Opinion No. Oag 84-79, (1979)

68 Op. Att'y Gen. 262

• Court: Wisconsin Attorney General Reports
• Decided: September 12, 1979
• Status: Published

Opinion

THOMAS SAZAMA, District Attorney Chippewa County

Your predecessor inquired:

1. Is county board approval required, in a county having a public welfare department organized under sec. 46.22, Stats., before the county board of public welfare can appoint employes to administer the functions of the department?

2. Is county board approval required to authorize the county clerk to pay such employes?

The request does not expressly differentiate between approval necessary for (1) the establishment of positions and (2) appointment to positions. Therefore, the questions are not subject to a simple yes or no answer.

The Chippewa County Welfare Department is organized under sec.46.22, Stats. Section 46.22, Stats., embodies the concept that welfare is a matter of statewide concern subject to state standards but is administered by the counties.

65 Op. Att'y Gen. 163 (1976) states that a county board is without power to hire or fire employes of a county welfare department but that such power belongs to the county board of public welfare to be exercised in compliance with merit system rules promulgated by the Department of Health and Social Services. That opinion, however, failed to recognize the change in sec. 49.50 (2), Stats., effected by ch. 307, Laws of 1975. Under the amended statute, claim can be made that the state department merit system rules are limited to employes concerned with the administration of aid to families with dependent children. However, in view of sec. 46.22 (6), Stats., it is my opinion that the merit system rules may be made applicable to all personnel within the county department of public welfare. That section provides: "Section 49.50 (2) to (5) shall be applicable to the county department of public welfare created by this section."

Insofar as employes concerned with administration of aid to families with dependent children are concerned, sec. 46.22, Stats., is a matter of statewide concern; and compliance with merit system requirements promulgated under sec. 49.50 (2), Stats., would, by express language, be mandatory, unless the county had been delegated the Department's authority as to maintenance of a merit system as permitted by sec. 49.50 (5), Stats., and a county board could not utilize power under sec. 59.025 (2), (3), and (4), Stats., to exercise complete control in the area.

Section 46.22 (3), Stats., provides that the county board shall have power to "review and approve, reject or revise by majority vote the annual budget of the county department of public welfare." It, however, is for the director to recommend and the county board of public welfare to determine how many positions required by the Department of Health and Social Services, or higher number, if any, authorized by the county board, shall be utilized and to make appointment to such positions. The county board fixes the salaries of such employes. Under sec. 59.15 (2)(C), Stats., the county board can establish the number ofpositions in the county department of public welfare and can fix the salaries for such positions, but such action cannot be inderogation of rules and regulations of the Department of Health and Social Services established pursuant to sec. 49.50 (2)-(5), Stats. The opinion request does not state whether the merit system rules established by the Department of Health and Social Services establishes the number of various positions which are required for a county of the size of Chippewa.

Where the county board has approved the annual budget for a county department of public welfare, no further action of the whole board is necessary to authorize the county clerk to pay employes appointed by the county board of public welfare to authorized positions. Modification of the annual budget for the county welfare department requires a two-thirds vote of the entire membership of the county board. Sec. 65.90 (5), Stats. Pay vouchers certified by the director are entitled to approval by the county board preaudit committee if within the budget authorized; and to approval by the county clerk and county board chairman, under sec. 59.17 (3), Stats., if within the budget authorized and funds are available; and to payment by the county treasurer pursuant to sec. 59.20 (2), Stats., if proper order is presented.

I trust that the above will be of aid in resolving the problem you are currently concerned with.

BCL:RJV