My predecessor suggested in 63 Op. Att’y Gen. 286 that “elect” should be construed to mean “appoint” in a statute authorizing a county board to select a county officer to avoid a possible conflict with Wis. Const. art. XIII, § 9, which states that “[a]ll county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct.”
However, there is no potential constitutional problem in the present situation since, as discussed above, the chairperson of a county board is not a county officer by virtue of being the chairperson of the board. Therefore, there is no need to give the word “elect” a meaning different from the meaning plainly intended by the Legislature only to avoid an arguable invalidation of the statute.
Further, a seventy-six year old opinion of the Attorney General should not be misunderstood to state that the chairperson of a county board is an appointed officer. That opinion merely stated that the statute which authorized a county board to fill vacancies in appointive county offices also authorized a county board to fill a vacancy in the office of chairperson of the board. 20 Op. Att’y Gen. 85, 89 (1931). The opinion recognized that the chairperson of a county board is elected, and acknowledged that a vacant chair position was to be filled by election rather than appointment. 20 Op. Att’y Gen. at 86-87, 90.
The fact that the chairperson of a county board is elected does not mean that the provisions for removal of an elective county officer in Wis. Stat. § 17.09(1) (2005-06) apply when the chairperson is removed. An elective officer is one who holds an elective office, Wis. Stat. § 13.62(6) (2005-06), which is an office that is filled by the vote of the people. Wis. Stat. § 19.42(5m) (2005-06). Since the chairperson of a county board is elected by the board rather than the people, the chairperson is not an elective officer. The position of chairperson of a county board is distinctively different from the positions of town chairperson and village president, both of whom are directly elected to those specific positions by vote of the people. Wis. Stat. §§ 60.30(1)(a)1. and 61.19 (2005-06). Therefore, neither of the provisions that permit removal of a county officer only by a supermajority vote for cause apply to the removal of the chairperson of a county board.
Instead, the removal of the chairperson of a county board is governed by Wis. Stat. § 59.12(1), which provides that the chairperson serves in that position “until the board elects a successor.” There is nothing in this statute that requires the county board to have any particular reason for removing its chairperson. So applying the rule that the plain language of a statute is controlling, State ex rel. Kalal v. Cir. Ct., 2004 WI 58, ¶¶ 44-51, 271 Wis. 2d 633, 681 N.W.2d 110, an incumbent chairperson may be removed at will by the county board simply by voting to elect someone else to that position. Unless otherwise provided, a county board may determine all questions by the vote of a majority of the supervisors who are present when the vote is taken, as long as those present constitute a quorum. Wis. Stat. § 59.02(3) (2003-04). Since there is no other applicable provision, the board may replace its chairperson by a simple majority vote. Finally, Wis. Stat. § 59.12(1) contains no limitation on the time when the board may choose to terminate the tenure of the incumbent chairperson by electing a successor. Indeed, the history of this provision shows that the Legislature intended to permit a county board to change chairpersons whenever it chooses to do so. An early statute dealing with the replacement of a chairperson read much as the present statute does, providing that the chairperson should “hold this office until his successor is elected.” Wis. Stat. ch. 13, § 43 (1871). This statute was changed to provide that a successor to a chairperson elected at the beginning of a term of the county board could be replaced only at the beginning of the next term. Wis. Stat. § 667 (1878). But this limitation has long since been repealed, leaving no restriction on the replacement of a chairperson at any time during the term. The omission from a later version of a statute of a provision which was contained in an earlier version is indicative of a legislative intent to alter the statute so that the omitted provision is no longer part of the law. See Russello v. United States, 464 U.S. 16, 23-24 (1983); Verdoljak v. Mosinee Paper Corp., 200 Wis. 2d 624, 633, 547 N.W.2d 602 (1996); R.W.S. v. State, 162 Wis. 2d 862, 879, 471 N.W.2d 16 (1991). This principle gains strength where, as here, the Legislature adds a provision to a statute, then later deletes the added provision, indicating that on second thought they believed they made a mistake by adding the provision to the law. Thus, a county board may remove its chairperson at will by a simple majority vote at any time.
There may be some who believe that as a matter of policy it should be more difficult to replace the chairperson of a county board, that the chairperson should be subject to removal only for cause by a two-thirds vote of the entire board. But it is the province of the Legislature, not the Attorney General, to determine the rules for removing the chairperson. The Attorney General can only discern what rule the Legislature has determined to apply.
And in this respect it should be noted that the Legislature has simply applied to county boards the same rule it has applied to itself. Officers elected by either House of the Legislature may be removed by the House that elected them “at pleasure.” Wis. Stat. § 17.07(1) (2005-06). Sincerely,
J.B. Van Hollen
Attorney General
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