81 Op. Att'y Gen. 37 (1993)
 
81 OAG 37   38  39  40  41

OPINION NO. OAG 6-93,

6 May 1993

Section 19.36(7), Stats., is an exception
to the public records law and, therefore,
should be narrowly construed. As used
in that statute the terms "applicant"
and "candidate" are synonymous.

Definition of "final candidate" discussed.

Mr. Peter A. Kastenholz Corporation Counsel
Wood County Courthouse
Post Office Box 8095
Wisconsin Rapids
Wisconsin 54495-8095

Dear Mr. Kastenholz:

You have asked for clarification of the
terms "applicant," "candidate" and "final
candidate," as used in section 19.36(7)(a),
Stats. Section 19.36(7) provides:

19.36(7)(a)

In this section, "final candidate" means each
applicant for a position who is seriously
considered for Appointment or whose name is
certified for appointment and whose name is
submitted for final consideration to an
authority for appointment to any state
position, except a position in the
Classified service, or to any local public
office, as defined in Section 19.42(7w).
 

"Final candidate" includes, whenever there
are at least five candidates for an office or
position, each of the five candidates who are
considered most qualified for the office or
position by an authority, and whenever there
are less than five candidates for an office
or position, each such candidate.

Whenever an appointment is to be made
from a group of more than five candidates,
"final candidate" also includes each
candidate in the group.

19.36(7)(b)

Every applicant for a position with any
authority may indicate in writing to the
authority that the applicant does not wish
the authority to reveal his or her identity.

Except with respect to an applicant whose
name is certified for appointment to a
position in the state classified service or
a final candidate,if an applicant makes such
an indication in writing, the authority shall
not provide access to any record related
to the application that may reveal
the identity of the applicant.

 
81 OAG 37   38  39  40  41

You suggest there are at least two possible
interpretations of section 19.36(7)(a).

First, "applicant" and "candidate" could be
considered to be synonymous, both meaning a
person who has applied for a position
irrespective of whether the person is
qualified for the position.

Alternatively, one could assume that the
Legislature meant something different by
each term since the Legislature
chose different terms.

You suggest that an applicant would mean
someone who applied for a position and a
candidate would be an applicant who was
qualified for the position, that is, someone
who met the minimum job qualifications for
employment set out in the announcement
or description of the position.

Under this construction of the statute it
would be possible to receive applications
from ten applicants but determine that only
three of those applicants are candidates
and only two of those candidates
are final candidates.

Section 19.36(7) is hardly a model
of clarity. I conclude, however, that
"applicant" and "candidate" are synonymous
for purposes of the statute.

I reach this conclusion for two reasons.

First, that definition results in the
greatest number of applicants being
final candidates, and, therefore,
results in providing the greatest
information to the public.

Section 19.31 requires that
Sections 19.32 to 19.37

   " be construed in every instance with
     a presumption of complete public
     access, consistent with the
     conduct of governmental business. "
 

Because section 19.36(7) is a partial
exception to the public records law,
it should be narrowly construed.

Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).

This interpretation of Subsection 19.36(7)(a)
is also consistent with Subsection
19.36(7)(b).

Subsection 19.36(7)(b) allows an applicant to
indicate that he or she does not want the
authority to reveal his or her identity.

The statute then makes an exception to that
general rule for two groups of people:

(1)   Applicants whose names are certified
      for appointment to a position in
      the state classified service or

(2)   final candidates.

 
81 OAG 37   38  39  40  41

For the latter class there are only two
groups in the universe, applicants
and final candidates.

The law on its face makes no provision
for a third group, "candidates."

Under the law an applicant may choose not
to have his or her identity revealed.

If that applicant becomes a final candidate,
however, the authority can no longer
honor that choice.

You also ask whether the second and
third sentences of section 19.36(7)(a)
add additional restrictions
to the first sentence.

As you note, if that were the case, an
applicant could never be a final candidate
unless that person had been "seriously
considered for appointment" or had his
or her name certified for appointment
and submitted for final consideration.

The second and third sentences of that
subsection are not additional restrictions
on the definition of "final candidate."

Quite the contrary, the second and third
sentences assure that the law cannot be
evaded by an authority simply declaring
that only one or two applicants were
"seriously considered for appointment."

Therefore, whenever there are at least five
candidates for an office or position, at
least five of the applicants, the five
considered most qualified, must be included
within the definition of "final candidate."

If there are less than five candidates,
all of the applicants are considered
to be "final candidates."

Finally, if an authority is going to make the
appointment from a group of more than five
applicants, that is, the authority's final
list from which it will make the appointment
is greater than five, all of the people on
that list are considered to be "final
candidates."

The statute requires that someone be treated
as a final candidate, even if the person is
not seriously considered for appointment, if
there were fewer than five applicants.

As I have mentioned, section 19.36(7) is an
exception to the general policy of public
access to public records and, therefore,
should not be interpreted as denying access
to public records unless clearly applicable.

The Legislature has not created a blanket
exemption to the public records law.

Section 19.36(7) applies only to state
"positions," except a position in a
classified service.

 
81 OAG 37   38  39  40  41

On its face, therefore, the statute
does not apply to state "offices."

For a discussion of the difference between a
position and an office,
see
Martin v. Smith,
239 Wis. 314,
1 N.W.2d 163 (1941).

That the Legislature was drawing a
distinction between "positions" and "offices"
is clear from the fact that the statute
refers to state "positions" but to "local
public offices" as defined
in section 19.42(7w).

That definition itself is in turn limited; it
does not apply to all local public offices.

For example, it would not apply to an officer
appointed to serve an indefinite term who was
also removable for cause, or an officer
appointed by a body other than the governing
body or the executive or administrative head
of the local government.

The statute does not apply, for example, to
the office of chief of police because chiefs
are appointed by the police and fire
commission and hold their offices during good
behavior, subject to suspension or removal by
the board for cause.

Sec. 62.13(3), Stats.

Sincerely,

James E. Doyle   Attorney General

 
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