(14) Report to council of nonbid contracts. 62.15(14)(a)(a)
Whenever the council of any city shall have provided by ordinance that any class of public work or any part thereof may be done directly by the city without submitting the same for bids as provided in sub. (1)
, and the public work shall be done in accordance with the ordinance, the board of public works shall keep an accurate account of the cost of the public work, including the necessary overhead expense.
Upon the completion of the work described in par. (a)
, the board of public works shall make a complete report of the work to the council, stating in detail the items of cost and the total cost of doing the work. The city clerk shall publish the report as a part of the proceedings of the council.
Any member of the board of public works who fails to comply with the provisions of this subsection shall be liable to a forfeiture of $50 to be recovered as in the case of other penalties.
When work has been performed for a municipality under a contract that is void or unenforceable, a cause of action for unjust enrichment can be maintained with damages limited to the actual cost to the plaintiff and not exceeding the unit cost of the original contract; any recovery being limited to the value of the actual benefit conferred. Blum v. Hillsboro, 49 Wis. 2d 667
, 183 N.W.2d 47
When a contract establishes a “unit price" for work done, with only an estimate of the total, excess work may be paid for without regard to the 15 percent limitation in sub. (1c). Gottschalk Bros., Inc. v. Wausau, 56 Wis. 2d 848
, 203 N.W.2d 140
A mayor may not veto council action or inaction on public works contracts. Sturzl Const. Co., Inc. v. City of Green Bay, 88 Wis. 2d 403
, 276 N.W.2d 771
A city cannot waive liquidated damages under sub. (3). The award, acceptance, and execution of public contracts is discussed. City of Merrill v. Wenzel Brothers, Inc. 88 Wis. 2d 676
, 277 N.W.2d 799
The low bidder has no absolute right to the contract. The statute implies the exercise of discretion in letting the contract. An administrative rule will not be interpreted to prevent the exercise of that discretion. Envirologix v. City of Waukesha, 192 Wis. 2d 277
, 531 N.W.2d 357
(Ct. App. 1995).
Acceptance of a late bid is not precluded by this section and is within the city's discretionary powers. Power Systems Analysis v. City of Bloomer, 197 Wis. 2d 817
, 541 N.W.2d 214
(Ct. App. 1995), 95-0458
Municipal competitive bidding statutes do not apply to projects undertaken by intergovernmental agreement or when the municipalities that will perform the work have made a determination under sub. (1) to do the work themselves with their own employees. OAG 5-09
Recovery for value of services furnished without compliance with statutory bidding requirements. Redmond. 55 MLR 397.
Acquisition of facilities without bids.
A city may contract for the acquisition of any element of the following without submitting the contract for bids as required under s. 62.15
if the city invites developers to submit proposals to provide a completed project and evaluates proposals according to site, cost, design and the developers' experience in other similar projects:
A recycling or resource recovery facility.
If the city contains an electronics and information technology manufacturing zone that is designated under s. 238.396 (1m)
History: 1983 a. 425
; 2017 a. 58
Street grades; service pipes. 62.16(1)(a)(a) Establishment; damage.
The council shall have authority to establish the grade of all streets and alleys in the city, and to change and reestablish the same as it deems expedient. Whenever it changes or alters the permanently established grade of any street any person thereby sustaining damages to that person's property on the affected street may have such damages set off against any special assessment levied against the person's property for any public improvement made in conjunction with such grade change or may maintain an action to recover such damages.
The grade of all streets shall be established and described, and the adoption of such grades and all alterations thereof shall be recorded by the city clerk. No street shall be worked until the grade thereof is established and recorded in the manner herein set forth.
Whenever the council, department of transportation, or county board shall declare its intention to improve any street in which water, gas, or heat mains and sewers, or any of them, shall have been previously laid or are to be laid the council shall also by resolution require water, heat, sewer and gas service pipes to be first laid in such street, at the cost of the property fronting therein, except as herein provided, from the sewer, water, heat and gas mains in such street to the curb line on either or both sides thereof, at such intervals as the council shall direct along that part of said street to be improved, except at street and alley crossings. Such work may be done by contract or by the city directly without the intervention of a contractor, under the supervision of the board of public works, or in the case of service pipes of a municipal owned utility under the supervision of the board or officers charged with the management of such utility. The board or officers under whose supervision such service pipes shall be laid shall keep an accurate account of the expenses of putting in the same in front of each lot or parcel of land, whether the work be done by contract or otherwise, and report the same to the comptroller who shall annually prepare a statement of the expenses so incurred in front of each lot or parcel of land, and report the same to the city clerk, and the amount therein charged to each lot or parcel of land shall be by such clerk entered in the tax roll as a special tax against said lot or parcel of land, and the same shall be collected in all respects like other taxes upon real estate.
Public service corporation.
Whenever the council, department of transportation or county board shall declare its intention to improve any street in which water or gas mains of any privately owned public utility shall have been previously laid or are about to be laid the council shall by resolution require, subject to review as provided in s. 196.58
, water and gas service pipes to be first laid in such street, at the cost of such utility, unless the franchise of such utility otherwise provides as to the cost, from the main to the curb line on each side thereof, at such intervals as the council shall direct, along that part of said street so to be improved, except at street or alley crossings, and may, subject to such review, fix a reasonable time within which such work shall be done by the utility. Notice of such requirement shall thereupon be given to such utility by delivering a copy thereof to the superintendent, or agent in charge thereof, requiring such utility to do such work opposite the lots indicated according to plans and specifications, to be theretofore prepared and filed in the office of the city clerk, showing the location and size and the kind and quality of material of such water and gas service pipes; and if such utility shall refuse or neglect to do the same before the expiration of the time fixed for the improvement of said street so ordered the board of public works may procure the same to be done, in which event said board shall keep accurate account of the expense of constructing such gas or water service pipes, as the case may be, and report the same to the city clerk who shall annually enter in the tax roll as special taxes against such utilities, the total of the amounts so certified to the clerk for such charges, and the same shall be collected in all respects like other city taxes against said utilities, and the city shall have a legal and valid claim for the amount of such special taxes against such utilities. No application for such review shall be effective unless the same be made and notice thereof filed in the office of the clerk of the city making such requirement within 30 days after service of the notice of such requirement as above provided; and on such review the public service commission shall make such order as to extension of time for the doing of such work and as to all other conditions affecting such requirement as the commission shall deem reasonable or expedient.
No street shall be improved by order of the council, department of transportation or county board unless the water, heat and gas mains and service pipes and necessary sewers and their connections shall, as required under this subsection be first laid and constructed in that portion of such street so to be improved.
Application to towns and villages.
This subsection applies to towns and villages and when applied to towns and villages:
See s. 840.11
, requiring applicant for change in streets to file notice of pendency of the application.
Enforcement of building codes.
For the purpose of facilitating enforcement of municipal and state building, plumbing, electrical and other such codes, ordinances or statutes established for the protection of the health and safety of the occupants of buildings referred to elsewhere in this section as “building codes", any municipality may adopt an ordinance with any of the following provisions:
Requiring the owner of real estate subject to any building code to record with the register of deeds a current listing of the owner's address and the name and address of any person empowered to receive service of process for the owner. Any changes of names or address in the recording shall be reported within 10 days of the change. This subsection does not apply to owner-occupied one- and 2-family dwellings.
Establishing as sufficient notice to an owner that a building inspector or agency entrusted with the enforcement of the building code has found a violation of any applicable building code, if the building inspector or agency, after making an unsuccessful attempt of personal service during daytime hours at the latest address recorded with the register of deeds as that of the owner or agent of the owner, sends the notice by certified mail to the address noted and in addition posts a copy of the notice in a conspicuous place in or about the building where the violation exists. If the owner has not recorded under sub. (1)
with the register of deeds a current address or name and address of a person empowered to receive service of process, then posting of a notice of violation on the premises and certified mailing of the notice to the last-known address of the owner as well as to the address of the premises in violation is sufficient notice to the owner that a violation has been found.
That when notice of a violation of the building code which is found by a building inspector or agency entrusted with the enforcement of the building code is made according to sub. (2)
, such notice shall be effective notice to anyone having an interest in the premises, whether recorded or not, at the time of the giving of such notice; and shall be effective against any subsequent owner of the premises as long as the violation remains uncorrected and there exists a copy of the notice of violation in a public file maintained by the local agency charged with enforcement of the building codes.
Requiring an owner to give notice to any prospective purchaser that a notice has been issued concerning a building violation, where the condition giving rise to the notice of violation has not been corrected; providing for a fine not exceeding $500 for failure to so notify; and granting the purchaser who has not received the required notice the right to make any repairs necessary to bring the property up to the requirements of the local building code and to recover the reasonable cost of those repairs from the seller.
History: 1975 c. 354
; 1993 a. 301
Sewer and water extensions in 1st and 2nd class cities; sewage from other municipalities. 62.175(1)(1)
First class cities may construct and extend the sewer and water system into the adjoining towns, subject to s. 200.63
. The extensions shall be made without expense to the cities. The rates to be charged for water to consumers beyond the corporate limits of the city shall be fixed by the common council of the city upon the recommendation of the city's board of public works.
If any 1st or 2nd class city has begun to plan, construct and establish, or has completed the planning, construction and establishment of, a sewage system and a sewage disposal works, any town, village or other city located in the same county where the 1st or 2nd class city is located and whose purified or unpurified sewage flows directly or indirectly into any lake which is the source of the water system of the 1st or 2nd class city shall, before constructing any sewers or sewerage system or extensions of any existing sewers or sewerage system for the purposes of connection with the sewers, sewerage system and sewage disposal works of the 1st or 2nd class city, secure the written approval of the plans by the sewerage commission, or other board or body or official having charge and control of the planning, construction, establishment, operation and maintenance of the sewage disposal system of the 1st or 2nd class city. The sewerage commission, or other board, body or official of the 1st or 2nd class city, may approve the plans or approve them subject to recommended changes or substitutions in order that if the sewers or sewerage system, or extensions thereof, of any of the towns, villages or cities are connected with the sewers, sewerage system and sewage disposal works of the 1st or 2nd class city, the sewers or sewerage system, or extensions thereof, will conform with the plan of the sewers, sewerage system and sewage disposal works of the 1st or 2nd class city. If the town, village or city constructs in accordance with the approved plans, the town, village or city may connect its sewers, sewerage system or extensions thereof with the sewers, sewerage system and sewage disposal works of the 1st or 2nd class city, as specified in writing by the sewerage commission, or other board, body or official having charge and control of the sewage disposal system of the 1st or 2nd class city. Except as otherwise provided by statute, a 2nd class city may charge compensation as provided under sub. (3)
, for the use of its sewers, sewerage system and sewage disposal works for the transmission of the sewage of the towns, villages or cities.
Immediately after each January 1, the sewerage commission, or other board, body or official, having charge and control of the sewage disposal system of the 2nd class city furnishing service under sub. (2)
, shall determine a reasonable compensation to charge the towns, villages or cities for the service furnished for the preceding year and report the same to the city clerk of the 2nd class city. On or before August 1, the city clerk shall certify the report to the clerk of the town, village or city which received the service. The clerk of the town, village or city shall extend a sufficient amount opposite each valuation on the tax roll of the town, village or city to realize the amount certified in the report. The tax shall be collected as other local taxes are collected and paid over to the treasurer of the 2nd class city which furnished the service.
Cities may construct.
Cities shall have power to construct systems of sewerage, including a sewage disposal plant and all other appurtenances thereto, to make additions, alterations and repairs to such systems and plants, and when necessary abandon any existing system and build a new system, and to provide for the payment of the same by the city, by sewerage districts or by abutting property owners or by any combination of these methods. Whenever the council shall determine to lay sewers or provide sewerage in any portion of the city it shall so order by resolution which shall describe with reasonable particularity the district to be sewered. Whenever the territory of any city of this state shall be adjacent to or border on the territory of any other state, such city shall have power to build or construct a sewage disposal plant in such adjacent state, either alone for its sole use or jointly with some city or municipality in such adjacent state for their joint use on terms to be agreed upon by such municipalities. And if either city or municipality shall build or construct a sewage disposal plant, the city in this state may contract with the other city or municipality for its joint use on terms to be agreed upon.
(13) Sewers, where laid.
Any contractor or other person acting under the direction of the board of public works may lay sewers in and through any alleys and streets, and through any breakwater into any lake and also in any highways of the county, whether within the limits of said city or not; such contractor shall repair such streets, alleys, breakwaters and highways and restore the same to their former condition upon the completion of such sewers.
Any city may levy a special tax for the extension or improvement of the sewer system of its sewer district.
“Operating real property" does not include poles, towers, wires, equipment, mains, lines, tracks and other service structures located within the limits of public highways or constructed and maintained on private rights-of-way, and conduits, cables, devices, equipment and other facilities located upon or in the operating real property.
The tax under par. (a)
is declared to be a special tax for local improvement, as defined in s. 76.23
. When any company owns operating real property within a sewer district described in par. (a)
, the assessor in the sewer district shall determine the value of the operating real property of all companies located within the district. The value of the operating real property shall be determined on the same basis as is the value of other real property subject to the special tax. The valuation of the operating real property shall be placed upon the tax roll for the purposes of the special tax only. The tax so assessed to the companies owning operating real property within the district shall be collected as other special sewer district taxes of the district are collected.
Sewer district bonds.
Whenever a city is divided into sewer districts, bonds may be issued against any such district for the purpose of paying the district's portion of any sewer. Said bonds shall be issued in the manner authorized and provided by ch. 67
. Such bonds shall not be a general city obligation but shall be payable both as to principal and interest, solely out of the special sewer district tax provided by s. 62.18 (16)
. Any bonds heretofore authorized to be issued in accordance with this section shall be legal, valid and binding, to the same extent as if such district, at the time of authorizing such bonds, had the power to issue the same.
Water and heat pipe extensions.
The expense of laying water and heat mains which are extensions to mains of a private utility under written contract with a city to lay or extend mains on order of the council, shall be defrayed by the city at large, or by the abutting property as the council determines.
Acquiring property; opening or changing streets. 62.22(1)(a)(a)
Except as provided in par. (b)
, the governing body of any city may by gift, purchase or condemnation acquire property, real or personal, within or outside the city, for parks, recreation, water systems, sewage or waste disposal, airports or approaches thereto, cemeteries, vehicle parking areas, and for any other public purpose; may acquire real property within or contiguous to the city, by means other than condemnation, for industrial sites; may improve and beautify the same; may construct, own, lease and maintain buildings on such property for public purposes; and may sell and convey such property. The power of condemnation for any such purpose shall be as provided by ch. 32
The governing body of any city may not use the power of condemnation to acquire property for the purpose of establishing or extending a recreational trail; a bicycle way, as defined in s. 340.01 (5s)
; a bicycle lane, as defined in s. 340.01 (5e)
; or a pedestrian way, as defined in s. 346.02 (8) (a)
(1e) Certain industrial sites.
The governing body of a 2nd class city which is adjacent to Lake Michigan and which is located in a county with a population of less than 110,000, according to the most recent estimate by the department of administration, may acquire real property by gift outside the city boundaries for industrial sites; may improve and beautify the same; may construct, own, lease and maintain buildings on such property for public purposes; and may sell and convey such property.
(1m) Acquisition of easements and limited property interests.
Confirming all powers granted to it and in furtherance thereof, the governing body of any city is expressly authorized to acquire by gift, purchase or condemnation under ch. 32
any and all property rights in lands or waters, including rights of access and use, negative or positive easements, restrictive covenants, covenants running with the land, scenic easements and any rights for use of property of any nature whatsoever, however denominated, which may be lawfully acquired for the benefit of the public or for any public purpose, including the exercise of powers granted under s. 62.23
; and may sell and convey such easements or property rights when no longer needed for public use or protection.
(2) Donation of property to nonprofit private corporations.
The governing body of any city may donate, convey, sell or lease property owned by such city to any nonprofit private corporation for public purposes and may acquire property for the purpose of donating, conveying, selling or leasing the same to nonprofit private corporations for public purposes.
(3) Riparian rights.
The city may by gift, purchase or condemnation take, injure or destroy any riparian rights or privileges appurtenant to land abutting upon Lake Michigan whenever it shall become necessary for the proper construction and use of any highway, street, boulevard, park or other public improvement without taking the lands or any portion thereof to which said riparian rights are appurtenant.
Petition to open streets.
As to streets it shall be competent for any 10 resident freeholders in any aldermanic district to petition the council for the opening, widening, extension or change of any street in such aldermanic district, and if the land proposed to be taken for that purpose shall lie in 2 or more aldermanic districts, then 10 resident freeholders of each of the aldermanic districts shall be required to join in the petition. Such petition shall be addressed to the council and shall designate in general terms the location, extent of the proposed laying out, widening, extension or change, but need not contain a particular description of the land proposed to be taken. For the purposes of such petition a person in possession of land under a contract of purchase and sale or a bond for a deed shall be deemed a freeholder.
Petition as to alleys.
As to alleys, a petition for the opening, widening, extension or change of an alley may be made to the council by the owner or owners of one-third or more of the land in the block in which the alley or proposed alley is situated, whether such owner or owners shall be residents of the city or not. Land held under a land contract or bond for a deed shall, for the purpose of such petition, be deemed to be owned by the person so holding it; infants and others under guardianship may petition by their guardians.
When the petition shall be presented to the council it shall be referred to the board of public works, and said board shall make a report to the council stating whether or not such petition is sufficiently signed, and if so, giving a particular description of each lot, parcel or subdivision of land proposed to be taken, and a plat of the proposed alley or street, widening, extension or change. Upon the coming in of such report the council may, if the petition be reported sufficiently signed, by a vote of a majority of its members adopt a resolution declaring that it is necessary to condemn the land designated in such petition and report, referring to them, for the purpose named in the petition, and direct the city attorney to commence and prosecute condemnation proceedings. Such petition shall, before any resolution upon it shall be adopted, be referred to the board of public works, who shall thereupon make a report to the council stating whether or not it is sufficiently signed, and if so, giving a particular description of each lot, parcel or subdivision of land proposed to be taken, and a plat of the proposed alley as the same will be when laid out, widened, extended or changed. Upon the coming in of such report, if it shall appear thereby that the petition is signed by the owner or owners of one-third or more of the land in the block, the council may adopt a resolution by a vote of a majority of its members, the same as in the case of a petition for the opening, widening, extension or change of a street, and like proceedings shall be had thereon. If it shall afterwards appear that the petition was not sufficiently signed, that fact shall not, in the absence of fraud, vitiate the petition or the subsequent proceedings thereon.
Proceedings without petition.
The council may, without a petition, by resolution declare it necessary to condemn land, describing it, for any authorized purpose, and direct the city attorney to prosecute condemnation proceedings therefor. If the purpose is the opening, widening, extension, or change of a street or alley, the resolution must be adopted by a vote of four-fifths of all the members. Before adopting the resolution it shall be referred to the board of public works, who shall make a particular description of each lot, parcel or subdivision of land proposed to be taken, and a plat of the proposed street or alley, drain or water pipe, or land to be used for other authorized purposes, and report the same to the council.
Abandoned portion vacated.
When a street or alley shall be changed by proceedings under this section so much of the original street or alley as shall be left out of it as changed shall be deemed vacated without any other proceeding, and the fact of such vacation shall be taken into account in assessing benefits and damages by reason of the condemnation proceedings.
History: 1971 c. 304
s. 29 (1)
; 1987 a. 324
; 1995 a. 378
; 2017 a. 59
; s. 35.17 correction in (4) (e).
See s. 840.11
, requiring applicant for change in streets or alleys to file notice of pendency of the application.
The public purpose doctrine does not require in every case where public property is conveyed to the private sector that public use be reserved for perpetuity. The rehabilitation of deteriorating public facilities is a legitimate public purpose. The consideration for transfers of public property to private entities may consist of benefits other than, or in addition to, money, such as the public benefit from the transfer and the obligations the private actor assumes. Bishop v. City of Burlington, 2001 WI App 154
, 246 Wis. 2d 879
, 631 N.W.2d 656
Recycling or resource recovery facilities.
A city may establish and require use of facilities for the recycling of solid waste or for the recovery of resources from solid waste as provided under s. 287.13
City planning. 62.23(1)(a)(a)
The council of any city may by ordinance create a “City Plan Commission," to consist of 7 members. The commission shall also include, as a nonvoting member, a representative from a military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in the city, if the base's or installation's commanding officer appoints such a representative. All members of the commission, other than the representative appointed by the commanding officer of a military base or installation, shall be appointed by the mayor, who shall also choose the presiding officer. The mayor may appoint himself or herself to the commission and may appoint other city elected or appointed officials, except that the commission shall always have at least 3 citizen members who are not city officials. Citizen members shall be persons of recognized experience and qualifications. The council may by ordinance provide that the membership of the commission shall be as provided thereunder.
The members of the commission shall be appointed to hold office for a period of 3 years. Appointments shall be made by the mayor during the month of April for terms that expire in April or at any other time if a vacancy occurs during the middle of a term.
The city plan commission shall have power and authority to employ experts and a staff, and to pay for their services and such other expenses as may be necessary and proper, not exceeding, in all, the appropriation that may be made for such commission by the legislative body, or placed at its disposal through gift, and subject to any ordinance or resolution enacted by the governing body.
Any city may by ordinance increase the number of members of the city plan commission so as to provide that the building commissioner or building inspector shall serve as a member thereof.
It shall be the function and duty of the commission to make and adopt a master plan for the physical development of the city, including any areas outside of its boundaries that in the commission's judgment bear relation to the development of the city provided, however, that in any county where a regional planning department has been established, areas outside the boundaries of a city may not be included in the master plan without the consent of the county board of supervisors. The master plan, with the accompanying maps, plats, charts, and descriptive and explanatory matter, shall show the commission's recommendations for such physical development, and shall, as described in sub. (3) (b)
, contain at least the elements described in s. 66.1001 (2)
. The commission may from time to time amend, extend, or add to the master plan or carry any part or subject matter into greater detail. The commission may adopt rules for the transaction of business and shall keep a record of its resolutions, transactions, findings, and determinations, which record shall be a public record.
The master plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the municipality which will, in accordance with existing and future needs, best promote public health, safety, morals, order, convenience, prosperity or the general welfare, as well as efficiency and economy in the process of development.
The commission may adopt the master plan as a whole by a single resolution, or, as the work of making the whole master plan progresses, may from time to time by resolution adopt a part or parts of a master plan. Beginning on January 1, 2010, or, if the city is exempt under s. 66.1001 (3m)
, the date under s. 66.1001 (3m) (b)
, if the city engages in any program or action described in s. 66.1001 (3)
, the master plan shall contain at least all of the elements specified in s. 66.1001 (2)
. The adoption of the plan or any part, amendment, or addition, shall be by resolution carried by the affirmative votes of not less than a majority of all the members of the city plan commission. The resolution shall refer expressly to the elements under s. 66.1001
and other matters intended by the commission to form the whole or any part of the plan, and the action taken shall be recorded on the adopted plan or part of the plan by the identifying signature of the secretary of the commission, and a copy of the plan or part of the plan shall be certified to the common council, and also to the commanding officer, or the officer's designee, of any military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in or near the city. The purpose and effect of the adoption and certifying of the master plan or part of the plan shall be solely to aid the city plan commission and the council in the performance of their duties.
(4) Miscellaneous powers of the commission.
The commission may make reports and recommendations relating to the plan and development of the city to public officials and agencies, public utility companies, civic, educational, professional and other organizations, and citizens. It may recommend to the mayor or council, programs for public improvements and the financing thereof. All public officials shall, upon request, furnish to the commission, within a reasonable time, such available information as it may require for its work. The commission, its members and employees, in the performance of its functions, may enter upon any land, make examinations and surveys, and place and maintain necessary monuments and marks thereon. In general, the commission shall have such powers as may be necessary to enable it to perform its functions and promote municipal planning.
(5) Matters referred to city plan commission.
The council, or other public body or officer of the city having final authority thereon, shall refer to the city plan commission, for its consideration and report before final action is taken by the council, public body or officer, the following matters: The location and architectural design of any public building; the location of any statue or other memorial; the location, acceptance, extension, alteration, vacation, abandonment, change of use, sale, acquisition of land for or lease of land for any street, alley or other public way, park, playground, airport, area for parking vehicles, or other memorial or public grounds; the location, extension, abandonment or authorization for any public utility whether publicly or privately owned; all plats of lands in the city or within the territory over which the city is given platting jurisdiction by ch. 236
; the location, character and extent or acquisition, leasing or sale of lands for public or semipublic housing, slum clearance, relief of congestion, or vacation camps for children; and the amendment or repeal of any ordinance adopted pursuant to this section. Unless such report is made within 30 days, or such longer period as may be stipulated by the common council, the council or other public body or officer, may take final action without it.