71 Op. Att'y Gen. 127 (1982)

71 Op. Att'y Gen. 127, 129 (1982)
  Considering these factors as a whole, and reading them in light of Lister v. Board of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976), Majerus v. Milwaukee County, 39 Wis. 2d 311, 159 N.W.2d 86 (1968), and Sullivan v. Board of Regents of Normal Schools, 209 Wis. 242, 244 N.W. 563 (1932), I conclude that the plans are private, independent, ongoing concerns and are not state boards or state agencies. Therefore, they are not "governmental bodies" as defined in sec. 19.82(1), Stats., and are not subject to the open meetings law.

71 Op. Att'y Gen. 127, 129 (1982)
  The requirements of sec. 19.21(1), Stats., dealing with public records, fall on public officers. The crucial inquiry then is whether members of these boards are public officers.

71 Op. Att'y Gen. 127, 129 (1982)
  The leading cases in Wisconsin concerning the question of who is a public officer are Burton v. State Appeal Board, 38 Wis. 2d 294, 156 N.W. 386 (1968), and Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163 (1941). These cases make clear that, to be a public officer, a position must be one of "public [not private] employment." Burton, 38 Wis. 2d at 300; Martin, 239 Wis. at 332.

71 Op. Att'y Gen. 127, 129 (1982)
  The plans themselves are private, independent, ongoing concerns and not state public agencies, as I have concluded above. Consonant with the plans' private status, membership on the governing boards represents private rather than public employment. As the board members hold private positions, I conclude that they are not public officers, and therefore that they need not comply with sec. 19.21, Stats.

71 Op. Att'y Gen. 127, 130 (1982)
  Your third question is:

71 Op. Att'y Gen. 127, 130 (1982)
Are the actions of the Boards subject to the provision of Chapter 227, Wis. Stats.?

71 Op. Att'y Gen. 127, 130 (1982)
  The answer to this question is no.

71 Op. Att'y Gen. 127, 130 (1982)
  Chapter 227, Stats., applies by its terms to certain agencies of the state. These agencies, delineated in sec. 227.01(1), Stats., include "any board, commission, committee, department or officer in the state government, except the governor or any military or judicial officer of this state."

71 Op. Att'y Gen. 127, 130 (1982)
  As noted above, the boards are not state boards. Therefore, they are not agencies under sec. 227.01(1), Stats., so that ch. 227, Stats., does not apply to actions of the boards.

71 Op. Att'y Gen. 127, 130 (1982)
  Your fourth question is:

71 Op. Att'y Gen. 127, 130 (1982)
May the Boards hire and fire personnel without regard to Chapter 230, Wis. Stats.?

71 Op. Att'y Gen. 127, 130 (1982)
  The answer to this question is yes.

71 Op. Att'y Gen. 127, 130 (1982)
  Chapter 230, Stats., applies to state agencies. Section 230.03(3), Stats., defines the term in relevant part to refer to "state board[s]... created by the constitution or statutes...."

71 Op. Att'y Gen. 127, 130 (1982)
  As noted above, the governing boards of the plans are not state boards. They are neither created by constitution or statute. Therefore, ch. 230, Stats., does not apply to the Boards' decisions to hire and fire personnel.

71 Op. Att'y Gen. 127, 130 (1982)
  Your fifth question is:

71 Op. Att'y Gen. 127, 130 (1982)
Are the plans subject to budgeting and appropriation procedures set forth in Chapters 16 and 20, Wis. Stats.?

71 Op. Att'y Gen. 127, 130 (1982)
  The answer to both parts of this question is no.

71 Op. Att'y Gen. 127, 130 (1982)
  As to ch. 16, Stats., it is clear from sec. 16.001(1), Stats., that this chapter applies only to "state agencies." The boards of the plans are not state agencies and therefore the ch. 16, Stats., procedures do not apply to them.

71 Op. Att'y Gen. 127, 130-131 (1982)
  As to ch. 20, Stats., sec. 20.001(1), Stats., defines which agencies are subject to ch. 20, Stats. This office has previously indicated, in an unpublished opinion (OAG 47-80), that these agencies include only those agencies delineated under sec. 15.02, Stats., i.e., the constitutional offices, departments and independent agencies in the state's executive branch.

71 Op. Att'y Gen. 127, 131 (1982)
  The governing boards of the plans, because of their private, independent status, do not fit into any of these designations. Therefore, I conclude that these boards are likewise not subject to the requirements of ch. 20, Stats.

71 Op. Att'y Gen. 127, 131 (1982)
  Your sixth and seventh questions will be considered together. They are:

71 Op. Att'y Gen. 127, 131 (1982)
Are members of the Boards and Committees of the Plans state officers within the meaning of sections 895.45 and 895.46, Wis. Stats., when such members act within their official capacity?

71 Op. Att'y Gen. 127, 131 (1982)
Are members of the Boards and the Committees of the Plans immune from civil liability for damages when acting within the scope of their office?

71 Op. Att'y Gen. 127, 131 (1982)
  The answer to both these questions is no.

71 Op. Att'y Gen. 127, 131 (1982)
  Section 893.82, Stats. (formerly sec. 895.45, Stats.), bars suit against a state officer, employe or agent concerning any act committed in discharge of his or her office unless the claimant serves notice of his or her claim to the Attorney General within a specified time. Section 895.46, Stats., provides, among other things, for the state and its political subdivisions to pay judgments rendered against public officers or employes for acts committed while carrying out their duties, when such officers and employes were acting within the scope of their employment.

71 Op. Att'y Gen. 127, 131 (1982)
  As noted above, board members (and, likewise, for the same reasons noted above, committee members) are members of private, independent, ongoing concerns. I, therefore, conclude that board and committee members are not state or public officers (or employes or agents) and do not enjoy the protection of secs. 893.82 and 895.46, Stats.

71 Op. Att'y Gen. 127, 131-132 (1982)
  In answer to your second question, it must be noted that the immunity from civil liability to which you refer is available to public officers and public employes, not to employes of private, independent, ongoing concerns. Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 693, 292 N.W.2d 816 (1980); Yotvat v. Roth, 95 Wis. 2d 357, 365, 290 N.W.2d 524 (Ct. App. 1980). Since board and committee members come under the latter category, and not the former, immunity from civil liability does not extend to their acts as board or committee members.

71 Op. Att'y Gen. 127, 132 (1982)
BCL:JDJ:ewjf

71 Op. Att'y Gen. 127, 127 (1982) - Footnote

Destination-34   * This analysis holds true whether these boards are state agencies or are private concerns, an issue dealt with later in this opinion. Wisconsin courts have often upheld delegations of authority to private, independent, ongoing concerns for valid, public purposes. See, e.g., Townsend v. Wisconsin Desert Horse Asso., 42 Wis. 2d 414, 423, 167 N.W.2d 425 (1969); State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973); State ex rel. Thomson v. Giessel, 265 Wis. 185, 60 N.W.2d 873 (1953).
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