OAG1-10

¶ 12.

The county home rule statute, Wis. Stat. § 59.03, does not change this analysis. Wisconsin Stat. § 59.03(1) provides in part that “[e]very county may exercise any organizational or administrative power, subject only to the constitution and to any enactment of the legislature which is of statewide concern and which uniformly affects every county.” The Legislature directed that this statutory administrative home rule provision be “liberally construed in favor of the rights, powers and privileges of counties to exercise any organizational or administrative power.” Wis. Stat. § 59.04. Your request suggests that a possible conflict between Wis. Stat. § 59.18(2)(c) and Wis. Stat. § 59.03 exists if a county administrator’s power to appoint is not a matter of uniform statewide concern, presumably because not every county has an office of county administrator.

¶ 13.

In answering your question, it is not necessary for me to resolve whether the statutory scheme granting powers to county administrators are enactments “‘of statewide concern which uniformly affect[] every county.’”[2]

¶ 14.

The relevant provisions of what are now Wis. Stat. §§ 59.03(1) and 59.51(1) were enacted at the same time. See 1985 Wisconsin Act 29, secs. 1147, 1148, and 1169. Each contains provisions making a county’s organizational and administrative powers subject to the constitution and legislative enactments of statewide concern which uniformly affect every county. Wisconsin Stat. § 59.51(1) provides additional limitations upon a county board’s authority to exercise organizational and administrative powers. One of these additional limitations expressly makes a county board’s exercise of such powers “subject only to the constitution and any enactment of the legislature which grants the organizational or administrative power to a county executive or county administrator[.]” Wis. Stat. § 59.51. The Legislature acknowledged the possibility that some organizational or administrative powers granted by statute to a county administrator might not be of statewide significance uniformly affecting every county, but provided that those laws would still prevail over a county’s statutory home rule authority. The language providing additional limitations in Wis. Stat. § 59.51(1) must be given effect. See State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110 (“Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage.”). To conclude otherwise would render meaningless the limitations on a county’s organizational and administrative powers contained in Wis. Stat. § 59.51(1).

¶ 15.

This interpretation is also supported by another cannon of statutory construction: Where statutes provide detailed statutory directives, the more specific statutory directives presumptively are intended to prevail over statutes of general application. 77 Op. Att’y Gen. at 116 (citing Schlosser v. Allis-Chalmers Corp., 65 Wis. 2d 153, 161, 222 N.W.2d 156 (1974)). With respect to a county’s organizational or administrative power to appoint, the specific and detailed provisions are contained in Wis. Stat. § 59.18 in cases where a county has chosen to have a county administrator. Wisconsin Stat. § 59.03 is a less specific directive with respect to a county’s organizational and administrative power. It is a provision that authorizes counties to “expand upon and ‘fill the gaps’ in the organizational and administrative structure which is already in place[.]” 77 Op. Att’y Gen. at 116. When the Legislature enacted the provisions relating to a county’s organizational and administrative home rule powers, the specific statutory directives that are now contained in Wis. Stat. § 59.18(2)(c) were already in place and were left undisturbed by 1985 Wisconsin Act 29. See Wis. Stat. § 59.033(2)(c) (1983).[3]

¶ 16.

In sum, Wis. Stat. § 59.51(1) is an express statutory limitation upon the administrative home rule authority granted by Wis. Stat. § 59.03(1). Wisconsin Stat. § 59.51(1) forbids county boards from utilizing their statutory administrative home rule authority to alter or remove the powers of appointment granted to county administrators and county executives by Wis. Stat. §§ 59.17(2) and 59.18(2) or by other statutes.[4]

CONCLUSION

¶ 17.

I therefore conclude that a county board in a county with a county administrator or a county executive cannot exercise its home rule authority so as to enact a resolution requiring that all county board members who are prospective appointees to county boards and commissions be appointed by the county board chair rather than by the county administrator. A county board cannot reassign the appointment powers granted to a county administrator or county executive in cases where the statutes provide that appointments to the particular board or commission are to be made by the county board, by the chairperson of the county board, or by the county administrator or county executive.

            Sincerely,

            J.B. Van Hollen

            Attorney General

JBVH:FTC:KMS:cla

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1

  In addition, the word “shall” is also used in Wis. Stat. § 59.17(2), which grants similar powers of appointment to county executives. Statutes other than Wis. Stat. §§ 59.17(2) and 59.18(2) also grant county administrators and county executives the power to appoint certain local officials. See, e.g., Wis. Stat. § 27.02(2) (members of certain county park commissions).

2

  I note that a prior opinion of the Attorney General held that “legislative enactments ‘of statewide concern and which uniformly affects every county’” included the statutory scheme for elective county officers. 77 Op. Att’y Gen. 113, 115 (1988).

3

  Nor would my conclusion change if the powers granted to the office of county administrator in Wis. Stat. § 59.18(2)(c) were promulgated after the enactment of 1985 Wisconsin Act 29. As a practical matter, one legislature cannot, by statute, place limitations or conditions upon a future legislature’s power to alter or limit a county’s organizational or administrative powers. See Flynn v. Department of Administration, 216 Wis. 2d 521, 539, 543, 576 N.W.2d 245 (1998). Cf. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 365, 338 N.W.2d 684 (1983). Consequently, the Legislature can create an infinite number of statutory exceptions to the “statewide concern” and “uniform[]” provisions in Wis. Stat. § 59.03(1).

4

  In rare situations, there may be no statutory requirement that appointments to a particular board or commission that is not the head of a county department be made by the county board, by the chairperson of the county board, or by the county administrator or county executive. See 67 Op. Att’y Gen. 231, 234-35 (1978), partially withdrawn, 67 Op. Att’y Gen. 343 (1978). In such situations, subject to the restrictions in Wis. Stat. § 59.03(1), a county board in a county with a county administrator or county executive could enact an ordinance or resolution requiring that county board members who are prospective appointees to such a board or commission be nominated by the chairperson of the county board and confirmed by the entire county board.

  Further, the statutory compatibility of office provisions applicable to county supervisors that were discussed in 67 Op. Att’y Gen. at 234-35 have been changed. Wisconsin Stat. § 59.10(4) provides in part that “a supervisor may also be a member of a committee, board or commission appointed by the county executive or county administrator or appointed or created by the county board[.]”