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ATTORNEY GENERAL VAN HOLLEN ISSUES TWO FORMAL OPINIONS BEARING ON POWERS OF A COUNTY BOARD

 

First Opinion States That County Board Chairperson May Be Removed From Position By Majority Vote Of County Board; County Board May Not Appoint Two Persons From Same Town To County Board of Adjustment

 

MADISON - Attorney General J. B. Van Hollen released two formal opinions today that interpret Wisconsin law as it relates to the powers of county boards.

 

Van Hollen's first opinion was issued in response to a request from Walworth County Corporation Counsel David A. Bretl, who asked whether the chairperson of a county board may be removed from that position only for cause by a two-thirds vote of the board or whether the chairperson may be removed from the position at the will of the county board by simple majority vote. Van Hollen's opinion concludes that a chairperson of a county board may be removed from that position at any time by a simple majority vote of the county board, providing guidance on a question that has been raised in several counties recently.

 

In reaching his conclusion, Van Hollen determined that the removal of the chairperson was not governed by the statute that relates to the removal of county officers appointed by the county board. The opinion reasons that the chairperson of a county board is not a county officer by virtue of that position and that the chairperson is not appointed but is elected by the board. Therefore, the removal of the chairperson of a county board is governed by a statute which provides that the chairperson serves in that position "until the board elects a successor."

 

Van Hollen noted that this is the same rule that applies in the State Legislature, where officers elected by either House may be removed by the House that elected them "at pleasure." Van Hollen also noted in his opinion that though some may believe it should be more difficult than a majority vote to replace a county board chairperson, "it is the province of the Legislature, not the Attorney General, to determine the rules for removing the chairperson. The Attorney General can only discern what rule the Legislature intended."

 

Van Hollen's second opinion ruled that county home rule authority cannot be used to avoid the provisions of Wis. Stat. В 59.694(2)(c), which specifies that no two members of a county board of adjustment can reside in the same town. Van Hollen was asked by Rusk County Corporation County, Richard J. Summerfield, whether a county board may appoint to the county board of adjustment one regular member and one alternate member who reside in the same town. Van Hollen determined that the appointment of more than one member from the same town to a county board of adjustment through the exercise of county home rule authority, even where one person was only an alternate member, would be legally impermissible because such an appointment would logically conflict with the provisions of the state statute, would defeat the purpose of the state statute, and would also be contrary to the spirit of the state statute.

 

The two formal opinions are the first formal opinions issued by Attorney General Van Hollen, who took office at the beginning of the year. Opinions of the Attorney General (OAG) typically provide guidance when confusion exists about the meaning of a statute and Wisconsin appellate courts have not yet definitively answered the question. Wisconsin courts do not have any obligation to follow an interpretation provided by an OAG, but they often will. As the Wisconsin Court of Appeals has written, "Well-reasoned attorney general's opinions have persuasive value when a court later addresses the meaning of the same statute."

 

Copies of the opinions can be viewed at the DOJ Web site by clicking here.