ATCP 140.45 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.46
ATCP 140.46 Accounting systems; audits; reports. ATCP 140.46(1)(1)
Accounting system. Every marketing board shall maintain a complete accounting system for the management of marketing board receipts and expenditures. Accounting procedures shall conform to generally accepted accounting principles. Accounting systems shall provide for the periodic generation of balance sheets, income statements, statements of account balances, and other indicators of marketing board financial position. A marketing board shall provide the secretary with such reports of a marketing board's financial position as the secretary may require.
ATCP 140.46(2)(a)(a) Marketing board receipts, expenditures, accounts and fiscal operations shall be independently audited on an annual basis by a certified public accountant, in accordance with generally accepted accounting and audit principles. The audit shall include a review of compliance with applicable law, and with the established bylaws and procedures of the marketing board. The results of the audit shall be filed with the secretary within 120 days after the end of the marketing board's fiscal year.
ATCP 140.46(2)(b)
(b) Marketing board receipts, expenditures, accounts, fiscal operations, and all other records and operations of a marketing board may be audited by the department at any time, for the purpose of ascertaining compliance with applicable law. The department may exercise its authority under
ch. 93, Stats., in support of its audit.
ATCP 140.46(3)
(3) Financial statements. Every marketing board shall prepare a year-end financial statement, independently audited and certified by a certified public accountant. The financial statement shall be filed with the secretary within 120 days after the end of the marketing board's fiscal year.
ATCP 140.46(4)
(4) Annual reports. Every marketing board shall prepare an annual report on marketing board operations for each fiscal year, to be published at the conclusion of the fiscal year. The annual report shall include, at a minimum, a description of the projects funded during the year, the progress or results of each funded project, and the audited financial statement prepared under
sub. (3). The annual report shall be filed with the secretary within 120 days after the end of the fiscal year. The annual report shall be made available for inspection and copying by the public. Within 180 days after the end of the fiscal year, the marketing board shall either mail a free copy of the annual report to each affected producer or handler, or publish notice to affected producers and handlers informing them that the annual report is available for free distribution to affected producers and handlers upon request.
ATCP 140.46 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.47
ATCP 140.47 Prohibited expenditures and business practices. A marketing board may not:
ATCP 140.47(1)(a)
(a) For any purpose which is not authorized under
ch. 96, Stats., and the marketing order, or which is inconsistent with
ch. 96, Stats., and the marketing order.
ATCP 140.47(1)(c)
(c) Whose aggregate amount exceeds the annual receipts of the marketing board for the fiscal year in which the expenditures occur. Annual receipts, for purposes of this paragraph, include any surplus receipts carried over from the preceding fiscal year. This paragraph does not prohibit a marketing board from contracting for the expenditure of anticipated receipts during the current fiscal year in which the receipts are anticipated, if the expenditure is budgeted and approved in compliance with
ss. ATCP 140.42 and
140.45. A marketing board shall periodically review its projections of anticipated receipts during the fiscal year, to determine whether the projections are accurate, and whether any adjustment of proposed expenditures may be necessary to comply with this paragraph.
ATCP 140.47(1)(d)
(d) To promote or fund any other marketing order. This does not prohibit joint funding of marketing order projects and programs with other marketing boards.
ATCP 140.47(1)(e)
(e) To influence state or federal legislation or rulemaking. This does not prohibit any of the following activities, unless the secretary determines that expenditures for activities are excessive in relation to the purposes for which the marketing order is created:
ATCP 140.47(1)(e)1.
1. The publication and distribution of information describing the programs, activities and accomplishments of the marketing board.
ATCP 140.47(1)(e)2.
2. The publication and distribution of information related to any proposal under subch.
I for the amendment or repeal of the marketing order, if the information is published and distributed prior to the secretary's decision under
s. ATCP 140.18 advancing the proposed amendment or repeal to a referendum of producers or handlers.
ATCP 140.47(1)(e)3.
3. Communication by a marketing board member or employee with any state public official or employee concerning the proposed amendment or repeal of the marketing order, or concerning any other rulemaking which is directly related to the marketing order.
ATCP 140.47(1)(e)4.
4. The publication and distribution of information concerning an impending advisory referendum on the marketing order, provided that the marketing board does not directly recommend or suggest how producers or handlers should vote in the advisory referendum.
ATCP 140.47(1)(f)
(f) For salaries, administrative expenses, travel expenses or personal expenses, except those which are reasonable and necessary for the operation of the marketing board, or which are a reasonable and necessary incident to the performance of administrative or contract services for the marketing board.
ATCP 140.47(1)(g)
(g) For any market development program which makes false or unwarranted claims on behalf of an affected commodity or disparages the quality, value, sale or use of any other agricultural commodity.
ATCP 140.47(1)(h)
(h) For any market research or development program which makes reference to, or which exclusively promotes a private brand or trade name of the affected commodity.
ATCP 140.47(2)
(2) Expend or contract for the expenditure of moneys if the expenditure is exclusively or primarily intended to promote an individual private interest without regard to the general interest of producers or handlers of the affected commodity. This does not prohibit the expenditure of moneys for the general benefit of affected producers or handlers where the expenditure also has incidental benefits to an individual private interest.
ATCP 140.47(3)
(3) Make any loan or extend credit. This does not prohibit a marketing board from depositing moneys in a savings and loan association, state bank, savings and trust company, mutual savings bank, or national bank in this state which receives or holds public deposits pursuant to
ch. 34, Stats.
ATCP 140.47(4)
(4) Engage in the purchase or sale of agricultural commodities. This does not prohibit limited and occasional purchases of agricultural commodities, or limited and occasional sales of agricultural commodities at cost, where the purchase or sale is incidental to the conduct of a research, educational or promotional program under
ch. 96, Stats., and the marketing order.
ATCP 140.47(5)
(5) Engage in the business of selling goods or services. This does not prohibit the occasional sale of educational or promotional materials at cost, where the sale is incidental to the conduct of an educational or promotional program under
ch. 96, Stats., and the marketing order.
ATCP 140.47(6)
(6) Make any gift or gratuitous payment for which the recipient gives no bona fide consideration.
ATCP 140.47 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.48
ATCP 140.48 Administrative services provided by department. ATCP 140.48(1)(1) Pursuant to s.
96.10 (5), Stats., a marketing board may request the department to provide administrative services to the marketing board in the administration of a marketing order. This does not prohibit a marketing board from employing its own staff, or contracting with other persons for the provision of administrative services to the marketing board. Administrative services provided by the department may include accounting, clerical, financial, managerial, printing and secretarial services. A marketing board shall reimburse the department for all costs incurred by the department, pursuant to a written contract between the marketing board and the department. Reimbursed costs shall include overhead and operating costs which may be reasonably attributed to the administrative service. The department shall record and account for all administrative service costs incurred by the department, according to generally accepted accounting principles.
ATCP 140.48(2)
(2) All contracts or agreements for the provision of administrative services to a marketing board shall be in writing. Contracts under this subsection shall comply with
s. ATCP 140.44. Contracts with the department need not comply with
s. ATCP 140.44 (2) (e). This subsection does not require a marketing board to have written contracts with its employees.
ATCP 140.48 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.49
ATCP 140.49 Marketing board meetings; records. ATCP 140.49(1)(1)
Filing of minutes. Within 15 days after every meeting of a marketing board or a formally constituted subunit of a marketing board, the marketing board shall file complete minutes of the meeting with the secretary.
ATCP 140.49 Note
Note: Every meeting of a “governmental body" is subject to the Wisconsin open meeting law, ss.
19.81 through
19.98, Stats. Under s.
19.82 (1), Stats., a “governmental body" includes a state or local “agency, board, committee, council, department or public body corporate and politic created by constitution, statute, rule or order; a governmental or quasi-governmental corporation; or a formally constituted subunit of any of the foregoing..."
ATCP 140.49(2)
(2) Custody of records; general. Every marketing board, and every officer and employee of a marketing board shall safely keep and preserve all documents and records which are lawfully in the possession or custody of the marketing board. Every marketing board shall adopt written bylaws or procedures to govern the custody, handling and disposition of marketing board documents and records. Proposed bylaws and procedures shall be filed with the secretary for review by the department prior to adoption.
ATCP 140.49 Note
Note: Under the Wisconsin public records law, ss.
19.31 through
19.35, Stats., members of the public have certain rights to inspect and copy records which are in the possession of an “authority."Under s.
19.32 (1), Stats., an “authority"includes a “... board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance rule or order ...," and also includes a“quasi-governmental corporation."
ATCP 140.49(3)
(3) Disposal of records; authorization. No marketing board may dispose of documents or records except under a specific records disposal policy adopted by the marketing board. The policy shall be adopted in writing, and specify the types of records for which disposal is authorized, the length of time each type of record must be kept prior to disposal, and the disposal procedures to be observed. Proposed records disposal policies shall be filed with the department for review prior to adoption. The secretary may disapprove a proposed records disposal policy if the policy may impede the administration of
ch. 96, Stats., or otherwise adversely affect the public interest. No bylaw or procedure authorizing the disposal of records is effective if disapproved by the secretary.
ATCP 140.49(4)
(4) Records to be filed with department upon termination of marketing order. Upon termination of a marketing order, all documents and records of the marketing board shall be filed with the department.
ATCP 140.49(5)(a)(a) No marketing board may fail or refuse to file a document or record with the department as provided under
ch. 96, Stats., or this chapter on the ground that the document or record is protected from public inspection by law. If a marketing board determines that a document or record required to be filed with the department is protected from public inspection by law, the marketing board shall give written notice to the department identifying that information which, in the opinion of the marketing board, is protected from public inspection. Notice shall further specify the legal grounds on which the information may be withheld from public inspection.
ATCP 140.49(5)(b)
(b) The department shall promptly notify a marketing board of any public request for inspection of marketing board documents or records on file with the department, if the documents or records have been designated as confidential by the marketing board under
par. (a).
ATCP 140.49(5)(c)
(c) The department may make available to the public upon request, for inspection and copying, any marketing board documents or records which are on file with the department if the department determines that disclosure is required by law, notwithstanding the contrary request of the marketing board. In making the decision, the department shall consider the notice and request of a marketing board under
par. (a). If the department determines that disclosure is required by law, the department shall give the marketing board reasonable notice prior to disclosure.
ATCP 140.49(6)(a)(a) Information obtained by a marketing board under
ch. 96, Stats., relating to the individual businesses of producers and handlers shall be kept on a confidential basis, pursuant to s.
96.20 (5), Stats. Confidential business information includes names and addresses or any production, sales, price or purchase data which are identifiable to an individual producer or handler, and any aggregate summary or analysis of individual business information which, if disseminated to marketing board members or others, may have the effect of restraining trade, or conferring a competitive advantage on any person. Confidential business information under this subsection shall not be disclosed either to the public or to marketing board members. This prohibition applies at all times, and is applicable during any marketing board consideration of compliance and collection problems pertaining to producers and handlers. This paragraph does not prohibit the required disclosure of confidential business information in a court proceeding, or the disclosure of confidential business information to the department pursuant to a contract for administrative services or a request for collection or enforcement action.
ATCP 140.49(6)(b)
(b) The duty to maintain the confidentiality of business records under this subsection applies to the marketing board, the department, and all employees and agents of a marketing board, including all suppliers of administrative services to the marketing board. Every contract between a marketing board and its agent, whereby the agent may acquire access to confidential business information, shall clearly set forth the agent's duty to keep the information confidential, and include adequate procedures to insure confidentiality.
ATCP 140.49 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.50
ATCP 140.50 Refund of assessments. If a marketing order provides for the refund of producer assessments pursuant to s.
96.13 (2), Stats., the marketing board shall adopt written forms and procedures to be used by affected producers in filing refund claims. Claim forms shall be promptly mailed to producers or handlers upon request. Refund procedures shall comply with s.
96.13 (2), Stats. No refund may be paid on a claim which is filed with the marketing board more than 90 days after the assessment became due and payable.
ATCP 140.50 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.51
ATCP 140.51 Collecting assessments; reports by producers and handlers; audit of amounts due. ATCP 140.51(1)
(1)
Collection procedure; general. The marketing board is responsible for the receipt and collection of assessments from affected producers and handlers under a marketing order, except as otherwise provided in
ch. 96, Stats., and this chapter. Any assessment which is due and payable by an affected producer or handler under the marketing order constitutes a personal debt of the producer or handler, as provided in s.
96.17 (1), Stats. Each marketing board shall adopt and file with the secretary written procedures and forms to govern the collection of assessments from affected producers and handlers. Procedures may include the preliminary collection procedures set forth under
sub. (2). Procedures shall comply with applicable law, and with the provisions of s.
427.104, Stats. If a marketing board is unable, through the use of preliminary collection procedures, to obtain payment of assessments which are due and payable from a producer or handler, the marketing board may request action by the secretary under s.
96.17, Stats. The request shall be accompanied by evidence and documentation substantiating the existence and amount of the debt, the identity and address of the debtor, and the fact that the marketing board has exhausted its preliminary collection procedures. Pursuant to s.
96.17, Stats., the secretary may impose an assessment surcharge not exceeding 10% of the assessment to cover the department's costs of collection, and may bring a civil action against the debtor under
sub. (3) to collect the assessment and surcharge. The secretary shall give the debtor at least 10 days advance written notice, by mail, of any intended civil action under this paragraph. Notice shall include a statement of any assessment surcharge imposed by the secretary under s.
96.17, Stats.
ATCP 140.51(2)
(2) Preliminary collection procedures. Sequential procedures used by a marketing board in the collection of marketing order assessments may include the issuance of:
ATCP 140.51(2)(c)
(c) A final demand letter, setting forth the facts and circumstances giving rise to the final demand, and stating a final deadline for payment. The final demand letter shall be personally addressed to the debtor and sent by certified mail. In its final demand letter, a marketing board may notify the debtor of the actions which will be requested by the marketing board under s.
96.17 (1), Stats., in the event of nonpayment. A marketing board may not threaten a producer or handler with any civil forfeiture or criminal action for nonpayment of assessments, or threaten to request either action of the department.
ATCP 140.51(3)
(3) Court action to collect assessments. Upon written request of a marketing board, the secretary may bring a civil action pursuant to s.
96.17 (1), Stats., for the collection of unpaid marketing order assessments, together with any assessment surcharges imposed by the secretary under s.
96.17 (1), Stats. No court action for the collection of assessments may be brought by a marketing board on its own behalf, or by the secretary except upon specific request of a marketing board. The decision to take action under s.
96.17 (1), Stats., is discretionary with the secretary. Before bringing any court action to collect assessments, the secretary shall review the adequacy of the marketing board's preliminary collection procedures under
subs. (1) and
(2).
ATCP 140.51(4)
(4) Reports by producers and handlers. Pursuant to s.
96.14 (1), Stats., a marketing board may request a producer or handler to file with the marketing board such information or reports as may be necessary to determine or verify the assessment amounts which may be due and payable by the producer or handler under the marketing order. If a producer or handler fails or refuses to submit information or reports upon request of a marketing board, the marketing board may request the department to exercise its authority under
ch. 93, Stats., and s.
96.14 (1), Stats., to compel submission of the required information or reports to the department. The exercise of the department's authority is discretionary with the department.
ATCP 140.51(5)(a)(a) Department audit; request by marketing board. A marketing board may request the department to audit any producer or handler, for the purposes set forth in
par. (b), if the marketing board reasonably believes that the producer or handler may be an affected producer or handler. The request shall specify the purposes for which the audit is requested. The department may conduct a requested audit at its discretion, for the purposes set forth under
par. (b). Pursuant to an audit under this subsection, the department may require a producer or handler to produce documents and records, and may otherwise exercise its authority under
ch. 93, Stats., and s.
96.14, Stats. The marketing board shall reimburse the department for all costs incurred by the department in conducting the audit, including general overhead and operating expenses which are reasonably attributable to the audit service.
ATCP 140.51(5)(b)
(b) Audit purposes. A producer or handler may be audited by the department under this subsection for any of the following purposes:
ATCP 140.51(5)(b)1.
1. To determine whether the producer or handler is an affected producer or handler under
ch. 96, Stats., and the marketing order.
ATCP 140.51(5)(b)2.
2. To determine or verify the assessment amounts which may be due and payable by the producer or handler under the marketing order.
ATCP 140.51(5)(b)3.
3. To determine or verify the accuracy of any report or claim submitted by the producer or handler to the marketing board.
ATCP 140.51(5)(b)4.
4. To determine whether the producer or handler has paid the full amount of assessments which are due and payable by the producer or handler under the marketing order.
ATCP 140.51 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
ATCP 140.52
ATCP 140.52 Marketing board code of ethics. No member, employee or agent of a marketing board may:
ATCP 140.52(1)
(1) Use his or her position with the marketing board, or the prestige or influence of that position, to obtain financial gain or anything of substantial value for his or her private benefit, or for the benefit of his or her immediate family, or an organization with which he or she is associated. Financial gain, for purposes of this paragraph, does not include salaries or other normal compensation received from the marketing board by the employee, agent or marketing board member.
ATCP 140.52(2)
(2) Solicit or accept from any person or organization, directly or indirectly, anything of value if the thing of value:
ATCP 140.52(2)(a)
(a) Could reasonably be expected to influence the actions or judgment of the marketing board member, employee or agent, in his or her capacity as a member, employee or agent of a marketing board; or
ATCP 140.52(2)(b)
(b) Could reasonably be considered as a reward for any action or inaction by the marketing board member, employee or agent, acting in his or her capacity as a member, employee or agent of the marketing board.
ATCP 140.52(3)
(3) Intentionally use or disclose information gained in the course of or by reason of his or her position as a member, employee or agent of a marketing board in any way that could result in the receipt of anything of value by him or her, by his or her immediate family, or by any other person or organization with which he or she is associated, if the information is not public information and has not been communicated to the public.
ATCP 140.52(4)
(4) Use or attempt to use his or her position as a member, employee or agent of a marketing board to influence or gain unlawful benefits, advantages or privileges for himself or herself, or for others.
ATCP 140.52 Note
Note: According to unpublished opinions of the attorney general, dated September 16, 1983 and January 30, 1984, marketing board members are public officers within the meaning of s.
946.13, Stats., which provides in part as follows:
ATCP 140.52 Note
946.13 (1) Any public officer or public employee who does any of the following is guilty of a Class E felony:
ATCP 140.52 Note
(a) In the officer's or employee's private capacity, negotiates or bids for or enters into a contract in which the officer or employee has a private pecuniary interest, direct or indirect, if at the same time the officer or employee is authorized or required by law to participate in the officer's or employee's capacity as such officer or employee in the making of that contract or to perform in regard to that contract some official function requiring the exercise of discretion on the officer's or employee's part; or
ATCP 140.52 Note
(b) In the officer's or employee's capacity as such officer or employee, participates in the making of a contract in which the officer or employee has a private pecuniary interest, direct or indirect, or performs in regard to that contract some function requiring the exercise of discretion on the officer's or employee's part.
ATCP 140.52 History
History: Cr.
Register, November, 1985, No. 359, eff. 12-1-85.
