79 Op. Att'y Gen. 176 (1990)
 
79 OAG 176   177   178   179   180   181

Wisconsin Attorney General Opinions

21 November 1990

Opinion OAG 33-90

Public Officials; Towns;

No additional compensation of any kind may be
paid to town supervisors who serve on the
town board of review. Compensation may be
increased to a town clerk for service on the
board of review if the clerk has previously
been designated part time by the town meeting
pursuant to section 60.305(1)(b), Stats.

H. G. NORDLING, District Attorney
Bayfield County Courthouse

You ask whether an increase in compensation
for members of a town board of review under
section 70.46(1), Stats., is permissible
under the following set of circumstances:

The town board supervisors and the town
clerk are part-time officers, who
receive annual salaries plus expenses,
as set by the annual town meeting
pursuant to Section 60.10(1)(b) and
Section 60.32(1)(a), Wis. Stats.

At the annual town meeting . . . a
motion was made to approve wage
increases for town officials for the
term [immediately ensuing]. . . That
motion was defeated.

At the [next] regular town board meeting
. . [during that ensuing term], the town
board adopted a motion to compensate
members of the town board of review at
the rate of $25.00 for each meeting
attended, effective immediately, which
represented an increase over the
compensation received by board of review
members in [the prior calendar year].

The board of review . . . is composed of
the town board supervisors and the town
clerk, pursuant to Section 70.46(1),
Wis. Stats.

In my opinion, no additional compensation of
any kind may be paid to town board
supervisors for service on the board of
review, but compensation may be increased
to a town clerk for service on the board
of review if the clerk has previously been
designated part time by the town meeting
pursuant to section 60.305(1)(b).

 
79 OAG 176   177   178   179   180   181

Since at least 1878, the Legislature had
provided that "no town officer shall be
entitled to pay for acting in more
than one official capacity or
office, at the same time."

Chapter 39, Section 850,
Revised Statutes of 1878.

That provision was substantially unchanged
until 1980 when Section 60.60, Stats. (1977),
was amended in the following fashion:

60.60(1)(b)
Except as provided under Subsection
60.60(2)(b), no town officer may be
compensated by the town for acting
in more than one official capacity
or office at the same time.

60.60(2) . . . .(b)
Any annual town meeting may combine the
offices of town clerk and town treasurer
or designate the office of town clerk, the
office of town treasurer or the combined
office of town clerk and town treasurer
part-time . . . .

Under Subsection 60.60(1), the annual
town meeting may provide for compensation
for any office combined or designated
part-time under this paragraph.

Chapter 130, Sections 3 and 4, and
Chapter 355, Section 81, Laws of 1979.

In 1984, the statutes concerning town
government were recodified and revised.

At that time, section 60.305(1)(b), Stats.
(1983), was created to permit the
town meeting to

designate as part time the office
of town clerk, the office of town
treasurer or the combined office
of town clerk and town treasurer.

1983 Wisconsin Act 532, Subchapter V.

The notes of the legislative council's
special committee on revision of town
laws indicate that no change in
existing law was intended.

Section 60.323, Stats. (1983), was similarly
recodified to read as follows: "Except for
offices combined under Section 60.305, no
town may compensate a town officer for acting
in more than one official capacity or office
of the town at the same time."

1983 Wisconsin Act 532, Subchapter V.

The special committee's note states as
follows:

Restates Section 60.60(1)(b), clarifying
that the provision prohibits the town
from compensating a town officer
for acting in more than one
official "town" capacity or "town"
office at the same time.

Thus, the town meeting may designate the
office of town clerk to be part time, under
section 60.305(1)(b), but that statute has no
application to members of the town board.

 
79 OAG 176   177   178   179   180   181

Section 70.46 is a statute generally
applicable to all municipal boards of review.

Municipal boards of review were
first established in 1868.

Chapter 130, Section 24, Laws of 1868.

Initially, there was no provision for
compensation of board members. Chapter 48,
Section 1060, Revised Statutes of 1878.

However, at various times the statute has
provided for specific amounts of compensation
to such members.

See, e.g., Section 1060, Stats. (1889)
"allowed by law to assessors"

Section 70.46, Stats. (1921)
"not exceeding three dollars per day"
 

Section 70.46 now provides
in part as follows:

Boards of review; members; organization.

70.46(1)
Except as provided in Section 70.99, the
supervisors and clerk of each town . . .
shall constitute a board of review for the
town . . . In all . . . towns . . . the board
of review may by ordinance in lieu of the
foregoing consist of any number of town . . .
residents and may include public
officers and public employes.

The ordinance shall specify the manner of
appointment. The town board . . . shall fix,
by ordinance, the salaries of the members of
the board of review.
. . . . . . . . . .
70.46(3)
The members of such board, except members who
are full time employes or officers of the
town . . . shall receive such compensation
as shall be fixed by resolution or ordinance
of the town board . . . The italicized
language was inserted in Chapter 97,
Laws of 1941.

Because the bill was not prepared by
the Legislative Reference Bureau,
no drafting file exists.

As the focus of your inquiry indicates, a
violation of section 60.323 could result in
prosecution for misconduct in public office
under section 946.12(2). See 23 Op. Att'y
Gen. 770, 771-72 (1934). It is, therefore,
critical that the language contained in
section 70.46 be reconciled with that
contained in section 60.323.

 
79 OAG 176   177   178   179   180   181

The phrase "full time employes or officers"
is ambiguous. At the time that language
was adopted, however, there undoubtedly
were few if any statutory provisions
that would characterize an elected
officer as being other than full time.

Rather, it was generally accepted that,
regardless of the time it takes to perform
his or her duties, every elected official

"is an officer during
every hour of his term."

61 Op. Att'y Gen. 443, 445 (1972).

Also see

65 Op. Att'y Gen. 62, 65-66 (1976) quoting
63 Am. Jur. 2d Public Officers and Employees
Section 399 (1984) (now 63A Am. Jur. 2d
Public Officers and Employees Section 467).

There still is no exception to this
general principle with respect to
the office of town supervisor.

Cf. 23 Op. Att'y Gen. 770, 771 (1934).

Prior to the enactment of section 60.60,
Stats. (1979), town supervisors could not
receive additional compensation for acting
in any other capacity for the town.

26 Op. Att'y Gen. 136 (1937).

The notes of the special committee indicate
that no change in this prior law was
intended as a result of the
enactment of section 60.323.

Although it may have once been
a "fairly debatable question,"

see
Leuch v. Berger,
161 Wis. 564, 572,
155 N.W. 148 (1915),
it is also clear that compensation provisions
such as those contained in section 60.323 are
controlling over those in section 70.46(3).

See
Milwaukee v. Reiff,
157 Wis. 226,
146 N.W. 1130 (1914);
25 Op. Att'y Gen. 615 (1936);
4 Op. Att'y Gen. 877 (1915).
 

Since there is no statutory provision
permitting the designation of a town
supervisor as "part time," I conclude
that a town supervisor may not receive
any additional compensation under section
70.46(3) whether or not the phrase "full
time" was intended to modify the word
"officer" in that statute.

I, therefore, have no occasion to examine the
question of whether an increase in per diem
compensation, which clearly is a form of
salary, see 62 Op. Att'y Gen. 303, 305
(1973), awarded by members of the town board
to positions in which they themselves serve
ex officio also violates section 66.196,
which provides in part as follows:

 
79 OAG 176   177   178   179   180   181

An elected official of any . . . town . . .
who by virtue of his office is entitled to
participate in the establishment of the
salary attending his office, shall not during
the term of such office collect salary in
excess of the salary provided at the time of
his taking office. . . .

Section 66.196 is wholly inapplicable to
the town clerk, since the clerk does not
participate in the establishment of
compensation for members of the
board of review.

Unlike the circumstance involving town
supervisors, section 60.305(1)(b) also
does permit the town meeting to designate
the town clerk as a part-time officer.

The clear inference is that, unless such a
designation has been made, the town clerk
remains a full-time officer.

Although the Legislature probably did not
contemplate that elected officers could
serve on a part-time basis when chapter 97,
Laws of 1941, was enacted, it would be a
strained construction to conclude that an
elected officer expressly designated as part
time by statute could not receive additional
compensation under section 70.46(3) simply
because he or she has not attained legal
status equivalent to that of a part-time
"employe" under that statute.
 

Since section 70.46(3) must be construed
as authorizing additional compensation and
since no other statute appears to preclude
an increase in compensation to a part-time
clerk, it is my opinion that compensation
may be increased to a part-time clerk
for service on the board of review.

I therefore conclude that, while no
additional compensation of any kind may
be paid town supervisors who serve on the
town board of review, compensation may be
increased to a town clerk for service on the
board of review if the clerk has previously
been designated part time pursuant to section
60.305(1)(b) of the statutes.

DJH:FTC

 
79 OAG 176   177   178   179   180   181