Theodore Lipscomb, Sr. and Milwaukee County Board of Supervisors, Plaintiffs-Respondents-Cross-Appellants,
Christopher Abele, Defendant-Appellant-Cross-Respondent.
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
Blanchard, Kloppenburg, and Fitzpatrick, JJ.
The Milwaukee County Board of Supervisors and the Milwaukee
County Executive dispute their relative powers, as defined by
closely related state statutes. 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.
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.
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). 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. §
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.
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
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.
As we have indicated, two statutes are central to the
• Pertinent only to compensation-related issues is what
we call "the compensation provision," Wis. Stat.
§ 59.22(2). Most notably, the compensation provision
allows county boards to "[p]rovide, fix or change the
salary or compensation of any office, board, commission,
• Both sets of issues involve Wis.Stat. §
59.794(3), enacted in 2013 Act 14, which has two pertinent
paragraphs. 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).
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
In this appeal we interpret statutes. 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.,
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.
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.
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
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
The Compensation Provision
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
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
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).
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
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.
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."
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
What we have stated to this point is sufficient to explain
why we reject various interpretations of the compensation
provision offered by the parties.
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.
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
Our interpretation is supported by paragraph (e), Wis.Stat.
§ 59.794(3). 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.
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.
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.
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.
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.
The Day-To-Day Control Provision
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
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." 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.
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. 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.
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).
With that background, we turn to the day-to-day control
(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
Wis. Stat. § 59.794(3)(a). Also pertinent to
compensation-related issues is paragraph (e), which we have
already quoted and discussed above. See §
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),
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.
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." 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.
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.
§ 59.51(1) (granting to county boards authority over
"any" county "administrative
power" not granted to county executives);
Wis.Stat. § 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