(1974) , 63 Op. Att'y Gen. 468 ( 1974 )

DENNIS J. FLYNN, Corporation Counsel, Racine County

In 1973 the legislature revised the Mental Health Act by delegating to the counties the primary responsibility of providing or purchasing services for persons in need of certain types of care. This was achieved by allowing the county to establish two boards under sec. 51.42, Stats., (commonly known as the Comprehensive Mental Health Board) and sec. 51.437, Stats., (commonly known as the Developmental Disabilities Board). You ask who should provide legal counsel to these two Boards if necessary.

Although you indicate no reluctance to provide such services as Corporation Counsel, you express some concern that the interests of these Boards will not always be in harmony with that of the Racine County Board of Supervisors. As examples, you cite instances in which these Boards must request supplementary financing from the County Board because of the shortage of funds and the necessity for the County Board to pass on the plan and budget prepared by these Boards. You also refer to a dispute between the State Department of Health and Social Services and the 51.437 Board in your county over recoupment of funds which allegedly were overpaid in the past.

It is your opinion that these Boards are authorized to retain their own legal counsel under secs. 51.42 (6) (c) 1 and 51.437 (7) (b) 1. You also believe that any expense incurred would be reimbursable from the State Department of Health and Social Services under secs. 51.42 (8) (c) and 51.437 (8) (b) 5. These latter two subsections seemingly grant broad powers to the Secretary of the State Department of Health and Social Services to make grants in aid for any necessary expenditures not specifically enumerated. Although I tend to agree with this observation, I do not feel that the authority of the Boards is sufficiently broad to permit the hiring of legal counsel. The subsections upon which you rely state that the Director of the respective Boards shall make recommendations for personnel and salaries. It is my opinion that the legislature did not intend to create or allow new legal positions at the county level in addition to the offices of District Attorney and Corporation Counsel which, of course, are authorized under ch. 59.

Except for Milwaukee County which derives its power from sec. 59.455, counties are authorized to employ a Corporation Counsel under sec. 59.07 (44). His duties include giving legal opinions to the County Board and its committees and interpreting the powers and duties of the Board and county officers. For reasons hereafter set forth, I see no reason why you cannot represent these newly created Boards and the County Board at the same time.

The concerns which you express relate to matters of policy and not legal issues. For example, whether the County Board should approve supplementary financing and whether it should pass favorably on the plan and budget submitted by either Board is a matter of judgment to be exercised by the County Board. If a conflict does arise relative to some legal issue, it is your duty to advise the respective parties as to whose position is correct.

Relative to the possible necessity for instituting legal actions on behalf of any of the three Boards, I again see no conflict. The 51.42 and 51.437 Boards operate under the supervision of the State Department of Health and Social Services. If these Boards or the County Board through acts of omission or commission failed to meet the standards and serve the purposes required under these programs, the Department of Health and Social Services can exercise its supervisory powers and take such measures as may be appropriate.

Although it may place the Corporation Counsel in an uncomfortable position when required to resolve a legal issue between two or more boards which he is required to advise, I foresee no circumstances under which a conflict of interest would arise. If the solution to any conflict regarding policy or law arises, you should feel free to address your inquiry to the Department of Health and Social Services and my office, respectively.

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