Citation Numbers: 81 Op. Att'y Gen. 145
Judges: JAMES E. DOYLE, Attorney General
Filed Date: 9/9/1994
Status: Precedential
Modified Date: 7/6/2016
Mr. Larry E. Nelson Corporation Counsel Iowa County 222 North Iowa Street Dodgeville, Wisconsin 53533
Dear Mr. Nelson:
You indicate that your county board desires that its personnel committee, which is a committee of the county board, have the authority to remove the director of social services. Your letter raises two separate but related questions concerning the appointment, supervision and removal of a county social services director in a county which does not have a county executive or county administrator.
The first question is whether the personnel committee currently possesses the statutory authority to remove the social services director. In my opinion, the answer is no.
The second question is whether a county board in a county which does not have a county executive or county administrator may, under section 59.025, Stats., transfer the authority to appoint, supervise and remove the social services director from the social services board to a committee of the county board. In my opinion, the answer to that question is also no.
Section
Removal of appointive county officers.
. . . . *Page 146
(6) OTHERS. (a) Except as provided under par. (b), all other appointive county officers may be removed at pleasure by the officer or body that appointed them. Removals by a body, other than the county board, consisting of 3 or more members may be made by an affirmative vote of two-thirds of all the members thereof.
(b) The following appointive county officers may be removed for cause only:
. . . .
2. Any person appointed to administer services under s.
46.22 ,46.23 ,51.42 or51.437 .(7) GENERAL EXCEPTION. County officers appointed according to merit and fitness under and subject to a civil service law, or whose removal is governed by such a law, shall be removed only as therein provided.
Section
(b) Powers and duties. The county department of social services shall have the following functions, duties and powers in accordance with the rules promulgated by the department of health and social services and subject to the supervision of the department of health and social services:
. . . .
*Page 147(d) Merit system, records. The county department of social services is subject to s. 49.50(2) to (5). The county department of social services and all county officers and employes performing any duties in connection with the administration of aid to the blind, old-age assistance, aid to families with dependent children and aid to totally and permanently disabled persons shall observe all rules promulgated by the department of health and social services under s. 49.50(2) and shall keep records and furnish reports as the department of health and social services requires in relation to their performance of such duties.
Section
In any county with a county executive or county administrator which has established a single-county department of social services, the county executive or county administrator shall appoint, subject to confirmation by the county board of supervisors, the county social services board, which shall be only a policy-making body determining the broad outlines and principles governing the administration of programs under this section.
Section
POWERS AND DUTIES OF COUNTY SOCIAL SERVICES BOARD IN CERTAIN COUNTIES. A county social services board elected or appointed under sub. (1m)(b)1 [counties without a county executive or county administrator] and 3 shall:
. . . .
(b) Appoint the county social services director under sub. (3) subject to s. 49.50(2) to (5) and the rules promulgated thereunder and subject to the approval of the county board of supervisors in a county with a single-county department of social services or the county boards of supervisors in counties with a multicounty department of social services.
(c) Supervise the working of the county department of social services and shall be a policy-making body determining the broad outlines and principles governing the administration of the functions, duties and powers assigned to the county department of social services under sub. (1)(b) and (c).
. . . .
*Page 148(n) Assume the powers and duties of the county department of social services under sub. (1)(b) to (e).
Section
In any county with a county executive or a county administrator which has established a single-county department of social services, the county executive or county administrator, subject to s. 49.50(2) to (5) and the rules promulgated thereunder, shall appoint and supervise the county social services director.
Section 49.50 provides in part:
(2) RULES; MERIT SYSTEM. The department shall promulgate rules for the efficient administration of aid to families with dependent children in agreement with the requirement for federal aid, including the establishment and maintenance of personnel standards on a merit basis. The provisions of this section relating to personnel standards on a merit basis supersede any inconsistent provisions of any law relating to county personnel. This subsection shall not be construed to invalidate the provisions of s.46.22 (1)(d).
. . . .
(5) COUNTY PERSONNEL SYSTEMS. Pursuant to rules promulgated under sub. (2), the department where requested by the county shall delegate to that county, without restriction because of enumeration, any or all of the department's authority under sub. (2) to establish and maintain personnel standards including salary levels.
Wisconsin Administrative Code § HSS 5.06(2)(b) (1987) provides: "Employes who have completed a fixed probationary period shall not be discharged except for good cause. Grounds for discharge include, but are not limited to, inefficiency, neglect of duty, official misconduct or malfeasance in office."
With respect to both questions presented, under section
As to your first question, under section
Your second question requires interpretation of the scope of sections 59.025 and
General powers of board. 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 grants the organizational or administrative power to a county executive or county administrator or to a person supervised by a county executive or county administrator or any enactment which is of statewide concern and which uniformly affects *Page 150 every county. Any organizational or administrative power conferred under this section shall be in addition to all other grants. A county board may exercise any organizational or administrative power under this section without limitation due to enumeration.
These provisions, like all other provisions in chapter 59, are to "be liberally construed in favor of the rights, powers and privileges of counties to exercise any organizational or administrative power." Sec. 59.026, Stats. Although a liberal construction is required under section 59.026, section 59.025 contains explicit limitations on the exercise of home rule powers by counties.
The language contained in sections 59.025 and
In determining whether or not a municipality may elect against a statute, the statute must first be classified as one which is exclusively of statewide concern, one which is entirely of local character or one which cannot be fit exclusively into one of these categories.If the provisions of the statute are of statewide concern . . . home rule . . . grants no power . . . to deal with it. If the provisions concern a purely local affair, a municipality may elect not to be bound. If the statute is in the third, "mixed bag," category, the test is whether the statute is "primarily or paramountly a matter of `local affairs and *Page 151 government' under . . . home rule . . . or of `state-wide concern.'"
Gloudeman v. City of St. Francis,
In West Allis v. Milwaukee County,
The home-rule amendment does not limit the right of the legislature to deal with matters of statewide concern, even if, in so dealing, some cities and not others are affected. If, however, the matter enacted by the legislature is primarily of local concern, a municipality can escape the strictures of the legislative enactment unless the enactment applies with uniformity to every city and village.
West Allis,
Sections 59.025 and
It must be recognized that there are certain difficulties in affording broad administrative home rule powers to counties, since "[a] county . . . is created almost exclusively in the view of the policy of the state at large for purposes of political organization and civil administration in matters of stateconcern." Columbia County v. Wisconsin Retirement Fund,
is a governmental agency of the state, performing primarily the functions of the state locally. It so acts for the state in the administration of justice; in the establishment of almshouses and other charitable institutions; in maintaining insane asylums and penal institutions. It is not created for the local convenience of the inhabitants as in the case of cities and villages. It exists not by virtue of its own will or consent, but as a result of the superimposed will of the state.
(Emphasis supplied). See Dane County v. H SS Dept.,
Although the Legislature sometimes explicitly states that a particular enactment involves a matter of statewide concern, in the majority of cases such a determination is made by the court itself. See, e.g., Gloudeman,
In Van Gilder,
Such organizational statutes involve county performance of a state function. Cf. 70 Op. Att'y Gen. 226, 227 (1981). That function, the provision of welfare, is itself indisputably a matter of statewide concern. Schinz,
It is true that, even though the social services director is supervised by the social services board, "the county board of public welfare [now social services] is under the general budgetary control of the county board of supervisors and that the members of the county board of public welfare [now social services] are chosen by the county board of supervisors." KenoshaCounty,
In addition, in the vast majority of states, there is no county administration of federal categorical aids programs. If the combined authority to appoint, supervise and remove the social services director is a matter primarily of local concern, then the general authority and control of the state would have no bearing on which county officer or entity such authority could be transferred to under section 59.025. See Van Gilder,
I therefore conclude that, in a county which does not have a county executive or county administrator, the personnel committee of a county board does not possesses the statutory authority to remove the county social services director and that the county board in such a county may not, under section 59.025, transfer the authority to appoint, supervise and remove the social services director from the social services board to a committee of the county board because the statutes concerning the exercise of such authority are enactments primarily of statewide concern.
Sincerely,
James E. Doyle Attorney General
JED:FTC:vmz
McCarthy v. Timm , 64 S.D. 466 ( 1936 )
Thompson v. Kenosha County , 64 Wis. 2d 673 ( 1974 )
West Allis v. Milwaukee County , 39 Wis. 2d 356 ( 1968 )
Hart v. Ament , 176 Wis. 2d 694 ( 1993 )
Wisconsin Solid Waste Recycling Authority v. Earl , 70 Wis. 2d 464 ( 1975 )
Milwaukee Brewers Baseball Club v. Wisconsin Department of ... , 130 Wis. 2d 79 ( 1986 )
County of Dane v. Department of Health & Social Services , 79 Wis. 2d 323 ( 1977 )
State Ex Rel. Warren v. Nusbaum , 59 Wis. 2d 391 ( 1973 )
State Ex Rel. Michalek v. LeGrand , 77 Wis. 2d 520 ( 1977 )
Village of West Milwaukee v. Area Board of Vocational, ... , 51 Wis. 2d 356 ( 1971 )
Kenosha County CH Local v. Kenosha County , 30 Wis. 2d 279 ( 1966 )
Columbia County v. Board of Trustees of Wisconsin ... , 17 Wis. 2d 310 ( 1962 )
State Ex Rel. Martin v. Juneau , 238 Wis. 564 ( 1941 )
State Ex Rel. La Follette v. Reuter , 33 Wis. 2d 384 ( 1967 )
Opinion No. Oag 59-76, (1976) , 65 Op. Att'y Gen. 163 ( 1976 )
(1974) , 63 Op. Att'y Gen. 580 ( 1974 )
Opinion No. Oag 25-88, (1988) , 77 Op. Att'y Gen. 113 ( 1988 )
Opinion No. Oag 58-81, (1981) , 70 Op. Att'y Gen. 226 ( 1981 )
Opinion No. Oag 17-92, (1992) , 80 Op. Att'y Gen. 258 ( 1992 )
Opinion No. Oag 16-76, (1976) , 65 Op. Att'y Gen. 40 ( 1976 )