74 Op. Att'y Gen. 208 (1985)

74 Op. Att'y Gen. 208, 214-215 (1985)
  While it is my opinion that it suffices to establish that a voting board member is a public officer when he/she exercises independently a portion of the sovereign power, despite the control exercised by others over certain of the Commission's powers, it is certainly noteworthy that the position occupied by such member on the Commission meets another important test of "public office," to wit, that such position "must have some permanency and continuity, and not be only temporal or occasional." Martin v. Smith, 239 Wis. at 332; Burton, 38 Wis. 2d at 300, 302; Lyndon Station Vil., 98 Wis. 2d at 240, 242. The position of a voting board member clearly has "some permanency or continuity," since the Agreement expressly provides that "the commissioners appointed by the president of the Governing Bodies from the Governing Body membership shall be permanent members on the Commission and shall continue to serve as long as they continue to be members of the Governing Body of the respective Contracting Municipalities." (Emphasis supplied.)

74 Op. Att'y Gen. 208, 215 (1985)
  It is true that the position of the voting board member of the Commission does not meet all of the tests of public office laid down in Martin v. Smith, as, e.g., entry into it by the taking of an oath. Such position, however, does meet the quintessential test of "independent exercise of sovereign power," and Wisconsin case law clearly holds that a position may be a public office without meeting "all criteria listed in Martin." See Lyndon Station Vil., 98 Wis. 2d at 244.

74 Op. Att'y Gen. 208, 215 (1985)
(2)

74 Op. Att'y Gen. 208, 215 (1985)
  The voting board member of the Commission being, in my opinion, a public officer, there is therefore no need to consider whether he/she is an employe of the Commission, except to state that his/her status as a public officer makes it clear that he/she is not a public employe. It is also unnecessary for me to consider whether the voting board member is an agent of any department of the State of Wisconsin.

74 Op. Att'y Gen. 208, 215 (1985)
B.

74 Op. Att'y Gen. 208, 215 (1985)
(1)

74 Op. Att'y Gen. 208, 215-216 (1985)
  Are the voting members of the Commission who are not members of the Governing Bodies of the Contracting Municipalities, but who are citizen/residents of such municipalities (one for each of them, appointed by the governing body thereof) public officers, and therefore covered by section 895.46? In my opinion, Yes, for the same reasons that a voting board member of the Commission is a public officer.

74 Op. Att'y Gen. 208, 216 (1985)
  While the position of a voting citizen member of the Commission possesses, as does the position of a voting board member thereof, the "some permanency and continuity" characteristic of public office, the former position might be said to enjoy less by way of "permanency and continuity" than the latter, but clearly not so much less as to make the former position one "only temporal or occasional." As noted, the voting board member is a "permanent member of the Commission," who continues to serve as such so long as he/she is a member of the governing body of one of the Contracting Municipalities. The voting citizen members, however, have their terms fixed by the Agreement in the following language:

74 Op. Att'y Gen. 208, 216 (1985)
  "The appointed citizen-resident from Fontana shall serve for a term of one year from and after the date of the Agreement; the appointed citizen-resident from Walworth shall serve for two years from and after the date of this Agreement. Terms of the appointed citizen-resident members of the Contracting Municipalities shall be staggered so that upon the expiration of the one year term of the commissioner from Fontana, the next appointed member from Fontana shall serve for two (2) years. The terms of succeeding commissioners from Fontana and Walworth shall be for two (2) years" (p. 18, Agreement).

74 Op. Att'y Gen. 208, 216 (1985)
(2)

74 Op. Att'y Gen. 208, 216 (1985)
  Again, with respect to the voting citizen member of the Commission, my opinion that he/she is a public officer makes it unnecessary for me to address the questions of whether he/she is a public employe or an agent of any department of the state.

74 Op. Att'y Gen. 208, 216 (1985)
C.

74 Op. Att'y Gen. 208, 216 (1985)
(1)

74 Op. Att'y Gen. 208, 216 (1985)
  Is the non-voting member of the Commission, appointed by a private party which has entered into a contract with the Commission and with the Contracting Municipalities, a public officer, so as to be covered by section 895.46? In my opinion, No.

74 Op. Att'y Gen. 208, 217 (1985)
  As the Agreement shows, such non-voting member of the Commission is a "permanent member thereof" who represents Kikkoman Foods, Inc. His/her limited function on the Commission, in a non-voting, advisory capacity, is plainly evidenced by (a) the statement in the Agreement that, "In recognition of Kikkoman Foods, Inc.'s contribution toward the cost of the construction of the joint sewage treatment facility, Kikkoman Foods, Inc. shall be entitled to a permanent representative on the Commission in a non-voting capacity to provide input relating to their [sic] [Kikkoman's] particular needs" (emphasis supplied); and (b) by the provision in Section 3 of the Commission's Rules of Procedure that, "the non-voting member from Kikkoman Foods, Inc., shall not be eligible to hold any office on the Commission."

74 Op. Att'y Gen. 208, 217 (1985)
  In view of such provision, I believe it plain that since the non-voting member cannot serve as an officer of the Commission, he will have no opportunity as such officer to exercise any portion of the sovereign power of government. Further, the non-voting citizen member of the Commission is denied any exercise of such power by the fact that he/she is powerless to vote for or against action of the Commission, constituting an exercise of the sovereign power of government. It follows, then, that the non-voting citizen member of the Commission, denied in such capacity the exercise of any portion of such sovereign power by reason of his/her inabilities to vote and to hold Commission office, is plainly not a public officer because the position he/she holds on the Commission lacks the quintessential attribute of public office, namely possession of a portion of the sovereign power of government.

74 Op. Att'y Gen. 208, 217 (1985)
  It is true, of course, that the advisory role of the non-voting citizen member may conceivably have some impact on the voting of the voting members of the Commission. But it is the possession of a portion of the sovereign power of government, and not merely the possession of an ability to have some advisory influence on its exercise, which is the indispensable attribute of public office.

74 Op. Att'y Gen. 208, 217 (1985)
  It is also true that the non-voting citizen-member's position on the Commission does have the "permanency" attribute of a public office; but it is clear that such attribute, standing alone, does not make a public office.

74 Op. Att'y Gen. 208, 218 (1985)
(2)

74 Op. Att'y Gen. 208, 218 (1985)
  Is the non-voting member of the Commission, though not an officer thereof, its employe? In my opinion, no.

74 Op. Att'y Gen. 208, 218 (1985)
  Such member of the Commission is not an employe thereof, if only for the reason that the Agreement, providing that he/she serves on the Commission "in a non-voting capacity to provide input relating to their [sic] [Kikkamon's] particular needs" (emphasis supplied), and referring to "The non-voting commissioner representing Kikkamon Foods, Inc.," (emphasis supplied), makes it amply clear that such commissioner is in no sense the servant or employe of the Commission, but rather the servant and employe of Kikkamon, who functions solely as a conduit through which there passes to the Commission "input" relating to the "particular needs" of Kikkamon. This is further shown by the provision of the Agreement that "Kikkamon Foods, Inc., shall have the right to designate the individual to serve as said [non-voting] commissioner and may substitute individuals in their [sic] discretion as business needs arise," and by the fact that there is no provision, either in the Agreement or in the Commission's Rules of Procedure, for payment by the Commission to the non-voting member of any wage, salary or other form of remuneration for his/her services on the Commission.

74 Op. Att'y Gen. 208, 218 (1985)
  Still another factor showing that the non-voting member of the Commission is not an employe thereof is that he clearly does not serve as a subordinate, which service is characteristic of the public employe. See Martin v. Smith, 39 Wis. at 332-33. Instead, the Commission manifestly has no direction or control over the non-voting member's "input," no matter how unpalatable it might on occasion prove to be to the Commission.

74 Op. Att'y Gen. 208, 218 (1985)
(3)

74 Op. Att'y Gen. 208, 218 (1985)
  Is the non-voting member of the Commission an agent of any department of the State of Wisconsin, and therefore covered by section 895.46? In my opinion, he/she clearly is not such agent.

74 Op. Att'y Gen. 208, 218-219 (1985)
  The Legislature, employing the term "agents of any department of the state" in subsection (1) of section 895.46 did not use such term in so broad or loose a sense as to encompass a body such as the Commission, which is plainly not a department or agency of the State of Wisconsin, but is instead an instrumentality or agency of the contracting political subdivisions of the state here involved.

74 Op. Att'y Gen. 208, 219 (1985)
BCL:JHM

74 Op. Att'y Gen. 208, 208 (1985) - Footnote

Destination-77   1   This is plain from the opening paragraph of the Agreement, which reads: "THIS AGREEMENT made and entered into as of this 3rd day of December, 1984, between the Village of Fontana-on-Geneva Lake, Wisconsin ("Fontana"), and the Village of Walworth, Wisconsin ("Walworth"), municipal corporations and political subdivisions of the State of Wisconsin, all pursuant to section 66.30 of the Wisconsin Statutes, 1983, as amended, to establish a single contractual relationship for the joint participation in the collection, treatment, and disposal of sewage and creation of Fontana/Walworth Water Pollution Control Commission ("Commission")."

74 Op. Att'y Gen. 208, 208 (1985) - Footnote

Destination-78   2   Were it my conclusion that the Commission is not a governmental instrumentality or body, it would then logically follow that neither an officer nor employe of the Commission would have the "public" status entitling him/her to the indemnification protection of section 895.46. See 71 Op. Att'y Gen. 127 (1982).
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