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.
