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Lipscomb v. Abele

Court of Appeals of Wisconsin, District I

August 2, 2018

Theodore Lipscomb, Sr. and Milwaukee County Board of Supervisors, Plaintiffs-Respondents-Cross-Appellants,
v.
Christopher Abele, Defendant-Appellant-Cross-Respondent.

          APPEAL and CROSS-APPEAL from an order of the circuit court for Milwaukee County: No. 2016CV2888 JOHN J. DiMOTTO, Judge. Affirmed in part; reversed in part; and cause remanded with directions.

          Before Blanchard, Kloppenburg, and Fitzpatrick, JJ.

          BLANCHARD, J.

         ¶1 The Milwaukee County Board of Supervisors and the Milwaukee County Executive dispute their relative powers, as defined by closely related state statutes.[1] Based on statutory interpretations, the circuit court granted and denied requests for declaratory relief by both sides. The Executive appeals and the Board cross appeals.

         ¶2 The disputes fall into two categories: (1) compensation-related issues, namely, whether the Executive or instead the Board has authority to take certain actions relating to the compensation of "unclassified" county employees; and (2) meeting-attendance issues, namely, whether the Board or Board committees may require county employees and officers, including the Executive himself or herself, to appear at Board meetings or Board committee meetings, to provide information and answer questions.

         ¶3 To resolve the compensation-related issues, we primarily interpret two statutes. This involves harmonizing the two statutes. One statute empowers the Board, by giving it authority to "[p]rovide, fix, or change the salary or compensation" of unclassified county employees. Wis.Stat. § 59.22(2)(c)1.a. (2015-16).[2] The other statute empowers the Executive, by giving him or her exclusive authority to "exercise day-to-day control" of county departments and their subunits. Wis.Stat. § 59.794(3)(a).

         ¶4 On the compensation-related issues, we reach conclusions that include the following. In favor of the Board, we conclude that the Executive's "day-to-day control" power does not eliminate the Board's compensation-fixing power, and that the Board's compensation-fixing power applies to the salary or compensation of all unclassified county employees and officers. In favor of the Executive, we conclude that the 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.

         ¶5 On the meeting-attendance issues, we primarily interpret Wis.Stat. § 59.794(3)(b), which permits "[a] board" to "require, as necessary, the attendance of any county employee or officer at a board meeting to provide information and answer questions." We reach conclusions that include the following. In favor of the Board, we conclude that the Executive is included in the definition of "any … officer" whose appearance the Board may require. In favor of the Executive, we conclude that the "board" that may require an appearance means the Board as a whole, not any committee or other subset of Board supervisors.

         BACKGROUND

         ¶6 The Board commenced this action. The Executive brought counterclaims. Both sides seek declarations to establish the scope of their respective statutory powers on specific topics relating to compensation or meeting attendance.

         ¶7 As we have indicated, two statutes are central to the disputes:

• Pertinent only to compensation-related issues is what we call "the compensation provision," Wis. Stat. § 59.22(2).[3] Most notably, the compensation provision allows county boards to "[p]rovide, fix or change the salary or compensation of any office, board, commission, committee."
• Both sets of issues involve Wis.Stat. § 59.794(3), enacted in 2013 Act 14, which has two pertinent paragraphs.[4] Paragraph (a), which we will call the "day-to-day control provision," grants the Executive exclusive power to "exercise day-to-day control of any county department or subunit of a department." Wis.Stat. § 59.794(3)(a). Paragraph (b), which we will call the "meeting attendance provision," gives the Board power to "require, as necessary, the attendance of any county employee or officer at a board meeting to provide information and answer questions." Wis.Stat. § 59.794(3)(b).

         ¶8 We now summarize the circuit court's five compensation-related rulings and four meeting-attendance rulings, and briefly state whether we affirm or reverse the particular ruling. We explain our conclusions in the Discussion section below. Each of our decisions is based on statutory interpretation, except our decision in the last of these summaries. There, we review the circuit court's exercise of its discretion in denying a declaration request.

         Compensation-Related Rulings

         ¶9 Providing, fixing, or changing salaries of unclassified county employees. We affirm the circuit court's ruling that the Board has authority to adopt pay provisions that adjust pay ranges for all unclassified county employees and officers.

         ¶10 Reallocation. A reallocation decision adjusts compensation for an existing position, based on a determination that market conditions call for everyone holding that position to be paid more or less. We affirm the court's ruling that the Board has authority to enact an ordinance that gives the Board the power to veto reallocation decisions made by the county's chief human resources officer, who reports to the Executive.

         ¶11 Reclassification. A reclassification decision reassigns a position from one classification to another, which may cause the employee to be assigned to a higher or lower pay range. We affirm the court's ruling that the Board lacks authority to enact an ordinance that gives the Board the power to veto reclassification decisions made by the chief human resources officer.

         ¶12 Advancement within pay ranges. We affirm the court's ruling that the Board lacks authority to enact an ordinance that gives the Board the opportunity to block advancement-within-pay-range decisions made by the chief human resources officer based on exemplary employee performance or concern about employee retention.

         ¶13 Comptroller verification of payroll. We affirm the 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.

         Meeting-Attendance Rulings

         ¶14 Requiring the Executive to appear. The court determined that the Board lacks authority to require the Executive to appear at Board meetings to provide information and answer questions. We reverse two rulings: denying the Board's request for a declaration that it has authority to require the Executive to appear, and granting the Executive's request for a declaration that the Board lacks this authority.

         ¶15 Attendance required by a Board committee. We reverse the court's ruling that a committee of the Board has authority to require county employees and officers to appear at meetings; we conclude that only the Board has this authority.

         ¶16 Attendance required at a Board committee meeting. We reverse the court's ruling that the Board has authority to require a county employee or officer to appear at a meeting of a Board committee, as opposed to at a meeting of the Board itself.

         ¶17 Board justification for meeting attendance. The court ruled that the Executive failed to sufficiently support his request for a declaration that each Board request for the appearance of an employee or officer at a meeting must be necessary and directly related to a duty and power of the board. We affirm the court's ruling as a proper exercise of the court's discretion.

         DISCUSSION

         ¶18 In this appeal we interpret statutes.[5] This presents issues of law that we review de novo. See State v. Ozuna, 2017 WI 64, ¶9, 376 Wis.2d 1, 898 N.W.2d 20. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis.2d 633, 681 N.W.2d 110. If the meaning is plain from the language of the statute, that ends our inquiry. Id., ¶45. Statutory language is not interpreted in isolation but rather in context, that is, in relation to the language of surrounding or closely related statutes. Id., ¶46.

         ¶19 We resolve one issue, the declaration request involving the Board's justification for required meeting attendance, on the ground that the Board effectively asks us to affirm a discretionary decision of the circuit court to deny declaratory relief. We will affirm such discretionary decisions "if the circuit court 'examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.'" Olson v. Town of Cottage Grove, 2008 WI 51, ¶35, 309 Wis.2d 365, 749 N.W.2d 211 (quoting Putnam v. Time Warner Cable of S.E. Wis., Ltd. P'ship, 2002 WI 108, ¶40, 255 Wis.2d 447, 649 N.W.2d 626.

         ¶20 Before proceeding with our analysis, we clarify that both sides address a single type of question: should the circuit court have ordered a requested declaration, based on pertinent statutory language? The Executive submitted brief affidavits to the circuit court that, according to the Executive, allege Board actions that are prohibited under the day-to-day control provision. The Board did not submit affidavits. We conclude that the Executive's affidavits are not pertinent to any issue we are asked to resolve in this appeal. Even if we were to assume as true all averments in the affidavits, none changes the statutory analysis regarding the requested declarations.[6]

         I. COMPENSATION-RELATED ISSUES

         ¶21 We begin our discussion of compensation-related issues with a categorical distinction. The parties agreed at oral argument that we are concerned only with actions of the Board or the Executive related to compensation of unclassified county employees, and not compensation of classified county employees. The "classification" statute, Wis.Stat. § 63.03, divides county employees in Wisconsin into two categories of service: classified and unclassified. See § 63.03(1). County boards are tasked with approving an annual "standardized scale of wages and salaries for all county offices and positions in the classified service." See § 63.11 (emphasis added). Given the fact that salary schedules for classified employees are established under a civil service system, the parties ask us to assume that the Board has exclusive authority on all compensation issues related to all classified employees.

         ¶22 In the discussion that follows, we resolve compensation-related issues regarding unclassified employees in three steps. First, we interpret pertinent aspects of the compensation provision, Wis.Stat. § 59.22(2), and address arguments of the parties regarding its meaning. Second, we similarly construe pertinent aspects of the day-to-day control provision, Wis.Stat. § 59.794(3)(a), including two other statutes referenced in the day-to-day control provision. Third, we apply our interpretations to the specific compensation-related issues raised in the appeal or cross appeal.

         A. The Compensation Provision

         ¶23 The compensation provision provides that county boards in Wisconsin, including the 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." Wis.Stat. § 59.22(2)(c)1.a. The verbs "provide, fix[, ] or change" appear to establish a broad power to determine compensation levels for all unclassified county positions. Further, the Executive does not argue that these verbs should not be given their "common, ordinary, and accepted meaning[s]." Kalal, 271 Wis.2d 633, ¶45. For example, the Executive does not argue that "provide, fix, or change" have limited "technical or special definitional meaning[s]" in this context. See id.

         ¶24 The Board calls to our attention the following two features of the compensation provision, and argues that they give the compensation provision additional reach in the context of the issues we address: "the powers conferred by this section shall be in addition to all other grants of power and shall be limited only by express language, " Wis.Stat. § 59.22(2)(a) (emphasis added); and "[i]n the event of conflict between this section and any other statute, this section to the extent of the conflict shall prevail." § 59.22(4) (emphasis added).

         ¶25 However, as the Executive properly emphasizes, the day-to-day control provision expressly modifies the compensation provision, because the compensation provision makes the "powers" of county boards "subject to s. 59.794(3)." See Wis. Stat. § 59.22(2)(a) (emphasis added).

         ¶26 The phrase "subject to" is not defined in these statutes. However, we believe that the following synonyms, which are among those listed for "subject to" by the Oxford University Press, are properly descriptive of the common meaning of "subject to" in this context: "conditional on," "hingeing on," "susceptible to," and "bound by." https://en.oxforddictionaries.com/thesaurus/ subject to (last visited July 24, 2018); see also "… having a contingent relation to something and usu[ally] dependent on such relation for final ... significance … <a treaty [subject] to ratification>…." Subject, Webster's Third New International Dictionary (1993). In addition, we note that, in establishing the day-to-day control provision, the legislature selected a word, "control," that connotes absolute authority within its sphere of operation.

         ¶27 For these reasons, we conclude that the power to exercise day-to-day control granted to the Executive controls when there is any conflict with the Board's authority to provide, fix, or change salary or compensation. We interpret the day-to-day control provision in the following section, but it is sufficient for now to recall that this statute expressly grants to the Executive, and denies to the Board, the power to "exercise day-to-day control of any county department or subunit of a department."

         ¶28 Summarizing to this point, the specific power of the Board to provide, fix, or change salary or compensation survives enactment of the day-today control provision, but is controlled by the power of the Executive to "exercise day-to-day control of any county department or subunit of a department." Therefore, no action of the Board, even one that involves providing, fixing, or changing salary or compensation, may interfere with day-to-day control of county departments by the Executive. 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.

         ¶29 What we have stated to this point is sufficient to explain why we reject various interpretations of the compensation provision offered by the parties.

         ¶30 We have just explained why we reject the following argument by the Board: the Board's power to provide, fix, or change salaries or compensation of unclassified employees and officers is not affected by the day-to-day control provision. The "subject to" language in the compensation provision defeats this argument because all applications of the compensation provision are controlled by the terms of the day-to-day control provision.

         ¶31 Similarly, we have explained why we reject the Executive's argument that his day-to-day control power is so strong that it has the effect of "expressly remov[ing] the Milwaukee County Board's authority to provide, fix, or change the salary of employees," eliminating that Board power altogether. The legislature decided to leave in place the Board's explicit authority to provide, fix, or change salaries, but made it "subject to" the day-to-day control power of the Executive.

         ¶32 Our interpretation is supported by paragraph (e), Wis.Stat. § 59.794(3).[7] Paragraph (e) is strikingly narrow. It addresses one specific category of employees (those who work in the office of the Executive) during one specific time period (before supervisors elected in the spring of 2016 take office). Paragraph (e) appears to confirm that the legislature did not intend to use the day-to-day control provision to eliminate the authority of the Board to provide, fix, or change salary or compensation, as the Executive argues, because this sole explicit compensation-related limitation is restricted to a specific group of employees for a restricted time period.

         ¶33 We turn to the Board's more specific argument that its power to provide, fix, or change salaries or compensation is unlimited based the provisions in Wis.Stat. § 59.22(2) and (4), establishing that the powers conferred by the compensation provision "shall be limited only by express language," and that "this section" "shall prevail" in the event of conflict with another statute. We conclude that these provisions have no application in this particular context. Regarding the phrase, "shall be limited only by express language," the phrase "subject to" is itself express language limiting the Board's power. Regarding the "shall prevail" provision, the phrase "subject to" is included in the compensation provision and therefore the day-to-day control provision cannot be a conflicting statute.

         ¶34 We now address the Board's argument that the "subject to" language exclusively addresses Wis.Stat. § 59.794(3)(e). As we have indicated, this paragraph expressly limits the Board's authority over changes to salaries of a small group of employees for a limited time period. We reject the Board's argument for the simple reason that the language does not read, "… subject to s. 59.794(3)(e), …," but instead reads, "…subject to s. 59.794(3), …." If "subject to" had the limited meaning that the Board contends-to exclude paragraphs (a)-(d)-that limitation would have been reflected in the statutory language.

         ¶35 We conclude our discussion of the compensation provision by explaining our rejection of an additional argument that the Executive makes, which is based on language in the compensation statute that we have not yet specifically addressed. Under this argument, Board authority under the compensation provision would apply to only a thin slice of county employees or officers.[8]

         ¶36 The Executive's argument is based on the phrase in the compensation provision that we now emphasize:

[T]he board has the powers set forth in this subsection, … as to any office, department, board, commission, committee, position or employee in county service created under any statute, the salary or compensation for which is paid in whole or in part by the county, and the jurisdiction and duties of which lie within the county or any portion thereof ….

Wis. Stat. § 59.22(2)(a) (emphasis added). The argument proceeds as follows: (1) the phrase "created under any statute" modifies the phrase "employee in county service"; (2) Chapter 59 contains statutes that "create" a limited number of county offices (e.g., surveyor, § 59.20(2)(c), register of deeds, § 59.43), but no other offices; and (3) therefore, the compensation provision applies strictly to the employees whose offices are created in these statutes. We end our analysis with the first step of the argument. It confuses the term "employee" with such terms as "office" or "department." A "statute" cannot "create" an "employee in county service." But statutes can (as the statutes here do) create offices, departments, etc. The only reasonable interpretation is that the phrase "created under any statute" modifies the string of nouns that comes before the word "employee," namely, "office, department, board, commission, committee, position …." What must be "created under any statute" are the various kinds of offices and positions, not "employees." For this reason, we reject the Executive's late argument that the Board's power to provide, fix, or change salary or compensation is limited to employees or officers whose offices, departments, etc. are created by statute and does not extend to all unclassified employees.

         B. The Day-To-Day Control Provision

         ¶37 We have explained how the compensation provision empowers the Board. In contrast, the day-to-day control provision has the express intent of "removing and clarifying some authority of the Milwaukee County board" and "increasing and clarifying the authority of the Milwaukee County executive." Preamble, 2013 Act 14. Before moving to the specifics of the day-to-day control provision, we introduce two separate statutes that are referenced in the day-to-day control provision and are significant for reasons we will explain. One statute generally addresses authority of county boards in Wisconsin and the other generally addresses authority of county executives in Wisconsin, and more particularly in Milwaukee County.

         ¶38 The board powers statute. The legislature grants to county boards broad, authority over "any" county "organizational or administrative power" not granted to county executives, "in addition to all other grants."[9] See WIS. STAT. § 59.51 (defining "Board powers"). These organizational or administrative powers of county boards are granted "without limitation because of enumeration," and "shall be broadly and liberally construed and limited only by express language." Id.

         ¶39 The executive powers statute. County executives are granted duties and powers through a combination of broad and detailed language, quoted in the margin, including specific duties and powers of the Milwaukee County Executive.[10] See WIS. STAT. § 59.17(2). These duties and powers are conferred "without limitation because of enumeration" to include the "[c]oordinat[ion] and direct[ion of] all administrative and management functions of the county government not otherwise vested by law in other elected officers." Wis.Stat. § 59.17(2)(a). Significantly, "[t]he county executive shall administer, supervise, and direct any department or subunit of a department …, and those departments and subunits shall report to the county executive." See § 59.17(2)(b)2.

         ¶40 Summarizing, county boards are granted authority over "any" county "organizational or administrative power" not granted to county executives; county executives are granted duties and powers that include "[c]oordinat[ion] and direct[ion of] all administrative and management functions of the county government," when those functions are "not otherwise vested by law in other elected officers," such as county board supervisors; and the Milwaukee County Executive has exclusive authority over the administration, supervision, and direction of all county departments. Wis.Stat. § 59.17(2).

         ¶41 With that background, we turn to the day-to-day control provision:

(a) Notwithstanding the [board powers statute], the board may not exercise day-to-day control of any county department or subunit of a department. Such control may be exercised only by the county executive as described in [the executive powers statute].

Wis. Stat. § 59.794(3)(a). Also pertinent to compensation-related issues is paragraph (e), which we have already quoted and discussed above. See § 59.794(3)(e).[11]

         ¶42 The opening phrase in the day-to-day control provision ("Notwithstanding the [board powers statute]") makes clear that the increased powers of the Executive under paragraph (3)(a) are not diminished by any authority granted to county boards under the board powers statute. This is consistent with the "subject to" language in the day-to-day control provision that we have discussed. See Wis. Stat. §§ 59.794(3)(a), 59.22(2)(a).

         ¶43 Turning to a key phrase-"the board may not exercise day-to-day control of any county department or subunit of a department"-neither the day-today control provision nor any closely related statute defines what this phrase means. Wis.Stat. § 59.794(3)(a). In their briefing and at oral argument, the parties have offered various definitions.

         ¶44 One argument of the Executive has a premise and a conclusion. The Executive's premise is that the phrase "exercise day-to-day control" means the direction of a department or subunit based on any action, including any compensation-related action, that is "administrative in nature." The Executive's conclusion is that this settles all the compensation-related issues in favor of the Executive, because all "decisions concerning the salar[ies] of individual employees" are "administrative in nature."[12] As discussed in more detail below, we accept the premise that day-to-day control involves control over administrative matters of county government. However, the Executive's conclusion goes too far, because it is not informed by a meaningful interpretation of what the administration of county government entails, which we provide in discussion below. We now explain further why we do not accept the Executive's conclusion, which appears to have no limit.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&para;45 As we have seen, in the board powers statute and the executive powers statute, the legislature has granted to both county boards and county executives "administrative" powers over county governments. Further, it directed, in each instance, that the administrative power of the one is limited by the administrative power of the other. See Wis. Stat. &sect; 59.51(1) (granting to county boards authority over "any" county "administrative power" not granted to county executives); Wis.Stat. &sect; 59.17(2)(a) (granting to county executives powers over "direct[ion of] all administrative and management functions of the county government not otherwise vested by law in other elected officers") (emphasis added). Indeed, the day-to-day control provision does not purport to repeal the board powers statute, which remains in place and, to repeat, grants county boards "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," which boards may exercise "without limitation because of enumeration, and ...


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