(1973) ( 1973 )

GLENN L. HENRY, Corporation Counsel, Dane County

You inquire whether the Dane County Board of Supervisors has the authority to create a County Department of Administration by resolution. You state that the purpose of Resolution 117, now under consideration, "is to place as many as possible of the service type positions in the county under one administrative head."

County boards have only such legislative powers as are conferred upon them by statute, expressly or by clear implication. Dodge County v. Kaiser (1943), 243 Wis. 551, 557;Maier v. Racine County (1957), 1 Wis.2d 384. Therefore, in the absence of statutory direction, a county board will normally have no power to create a county department of administration.

You suggest that such authority may be provided by a broad reading of sec. 59.07 (5), Stats.

Section 59.07 (5), Stats., provides that:

"General powers of board.

"* * *

"(5) GENERAL AUTHORITY. Represent the county, have the management of the business and concerns of the county in all cases where no other provision is made, apportion and levy taxes and appropriate money to carry into effect any of its powers and duties."

Section 59.07 (5), Stats., does not specifically provide for the creation of a county department of administration. Indeed, the only specific statute which considers the creation of such departments is sec. 59.07 (48), Stats., created by ch. 143, Laws of 1967. This provision empowers counties having a population of 500,000 or more to create a department of administration. This recent legislation suggests that the legislature deemed such a provision necessary before such a county could validly create this particular administrative unit. This is, in my opinion, a clear indication that sec. 59.07 (5), Stats., does not contemplate the kind of sophisticated reorganization of county government Dane County is considering in Resolution 117.

This result is supported by the fact that the recently introduced 1973 Senate Bill 27, specifically proposes the addition of "department" to those existing administrative entities that counties are empowered to create under sec. 59.15 (2) (b), Stats. The purpose of this bill, introduced by the Legislative Council on January 4, 1973, is to greatly expand the legislative powers of the county board. It is a product of extensive study on the part of the council staff into the scope of existing county board powers. See Research Bulletin 72-7, published by the Legislative Council on June 27, 1972. The fact that such specific legislation is deemed necessary by the Council after such careful study is certainly consistent with the conclusion that counties having a population under 500,000 are felt to presently lack authority to create a department of administration.

In view of the above it is my opinion that Dane County does not have the authority to create a department of administration by resolution of the county board.

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