OAG 6-13

¶ 8.

Lobbying activity on behalf of the county government is a policymaking function, not an administrative or management function. It is thus properly a role of the county board. A county executive has authority to make policy for a county only to the extent that such authority is conferred by statute or by the state constitution. Since the date this opinion was requested, 2013 Wisconsin Act 14 created Wis. Stat. § 59.53(24), which provides:

  GOVERNMENT RELATIONS. In any county with a population of 750,000 or more, if the county has an office of intergovernmental relations or a department or subunit of a department that provides lobbying services for the county, that office, department, or subunit shall employ one individual who is responsible for representing the interests of, and reports to, the county executive and one individual who is responsible for representing the interests of, and reports to, the county board.

2013 Wis. Act 41, § 21E. This provision suggests that the Legislature has conferred some authority upon a county executive to lobby on behalf of the county executive’s policy preferences, even if those preferences do not reflect the policy choices made by the county board.

¶ 9.

Milwaukee County General Ordinance § 1.25(5) does not contravene the new statute. It applies only to privately-funded lobbying activities of the county executive. Such activity is not governed by Wis. Stat. § 59.53(24) because that statute involves publicly-funded lobbying. In my opinion, a county board lawfully may require that, if a county executive engages in privately-funded activities on behalf of a position that is not the position of the county, he or she must make that clear.

¶ 10.

Your predecessor next asked whether a county board may require department heads to “report to” the county board. Milwaukee County General Ordinance § 1.25(3) requires county department heads to report both to the county board and to the county executive, “from time to time . . . the steps that have been taken in carrying out any directive[.]” Section 1.25(3) also requires county department heads to submit copies of their final report on the action taken to the county executive or to the appropriate standing committee.

¶ 11.

The term “report” is not defined in the ordinance. “Report” has numerous meanings, including: (1) to be supervised by someone or an office; and (2) to make a report of particular facts. The ordinance uses “report” in the second sense. It provides that department heads shall report “the steps that have been taken in carrying out any directive[.]” “Steps” is the direct object of “report” and conveys that the department head shall report specific information, consistent with making a report of particular facts.

¶ 12.

A county board lawfully may require county department heads to submit periodic reports as to steps taken in carrying out any directive both to the county board and to the county executive. The requirement is consistent with Wis. Stat. § 59.794(3)(b), which provides that “[a] board may require, as necessary, the attendance of any county employee or officer at a board meeting to provide information and answer questions.” The ordinance does not require county department heads to report to the county board in a supervisory sense, which would usurp the county executive’s administrative and managerial supervision of county department heads under Wis. Stat. § 59.17(2)(b)1. Similarly, requiring copies of final reports of county department heads to be submitted to the county executive or the appropriate standing committee does not usurp the administrative and managerial supervision of the county executive.

¶ 13.

Finally, your predecessor asked whether a county board may penalize county department heads and employees through demotion, suspension, or discharge. Milwaukee County General Ordinance § 1.25(6) provides that willful violation of the county code of ordinances is considered a cause for demotion, suspension, or discharge of a county department head or employee. The ordinance does not purport to empower the county board to demote, suspend, or discharge a county department head or employee.

¶ 14.

Only county officers appointed by the county board may be removed by the county board. Wis. Stat. § 17.10(2). Except where the statutes provide for the appointment of a department head to be made by a board or commission, or by other elected officers, county department heads are appointed by the county executive. Wis. Stat. § 59.17(2)(b)1. County employees who are not subject to a civil service ordinance may be disciplined only by the appointing authority unless otherwise stated in a statute, ordinance, or contractual provision. Wis. Stat. § 17.10(6). State law would preempt an ordinance that purported to authorize a county board to demote, suspend, or discharge employees that it had not appointed.

¶ 15.

I conclude that a county board is authorized by state law to require a county executive to clarify that he or she is not representing the position of the county if he or she engages in privately-funded lobbying activities on behalf of a position that is not the position of the county. A county board may require county department heads to submit reports to the county board, but it cannot require them to report to the county board in a supervisory sense. Finally, a county ordinance that purported to authorize a county board to demote, suspend, or discharge county department heads and employees not appointed by the county board would be preempted by state law unless that power were specifically conferred by statute.

            Sincerely,

            J.B. VAN HOLLEN

            Attorney General

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