Citation Numbers: 71 Op. Att'y Gen. 60
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 2/1/1982
Status: Precedential
Modified Date: 4/15/2017
ED JACKAMONIS, Speaker State Assembly
The Committee on Assembly Organization has asked for my opinion concerning the division of authority between the Milwaukee Board of Fire and Police Commissioners (board) and the chiefs of the police and fire departments. Section
The board shall conduct at least once each year a policy review of all aspects of the operations of the police and fire departments of the city. The board shall consider but not limit its review to procedures relating to discipline, promotion, work rules and any other procedure relating to the conduct of employes of the police and fire department.
Section
The chief shall be responsible for the efficiency and general good conduct of the department under his or her control. The chief of each department shall prescribe rules for the government of the members of the department. Any rule prescribed by a chief shall be subject to review and suspension by the board. The board may prescribe a rule to replace any rule the board suspends. A chief may not suspend any rule prescribed by the board. The board may prescribe a procedure for the prescription of rules by a chief or by the board and for the review and suspension of rules by the board. Such procedure may include, without limitation because of enumeration, a provision that a rule not take effect until the rule is reviewed and approved by the board.
Section
Section
1. The chief must prescribe rules for the government of the members of the department.
2. The board may review and suspend any rule prescribed by the chief.
3. The board can enact a rule to replace any rule which has been suspended.
4. The chief cannot suspend any rule enacted by the board.
5. The board may establish a procedure which must be followed by the chief or by the board in enacting rules.
6. The board may establish procedures for reviewing and suspending its own rules. This procedure can include a provision that a rule not take effect until it is reviewed and approved by the board.
Although sec.
[A]n administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statute under which it operates. . . . [A]ny reasonable doubt of the existence of an implied power of an administrative agency should be resolved against the exercise of such authority.
State (Dept. of Admin.) v. ILHR Dept.,
This conclusion is reinforced by the fact that sec.
Although it is not necessary to examine the legislative history of sec.
The original version of 1979 SB 252 provided: "The board may prescribe its own rules regulating the police and fire departments." It also specifically provided that the chief would propose rules which would be subject to review and suspension by the board. Consideration of original 1979 SB 252 was indefinitely postponed and the substitute amendment which resulted in ch. 307, sec. 1, Laws of 1979 was passed. The Legislature contemplated giving the board original rule-making authority but decided not to do so.
Section
The rules of the department, therefore, state the policy of the department. For the purposes of secs.
A list of specific questions concerning the interrelationship of the board and the chiefs accompanied your opinion request. To the extent those questions require detailed analysis of specific rules and procedures they are more appropriately answered by the city's corporation counsel.
BCL:AML