Opinion No. Oag 21-88, (1988)

KENNETH J. BUKOWSKI, Corporation Counsel Brown County

You advise that the Brown County code of ordinances provides for the creation of a solid waste management system and a Brown County Solid Waste Management Board, pursuant to section 59.07 (135), Stats. You also point out that recent significant statutory changes expanding the administrative authority of the county executive over county "departments" have been enacted by 1985 Wisconsin Act 29, including section 59.031 (2r), since renumbered by 1985 Wisconsin Act 176 as section 59.031 (2)(br). The latter statute limits the authority of "boards and commissions" over such departments to "advisory or policy-making" functions. Since your county has a county executive and you conclude that at least some of the powers granted your solid waste management board are more than advisory or policy-making and are in fact administrative in nature, you request my opinion on the following question: "Is a Solid Waste Management Board established by County Board ordinance pursuant to section 59.07 (135), Wis. Stats., a ``Board or Commission' as denominated in Section 59.031 (2)(br), Wis. Stats."

It is my opinion that the Solid Waste Management Board is restricted to the performance of "advisory or policy-making functions," regardless of whether or not that board is a "board or commission" under section 59.031 (2)(br). My opinion is based on the recent statutory changes expanding the administrative authority of the county executive.

Section 59.031 (2)(intro.), as amended by 1985 Wisconsin Act 29, now expressly provides that "[t]he county executive shall be the chief executive officer of the county" and shall take care that "every" county ordinance and state law is "administered" within his or her county. Section 59.031 (2)(a) states that the duty and power of the county executive is to "[c]oordinate and direct by executive order or otherwise all administrative and managementfunctions of the county government not otherwise vested by law in other elected officers." Prior to amendment by 1985 Wisconsin Act 29, the latter provision had excepted administrative and management functions vested by law in "boards or commissions" from control by the county executive, but that exception was deleted by the session law.

Finally, even prior to the enactment of 1985 Wisconsin Act 29, the attorney general had opined that "[i]n counties having a County Executive, the role of the County Board becomes primarily, but not exclusively, policy-making and legislative." 63 Op. Att'y Gen. 220, 228 (1974). The above session law has now repealed and recreated section 59.07 (intro.) to expressly condition and limit the general power of the county board of supervisors in this regard in counties which have a county executive, as follows: "The board of each county shall have the authority to exercise any organizational or administrative power, subject only to the constitution and any enactment of the legislature which grantsthe organizational or administrative power to a countyexecutive . . . ."

DJH:JCM