(1971) ( 1971 )

C.M. SULLIVAN, Secretary, Department of Employe Trust Funds

You ask two questions as to the status of the Fond du Lac Industrial Development Corporation under secs. 40.40 (1), Stats., and 41.02 (4), Stats. You first question:

"Is the corporation a ``public agency,' or is it a private, non-profit organization?"

Section 40.40 (1), Stats., defines "public agency" for social security coverage purposes as:

"(1) ``Public agency' means the state and any county, city, village, town, school district or other unit of government, or agency or instrumentality of 2 or more thereof which is eligible for inclusion under the federal OASDHI system."

Section 41.02 (4), Stats., defined "municipality" for inclusion of employes in the Wisconsin Retirement Fund as:

"(4) ``Municipality' means the state and any city, village, town, county, common school district, high school district, unified school district, county-city hospital established under s. 66.47, sewerage commission organized under s. 144.07 (4) or a metropolitan sewerage district organized under ss. 66.20 to 66.209, or any other unit of government, or any agency or instrumentality of 2 or more units of government now existing or hereafter created within the state."

The Fond du Lac Industrial Development Corporation was organized under the authority of sec. 59.071, Stats. It is clear that the legislature intended industrial development corporations to be public agencies as is shown from the following statements and definitions in such section:

"59.071 (2) * * * It is therefore declared to be the policy of this state to promote the right to gainful employment, business opportunities and general welfare of the inhabitants thereof * * * by the creation ofbodies, corporate and politic, which shall exist and operate for the purpose of fulfilling the aims of this section * * *.

"(3) (a) ``Industrial development agency' or ``agency' is a public bodycorporate and politic created under this section, which agency shall have the characteristics and powers described in this section.

"(4) (d) The agency shall be a separate and distinct publicinstrumentality and body corporate and politic exercising public powers determined to be necessary by the state for the purposes set forth in sub. (2). The agency shall have no power at any time to pledge the credit or taxing power of the state, any county, or any municipality or political subdivision, but all of its obligations shall be deemed to be obligations solely of the agency.

"(5) (c) The provisions of ch. 181, except such as are inconsistent with this section and except as otherwise specifically provided in this section, shall be applicable to such agency. The articles ofincorporation shall specifically state that the agency is a publicinstrumentality created under the industrial development law and organized in accordance with the requirements of ch. 181 and that the agency shall be subject to ch. 181 to the extent that said chapter is not inconsistent with this section."

Industrial development corporations are, in my opinion, units of government as that term is used in secs. 40.40 (1) and 41.02 (4), Stats.

You then question:

"If the corporation is a ``public agency' is it simply a branch or unit of the county, or is it a separate ``municipality' or ``public agency' for purposes of the Wisconsin Retirement Fund and the Public Employes Social Security Fund?"

Section 59.071 (4) (d), Stats., specifically declares that an industrial development agency "shall be a separate and distinct public instrumentality and body corporate and politic exercising public powers * * *." The industrial development agency is required to be organized under the provisions of ch. 181, Stats., relating to nonstock corporations. While the county may appropriate money to the agency for operating expenses, the agency has no power to pledge the taxing of any political subdivision "but all of its obligations shall be deemed to be obligations solely of the agency." Sec. 59.071 (4) (c) (d), Stats.

I conclude, therefore, on the basis of the above cited statutes, that the Fond du Lac Industrial Development Corporation is a separate "municipality" under the definition of sec. 41.02 (4), Stats., and a separate "public agency" as defined in sec. 40.40 (1), Stats.

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