OAG2-11

(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(1)(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.”[3]. 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.

¶ 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

1

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).

2

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.

3

Slightly different statutory provisions apply to Milwaukee County. See Wis. Stat. § 83.01(1)(b).