Aug. 13, 2018 – A state appeals court has ruled that the Board of Supervisors (Board) for Milwaukee County can compel the county executive to appear at Board meetings to provide information and answer questions, in addition to other rulings.

In Lipscomb v. Abele, 2017 AP1023 (Aug. 2, 2018), a three-judge panel for the District I Court of Appeals also resolved a dispute regarding compensation-fixing power, concluding the county board can fix compensation for “unclassified” county employees.

However, the panel also ruled that the County Executive’s “day-to-day control” power “prevents the Board from taking actions that effectively direct what duties may or must be accomplished by employees or officers or how they may or must perform those duties, even when a Board action may result in a compensation change.”

Compelled Attendance

In 2016, the Milwaukee County Board of Supervisors filed a lawsuit and Milwaukee County Executive Chris Abele filed counterclaims. Both sides sought a declaration regarding the relative powers of the county executive versus the Board.

One of the disputes involved whether the Board can compel the county executive to appear at Board meetings to answer questions and provide information.

The Milwaukee County Circuit Court ruled that the Board lacked authority to compel the county executive’s appearance. But the appeals court panel reversed on that point.

Under Wis. Stat. section 59.794(3)(b), the panel noted, “a board may require, as necessary, the attendance of any county employee or officer at a board meeting to provide information and answer questions.”

The statute does not define who is “any county employee or officer.” County Executive Abele, through counsel, argued that a “chief executive officer” is just a label and does not make the county executive an “officer” under this provision. But the panel rejected that argument, concluding a county executive is included as an “officer.”

“It would be surprising for the legislature to make the Executive the exclusive face of the county’s executive branch to the Board and at the same time exclude the Executive alone from required appearances at Board meetings,” wrote Judge Brian Blanchard.

The panel rejected County Executive Abele’s assertion that a county executive is excluded because county executives may lack immediate answers to questions that should be directed to department heads or other employees with specific information.

“[I]t is self-evident that, however often the Executive might lack specific information sought by Board supervisors, there will be times when the Board reasonably considers the chief executive of county government to be uniquely accountable for providing information or answering questions,” Judge Blanchard explained.

The panel also rejected County Executive Abele’s argument that the term “necessary” in the statute – “a board may require, as necessary …” – means attendance must be “necessary” and “directly related to a duty and power of the board.” The Board had argued that it has discretion to decide what issues necessarily require attendance.

“[W]e conclude that the circuit court properly exercised its discretion in declining to declare that a Board requirement that an employee or officer appear must be necessary and directly related to a duty and power of the Board,” Blanchard wrote.

The Board also argued that Board committees can compel employees or officers to attend committee meetings, but the panel sided with the county executive on that point because the attendance statute only refers to “a board” and not a board’s committee.

“[W]e conclude that the circuit court erred in interpreting the meeting attendance provision to grant powers to subgroups of the Board to require attendance at meetings of subgroups of the Board,” Judge Blanchard wrote.

Finally, the panel also concluded that the Milwaukee County Board cannot compel attendance by county employees or officers at Board committee meetings.

Compensation Provisions

Under section 59.22(2)(c)1.a., a county board may “[p]rovide, fix or change the salary or compensation of any office, board, commission, committee, position, employee or deputies to elective officers …  without regard to the tenure of the incumbent.”

The Board argued that this provision gives the Board broad power to set salary compensation levels for unclassified employees and officers. But County Executive Abele argued that another provision expressly modifies the compensation provision.

That is, a so-called “day-to-day control” provision, at section 59.22(2)(a), makes the powers of county boards “subject to” the day-to-day control of the county executive, including decisions that may impact the compensation of unclassified employees. On this point, the appeals court panel agreed that the Board’s power is limited.

“Therefore, no action of the Board, even one that involves providing, fixing, or changing salary or compensation, may interfere with the day-to-day control of county departments by the Executive,” Judge Blanchard wrote.

“Rephrased, the Board can provide, fix or change the pay of unclassified employees, unless and until Board action interferes with the Executive’s day-to-day control of a county department or subunit.”

The panel also ruled on a number of other compensation-related issues, affirming the Board’s power to enact an ordinance giving the Board power to veto decisions by the county’s chief human resources officer regarding compensation reallocation decisions for existing positions, which are salary fluctuations based on market conditions.

However, the panel concluded that the Board lacked authority to enact an ordinance that gives the Board the power to veto the chief human resources officer’s employee reclassification decisions, which reassign positions across salary range classifications.

The panel also said the Board lacks authority to enact an ordinance that would allow the Board to block raises based on merit or concern about employee retention.

Finally, the panel affirmed the circuit court’s ruling that “the Executive failed to support its request for a declaration that the Board lacks authority to enact an ordinance that requires the county comptroller to take actions that include verifying county payrolls.”