treated the same as if they were created
by the board or the secretary and are
subject to the open meetings law.

This conclusion is consistent with the
analysis in Greene v. Athletic Council of
Iowa State U., 251 N.W.2d 559 (Iowa 1977),
where the Iowa Supreme Court held that the
athletic council created by university
administrative officials was a public body
subject to the open meetings statute
because it was authorized by law
when it was delegated authority
of the state board of regents.

The conclusion that the advisory committees
appointed by directors and property managers,
as well as those by the board and the
secretary, are subject to the open meetings
law is consistent with the declaration in
section 19.81(1) that it is

    "to be the policy of this state that the
     public is entitled to the fullest and
     most complete information regarding the
     affairs of government as is compatible
     with the conduct of governmental
     business."

The open meetings law is to be construed
liberally to achieve this purpose.

Section 19.81(4), Stats.

Whether created by the board, directors or
property managers, the advisory committees
are an affair of government because their
actions affect the decisions of the
department and its employes; and because the
committees are an affair of government, the
public is entitled to the fullest information
about them, pursuant to the policy stated
in section 19.81(1).

For the reasons I have discussed, I conclude
that the advisory committees to the
Department of Natural Resources are subject
to the open meetings law whether they are
created by the board, the secretary,
district directors, bureau directors
or property managers.

DJH:SWK

 
78 OAG 67   68  69  70  71