62.09 NoteNOTE: 2003 Wis. Act 47, which affected this section, contains extensive explanatory notes. 62.09 Cross-referenceCross-reference: See s. 196.675, which provides that a city attorney may not be employed by a common carrier or public utility. 62.09 Cross-referenceCross-reference: See s. 66.0609 for an alternative system of approving claims under sub. (10). 62.09 AnnotationA mayor may not veto council action or inaction on public works contracts. Sturzl Construction Co. v. City of Green Bay, 88 Wis. 2d 403, 276 N.W.2d 771 (1979). 62.09 AnnotationDiscussing conflicts arising from the election of a school principal to the office of alderperson. 60 Atty. Gen. 367.
62.09 AnnotationAlderperson and police officer spouses can continue to hold offices as long as the alderperson does not violate s. 946.13 (1) with respect to the police officer’s contract. 63 Atty. Gen. 43.
62.09 AnnotationA mayor in a city with a police and fire commission does not have the authority to order a police chief to reinstate a discharged probationary police officer. 81 Atty. Gen. 1. 62.09 AnnotationWhen no provision fixes the term of appointive officers, such as a city treasurer, the term is limited to that of the appointing authority; removal by a successor does not implicate a due process property interest. Wolf v. City of Fitchburg, 870 F.2d 1327 (1989). 62.09 AnnotationPolice Accountability in Wisconsin. Flynn. 1974 WLR 1131.
62.1162.11 Common council. 62.11(1)(1) How constituted. The mayor and alderpersons shall be the common council. The mayor shall not be counted in determining whether a quorum is present at a meeting, but may vote in case of a tie. When the mayor does vote in case of a tie the mayor’s vote shall be counted in determining whether a sufficient number of the council has voted favorably or unfavorably on any measure. 62.11(2)(2) Time of meeting. The council shall meet at least once a month, and on the first Tuesday unless a different day be fixed by the council. More frequent regular meetings may be established by the council. The mayor may call a special meeting by notifying members in a manner likely to give each member notice of the meeting and providing the notice at least 6 hours before the meeting. Following a regular city election the new council shall first meet on the 3rd Tuesday of April. 62.11(3)(a)(a) The council shall be the judge of the election and qualification of its members, may compel their attendance, and may fine or expel for neglect of duty. 62.11(3)(b)(b) Two-thirds of the members shall be a quorum, except that in cities having not more than 5 alderpersons a majority shall be a quorum. A less number may compel the attendance of absent members and adjourn. A majority of all the members shall be necessary to a confirmation. In case of a tie the mayor shall have a casting vote as in other cases. 62.11(3)(c)(c) Meetings shall be open to the public; and the council may punish by fine members or other persons present for disorderly behavior. 62.11(3)(d)(d) The ayes and noes may be required by any member. On confirmation and on the adoption of any measure assessing or levying taxes, appropriating or disbursing money, or creating any liability or charge against the city or any fund thereof, the vote shall be by ayes and noes. All aye and nay votes shall be recorded in the journal. 62.11(3)(e)(e) The council shall in all other respects determine the rules of its procedure. 62.11(3)(f)(f) The style of all ordinances shall be: “The common council of the city of .... do ordain as follows”. 62.11(4)(a)(a) Proceedings of the council shall be published in the newspaper designated under s. 985.06 as a class 1 notice, under ch. 985. The proceedings for the purpose of publication shall include the substance of every official action taken by the governing body. Except as provided in this subsection every ordinance shall be published either in its entirety, as a class 1 notice, under ch. 985, or as a notice, as described under par. (c) 2., within 15 days of passage, and shall take effect on the day after the publication or at a later date if expressly prescribed. 62.11(4)(b)(b) All ordinances passed by the governing body of any city of the second class between January 1, 1914, and January 1, 1924, which were or may have been required to be published before becoming effective, but which were not published, shall be valid to the same extent as if they had been published in the first instance, as required by law, providing said ordinances and all amendments thereto are printed in the official journal of any such body together with the record of the passage of the same; however, the provisions of this paragraph shall not be effective in any city unless the governing body thereof shall so elect by a vote of two-thirds of its members. 62.11(4)(c)2.2. A notice of an ordinance that may be published under this paragraph shall be published as a class 1 notice under ch. 985 and shall contain at least all of the following: 62.11(4)(c)2.c.c. A summary of the subject matter and main points of the ordinance. 62.11(4)(c)2.d.d. Information as to where the full text of the ordinance may be obtained, including the phone number of the city clerk, a street address where the full text of the ordinance may be viewed, and a website, if any, at which the ordinance may be accessed. 62.11(5)(5) Powers. Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the city, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language. 62.11 Cross-referenceCross-reference: See s. 118.105 for control of traffic on school premises. 62.11 AnnotationWhen a municipality’s power to contract is improperly or irregularly exercised and the municipality receives a benefit under the contract, it is estopped from asserting the invalidity of the contract. Village of McFarland v. Town of Dunn, 82 Wis. 2d 469, 263 N.W.2d 167 (1978). 62.11 AnnotationMadison’s power to forbid chemical treatment of Madison lakes was withdrawn by s. 144.025 (2) (i) [now s. 281.17 (2)]. Wisconsin’s Environmental Decade, Inc. v. DNR, 85 Wis. 2d 518, 271 N.W.2d 69 (1978). 62.11 AnnotationWhen a city council creates a governing board for a utility under s. 66.068 (1) [now s. 66.0805 (1)], the council is prohibited by s. 66.068 (3) [now s. 66.0805 (3)] from fixing wages for utility employees. Schroeder v. City of Clintonville, 90 Wis. 2d 457, 280 N.W.2d 166 (1979). 62.11 AnnotationSub. (5) authorizes an ordinance regulating massage parlors. City of Madison v. Schultz, 98 Wis. 2d 188, 295 N.W.2d 798 (Ct. App. 1980). 62.11 AnnotationThere is a four-part test in evaluating whether a municipality may regulate a matter of state-wide concern: 1) whether the legislature has expressly withdrawn the power of municipalities to act; 2) whether the ordinance logically conflicts with the state legislation; 3) whether the ordinance defeats the purpose of the state legislation; or 4) whether the ordinance goes against the spirit of the state legislation. Anchor Savings & Loan Ass’n v. Equal Opportunities Commission, 120 Wis. 2d 391, 355 N.W.2d 234 (1984). 62.11 AnnotationThe common council and mayor properly limited the power of the police and fire commission to promote police officers. State ex rel. Wilson v. Schocker, 142 Wis. 2d 179, 418 N.W.2d 8 (Ct. App. 1987). 62.11 AnnotationLiberally construing home rule authority, a city is not authorized to institute a public safety officer program. Local Union No. 487 v. City of Eau Claire, 147 Wis. 2d 519, 433 N.W.2d 578 (1989). 62.11 AnnotationThe power granted under sub. (5) is broader than that granted under article XI, section 3, of the Wisconsin Constitution. Sub. (5) does not limit a city’s authority to act only in local affairs. A city may act in matters of state-wide concern if the conditions of the four-part test stated in this case are met. DeRosso Landfill Co. v. City of Oak Creek, 191 Wis. 2d 46, 528 N.W.2d 468 (Ct. App. 1995). 62.11 AnnotationThe state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis. 2d 333, 544 N.W.2d 589 (Ct. App. 1996), 95-0213. 62.11 AnnotationOne who deals with a municipality does so at the person’s own risk and may be subject to any provisions of law that might prevent the person from being paid by a municipality even though the services are rendered. Unless the power to bind the municipality financially has been specifically delegated, the only entity with the statutory authority to contract is the municipality. Holzbauer v. Safway Steel Products, Inc., 2005 WI App 240, 288 Wis. 2d 250, 708 N.W.2d 36, 04-2058. 62.11 AnnotationWhen a challenge to the exercise of police powers is directed at the legislative means employed, the issue is properly framed as one of substantive due process. The legislative means chosen must have a rational relationship to the purpose or object of the enactment; if it has, and the object is a proper one, the exercise of the police power is valid. The fundamental inquiry is not whether the challenged provisions in an ordinance are rationally related to the stated purpose of the ordinance but whether the challenged provisions are rationally related to any legitimate municipal objective. Metropolitan Milwaukee Ass’n of Commerce v. City of Milwaukee, 2011 WI App 45, 332 Wis. 2d 459, 798 N.W.2d 287, 09-1874. 62.11 AnnotationAn ordinance is not invalid as unreasonable merely because substantially the same result might be accomplished by the enactment of a different type of ordinance, or because a less burdensome course might have been adopted to accomplish the end. The correct standard is whether the legislative means chosen has a rational relationship to the permissible object. Metropolitan Milwaukee Ass’n of Commerce v. City of Milwaukee, 2011 WI App 45, 332 Wis. 2d 459, 798 N.W.2d 287, 09-1874. 62.11 AnnotationThe fact that the regulation of sex offenders is a matter of statewide concern does not preclude municipalities from using their home-rule powers to impose further restrictions consistent with those imposed by the state. An ordinance regulating an area of statewide concern is preempted only if: 1) the legislature has expressly withdrawn the power of municipalities to act; 2) the ordinance logically conflicts with state legislation; 3) the ordinance defeats the purpose of state legislation; or 4) the ordinance violates the spirit of state legislation. City of South Milwaukee v. Kester, 2013 WI App 50, 347 Wis. 2d 334, 830 N.W.2d 710, 12-0724. 62.11 AnnotationSection 66.0301 (2) specifically authorizes a municipality to contract with other municipalities for the receipt or furnishing of services. In addition, sub. (5) and s. 62.04 confer upon cities all powers not denied them by other statutes or the constitution. In this case, the city decided to make certain of its property available to neighboring municipalities for wastewater treatment service on the terms and conditions it negotiated in contracts with those municipalities, including annual license fees. Sub. (5) unquestionably conferred authority upon the city to do so. Mary Lane Area Sanitary District v. City of Oconomowoc, 2023 WI App 48, 409 Wis. 2d 159, 996 N.W.2d 101, 22-1649. 62.11 AnnotationA city probably can contract with a county to provide fire protection to a county institution located outside of the boundaries of the city. 62 Atty. Gen. 84.
62.11 AnnotationA municipality has no jurisdiction over chemical treatment of waters to suppress aquatic nuisances. The Department of Natural Resources is granted statewide supervision over aquatic nuisance control under s. 144.025 (2) (i) [now s. 281.17 (2)]. Applications for permits to chemically treat aquatic nuisances under s. 144.025 (2) (i) [now s. 281.17 (2)] may be denied even though statutory and regulatory requirements have been met if the chemical treatment would be counter-productive in achieving the goals set out in s. 144.025 (1) [now s. 281.11]. 63 Atty. Gen. 260.
62.11 AnnotationLocal units of government may not create and accumulate unappropriated surplus funds. However, a local unit of government may maintain reasonable amounts necessary in the exercise of sound business principles to meet the immediate cash flow needs of the municipality during the current budgetary period or to accumulate needed capital in non-lapsing funds to finance specifically identified future capital expenditures. 76 Atty. Gen. 77. 62.11 AnnotationArticle VIII, section 5 restricts the state from levying taxes to create a surplus having no public purpose. Although the constitutional provision does not apply directly to municipalities, the same limitation applies indirectly to them because the state cannot delegate more power than it has. 76 Atty. Gen. 77. 62.11 AnnotationConflicts Between State Statute and Local Ordinance in Wisconsin. Solheim. 1975 WLR 840.
62.11 AnnotationMadison’s Minimum-Wage Ordinance, Section 104.001, and the Future of Home Rule in Wisconsin. Burchill. 2007 WLR 151.
62.11562.115 Defense of officers by city attorney. 62.115(1)(1) The common council of any city, however incorporated, may by ordinance or resolution authorize the city attorney to defend actions brought against any officer or employee of such city or of any board or commission thereof, growing out of any acts done in the course of employment, or out of any alleged breach of duty as such officer or employee, excepting actions brought to determine the right of such officer or employee to hold or retain that person’s office or position, and excepting also actions brought by such city against any officer or employee thereof. 62.115(2)(2) Nothing in this section contained, nor any action taken by any city or by any city attorney pursuant to the provisions of this section, shall be construed to impose any liability, either for costs, damages or otherwise, upon such city or city attorney. 62.115 HistoryHistory: 1991 a. 316. 62.12(1)(1) Fiscal year. The calendar year shall be the fiscal year. 62.12(2)(2) Budget. Annually on or before October 1, each officer or department shall file with the city clerk an itemized statement of disbursements made to carry out the powers and duties of the officer or department during the preceding fiscal year, a detailed statement of the receipts and disbursements on account of any special fund under the supervision of the officer or department during the year and of the condition and management of the fund and detailed estimates of the same matters for the current fiscal year and for the ensuing fiscal year. 62.12(3)(3) Accounting. The city treasurer shall keep separate all special funds, and the city clerk shall keep a separate account with the general fund for each officer or department through which disbursements are made from the general fund to carry out the powers and duties of such officer or department. The council shall examine and adjust the accounts of the clerk, treasurer and all other officers or agents of the city after the same shall have been audited by the comptroller. 62.12(5)(5) License moneys. Moneys received for licenses may be used for such purpose as the council shall direct in the absence of specific appropriation by law. 62.12(6)(6) Funds; appropriations; debts. 62.12(6)(a)(a) Unless otherwise provided by law city funds shall be paid out only by authority of the council. Such payment shall be made in the manner provided by s. 66.0607. 62.12(6)(b)(b) The council shall not appropriate nor the treasurer pay out: 62.12(6)(b)1.1. Funds appropriated by law to a special purpose except for that purpose; 62.12(6)(b)2.2. Funds for any purpose not authorized by the statutes; nor 62.12(6)(b)3.3. Funds from any fund in excess of the moneys therein. 62.12(6)(c)(c) No debt shall be contracted against the city nor evidence thereof given unless authorized by a majority vote of all the members of the council. 62.12(7)(7) City depositories. The council shall designate the public depository or depositories within this state with which city funds shall be deposited, and when the money is deposited in such depository in the name of the city, the treasurer and bondsmen shall not be liable for such losses as are defined by s. 34.01 (2). The interest arising therefrom shall be paid into the city treasury. 62.12(8)(a)(a) All claims and demands against the city shall be itemized and filed with the clerk, who shall deliver the same to the comptroller for examination. The comptroller shall within 30 days thereafter examine such claim or demand and return the same to the clerk with the comptroller’s report thereon in writing, who shall place the same before the council for action at its next meeting. 62.12(8)(b)(b) Payment of regular wages or salary pursuant to the budget and salary schedule adopted by the council may be by payroll, verified by the proper official, and filed in time for payment on the regular pay day. 62.12(9)(9) Loans. The council may loan money to any school district located within the city, or within which the city is wholly or partially located, in such sums as are needed by such district to meet the immediate expenses of operating the schools thereof, and the board of the district may borrow money from such city accordingly and give its note therefor. No such loan shall be made to extend beyond August 30 next following the making thereof or in an amount exceeding one-half of the estimated receipts for such district as certified by the state superintendent of public instruction and the local school clerk. The rate of interest on any such loan shall be determined by the city council. 62.12 HistoryHistory: 1973 c. 90, 333; 1975 c. 39, 80, 180, 224, 353, 421; 1977 c. 113 ss. 3, 6; 1977 c. 142; 1977 c. 203 s. 101; 1977 c. 272, 418; 1979 c. 34; 1979 c. 175 s. 51; 1981 c. 20, 61, 93; 1983 a. 27; 1983 a. 189 s. 329 (17), (21); 1985 a. 29, 225; 1991 a. 316; 1995 a. 27, 225; 1997 a. 27; 1999 a. 150 s. 672. 62.12 Cross-referenceCross-reference: See ss. 62.25 and 893.80 for actions upon claims. 62.12 Cross-referenceCross-reference: See s. 66.0609 for an alternative system of approving claims. 62.12 AnnotationLocal government units cannot include the value of tax-exempt manufacturing machinery and specific processing equipment and tax exempt merchants’ stock-in-trade, manufacturers’ materials and finished products, and livestock in their property valuation totals for non-tax purposes, such as for municipal debt ceilings, tax levy limitations, shared tax distributions, and school aid payments. 63 Atty. Gen. 465.
62.1362.13 Police and fire departments. 62.13(1)(1) Commissioners. Except as provided in subs. (2), (2g), (2s), and (8) (b) each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum. The mayor shall annually, between the last Monday of April and the first Monday of May, appoint in writing to be filed with the secretary of the board, one member for a term of 5 years. No appointment shall be made which will result in more than 3 members of the board belonging to the same political party. The board shall keep a record of its proceedings. 62.13(1m)(1m) Joint departments. A city may create a joint police department or a joint fire department, or both, with another city, village, or town. 62.13(2)(a)(a) Except as provided under sub. (6m), subs. (1) to (6) shall not apply to cities of less than 4,000 population except by ordinance adopted by a majority of all the members of the council. A repealing ordinance may be adopted by a like vote. 62.13(2)(b)(b) A city that creates a joint police or fire department with a village under sub. (1m) and s. 61.65 is not required to create a separate board of police and fire commissioners under this section. The city shall create a joint board of commissioners to govern the joint department, as required in s. 61.65. If the city also creates one separate protective services department in addition to the joint protective services department, the city shall create a separate board of commissioners to govern that department. A city’s joint board of commissioners is subject to s. 61.65 (3g) (d). A city’s separate board of commissioners is subject to this section. 62.13(2)(c)(c) A city that creates a joint police department or a joint fire department, or both, with another city under sub. (1m) is not required to create a separate board of police and fire commissioners under this section. The cities shall create a joint board of commissioners to govern the joint department. If only one joint department is created, each city shall retain its existing board of police and fire commissioners to govern the separate department. The cities may jointly determine the number of commissioners to be appointed to the joint board by each city and the length of the commissioners’ terms. A majority of the commissioners is a quorum. A joint board of commissioners that is created under this paragraph to govern a joint police department is subject to the provisions of subs. (3) to (7n), a joint board of commissioners that is created under this paragraph to govern a joint fire department is subject to the provisions of subs. (8) to (12) and a joint board of commissioners that is created under this paragraph to govern a joint police and fire department is subject to the provisions of subs. (2) to (12). 62.13(2e)(a)(a) A city may provide police and fire protection services by any of the following: 62.13(2e)(a)1.1. A combined protective services department which is neither a police department as otherwise constituted under this section nor a fire department as otherwise constituted under this section, in which the same person may be required to perform police protection and fire protection duties without being required to perform police protection duties for more than 8 hours in each 24 hours except in emergency situations, as described under sub. (7n). 62.13(2e)(a)2.2. Persons in a police department or fire department who, alone or in combination with persons designated as police officers or fire fighters, may be required to perform police protection and fire protection duties without being required to perform police protection duties for more than 8 hours in each 24 hours except in emergency situations, as described under sub. (7n). 62.13(2e)(b)(b) The governing body of a city acting under par. (a) may designate any person required to perform police protection and fire protection duties under par. (a) as primarily a police officer or fire fighter for purposes described in subs. (7m), (7n), (10m), and (11) and ss. 891.45, 891.453, and 891.455.
