Archive for the ‘Uncategorized’ Category

Residency Requirements Limited By Budget Bill

Monday, August 5th, 2013

It is a common complaint that state budgets contain quite a few changes to laws that an ordinary citizen might not think are exactly “budget” related, and Wisconsin’s new budget is no exception.  Wisconsin Statute Chapter 66 concerning general municipal government has been amended to severely limit the ability of municipalities to impose residency requirements.  The new rule is that residency requirements are prohibited unless there is a statutory exception.  The new law also prohibits a municipality with an existing residency requirement from enforcing that requirement.  The primary exception is that municipalities may require law enforcement, fire, or emergency personnel to live within 15 miles of the municipal border.  (State requirements regarding elected officials are not affected by this new law).  The new law can be found at § 66.0502 of the Wisconsin Statutes.  The entire budget bill is available here.

Walking Quorums – Milwaukee County Board Members Accused of Violating Open Meetings Law

Wednesday, July 3rd, 2013

A recent Milwaukee Journal-Sentinel article provides an important reminder that a violation of the Wisconsin Open Meetings law can occur if government business is discussed between board members even if a quorum is not present.  This can occur if individual members discuss the same subject with one another and come to an agreement regarding how to proceed prior to an official, properly noticed  meeting of the full body.  This is often referred to as a “walking quorum”.  In this case, a number of Milwaukee County Board members are accused of meeting one on one with each other until the “one on one” meetings between enough members resulted in a majority of the board arriving at a tacit decision regarding terminating the employment of a county employee.  From a practical perspective, this can occur when one board member calls a member to discuss an issue, and that member calls a member to discuss the same issue and so on until enough such calls have been placed that a majority has arrived at a conclusion before the public even knows that there is an issue under consideration.  This can also occur by email and by in person meetings.  Such violations can result in prosecution.  If you are discussing governmental business with other members of the governing body outside of a noticed meeting, caution should be taken to make sure you do not engage in a walking quorum.

Act 10 Stay of Decision Denied – Act 10 Status Remains Unresolved

Wednesday, March 13th, 2013

It appears that yesterday the Court of Appeals denied Attorney General J.B. Van Hollen’s attempt to stay the lower court’s decision which determined that certain parts of “Act 10” were invalid.  This is not a decision on the merits, so this does not change the current status of the law, which is in a state of uncertainty.  The State’s appeal of Judge Colas’s decision is still underconsideration.

Supreme Court Answer Narrow Question Whether a Contracted Attorney may Receive Governmental Immunity

Wednesday, October 31st, 2012

While I generally write only about Wisconsin Municipal Law topics, a recent U.S. Supreme Court case concerning a matter from California confirms what most of us working in this area had cautiously believed – that a private attorney who is contracted by a local government to serve as their attorney may claim the same level of immunity as an attorney who is an employee of the municipality. 

In Filarsky v. Delia, the U.S. Supreme Court held that an attorney hired by a city on a temporary basis to carry out an employment investigation was entitled to the same immunities that would be afforded a city employee.  This overturned a 9th Circuit decision which had granted qualified immunity to a group of city employees involved in the investigation, but not the attorney they had contracted to help in the investigation.  There had been a circuit split on this question, as the 6th Circuit had allowed a private contractor immunity in Cullinan v. Abramson, 128 F. 3d 301, 310 (1997).

Justice Roberts, writing for a unanimous Court, said “At common law, those who carried out the work of government enjoyed various protections from liability when doing so, in order to allow them to serve the government without undue fear of personal exposure.”  And those common law principles and immunities are still valid and, as in this case, available to a person carrying out government work who is sued under §1983.  Citing numerous examples and historic principles, Justice Roberts said there was no reason to differentiate and leave a contracted person “holding the bag” to face liability when government employees would “enjoy immunity for the same activity.”

Writing concurring opinions, two Justices pointed out that while they agreed with the narrow holding that there is no reason to treat contractors differently them employees for the same acts, they wrote separately to note while qualified immunity may be claimed by a contractor under some circumstances, it should also only be granted when the individual satisfies “our usual test for conferring immunity.”  (Sotomayor).  This “usual test” is found in Harlow v. Fitzgerald, 457 U.S. 800, 818, where Justice Powell held “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Municipal Bankruptcy

Friday, October 19th, 2012

You may have read in the news in the last few months about some fairly large cities in California “declaring bankruptcy.”  San Bernadino, Stockton, Compton, and some smaller California Cities have taken this option.  Certainly cities in other states have also faced severe financial difficulties.   Is your City bankrupt? 

Not in Wisconsin it’s not.  In Wisconsin, bankruptcy is not available to municipalities.  Federal authority over bankruptcy law is authorized by Article 1, Section 8 of the U.S. Constitution.  Thus bankruptcy law is primarily a creature of Federal law regulated by Congress, (although it is inextricably linked to various state laws as well).  As a matter of Federal law, Congress also has to take into consideration the Tenth Amendment which guarantees certain powers to the sovereign states.  So, although Chapter 9 of the Bankruptcy Code technically creates a mechanism for a county, city, village, school district, municipal utility, et al, to file for bankruptcy, Chapter 9 is only available in those states which specifically and explicitly authorize it.  Wisconsin has not done so.

Town Trustees Fined for Open Meeting Violation

Friday, June 22nd, 2012

The following article is a reminder to all municipal board members that talking municipal business with other board members outside of a duly noticed meeting is a violation of the open records law.  I often hear arguments from town board members regarding the inefficiency and difficulty it presents to not be able to talk to other board members outside of meetings.  But for small boards, and many are three member boards, that’s the reality of the law.  No talking shop to other board members.  Town board members also say “we’ve been doing it that way for thirty years!”  That may be so, but when a municipality is faced with something controversial, the board members will face increased scrutiny for sure, and may face some unhappy constituants depending on the stand they take on an issue.  That’s when the argument that “we’ve always done it that way” fails pretty quickly.

Here’s a link to the article from the Dunn County News.

Sometimes You Can Fight City Hall!

Thursday, December 2nd, 2010

In Cooper v Village of Egg Harbor , a dispute arose over whether a short road leading to the shore of Green Bay was public or private.  The Village had paved the road at some point in the past, and it had been used, rather sporadically according to the facts given in the case, by members of the public.  However the road had never been dedicated to the public, and there was no record to show ownership by the Village.  One of the curious facts of the case was that apparently noone claimed ownership – not the Village, and not the landowners on either side.  There were several legal theories argued in the case, but in the end the Door County Circuit Court had held that theVillage had not presented enough evidence that this was a public road to back up any of its legal theories.   The appeals court upheld the Circuit Court ruling.  Although a decision has been handed down in the case, from my reading, it appears that the issue of ownership will have to be worked out (you’d have thought someone would have brought that up before this got to the appeals court).

PSC Promulgates Proposed Final Rules re Wind Turbine Siting

Wednesday, September 8th, 2010

The proposed Final Rules are available at the PSC website.  At the time of this writing, there is a link on the home page to the final rules.  If that link does not appear to be there when you visit the site, search on docket 1-AC-231.   These rules have been sent to the legislature, and it will a month or two before we see if there are any amendments or if the legislature approves them as is.  I’ll provide an update with more details as soon as they become available.

Governor Signs Amendments to “Smart Growth” Statute into Law

Friday, July 30th, 2010

While not making any radical changes to Wisconsin’s current comprehensive planning law, generally known as the “Smart Growth” law), Wisconsin 2009 Act 372 provides some clarification of a few of the more problematic terms in the law.  The amendments also give some municipalities additional time to comply with the law, and eliminates the requirement that towns must have exercised “village powers” in order to adopt a comprehensive plan.

 Under the existing law, beginning on January 1, 2010 a local government’s land use actions had to be “consistent with” their comprehensive plan.  However, there was confusion regarding what actions this applied to, and just what “consistent with” actually meant.  The new amendments provide some clarity.  To begin with, the amendments provide a definition of a “comprehensive plan” – “a guide to the physical, social and economic development of a local governmental unit.”    The amendments also define “consistent with” as “furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan.”

 The amendments also specify which government actions must be consistent with the comprehensive plan – ordinances related to official mapping, local subdivision regulation, and zoning, including zoning of shorelands or wetlands in shorelands.  The new law also clarifies that “enactment of a comprehensive plan by ordinance does not make the comprehensive plan by itself a regulation.”  This had been an area of much discussion and confusion, as to whether simply having a comprehensive plan had any actual regulatory effect on landowners – the answer now appears to be no.

 Finally, the law provides for a limited delay in the consistency requirement deadline of January 1, 2010 under certain limited circumstances.  If your municipality is having difficulty meeting the deadline, you should consult your municipal attorney to see if the delay might apply to your circumstances.

Proposed New DNR Rules on Phosphorous Levels Opposed by Municipal Groups

Thursday, July 22nd, 2010

The Senate Committee on the Environment will hold a public hearing on July 28, 2010 on proposed revisions to NR 102 and NR 217.  The proposed rule changes will require municipal wastewater treatment plants to take steps to reduce phosphorus levels.  An editorial written by Jon Schellpfeffer, Chief Engineer and Director of the Madison Metropolitan Sewerage District. opposing certain of these proposed revisions can be found in the Wisconsin State Journal.  See “DNR Shouldn’t Single out Treatment Plants,” in the Sunday, May 2, 2010 edition.