Opinion
March 7, 1996
CAPTION: Under existing statutes, while a private security firm could conceivably qualify to construct a house of correction, county employes must perform the incarceration functions associated with operating such facilities.
Mr. Frank Volpintesta Corporation Counsel Kenosha County Courthouse 912 — 56th Street Kenosha, WI 53140
Dear Mr. Volpintesta:
You indicate that Kenosha County is considering contracting with a private security firm to construct and operate a house of correction. Under the proposal being considered, the firm would be required to comply with all state laws and to obtain all necessary construction and training approvals from the Department of Corrections. The county would appoint a superintendent and a small staff for oversight and daily inspection of the facility, but most security and other operations would be managed by the firm for a fixed dollar amount per inmate per day. The county would also continue to operate a county jail under the management and control of the sheriff. The jail would receive inmates not sent to the house of correction. You advise that Kenosha County has a civil service ordinance which is applicable only to deputy sheriffs and which you believe would not apply to any employes of a house of correction.
You ask whether a county board is statutorily authorized to contract with a private firm to construct and operate a house of correction under the overall auspices of a county superintendent and a small county staff. You also ask if employes of such a private firm would have arrest powers.
In my opinion, while a private security firm could conceivably qualify to construct a house of correction, county employes must perform the incarceration functions associated with operating such facilities. It is therefore unnecessary to answer your second question.
Section 303.16 (1), Stats. (1991), was amended by 1993 Wisconsin Act 89. The deletions from that statute made by the Act were as follows:
The county board of any county [whose population is 500,000 or more] may, pursuant to s. 301.37, establish, relocate and maintain within the county a house of correction for the reformation and employment of persons sentenced to confinement therein.
Assuming compliance with section 66.29, which governs the construction of public works projects, and with sections 301.37 and 303.16 (1), which provide for general oversight by the Department of Corrections, I see no reason why a private security firm could not construct a house of correction. However, once a county establishes a house of correction, it must be operated under the provisions of section 303.17. The additions and deletions to section 303.17 (1) made by 1993 Wisconsin Act 89 were as follows:
(1) The county board of supervisors shall control the management of a house of correction under s. 303.16, pursuant to such regulations and under the direct supervision and control of such officers as the county board of supervisors prescribes. No such regulation may be finally adopted on the day on which it is first presented to the county board of supervisors for consideration, nor until it has been considered and reported upon by the proper committee of the county board of supervisors. The county board of supervisors may by ordinance place the management of the house of correction under the control of the county department under s. 46.21 or 46.23 whichever is applicable, and in that event s. 46.21 or 46.23, so far as applicable, shall control. The county board of supervisors may by ordinance resume control of the management of the house of correction. The county board of supervisors shall, in accordance with the civil service law, prescribe the number and compensation of all personnel needed for the administration of the house of correction, and fix their duties.
(2) The chief judge of the judicial administrative district and his or her designees, district attorney and sheriff for the county and the mayor or other chief executive officer and [city]fn_ [the municipal] attorney of its most populous city, village or town shall constitute a board of visitors, who shall investigate the affairs of the house of correction on the first Monday of August in each year, and [thereupon]fn_ report in writing to the county board of supervisors at its annual meeting, or to the county department under s. 46.21 or 46.23 if the county department is in charge of the institution, setting forth its condition, and suggesting such alterations, improvements or other matters respecting the management, discipline and government of the institution as may promote the purposes thereof and the interests of the county.
I am not persuaded that, simply by making these additions and deletions, the Legislature has authorized counties to enter into arrangements of the nature you describe. In examining the provisions of section 303.17 (1), I am guided by the principle that "`a county board has only such powers as are expressly conferred upon it or necessarily implied from the powers expressly given or from the nature of the grant of power.'" St. ex rel. Teunas v. Kenosha County, 142 Wis.2d 498, 504, 418 N.W.2d 833 (1988) (citation omitted). Section 303.17 (1) provides that the county board of supervisors "shall control the management of a house of correction . . . under the direct supervision and control of such officers as the county board of supervisors prescribes." The last sentence of section 303.17 (1) also provides that "[t]he county board of supervisors shall, in accordance with the civil service law, prescribe the number and compensation of all personnel needed for the administration of the house of correction, and fix their duties."
As amended by 1993 Wisconsin Act 89, the statutes governing the organization and operation of houses of correction uniformly affect every county, including Milwaukee County. In every county which chooses to establish a house of correction, the authority to control its management, prescribe the number of personnel needed, fix their duties and establish their compensation is vested in the county board. Once established, a house of correction must also be under the direct supervision and control of county officers. Even though a substantial number of personnel would be needed for administration of the house of correction, under your proposal the county board would not prescribe the number of personnel needed, fix their duties or establish their compensation. Under your proposal, the operations of the house of correction also would be supervised by private security personnel. The operation of the house of correction would be under the indirect supervision of a small county staff.
You suggest that compliance with the statutory provisions concerning county board supervision and control of the house of correction is excused under section 59.025, which provides: "Administrative home rule. Every county may exercise any organizational or administrative power, subject only to the constitution and any enactment of the legislature which is of statewide concern and which uniformly affects every county." Section 59.07 (intro) also provides:
General powers of board. The board of each county shall have 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 or to a person supervised by a county executive or county administrator or any enactment which is of statewide concern and which uniformly affects every county. Any organizational or administrative power conferred under this section shall be in addition to all other grants. A county board may exercise any organizational or administrative power under this section without limitation due to enumeration.
It is true that these provisions, like all other provisions in chapter 59, are to "be liberally construed in favor of the rights, powers and privileges of counties to exercise any organizational or administrative power." Sec. 59.026, Stats. While a liberal construction is required under section 59.026, section 59.025 contains explicit limitations on the exercise of administrative home rule powers by counties, both under the constitution and in connection with matters of statewide concern and enactments which uniformly affect every county.
The language contained in sections 59.025 and 59.07 (intro) is "`modeled after municipal home-rule language used in the constitution and statutes.'" 77 Op. Att'y Gen. 113, 114 (1988). The scope of municipal home rule powers under article XI, section 3 of the Wisconsin Constitution differs from that under section 62.11 (5):
The quality of the waters of Lakes Mendota and Monona has a clear non-local impact and is emphatically a matter of state-wide concern. Whatever authority the City of Madison may exercise regarding the chemical treatment of noxious weeds on Madison lakes, it is not constitutional in nature. It must, therefore, depend on a legislative grant of power.
Wis. Environmental Decade, Inc., v. DNR, 85 Wis.2d 518, 530-31, 271 N.W.2d 69 (1978) (footnote omitted).
Although section 59.07 contains a legislative grant of power, the statutory language defining the substantive nature of the power granted is modeled primarily upon language contained in article XI, section 3 of the Wisconsin Constitution rather than upon language contained in section 62.11 (5). Cases interpreting the substantive nature of the powers granted under the constitutional municipal home rule provision indicate that constitutional home rule may not be exercised to elect against any enactment of the Legislature which is primarily or exclusively a matter of statewide concern or against any enactment of the Legislature which is a matter of primarily local rather than statewide concern, if such a primarily local enactment uniformly affects every municipality:
In determining whether or not a municipality may elect against a statute, the statute must first be classified as one which is exclusively of statewide concern, one which is entirely of local character or one which cannot be fit exclusively into one of these categories.
If the provisions of the statute are of statewide concern . . . home rule . . . grants no power . . . to deal with it. If the provisions concern a purely local affair, a municipality may elect not to be bound. If the statute is in the third, "mixed bag," category, the test is whether the statute is "primarily or paramountly a matter of `local affairs and government' under . . . home rule . . . or of `state-wide concern.'"
Gloudeman v. City of St. Francis, 143 Wis.2d 780, 789, 422 N.W.2d 864 (Ct.App. 1988) (footnotes omitted), quoting State ex rel. Michalek v. LeGrand, 77 Wis.2d 520, 526-28, 253 N.W.2d 505 (1977). See 81 Op. Att'y Gen. 145, 150-51 (1994). Unlike section 62.11 (5), which contains a grant of substantive power for municipalities to act even in connection with matters primarily of statewide concern, county municipal home rule statutes "expand upon and `fill the gaps' in the organizational and administrative structure which is already in place." 77 Op. Att'y Gen. at 116. Compare Wis. Asso. of Food Dealers v. City of Madison, 97 Wis.2d 426, 431-32, 293 N.W.2d 540 (1980).
In addition to uniformly affecting every county, these statutes, like most enactments concerning public health, safety, welfare and education, also involve matters primarily of statewide concern. See Wisconsin Solid Waste Recycling Auth. v. Earl, 70 Wis.2d 464, 481, 235 N.W.2d 648 (1975); State ex rel. Warren v. Nusbaum, 59 Wis.2d 391, 422, 208 N.W.2d 780 (1973); West Milwaukee v. Area Bd. Vocational. T. A. Ed., 51 Wis.2d 356, 376, 187 N.W.2d 387 (1971); State ex rel. La Follette v. Reuter, 33 Wis.2d 384, 397, 147 N.W.2d 304 (1967); State ex rel. Martin v. Juneau, 238 Wis. 564, 570-71, 300 N.W. 187 (1941). In State ex rel. Bare v. Schinz, 194 Wis. 397, 400-01, 216 N.W. 509 (1927), the court held that a county
is a governmental agency of the state, performing primarily the functions of the state locally. It so acts for the state in the administration of justice; in the establishment of almshouses and other charitable institutions; in maintaining insane asylums and penal institutions. It is not created for the local convenience of the inhabitants as in the case of cities and villages. It exists not by virtue of its own will or consent, but as a result of the superimposed will of the state.
(Emphasis supplied.)
In 77 Op. Att'y Gen. 94 (1988), it was determined that counties cannot enter into contracts to privatize their jails. Although the constitutional powers of the sheriff were one factor that led to that result, a separate and distinct reason for that conclusion was that the privatization of law and order functions relating to the incarceration of prisoners involves a matter exclusively or primarily of statewide concern:
As explained in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis.2d 32, 80, 205 N.W.2d 784 (1993), a governmental subdivision "may, by contract, curtail its right to exercise functions of a business or proprietary nature, but, in the absence of express legislative authority, it cannot surrender or contract away its governmental functions and powers," not even partially. See also Wausau Jt. Venture v. Redevelopment Authority, 118 Wis.2d 50, 59, 347 N.W.2d 604 (Ct.App. 1984). Consistent with this basic proposition, it is said that such an entity may not contract for the performance of public duties which the law requires its public officers or employes to perform . . . .
. . . .
. . . The maintenance of law and order encompassed in the jailer function involves just such an exercise of the sovereign power of the state. As explained in Van Gilder v. Madison, 222 Wis. 58, 76, 267 N.W. 25, 268 N.W. 108 (1936): "The determination of other courts and a consideration of the fundamental reasons which underlie those determinations require us to hold that the preservation of order, the enforcement of law, the protection of life and property, and the suppression of crime are matters of state-wide concern." Counties, as governmental subdivisions of the state, "are merely agencies of the state in respect to the performance of these primary obligations of the state."
This reasoning is applicable to all forms of incarceration for commitment of a crime and is not limited to functions performed under the auspices of the sheriff as a constitutional officer. In my opinion, with respect to matters exclusively or primarily of statewide concern, "if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power." See State ex rel. Harris v. Larson, 64 Wis.2d 521, 527, 219 N.W.2d 335 (1974). Specific legislation would be needed in order to permit counties to contract for the performance of incarceration functions associated with operating a house of correction because those functions involve matters of statewide concern.
It may be the case, as suggested in recent correspondence from your county executive, that privatization of the incarceration functions associated with operating a house of correction would be appropriate policy, given the high prisoner costs currently being incurred by counties. However, under existing statutes, prisoners may be freely transferred between federal, state and county facilities, including houses of correction. See, e.g., secs. 303.18 (3), 303.20 and 973.14, Stats. The question of whether federal, state and county prisoners should be under the custody and control of private security firms is one which has not yet received legislative attention. After examining the pertinent legislative history as well as the rules of construction set out by the court in Teunas and Harris, it is my opinion that the Legislature has not yet authorized counties to privatize the incarceration functions associated with operating houses of correction.
I, therefore, conclude that under existing statutes, while a private security firm could conceivably qualify to construct a house of correction, county employes must perform the incarceration functions associated with operating such facilities.
Sincerely,
James E. Doyle Attorney General
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