Opinion No. Oag 13-87, (1987)

76 Op. Att'y Gen. 52

• Court: Wisconsin Attorney General Reports
• Decided: March 19, 1987
• Status: Published

Opinion

JOHN TRIES, Secretary Department of Employment Relations

Your predecessor requested an opinion on several questions relating to the setting of salaries for commission chairpersons designated by the Governor under section 15.06 (2), Stats.

First, your predecessor asked:

Assume that commission members and the chairperson are assigned to the same executive salary group under s. 20.923 (4), Stats. May the Commissioner who is designated chairperson by the Governor after the commencement of his or her term receive a pay increase to compensate for the chairperson duties and responsibilities?

It is my opinion that the commissioner who is designated chairperson is prohibited by Wis. Const. art. IV, § 26, from receiving an increase in salary due to such designation.

The Legislature has established the method of selection of members and chairpersons of commissions in section 15.06, as follows:

(1) Selection of members. (a) Except as otherwise provided in this subsection and s. 15.105 (17), the members of commissions shall be nominated by the governor, and with the advice and consent of the senate appointed, for staggered 6-year terms expiring on March 1 of the odd-numbered years.

. . . .

(2) Selection of officers. Each commission may annually elect officers other than a chairperson from among its members as its work requires. Any officer may be reappointed or reelected. At the time of making new nominations to commissions, the governor shall designate a member or nominee of each commission to serve as the commission's chairperson for a 2-year term expiring on March 1 of the odd-numbered year except that: [exceptions relate to two commissions that elect their chairpersons.]

Commissioners' salaries are established, for the entire term, at the time of appointment. Section 20.923 (1) provides in part:

The salary-setting authority of . . . elective . . . officials elsewhere provided by law is subject to and limited by this section, and the salary rate for these positions upon appointment and subsequent thereto shall be set by the appointing authority pursuant to this section, except as otherwise required by article IV, section 26, of the constitution.

Wis. Const. art. IV, § 26, states in part:

The legislature shall never grant any extra compensation to any public officer . . . after the services shall have been rendered or the contract entered into; nor shall the compensation of any public officer be increased or diminished during his term of office

An appointing authority is thus precluded by this section of the Constitution from raising the salary of the appointed state officer during his term. Any pay adjustments to be made during the term must be established at the commencement of the term. See 72 Op. Att'y Gen. 45, 49 (1983).

The answer to your first question is therefore controlled by whether the chairperson of a commission occupies a position separate from that of a commission member or only assumes additional duties. In establishing the method of selection of chairpersons, the Legislature has indicated that this is not a position separate from that of commission member. Section 15.06 (2) requires the Governor to designate a commission member or nominee as chairman for a two-year term. This contrasts with the method of appointment of members of commissions by nomination of the Governor and concurrence by the senate. Sec. 15.06 (1)(a), Stats.

The Governor does not appoint a commission chairperson butdesignates a commission member or nominee "to serve as" chairperson. Sec. 15.06 (2), Stats. This legislative intent to not establish a separate chairperson position is further indicated by section 15.06 (3) which provides that "[a] commissioner may not hold any other office or position of profit . . . ." The commissioner designated chairperson does not cease being a commissioner and thus could not, at the same time, hold the chairmanship were it a separate position. A reasonable reading of section 15.06 thus indicates that the Legislature did not intend the specified method of designation of a commission member as chairperson to constitute creation of a position separate from that of commissioner.

Second, your predecessor asked:

Would your answer differ if at the time of appointment to the Commission, the appointment letter set forth that in the event the person were designated chairperson, he or she would receive a set amount of money?

My answer to this question is no, since the Governor would have the discretion to alter a commissioner's salary during his term by designating (or not redesignating) the commissioner member as chairperson. This discretion is precluded by Wis. Const. art. IV, § 26. As my predecessor correctly stated in discussing this constitutional prohibition at 72 Op. Att'y Gen. at 49:

Under the present constitutional provision any pay adjustments during a term must be clearly provided for in specific amount or be ascertainable by reference to a salary range schedule which was in effect on the date of appointment of such official and which is not subject to discretionary change thereafter. either the schedule or plan, or the implementation of the schedule or plan, can be dependent upon the exercise of legislative or administrative discretion during the term.

While the amount of additional salary provided to one designated chairperson would be fixed at the time of appointment, the Governor would have the discretion to increase or decrease the commissioner's salary by designating or not redesignating him or her chairperson during that commissioner's term. Since designation as chairperson does not constitute appointment to another position, this change of salary during the fixed term of the commissioner would violate Wis. Const. art. IV, § 26.

Your predecessor's final question asks:

Is the designation of a Commissioner as chairperson in the middle of his or her term a new or second appointment whereby the person may receive additional compensation without violating Article IV, Section 26 of the state constitution?

The answer to this question is no. As I concluded in my discussion of the first question, the Legislature has not established a position of commission chairperson separate from that of commission member. Rather, section 15.06 (2) requires the Governor to "designate" a member or nominee "to serve as" chairperson. Chairperson designation is therefore not a new appointment authorizing a grant of additional compensation within the strictures of Wis. Const. art. IV, § 26.

DJH:WMS