DNE
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
J.B. VAN HOLLEN
ATTORNEY GENERAL
Kevin M. St. John
Deputy Attorney General
Steven P. Means
Executive Assistant
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
November 2, 2011 OAG—2—11
ReStartCorporation Counsel
Brown County
Post Office Box 23600
Green Bay, WI 54305-3600 BodyStart¶ 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.
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(1)(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[.]” ¶ 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 . . . .
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