¶ 29. Thus, the Authority is expressly and broadly empowered to determine the terms of its relationship with its employees and to enter into agreements defining rights or duties it agrees to.2 One means of carrying out these broad statutory powers would be to reach terms of employees’ employment through collective bargaining. Of course, that still must happen within the constraints of statutes that do exist. For
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2 As the Wisconsin Supreme Court has reiterated, even state agencies are empowered to act on these kinds of “explicit but broad” grants of statutory authority. Clean Wis., Inc. v. Wis. Dep’t of Nat. Res., 2021 WI 71, ¶ 25, 398 Wis. 2d 386, 961 N.W.2d 346. That is even more true for a “political corporation” or an “independent going concern,” which are vested with broad independent powers beyond what is vested in an arm of the state, as discussed in the text. example, “[a]ppointments to and promotions in the authority shall be made according to merit and fitness.” Wis. Stat. § 233.10(1). Voluntary bargaining would need to occur within the bounds of that provision and the surrounding statutory framework. ¶ 30. In addition to the statutory text, other authorities support this result, including a previous opinion from this office. In 59 Op. Att’y Gen. 200 (1970), the Attorney General addressed the University of Wisconsin’s voluntary recognition of a teaching assistants’ association. Id. at 201. UW-Madison had “voluntarily recognized” the association and “agreed to negotiate and contract . . . as though [chapter 111] were applicable.” Id. The opinion concluded that the contract was “legal and binding” under Wisconsin law, citing the broad statutory powers of the Board of Regents, who “clearly have the authority to enter into individual contracts” and, in turn, could enter into an agreement “which establishes the framework and standards of the individual employment contracts” as “an integral part of . . . contracting for personnel.” Id. at 202–04. Restated, “collective bargaining is an adjunct to individual employment contracts” and thus was within the Board of Regents’ existing statutory power to contract with employees. Id. at 205–06.
¶ 31. Various courts have agreed with those principles. Indiana’s court of appeals addressed a scenario where a school district adopted a voluntary policy for collective bargaining with employees despite neither state nor federal law requiring it. Mich. City Area Sch. v. Siddall, 427 N.E.2d 464 (Ind. Ct. App. 1981). The court agreed that the district was authorized to do so voluntarily under its statutory authority to fix terms of its employees’ employment. Id. at 466. The court explained that while the district had “no legal obligation to engage in collective bargaining with the . . . employees,” it “may do so voluntarily, and accordingly could properly declare qualifications or restrictions establishing a basis upon which it would agree to bargain collectively.” Id. at 468. As another example, the Eighth Circuit held that a city could contract for additional benefits for employees regardless of the narrower coverage of a particular statutory bargaining law. Am. Fed’n of State, Cnty. & Mun. Emps. v. City of Benton, 513 F.3d 874, 881 (8th Cir. 2008). The court recognized that such a contract does not “contract away its right to manage the fiscal matters of the City” but rather is an “exercise[ ]” of its “functions.” Id. Similarly, Utah’s court of appeals held that a school board could choose to collectively bargain under its statutory authority to enter into employment contracts. Park City Educ. Ass’n v. Bd. of Educ. of Park City Sch. Dist., 879 P.2d 267 (Utah Ct. App. 1994). There, too, the bargaining did not delegate its statutory powers but rather was an exercise of them. Id. at 269–71 (collecting cases stating the weight of authority); see also Del. River Port Auth. v. Fraternal Ord. of Police, 290 F.3d 567, 574 n.11 (3d Cir. 2002) (noting that where an entity was under no “legal duty” to bargain, it was “free to voluntarily
recognize and bargain collectively with” employees (citation omitted)).3
¶ 32. As observed in these many court decisions,4 collective bargaining is simply a method of carrying out existing statutory authority to enter into employment agreements.
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3 For these reasons and additional ones, the present scenario does not involve improperly contracting away public powers, as the Authority posits in its comment letter. Rather, the cases the Authority cites are distinct, addressing municipalities’ contracting away the state’s sovereign powers. See Adamczyk v. Town of Caledonia, 52 Wis. 2d 270, 275, 190 N.W.2d 137 (1971) (discussing the distinct scenario where a town purported to contract away the “the state’s sovereign[ ]” power to remove certain officers without cause); State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 80, 205 N.W.2d 784 (1973) (stating that a municipality may contract away its business or propriety powers but may not contract away its governmental powers). As the authorities in the text make clear, the bargaining discussed here is a method of exercising a statutory power—determining and entering into an employment agreement—and does not involve contracting away any powers, much less the state’s sovereign ones. 4 To the extent that the Authority’s contentions about the practicality of voluntarily engaging in collective bargaining bear on the question of whether the Authority is permitted to collectively bargain, these and other sources demonstrate that employers have indeed successfully implemented voluntary collective bargaining agreements. See supra ¶ 31; see also City of Phoenix v. Phx. Emp. Rels. Bd. ex rel. Am. Fed’n of State, Cnty. & Mun. Emps. Ass’n, Loc. 2384, 699 P.2d 1323, 1327 (Ariz. Ct. App. 1985) (discussing the establishment of an ordinance modeled after the National Labor Relations Act); Ann C. Hodges, Lessons from the Laboratory: The Polar Opposites on the Public Sector Labor Law Spectrum, 18 Cornell
J.L. & Pub. Pol’y 735, 752 (2009) (discussing memoranda of agreement with employers); Martin H. Malin, Life After Act 10?: Is There a Future for Collective Representation of Wisconsin Public Employees?, 96 Marq. L. Rev. 623, 641–55 (2012) (discussing various agreements and models).
Conclusion
¶ 33. In summary, although this opinion does not reach a conclusion on the issue, it appears that the Peace Act includes the Authority in its coverage based on the statute’s plain text. Assuming that the Authority is not covered by the Peace Act, I conclude that it is within the Authority’s statutory power to voluntarily engage in collective bargaining.5
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Sincerely, JLK:ADR:jrs
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5 Your request does not seek an opinion on, and this opinion does not address, what relevance, if any, federal law may have to the issues discussed here. As this office’s guidance has long stated, Attorney General opinion requests generally are not appropriate on questions of federal law. See 77 Op. Att’y Gen. Preface (1988).
