80 Op. Att'y Gen. 187 (1992)

80 Op. Att'y Gen. 187, 194 (1992)
Section 230.12(3) sets forth the basis for establishing compensation for classified employes by stating:

80 Op. Att'y Gen. 187, 194 (1992)
The proposal [for compensation plan changes] shall be based upon experience in recruiting for the service, the principle of providing pay equity regardless of gender or race, data collected as to rates of pay for comparable work in other public services and in commercial and industrial establishments, recommendations of agencies and any special studies carried on as to the need for any changes in the compensation plan to cover each year of the biennium. The proposal shall also take proper account of prevailing pay rates, costs and standards of living and the state's employment policies.

80 Op. Att'y Gen. 187, 195 (1992)
Since the basis for determining compensation, set forth in section 230.12(3) appears to contain all of the various elements to be considered in setting salaries generally, such statutory section does not provide the objective standard necessary to satisfy the prohibition of article IV, section 26. Absent the basis for objective certainty in establishing the amount of compensation during employment, such employment contract could change after the service was rendered and the employment terminated. "Such a construction would go far towards surrendering the substantial prohibition [of article IV, section 26] for an uncertain shadow." Carpenter v. The State, 39 Wis. 271, 283 (1876).

80 Op. Att'y Gen. 187, 195 (1992)
The language of the Article admits of no doubt that it was the intent of the draftsmen who prepared it and the electors who adopted it that, when a person rendered public service for compensation agreed upon, his right to compensation depended upon and was limited by his agreement. "The exact measure of his right is determined absolutely by his contract, under the constitution; and there exists nowhere a discretion to vary it." Carpenter v. State (1876), 39 Wis. 271, 283.

80 Op. Att'y Gen. 187, 195 (1992)
Giessel, 262 Wis. at 63-64. Since the elements that go into establishment of compensation are many and under the control of the Legislature or agencies granted the authority by the Legislature, they are not an objective standard. A standard for determining ASLCC premium credits based on future salaries of persons in the same positions precludes interpreting the compensation agreed upon during employment as including these ASLCC premium credits. The accumulated sick leave conversion credit program amendments enacted by 1991 Wisconsin Act 39 therefore violate the first sentence of article IV, section 26.

80 Op. Att'y Gen. 187, 195-196 (1992)
  Your second through sixth questions, as well as an additional question asked by your letter of November 1, 1991, concern and relate to implementation of the new method of determining ASLCC benefits. Since I have determined that section 1154Li of the 1991 budget bill, providing this new method, violates the first sentence of article IV, section 26, there is no need to consider questions relating to the implementation of section 1154Li. The prohibition set forth in the first sentence of article IV, section 26 does not distinguish between public officers and employes. Such section precludes payment of extra compensation to "any public officer, agent, servant or contractor, after the services have been rendered or the contract entered into."

80 Op. Att'y Gen. 187, 196 (1992)
  Similarly, your seventh and eighth questions ask whether "implementation of this provision [would] violate the rights of others in the trust fund" or violate article IV, section 18, relating to private and local laws. Again there is no need to consider these questions in light of my determination of unconstitutionality.

80 Op. Att'y Gen. 187, 196 (1992)
  Your final question states:

80 Op. Att'y Gen. 187, 196 (1992)
Regardless of your answers to the above questions, what further steps might the Board take to best ensure against any breach of fiduciary duty?

80 Op. Att'y Gen. 187, 196 (1992)
  Sections 40.04 and 40.05, as created or amended by sections 1154ky, 1154Li and 1154Lj of the 1991 budget bill, set forth the mechanics of the ASLCC program as follows:

80 Op. Att'y Gen. 187, 196 (1992)
  40.04(10) An accumulated sick leave conversion account shall be maintained within the fund, to which shall be credited all money received under s. 40.05(4)(b), (bc) and (bm) for health insurance premiums, as dividends or premium credits arising from the operation of health insurance plans and from investment income on any reserves established in the fund for health insurance purposes for retired employes and their surviving dependents. Premium payments to health insurers authorized in s. 40.05(4)(b), (bc) and (bm) shall be charged to this account.

80 Op. Att'y Gen. 187, 197 (1992)
  40.05(4)(bc) The accumulated unused sick leave of an eligible employe under s. 40.02(25)(b) 6g shall be converted to credits for the payment of health insurance premiums on behalf of the employe on the date on which the department receives the employe's application for a retirement annuity or for lump sum payment under s. 40.25(1).

80 Op. Att'y Gen. 187, 197 (1992)
  40.05(4)(br)1. Employers shall pay contributions that shall be sufficient to pay for the present value of the present and future benefits authorized under pars. (b) and (bc). Subject to subd. 2, the board shall annually determine the contribution rate upon certification by the actuary of the department.

80 Op. Att'y Gen. 187, 197 (1992)
  ....

80 Op. Att'y Gen. 187, 197 (1992)
  2.   Beginning in 1985, the initial contribution rate determined under subd. 1 may not exceed the employer's costs under pars. (b) and (bc) for the previous calendar year by more than 0.2% of covered payroll. Each subsequent contribution rate determined under subd. 1 may not exceed the employer's costs under this paragraph for the previous calendar year by more than 0.2% of covered payroll.

80 Op. Att'y Gen. 187, 197 (1992)
"Fund" as used in section 40.04(10) is the public employe trust fund. Secs. 40.01(1) and 40.02(35), Stats. The Employe Trust Funds Board (ETFB) members are trustees of the fund. Sec. 40.01(2), Stats. In addition, the ETFB has the duty to establish the contribution rate for ASLCC purposes. Sec. 40.05(4)(br), Stats. These duties as trustees of the fund and specifically the establishment of the contribution rate are affected by the question of constitutionality of the changes to the ASLCC program which are the subject of this opinion.

80 Op. Att'y Gen. 187, 197-198 (1992)
  The parameters of the exceptions to the general rule that a state agency or public officer cannot question the constitutionality of a statute were first set forth in the seminal case Fulton Foundation v. Department of Taxation, 13 Wis. 2d 1, 11, 14b, 108 N.W.2d 312, 109 N.W.2d 285 (1961). Such parameters were described in State ex rel. Sullivan v. Boos, 23 Wis. 2d at 100-02, wherein the court stated:

80 Op. Att'y Gen. 187, 198 (1992)
  In Fulton Foundation v. Department of Taxation we said:

80 Op. Att'y Gen. 187, 198 (1992)
  "The general rule is that state agencies or public officers cannot question the constitutionality of a statute unless it is their official duty to do so, or they will be personally affected if they fail to do so and the statute is held invalid."

80 Op. Att'y Gen. 187, 198 (1992)
  We also recognized that there is a further exception where the question raised is of great public concern, particularly where the circumstances are such that there is little likelihood that a taxpayer or other person whose interests are affected would take the steps required to get a determination of the question.

80 Op. Att'y Gen. 187, 198 (1992)
  In deciding that a particular officer could raise the constitutional question, this court has readily found in statutory language an implication of duty to determine the lawfulness of the act or expenditure. Thus in mandamus actions to compel the state director of budget and accounts to make disbursements, the director was permitted to challenge constitutionality because his statutory duties were deemed to include passing on the legality of the purpose of the expenditure.

80 Op. Att'y Gen. 187, 198 (1992)
  ....

80 Op. Att'y Gen. 187, 198 (1992)
  Courts frequently permit an officer who controls the disbursement of public funds to challenge the validity of a statute or ordinance which appears to require payment, upon the theory that he has a personal interest to protect, in that he may be held liable if he permits the disbursement of public funds in what proves to be an unlawful manner.

80 Op. Att'y Gen. 187, 199 (1992)
  In State ex rel. Singer v. Boos, 44 Wis. 2d 374, 171 N.W.2d 307 (1969), the governing body of the Annuity & Pension Board of the Employes' Retirement System of the county of Milwaukee (Milwaukee Board) challenged the constitutionality of a home rule ordinance increasing benefits to retired members. The Milwaukee Board alleged that increasing benefits to persons already retired violated article IV, section 26 and authorized the expenditure of public funds for private purposes. In applying the Fulton exceptions, the court stated:

80 Op. Att'y Gen. 187, 199 (1992)
  As we view this case, the fundamental question to be resolved is whether public funds are being diverted for a private purpose. This is a question of great public concern and interest.

80 Op. Att'y Gen. 187, 199 (1992)
  "When we apply the test of great public concern to the two issues of unconstitutionality raised by the department in the instant case we find one falls within such category and one does not. The issue of whether public funds are being diverted to a private purpose clearly is a matter of great public interest...." Fulton Foundation v. Department of Taxation (1961), 13 Wis. 2d 1, 13, 108 N.W.2d 312, 109 N.W. 2d 285.

80 Op. Att'y Gen. 187, 199 (1992)
In addition, the issues raised by appellants will probably not be raised by an individual taxpayer, since the expense and trouble would be too great. In this connection, this court has held:

80 Op. Att'y Gen. 187, 199 (1992)
  "We also recognized that there is a further exception where the question raised is of great public concern, particularly where the circumstances are such that there is little likelihood that a taxpayer or other person whose interests are affected would take the steps required to get a determination of the question." State ex rel. Sullivan v. Boos, supra, 101.

80 Op. Att'y Gen. 187, 200 (1992)
Therefore, we determine that the appellants have standing to raise the issues presented in this case.

80 Op. Att'y Gen. 187, 200 (1992)
Boos, 44 Wis. 2d at 379-80.

80 Op. Att'y Gen. 187, 200 (1992)
  It therefore appears that the ETFB has the standing to contest the constitutionality of the ASLCC program changes. It has standing since it has the statutory duty to establish the employers' ASLCC contribution rate and because diversion of public funds for a private purpose is a question of great public concern or interest which will probably not be raised by an individual taxpayer.

80 Op. Att'y Gen. 187, 200 (1992)
JED:WMS
___________________________