Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
August 7, 2008 OAG—6—08
Mr. Jeffrey B. Fuge
Corporation Counsel
Polk County
1005 West Main Street, Suite 100
Balsam Lake, WI 54810
Dear Mr. Fuge:
You indicate that Polk County, which does not have a county executive or a county administrator, is considering the establishment of an office of county auditor. You ask two questions with respect to the possible hiring of a county auditor. I have paraphrased the questions and discuss each in turn.
QUESTIONS PRESENTED AND BRIEF ANSWERS
1. May the county board in a county that does not have a county executive or a county administrator delegate the authority to appoint and remove the county auditor to an entity other than the county board?
The answer to the question as stated is that the county board chair appoints the county auditor under civil service procedures. The appointment and removal of the county auditor is therefore subject to the county ordinance or resolution establishing such procedures. The county board could, however, establish a department of administration and assign audit functions to that department. The appointment and removal of the person in the department of administration who performs audit functions could be delegated to an appropriate county official such as the county administrative services coordinator or the head of the department of administration, who would then have the authority to remove the person who is assigned those audit functions absent any contractual provision or county personnel ordinance to the contrary.
2. To what extent may the statutory duties of the county clerk under Wis. Stat. ch. 70 and specifically under Wis. Stat. § 70.63 be transferred to the office of county auditor or to a person in the department of administration who performs audit functions? In my opinion, the statutory duties of the county clerk under Wis. Stat. ch. 70 may not be transferred to the county auditor, but the county auditor may be granted supervisory authority over the manner in which such duties are exercised. PRINCIPAL STATUTES INVOLVED
I. APPOINTMENT AND REMOVAL STATUTES.
Wisconsin Stat. § 17.10 provides in part: Removal of appointive county officers. . . .
(2) APPOINTED BY COUNTY BOARD. County officers appointed by the county board may be removed by the county board for cause. All removals may be made by an affirmative vote of two-thirds of the supervisors entitled to seats on the county board.
(3) APPOINTED BY CHAIRPERSON OF COUNTY BOARD. County officers appointed by the chairperson of the county board may be removed by the chairperson for cause . . . .
. . . .
(6) OTHERS. (a) Except as provided under par. (b), all other appointive county officers may be removed at pleasure by the officer or body that appointed them. Removals by a body, other than the county board, consisting of 3 or more members may be made by an affirmative vote of two-thirds of all the members thereof.
. . . .
(7) GENERAL EXCEPTION. County officers appointed according to merit and fitness under and subject to a civil service law, or whose removal is governed by such a law, shall be removed only as therein provided.
Wisconsin Stat. § 59.47 provides: (1) In every county the clerk shall act as auditor, unless a separate office of county auditor is created as provided in sub. (2), and, when directed by resolution of the board, shall examine the books and accounts of any county officer, board, commission, committee, trustees or other officer or employee entrusted with the receipt, custody or expenditure of money, or by or on whose certificate any funds appropriated by the board are authorized to be expended, whether compensated for services by fees or by salary, and all original bills and vouchers on which moneys have been paid out and all receipts of moneys received by them. The clerk shall have free access to such books, accounts, bills, vouchers and receipts as often as may be necessary to perform the duties required under this subsection and he or she shall report in writing the results of the examinations to the board.
(2) The board by resolution may create a separate office of county auditor and may fix the compensation of the auditor. The auditor shall perform the duties and have all of the powers conferred upon the clerk as auditor by sub. (1), and shall perform such additional duties and shall have such additional powers as are imposed and conferred upon him or her from time to time by resolution adopted by the board.
(3) If a county auditor’s office is created under sub. (2), the chairperson of the board shall appoint a person known to be skilled in matters of public finance and accounting to act as county auditor. The appointment shall be made under ss. 63.01 to 63.17 and shall be subject to confirmation by the board. The auditor shall direct the keeping of all of the accounts of the county, in all of its offices, departments and institutions, and shall keep books of account necessary to properly perform the duties of the office. The auditor’s salary and the amount of the official bond shall be fixed by the board. The auditor shall perform all duties pertaining to the office, have all of the powers and perform the duties in sub. (1) and perform other duties imposed by the board. II. STATUTES INVOLVING TRANSFER OF FUNCTIONS.
Wisconsin Stat. § 59.03 provides in part as follows: (1) ADMINISTRATIVE HOME RULE. Every 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.
Wisconsin Stat. § 59.04 provides as follows: Construction of powers. To give counties the largest measure of self‑government under the administrative home rule authority granted to counties in s. 59.03(1), this chapter shall be liberally construed in favor of the rights, powers and privileges of counties to exercise any organizational or administrative power.
Wisconsin Stat. § 59.51(1) provides as follows: Board powers. (1) ORGANIZATIONAL OR ADMINISTRATIVE POWERS. The board of each county shall have the authority to exercise any organizational or administrative power, 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 or to a person supervised by a county executive or county administrator or any enactment which is of statewide concern and which uniformly affects every county. Any organizational or administrative power conferred under this subchapter shall be in addition to all other grants. A county board may exercise any organizational or administrative power under this subchapter without limitation because of enumeration, and these powers shall be broadly and liberally construed and limited only by express language.
Any county with a population of less than 500,000 may create a department of administration and assign any administrative function to the department as it considers appropriate, except that no administrative function may be assigned to the department if any other provision of state law requires the performance of the function by any other county office, department or commission unless the administrative function is under the jurisdiction of the . . . county auditor, in which case, the function may be assigned to the department notwithstanding sub. (8) and ss. 59.47, 59.60 and 63.01 to 63.17. Except as provided under par. (a), in any county with a county executive or county administrator, the county executive or county administrator shall have the authority to appoint and supervise the head of a department of administration; and except as provided under par. (a), the appointment is subject to confirmation by the county board unless the appointment is made under a civil service system competitive examination procedure established under sub. (8) or ch. 63. ANALYSIS
I. DELEGATION OF AUTHORITY TO APPOINT AND REMOVE COUNTY AUDITOR.
The first question is whether the county board in a county that does not have a county executive or a county administrator may delegate the authority to appoint and remove the county auditor to an entity other than the county board. Wisconsin Stat. § 59.47(2) provides that the “board by resolution may create a separate office of county auditor[.]” If the county board creates the office of county auditor, Wis. Stat. § 59.47(3) provides that “the chairperson of the board shall appoint a person known to be skilled in matters of public finance and accounting to act as county auditor.” Ordinarily, when the county board chair appoints a county officer, that officer may be removed only by the county board chair and only for cause. Wis. Stat. § 17.10(3). Here, Wis. Stat. § 59.47(3) contains an additional requirement that “[t]he appointment [of the county auditor] shall be made under ss. 63.01 to 63.17[.]” The procedures described in Wis. Stat. §§ 63.01 to 63.17 are civil service procedures. When appointing the county auditor, the county board chair must therefore comply with the county ordinance or resolution establishing such procedures. Wisconsin Stat. § 17.10(7) provides that a county officer whose appointment is governed by civil service procedures is subject to removal according to such civil service procedures. The removal of the county auditor is therefore subject to the specific provisions established by ordinance or resolution of the county board under Wis. Stat. §§ 63.01 to 63.17 and is not governed by the more general removal provision contained in Wis. Stat. § 17.10(3). Rather than creating the separate office of county auditor pursuant to Wis. Stat. § 59.47(2), a county board could create a department of administration pursuant to Wis. Stat. § 59.52(1)(b) and assign administrative audit functions to that department under that statute. If “the administrative function is under the jurisdiction of the . . . county auditor . . . the function may be assigned to the department notwithstanding sub. (8) and ss. 59.47, 59.60 and 63.01 to 63.17.” Wis. Stat. § 59.52(1)(b). A person in the department of administration who performs audit functions therefore need not be appointed using civil service procedures. A county ordinance or resolution could provide for the appointment of a person in the department of administration who performs audit functions by an appropriate county official such as the county administrative services coordinator or the head of the department of administration. Absent any contractual provision or county personnel ordinance to the contrary, the county administrative services coordinator or the head of the department of administration who appoints the person performing audit functions would then also have the authority to remove that person pursuant to Wis. Stat. § 17.10(6)(a). II. TRANSFER OF CERTAIN FUNCTIONS OF COUNTY CLERK TO COUNTY AUDITOR.
The second question asks to what extent the statutory functions of the county clerk concerning property tax administration generally under Wis. Stat. ch. 70 and specifically under Wis. Stat. § 70.63 may be transferred to the county auditor or to a person in the department of administration who performs audit functions. Prior opinions of the Attorney General have examined the extent to which the functions of the county clerk may be transferred to the county auditor under what is now Wis. Stat. § 59.47. See 67 Op. Att’y Gen. 248 (1978); 67 Op. Att’y Gen. 1 (1978); 65 Op. Att’y Gen. 132 (1976); 63 Op. Att’y Gen. 196 (1974); 24 Op. Att’y Gen. 787 (1935). See also 77 Op. Att’y Gen. 113 (1988). The extent to which the functions of the county clerk may be transferred to the county auditor under what is now Wis. Stat. § 59.47 was also examined in Harbick v. Marinette County, 138 Wis. 2d 172, 405 N.W.2d 724 (Ct. App. 1987). Harbick, 138 Wis. 2d at 181, involved the transfer of “account keeping duties not specifically identified and vested with the clerk by statute.” The court of appeals affirmed the trial court’s “determin[ation] that the clerk was solely responsible for those account keeping duties identified in sec. 59.17(3) through (7), Stats. [now Wis. Stat. § 59.23(2)(a)-(g)], and those identified elsewhere by statute, or that were performed by the clerk on an immemorial basis.” Harbick, 138 Wis. 2d at 175. Harbick endorsed the reasoning in 65 Op. Att’y Gen. at 136-37, which concluded that the county board could “transfer duties of keeping certain accounts and books of account from the county clerk to some other officer where an express statute did not require the county clerk to perform the duties.” As to statutory functions expressly given to the county clerk, that opinion of the Attorney General concluded that “the county board could authorize the finance officer to exercise only indirect supervision through the county clerk” with respect to accounts and books of account. 65 Op. Att’y Gen. at 137. In 67 Op. Att’y Gen. at 249, the authority granted the office of county auditor once that office is created by the county board under what is now Wis. Stat. § 59.47(3) was further described by the Attorney General as follows:
