Opinion No. Oag 44-86, (1986)

BARBARA NICHOLS, Secretary Department of Regulation and Licensing

You ask a number of questions concerning the selection and terms of officers of regulation and licensing boards. Board officers are those selected by the boards from among their members and normally will include board chairperson. vice-chairperson and secretary. Your questions read:

1. May a board at its first meeting of the year, decide not to elect officers at that time; but rather, set a definite future meeting date for the election of its chairman, vice-chairman and secretary?

2. May a board which has elected its officers at its first meeting of the year, at its sole discretion, decide to elect new officers at a meeting later in the year; specifically, can the board hold a new set of elections for all officers?

3. May a board terminate the tenure of a board officer by holding an election for a specific office at any time as determined by the board?

4. Under what circumstance may an officers' tenure in office be terminated?

5. Upon the occurrence of a vacancy in a board office, how must the vacancy be filled?

6. If a board member's term expires while he or she is serving as an elected officer, how must that officer's position be filled by the board?

Section 15.08 (5)(b), Stats., provides that each board has the power to "promulgate rules for its own guidance." Under this broad grant of authority, it is clear that a board has a wide field of discretion to determine its own rules of procedure.Pellett v. Industrial Commission, 162 Wis. 596, 599, 156 N.W. 956 (1916); 59 Am. Jur. 2d Parliamentary Law § 2 (1971). Thus, it would be proper for a board, in the exercise of its discretion, to adopt an administrative rule utilizing Robert's Rules of Order as a guide for the conduct of its business. State ex rel. Wis. Inspection Bureau v. Whitman,196 Wis. 472, 505-06, 220 N.W. 929 (1928); 59 Am. Jur. 2d at 318.

Eligibility as an officer of a board includes board membership and election, and retention by the board as a board officer. Thus, if a board member who is an officer of the board ceases to be a board member for any reason, the office he or she held would be vacant and the board must then select from its membership a new board officer.

The selection of board officers is an internal matter of each board. A board will select board officers who it perceives will best enable the board to function. A nonexclusive listing of factors that a board may consider in selecting board officers includes the willingness of a board member to serve as an officer, the time and resources of a board member to serve as a board officer, a member's proclivity to leadership, a member's experience and a member's ability to deal with other persons or entities necessary to accomplish board responsibilities.

Changing circumstances from time to time will dictate who among members of a board can best carry out the duties and responsibilities of board officers. Thus, a board must have the latitude and power to determine at any given time who shall serve as board officers. If at any time a board senses that there should be a change in the make-up of its officers, it has the discretion to make what changes are necessary. Board officers are not elected for nor do they serve for a specific period of time. They serve at the discretion of the board members.

Several things can cause a vacancy in a board office. We have already discussed the situation where a board member who is a board officer ceases to be a member of the board. This can happen by the death or resignation of a board member. Or the Governor can appoint different board members at the expiration of the terms of existing board members. Also, there may be instances where a board officer will resign as such but remain as a member of the board. In all such cases, the board must select new officers to fill vacancies because the office of chairperson, vice-chairperson and secretary should always be filled.

The chairperson has important duties and responsibilities. He or she normally must conduct the meetings. The chairperson has the authority to call meetings under section 15.08 (3), and the duty to give public notice of meetings as required by section 19.84. And, in the absence of another designation, the chairperson is the custodian of the board's records by virtue of section 19.32, and as custodian, has important responsibilities with respect to retention, disclosure or public access and disposition of records.

The vice-chairperson must be designated to be available to assume the duties and responsibilities of chairperson in the absence of a chairperson.

The secretary is normally responsible for keeping the minutes of meetings as required by section 19.88. The public is concerned that the boards have designated officers so that there is accountability and responsibility for performing the duties mandated by law.

Section 15.08 (2) provides: "Selection of Officers. At its first meeting in each year, every examining board shall elect from among its members a chairman, vice chairman and, unless otherwise provided by law, a secretary. Any officer may be reelected to succeed himself or herself."

The direction in this statutory provision that boards elect officers at the "first meeting of each year" is directory rather than mandatory.

The word "shall" in a statute will be construed as directory if necessary to carry out the legislative intent, and statutes prescribing a time within which public officers must perform acts are construed as directory unless such construction denies the exercise of power after the time limit or the nature of the act, or the language of the statute itself, shows that the time prescription was meant to be a limitation. Karow v. MilwaukeeCounty Civil Serv. Comm., 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978).

The legislative intent expressed in section 15.08 (2) is that regulatory and licensing boards select from among their members a chairperson, vice-chairperson and secretary, and in this respect, it is construed to be a mandatory requirement. But the provision that the selection be made at "the first meeting of each year" should be construed as directory. 2 Am. Jur. 2d AdministrativeLaw § 228 (1986). The quoted phrase does not contain words of art establishing a time limitation upon the selection process and I discern no legislative purpose in construing the language to be a time limitation. To construe the language as constituting a time limitation would result in a conclusion that the Legislature meant to interfere with a matter that is properly in the discretion of the individual boards.

With the above discussion in mind, we may now answer your questions in a somewhat summary fashion.

1. A board should give deference to the directive of section15.08 (2) and hold an election of officers at its first meeting of the year, but it is not mandatory that it do so and a board may decide not to elect officers if the board offices of chairperson, vice-chairperson and secretary are filled. If any of these offices are not filled, a board must hold an election to fill the vacancy. This is a requirement whether the vacancy exists at the time of the first meeting of the year or at any other time.

A board cannot set a future date for an election if a board office is vacant at any time.

If, at the time of the first meeting of the year, no board office vacancy exists, the board can establish a future date at which time it will examine the question of who should be officers, but the board is not inexorably bound by its own timetable.

2. A board can conduct a new election of board officers at a meeting after the first meeting of the year at which time board officers were elected.

3. A board may terminate the tenure of any board officer at any time by holding an election and selecting new officers from among its members.

4. A board officer's tenure is terminated:

a. By his or her ceasing to be a board member for any reason.

b. By his or her resignation as a board officer.

c. By his or her removal as a board officer by an election of the board.

5. If there is a vacancy in a board office, the vacancy must be filled by a board election.

6. The answer to your question 6 is answered by the answers to your questions 4 and 5, above.

BCL:WHW