Opinion
November 2, 2011
Kevin M.St. John Deputy Attorney General Steven P. Means Executive Assistant
Mr. John F. Luetscher Corporation Counsel Brown County Post Office Box 23600 Green Bay, WI 54305-3600
Dear Mr. Luetscher:
¶ 1. You are concerned about the county board's authority to limit the statutory prerogatives of the county highway commissioner.
BACKGROUND
¶ 2. You indicate that your county has a county executive and a county highway commissioner. The duties of the highway commissioner include entering into agreements with cities, villages, and towns pursuant to Wis. Stat. §§ 83.03 and 83.035 for the purpose of improving county highways. A typical agreement in your county involves a joint project with one or more local municipalities to construct a road that has many of the features of an urban street. The county normally shares the cost of such projects equally with each contracting local municipality. The form of agreement currently in use grants the highway commissioner the authority to determine which of the work that is necessary under the agreement will be performed directly by the county highway department. A contracting local municipality is obligated under the agreement to reimburse the county for half of the county's costs when the county highway department performs the work directly.
¶ 3. You advise that certain local municipalities believe that highway construction costs could be reduced if the county did not perform any of the work on joint county highway projects. Those municipalities want the county to use a competitive bidding process and then contract with private companies for all of the work on the agreements to which those municipalities are parties.
Counties that contract under Wis. Stat. § 83.035 are not required to competitively bid those projects. See OAG 5-09, ¶¶ 5, 13 (November 12, 2009).
QUESTION PRESENTED AND BRIEF ANSWER
¶ 4. You ask if the county board in a county with a county executive may enact an ordinance precluding the highway commissioner from determining that the county highway department will directly perform any of the work on any joint county highway project under Wis. Stat. §§ 83.03 and 83.035 if a contracting local municipality requests that all of the work on the project be competitively bid and let to private companies.
¶ 5. In my opinion, the answer is no.
ANALYSIS
¶ 6. Wisconsin Stat. § 83.015(2)(b) delineates many of the powers of the highway commissioner in a county with a county executive or a county administrator:
In any county with a highway commissioner appointed under s. 83.01 (l)(b) or (c), the county highway committee shall be only a policy-making body determining the broad outlines and principles governing administration and the county highway commissioner shall have the administrative powers and duties prescribed for the county highway committee under par. (a), sub. (3)(a) and ss. 27.065(4)(b) and (13), 32.05(1)(a), 82.08, 83.01(6), 83.013, 83.018, 83.025(1) and (3), 83.026, 83.035, 83.04, 83.05(1), 83.07 to 83.09, 83.12, 83.14(6), 83.17, 83.18, 83.42(3) and (4), 84.01(5), 84.06(3), 84.07(1) and (2), 84.09(1), (3)(a) to (c) and (4), 84.10(1), 86.04(1) and (2), 86.07(2), 86.19(3), 86.34(1), 114.33(5), 349.07(2), 349.11(4) and (10) and 349.15(2). No statutory power, duty or function specified elsewhere for the county highway commissioner may be deemed impliedly repealed for the sole reason that reference to it has been omitted in this paragraph.
Wisconsin Stat. § 83.04 is made applicable to the highway commissioner by operation of Wis. Stat. § 83.015(2)(b). Wisconsin Stat. § 83.04(1) provides that "[a]ll highway improvements . . . shall be by contract . . ." unless the highway commissioner "determines that some other method would better serve the public interest." Wisconsin Stat. § 83.015(2)(a), which is also made applicable to the highway commissioner by operation of Wis. Stat. § 83.015(2)(b), grants the highway commissioner the authority to "determine whether each piece of county aid construction shall be let by contract or shall be done by day labor" and to "enter into contracts in the name of the county, and make necessary arrangements for the proper prosecution of the construction and maintenance of highways provided for by the county board[.]" Wisconsin Stat. § 83.015(2)(b) describes these and other statutory powers of the highway commissioner as "administrative powers and duties[.]"
Although Wis. Stat. § 83.03 is not cross-referenced, the last sentence of Wis. Stat. § 83.015(2)(b) cautions that, even though not specifically enumerated, other statutory provisions granting powers and duties to the highway commissioner remain applicable.
¶ 7. The Legislature has also granted county boards broad administrative and organizational powers concerning highways: See Wis. Stat. § 59.03, which provides in part:
(1) ADMINISTRATIVE HOME RULE. Every county may exercise any organizational or administrative power, subject only to the constitution and to any enactment of the legislature which is of statewide concern and which uniformly affects every county.
(2) . . . (a) Except as elsewhere specifically provided in these statutes, the board of any county is vested with all powers of a local, legislative and administrative character, including . . . the subject matter of . . . highways. . . .
. . . .
(f) The powers conferred by this subsection shall be in addition to all other grants of power and shall be limited only by express language.
See also Mommsen v. Schueller, 228 Wis. 2d 627, 635, 599 N.W.2d 21 (Ct. App. 1999). The Legislature has further directed that the administrative home rule powers granted to county boards be "liberally construed." Wis. Stat. § 59.04.
¶ 8. The administrative home rule powers of county boards are extensively discussed in OAG 1-10 (January 28, 2010). A county board's organizational and administrative home rule powers are purely statutory. Because all county board powers must be derived from a statutory source, a county board's home rule powers may be limited by other statutes. See OAG 1-10, ¶ 6.
¶ 9. Wisconsin Stat. § 59.51(1) imposes specific limitations upon the exercise of a county board's organizational or administrative home rule powers:
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 every county. . . . [T]hese powers shall be broadly and liberally construed and limited only by express language.
The home rule powers of a county board are "subject . . . to . . . any enactment of the legislature which grants the organizational or administrative power to a . . . person supervised by a county executive[.]" Wis. Stat. § 59.51(1). The highway commissioner possesses the statutory administrative power to determine whether county highway projects are competitively bid. Wis. Stat. §§ 83.04(1) and 83.015(2)(a) and (b). Wisconsin Stat. § 83.01(l)(c) grants the county executive supervisory authority over the highway commissioner: "[I]n any county with a county executive . . . the county executive . . . shall appoint and supervise the county highway commissioner.". As a direct result of the fact that the highway commissioner is supervised by the county executive. Wis. Stat. § 59.51(1) precludes the county board from establishing any policy or exercising any administrative power that infringes upon the highway commissioner's administrative power to determine whether county highway projects are competitively bid. The county board therefore may not enact an ordinance requiring competitive bidding on a highway project if a contracting local municipality requests that all of the work be competitively bid and let to private companies.
Slightly different statutory provisions apply to Milwaukee County. See Wis. Stat. § 83.01 (l)(b).
¶ 10. The county board is not without power or authority concerning joint county highway projects. The county board can determine as a matter of policy whether the county should undertake a joint county highway project at all. See Wis. Stat. § 83.03(1). The county board also exercises budgetary control over the county highway department. See Wis. Stat. § 65.90. The county board may not, however, by ordinance limit the statutory administrative powers of a county highway commissioner appointed and supervised by the county executive.
CONCLUSION
¶ 11. I therefore conclude that a county board in a county with a county executive cannot enact an ordinance precluding the highway commissioner from determining that the county highway department will perform any of the work on any joint county highway project under Wis. Stat. §§ 83.03 and 83.035 if a contracting local municipality requests that all of the work on the project be competitively bid and let to private companies.
Sincerely,
J.B. VAN HOLLEN Attorney General
JBVH:FTC:cla
___ Op. Att'y Gen. ___ (2011) Mr. J.B. Van Hollen, Wisconsin Attorney General, Wisconsin Department of Justice February 14, 2011.
JOHN LUETSCHER, Corporation Counsel
Mr. J.B. Van Hollen Wisconsin Attorney General Wisconsin Department of Justice P.O. Box 7857 Madison, WI 53707-7857
I am the Corporation Counsel for Brown County. I am requesting you review the issue presented and give a legal opinion on it.
Issue Presented:
Does the county have lawful authority to enact an ordinance giving municipalities entering cost share agreements for joint projects with the county highway department the right to require all work be let by contract in lieu of the county performing work on the county road?
Facts:
The highway commissioner enters agreements for the improvement of county highways with cities, villages and towns pursuant to Wis. Stat. §§ 83.03 and 83.035. Typically, the agreements are joint projects to construct a road with many of the features of urban area streets. The county's policy is to share the cost of those projects on a 50% — 50% basis with the municipality (ies).
In the agreements, the highway commissioner determines what work the county can directly perform on the project. Sometimes the municipalities perform work directly on these projects as well. The highway department owns equipment and vehicles suitable for road building and has a labor force capable of doing road construction work. The highway department can do planning and engineering, road bed preparation and asphalting on these joint projects and will contract with private companies for the remaining work. The agreements require the municipality to reimburse the county for 50% of the cost of work the county performs directly on a project.
One or more municipalities here object to paying the county for 50% of the cost of work performed by the county. These municipalities contend the labor and material cost will be less if the county contracts with private companies for all of the project work using a competitive bid process. The county disputes this contention and wants to continue to perform direct work on county roads when it is able to do so.
In Brown County, the Highway Committee is a standing committee of the Board of Supervisors, the Planning, Development and Transportation Committee. A supervisor on this committee wants to propose an ordinance that would give a municipality the option to require all of the work on a joint county-municipality project be let by contract regardless of the highway commissioner's determination the county should perform work directly.
Analysis:
My analysis leads me to conclude the proposed ordinance would go beyond the county's lawful authority, but I have included what I believe would be an ordinance proponent's argument for an opinion such an ordinance would be a proper exercise of county authority.
In Brown County, the county executive appoints the highway commissioner pursuant to Wis. Stat. § 83.01 (1) (c). Accordingly, pursuant to Wis. Stat. § 83.015 (2)(b), Stats., the highway commissioner possesses the administrative powers and duties prescribed for the county highway committee under numerous statutes including Wis. Stat. §§ 85.035 and 83.04.
Following Wis. Stat. § 83.035, the Brown County Board of Supervisors has enacted an ordinance giving the highway commissioner authority to enter into contracts with cities, villages, and towns to construct and maintain streets and highways in such municipalities (See § 6.10 Brown County Code). The joint responsibility — cost sharing agreements for road construction at issue here fit within the ambit of this statute and the county's ordinance.
Two separate statutory provisions give the highway commissioner the discretion to determine how work is to be completed on county highway construction projects. Wis. Stat. §§ 83.015 (2) (a) and (2) (b) read together authorize the highway commissioner "to determine whether each piece of county aid construction shall be let by contract or shall be done by day labor, enter into contracts in the name of the county, and make necessary arrangements for the prosecution of the construction and maintenance of highways provided for by the county board . . ." The ordinance being considered would remove the determination of how work is to be completed from the highway commissioner's responsibilities and give it to the other contracting municipality in joint highway — cost share projects.
Similarly, Wis. Stat. § 83.04 read in conjunction with Wis. Stats. 83.015 (2) (b) states all highway improvements made by the commissioner shall be by contract, unless the commissioner determines that some other method would better serve the public interest. The proposed ordinance would require that highway improvements be let by contract unless the other municipality in a joint highway cost shared project determined some other method would better serve the public interest.
Pursuant to the statutory scheme in Chapter 83, the legislature has given authority to the highway commissioner to determine how work is performed on county highway projects. An ordinance limiting this administrative authority in joint responsibility highway projects would conflict with those statutes.
Counties do have administrative home rule authority to "exercise any organizational or administrative power subject only to the constitution and to any enactment of the legislature which is of statewide concern and which uniformly affects every county". Wis. Stat. § 59.03 (1). A proponent of the ordinance would characterize it as an exercise of organizational or administrative authority to redefine the highway commissioner's powers and duties. The ordinance could be characterized as a policy decision consistent with the highway committee's responsibilities in counties where the county executive appoints the commissioner (See Wis. Stat. § 83.015) (2)(b)). The board of supervisors does decide when the county will construct or improve any highway in the county in the first place pursuant to Wis. Stat. § 83.03 (1). The authority to enact the ordinance could derive from this statutory authority.
The county's administrative home rule powers are limited by the language in Wis. Stat. § 59.03 (1) and specifically by the Wis. Stat. § 59.51 (1). The Attorney General in OAG 01-10 stated these two provisions must be read together to understand the extent of a county's home rule authority. Wis. Stat. § 59.51 (1) states 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 to a person supervised by the county executive." The Brown County executive supervises the highway commissioner pursuant to Wis. Stat. § 83.01 (1) (c). The county's administrative home rule authority cannot be used to eliminate administrative powers granted by statute to the highway commissioner. This is not a situation in which the board of supervisors can deviate from statutory directives using administrative home rule power.
Tentative Conclusion:
The proposed ordinance would transfer administrative authority given to the highway commissioner by statute and would transfer it to the other governmental entity entering the joint highway project agreement with the county. The ordinance would be contrary to statute and could not be justified as an exercise of county administrative home rule power.
Brown County looks forward to your response.
Respectfully,
John Luetscher CORPORATION COUNSEL
JL:smg
cc: Supervisor Bernie Erickson — Chairman — Planning, Development Transportation Committee
Supervisor Dave Kaster — Planning, Development Transportation Committee
Brian Lamers — Brown Co. Highway Commissioner
Thomas J. Hinz — Brown County Executive