J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
August 7, 2008 OAG—6—08
ReStartCorporation Counsel
Polk County
1005 West Main Street, Suite 100
Balsam Lake, WI 54810 BodyStart You indicate that Polk County, which does not have a county executive or a county administrator, is considering the establishment of an office of county auditor. You ask two questions with respect to the possible hiring of a county auditor. I have paraphrased the questions and discuss each in turn. QUESTIONS PRESENTED AND BRIEF ANSWERS
1. May the county board in a county that does not have a county executive or a county administrator delegate the authority to appoint and remove the county auditor to an entity other than the county board?
The answer to the question as stated is that the county board chair appoints the county auditor under civil service procedures. The appointment and removal of the county auditor is therefore subject to the county ordinance or resolution establishing such procedures. The county board could, however, establish a department of administration and assign audit functions to that department. The appointment and removal of the person in the department of administration who performs audit functions could be delegated to an appropriate county official such as the county administrative services coordinator or the head of the department of administration, who would then have the authority to remove the person who is assigned those audit functions absent any contractual provision or county personnel ordinance to the contrary.
2. To what extent may the statutory duties of the county clerk under Wis. Stat. ch. 70 and specifically under Wis. Stat. § 70.63 be transferred to the office of county auditor or to a person in the department of administration who performs audit functions? In my opinion, the statutory duties of the county clerk under Wis. Stat. ch. 70 may not be transferred to the county auditor, but the county auditor may be granted supervisory authority over the manner in which such duties are exercised. PRINCIPAL STATUTES INVOLVED
I. APPOINTMENT AND REMOVAL STATUTES.
Wisconsin Stat. § 17.10 provides in part: Removal of appointive county officers. . . .
(2) APPOINTED BY COUNTY BOARD. County officers appointed by the county board may be removed by the county board for cause. All removals may be made by an affirmative vote of two-thirds of the supervisors entitled to seats on the county board.
(3) APPOINTED BY CHAIRPERSON OF COUNTY BOARD. County officers appointed by the chairperson of the county board may be removed by the chairperson for cause . . . .
. . . .
(6) OTHERS. (a) Except as provided under par. (b), all other appointive county officers may be removed at pleasure by the officer or body that appointed them. Removals by a body, other than the county board, consisting of 3 or more members may be made by an affirmative vote of two-thirds of all the members thereof.
. . . .
(7) GENERAL EXCEPTION. County officers appointed according to merit and fitness under and subject to a civil service law, or whose removal is governed by such a law, shall be removed only as therein provided.
Wisconsin Stat. § 59.47 provides: (1) In every county the clerk shall act as auditor, unless a separate office of county auditor is created as provided in sub. (2), and, when directed by resolution of the board, shall examine the books and accounts of any county officer, board, commission, committee, trustees or other officer or employee entrusted with the receipt, custody or expenditure of money, or by or on whose certificate any funds appropriated by the board are authorized to be expended, whether compensated for services by fees or by salary, and all original bills and vouchers on which moneys have been paid out and all receipts of moneys received by them. The clerk shall have free access to such books, accounts, bills, vouchers and receipts as often as may be necessary to perform the duties required under this subsection and he or she shall report in writing the results of the examinations to the board.
(2) The board by resolution may create a separate office of county auditor and may fix the compensation of the auditor. The auditor shall perform the duties and have all of the powers conferred upon the clerk as auditor by sub. (1), and shall perform such additional duties and shall have such additional powers as are imposed and conferred upon him or her from time to time by resolution adopted by the board.
(3) If a county auditor’s office is created under sub. (2), the chairperson of the board shall appoint a person known to be skilled in matters of public finance and accounting to act as county auditor. The appointment shall be made under ss. 63.01 to 63.17 and shall be subject to confirmation by the board. The auditor shall direct the keeping of all of the accounts of the county, in all of its offices, departments and institutions, and shall keep books of account necessary to properly perform the duties of the office. The auditor’s salary and the amount of the official bond shall be fixed by the board. The auditor shall perform all duties pertaining to the office, have all of the powers and perform the duties in sub. (1) and perform other duties imposed by the board.
II. STATUTES INVOLVING TRANSFER OF FUNCTIONS.
Wisconsin Stat. § 59.03 provides in part as follows: (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.
Wisconsin Stat. § 59.04 provides as follows: Construction of powers. To give counties the largest measure of selfgovernment under the administrative home rule authority granted to counties in s. 59.03(1), this chapter shall be liberally construed in favor of the rights, powers and privileges of counties to exercise any organizational or administrative power.
Wisconsin Stat. § 59.51(1) provides as follows: Board powers. (1) ORGANIZATIONAL OR ADMINISTRATIVE 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. Any organizational or administrative power conferred under this subchapter shall be in addition to all other grants. A county board may exercise any organizational or administrative power under this subchapter without limitation because of enumeration, and these powers shall be broadly and liberally construed and limited only by express language.
