Wisconsin Legislature: AB213, s. 14

AB213,9,1218 61.50 (1) Publication of notice of ordinances. Every contract, conveyance,
19commission, license or other written instrument shall be executed on the part of the

1village by the president and clerk, unless otherwise provided by resolution or
2ordinance, sealed with corporate seal, and in pursuance only of authority therefor
3from the village board. All ordinances and bylaws shall be signed by the president
4and countersigned by the clerk; and, if any penalty or forfeiture is thereby imposed,
5the ordinance or bylaw shall be published either in its entirety, as a class 1 notice,
6under ch. 985, or as a notice, as described under sub. (3) (b), and shall take effect on
7the day after the publication or a later date if expressly prescribed. If there is no
8newspaper published in the village, the village board may in lieu of newspaper
9publication have copies of the ordinances and bylaws posted in at least 3 public places
10in said village, and proof thereof filed and recorded by the village clerk, and the same
11shall take effect the day after the proof of posting has been filed and recorded, or at
12a later date if expressly provided in the ordinance or bylaw.

Note: Section 61.50 (1), stats., in part provides that the village president and clerk
must sign every village contract, conveyance, commission license, or other written
instrument. In contrast, s. 62.15 (12), stats., specifically provides that a city public works
contract must be signed by the mayor and clerk, unless otherwise provided by a city
resolution or ordinance. This Section amends current law to provide that the village
president and clerk must sign every village contract, conveyance, commission license, or
other written instrument, unless otherwise provided by a village resolution or ordinance.

AB213, s. 10 13Section 10 . 61.54 of the statutes is repealed and recreated to read:

AB213,9,17 1461.54 Public works. All contracts for public construction shall be let by a
15village board in accordance with s. 62.15. The village board, or a person or body
16designated by the village board, shall exercise the powers and duties of the board of
17public works under s. 62.15.

Note: Sections 61.54, 61.55, and 62.15, stats., regulate the manner in which
villages and cities contract for public works projects. The basic format is similar for both
municipalities: (1) contracts exceeding $25,000 must be let to the lowest responsible
bidder; (2) contracts exceeding $5,000 but not greater than $25,000 must be preceded by
notice to the public of proposed construction before contract execution; and (3) exceptions
to the preceding requirements apply when certain emergencies occur, material or labor
is donated, it is determined that bids are fraudulent, collusive, or excessive, or, in the case
of city, the work is done directly by the city.

However, s. 62.15, stats., specifically applies the following regulations to the public
works contracting process engaged in by a city:

1. A contract may include an escalator clause for additional charges for labor and
materials as a result of general inflation. Such a clause may not exceed 15% of the amount
bid nor the amount of the increase paid by the contractor. A similar clause may be
included for increasing the quantity of construction required in the original contract by
an amount not to exceed 15% of the original contract price.

2. When work is let to the lowest responsible bidder, the board of public works must
prepare plans, specifications, and a form contract for inspection by potential bidders.

3. A bidder must submit specified financial security as a guarantee that if the bid
is accepted, the bidder will execute and file the proper contract and bond.

4. A bidder must provide sufficient sureties or provide financial security during the
performance of the contract.

5. The board of public works may reject any bid if, in the board's opinion, any
combination has been entered into to prevent free competition. Also, the city's common
council may, if in its opinion any of the bids are fraudulent, collusive, excessive, or against
the best interests of the city, by resolution adopted by two-thirds of its members, reject
any and all bids and direct the work to be done by the city directly under the supervision
of the board of public works.

6. If the board of public works determines that a bidder is incompetent to perform
the work, the board must report to the council a schedule of all of the bids for the work,
together with a recommendation to accept the bid of the lowest responsible bidder. The
common council may let the work to that bidder or re-advertise the contract.

7. A public work may be undertaken by the use of patented articles, materials, or
processes if the owner of the patent permits the use of the patent or sells it.

8. Different plans and specifications for a public work may be prepared requiring
the use of different kinds of materials.

9. A contract may include a provision requiring the contractor to keep the work
done under the contract in good order or repair for a period not to exceed 5 years.

10. A specified amount of the contract payment may be retained by the city to
ensure adequate performance of the contract.

11. A contractor must maintain barriers and lights to prevent accidents on streets
or sidewalks. A contractor also will be liable for all damages caused by the negligent
digging up of streets, alleys, or public grounds, or that result from the contractor's
carelessness.

12. If an ordinance authorizes any work to be done directly by the city without
submitting a proposal for bids, the board of public works must keep an accurate account
of the cost of the public work, including necessary overhead expenses. The board must
make a complete report of the work to the common council.

Finally, s. 61.56, stats., provides that a village board may elect to comply with the
statutory contracting provisions applicable to cities, as described above, in lieu of the
more minimal provisions of ss. 61.54 and 61.55, stats.

This Section provides that a village that lets a contract for public construction
must comply with the procedures applicable to a city in s. 62.15, stats.

Additional public construction procedures in s. 66.0901, stats., apply to a number
of municipal entities, including cities and villages.

AB213, s. 11

1Section 11 . 61.55 and 61.56 of the statutes are repealed.

Note: See the Note to Section 10 of this bill.

AB213, s. 12 2Section 12. 61.57 of the statutes is amended to read:

AB213,11,8 361.57 Acquisition of recycling or resource recovery facilities without
4bids. A village may contract for the acquisition of any element of a recycling or
5resource recovery facility without submitting the contract for bids as required under
6ss. 61.54 to 61.56 s. 61.54 if the village invites developers to submit proposals to
7provide a completed project and evaluates proposals according to site, cost, design
8and the developers' experience in other similar projects.

Note: Revises a cross-reference to reflect the treatment of ss. 61.54 to 61.56, stats.,
by this bill.

AB213, s. 13 9Section 13. 61.65 (1) (a) 2. of the statutes is amended to read:

AB213,11,1410 61.65 (1) (a) 2. Contracting for police protective services with a city or town,
11with another village, or with the a county in which the village is located. A village
12that contracts for police protective services shall pay the full cost of services provided.
13A village may not contract with a county to provide all of the village's police protective
14services under this subdivision.

Note: Current law provides that a village may contract for police protective
services with, among other entities, a county in which the village is located. This Section
amends the law to provide that a village may contract with any county for this purpose.
(Note that the authority of a village to contract with a county for all of its police protective
services is controlled by s. 61.65 (1) (a) 4., stats.) Section 66.0301 (2), stats., also allows
a municipality to contract with another municipality for services; this authority is to be
liberally construed. See also Section 21 of this bill.

AB213, s. 14 15Section 14 . 62.09 (1) (a) of the statutes is amended to read:

AB213,12,1116 62.09 (1) (a) The officers shall be a mayor, treasurer, clerk, comptroller,
17attorney, engineer, one or more assessors unless the city is assessed by a county
18assessor under s. 70.99, one or more constables as determined by the common
19council, a local health officer, as defined in s. 250.01 (5), or local board of health, as

1defined in s. 250.01 (3), street commissioner, board of police and fire commissioners
2except in cities where not applicable, chief of police except in a city that has
3contracted for all of its police protective services under s. 62.13 (2g) or has abolished
4its police department under s. 62.13 (2s), chief of the fire department except in a city
5that contracted for all of its fire protective services under s. 62.13 (8) (b), board of
6public works, 2 alderpersons from each aldermanic district, and such other officers
7or boards as are created by law or by the council. If one alderperson from each
8aldermanic district is provided under s. 66.0211 (1), the council may, by ordinance
9adopted by a two-thirds vote of all its members and approved by the electors at a
10general or special election, provide that there shall be 2 alderpersons from each
11aldermanic district.

Note: Revises cross-references to reflect the treatment of s. 62.13 (2g) and (8) (b),
stats., by this bill. If a city contracts for all of its police or fire protective services under
these statutory provisions, the officers of the city will not include a chief of police or a chief
of the fire department, respectively.

AB213, s. 15 12Section 15 . 62.09 (5) (e) of the statutes is created to read:

AB213,12,1513 62.09 (5) (e) Persons serving in appointive offices shall serve until their
14respective successors are appointed and qualify, unless otherwise provided by
15ordinance.

Note: Section 61.23 (1), stats., provides that persons serving in appointive village
offices will serve until their respective successors are appointed and qualify. There is no
similar statutory provision for appointive city officers. This Section creates s. 62.09 (5)
(e) as a parallel to the law applicable in villages by requiring that appointive city officers
serve in their offices until their respective successors are appointed and qualify.
Consistent with the amendment of s. 61.23 (1) by Section 4 of this bill, a city by ordinance
may provide a different method of determining when the term of an appointed officer
ends.

AB213, s. 16 16Section 16. 62.09 (6) (a) of the statutes is amended to read:

AB213,12,1917 62.09 (6) (a) Salaries shall be paid the mayor or alderpersons only when
18ordered by a vote of three-fourths of all the members of the council. Salaries
19heretofore established shall so remain until changed by ordinance.

Note: This change is similar to the change made in s. 61.32 in Section 8 of this
bill. The deleted language is restated in s. 62.09 (6) (am) 2., although the current law
provision applies only to a mayor and alderpersons and the language in s. 62.09 (6) (am)
2. applies, more broadly, to all elective officers.

AB213, s. 17 1Section 17 . 62.09 (6) (am) of the statutes is created to read:

AB213,13,52 62.09 (6) (am) 1. In this paragraph, "compensation" means a salary, a per diem
3compensation for each day or part of a day necessarily devoted to the service of the
4city and the discharge of duties, or a combination of salary and per diem
5compensation.

AB213,13,116 2. Except as provided in subd. 3., and subject to par. (a), the compensation for
7an elective city office shall be established before the earliest time for filing
8nomination papers for the office. After that time, no change may be made in the
9compensation for the office that applies to the term of office for which the deadline
10applies. The compensation established for an elective office remains in effect for
11ensuing terms unless changed.

AB213,13,1312 3. In a newly incorporated city, the compensation for an elective office may be
13established during the first term of office.

Note: Creates a provision for establishing and changing compensation for city
elective offices that corresponds to the provision applicable to village elective offices,
created by Section 3 of this bill. The provision replaces current s. 62.09 (6) (b), stats.,
repealed by Section 18 of this bill.

Unlike repealed s. 62.09 (6) (b), this provision does not include compensation for
appointive city officers with definite terms. It was concluded there is no policy reason for
including appointive offices in the provision.

The requirement that the compensation, as defined, for an elective city office be
established before the earliest time for filing nomination papers for the office is new. It
reflects the principle that compensation for an elective office is for the office, not for a
particular individual holding the office. The definition of "compensation" is based on s.
60.32 (2), stats., applicable to town elective offices.

The 2nd and 3rd sentences of subd. 2. restate language deleted from current s.
61.32, stats., by Section 8 of this bill, although the current law provision applies only to
a village president and trustees and the new language applies more broadly, to all elective
officers.

Subdivision 3. restates the last sentence of repealed s. 62.09 (6) (b).

Note that periodic increases in compensation for an elective office may be provided,
as long as any increase is determined by the stated deadline. In addition, under s.

66.0507, stats., salary may include an automatic adjustment for changes in cost of living
(except city council members). See Section 27 of this bill.

AB213, s. 18 1Section 18 . 62.09 (6) (b) of the statutes is repealed.

Note: Repeals the following statutory language: "Whenever such salaries are to
be changed or established the council shall, not later than the first regular meeting in
February, fix the amount of salary of each officer entitled to a salary who may be elected
or appointed for a definite term during the ensuing year. In cities newly incorporated,
the compensation of the first officers may be fixed during their terms.".

The last sentence of this repealed provision is replaced by a similar provision, s.
62.09 (6) (am) 3., stats., created by Section 17 of this bill. The repealed language has been
characterized as confusing and there is no counterpart or corresponding provision that
applies to villages.

AB213, s. 19 2Section 19 . 62.09 (11) (g) of the statutes is repealed.

Note: Repeals the following directive to the city clerk: "By March 15 the clerk shall
publish as a class 1 notice, under ch. 985, a statement showing the receipts and
disbursements as to each fund during the preceding fiscal year. This shall not apply to
cities operating under s. 64.34.". There is no corresponding requirement imposed on
village clerks. (The provision can be traced to 1889: see Sec. 41, ch. 236, laws of 1889;
s. 925h, sub. 41, 1889, stats.)

In addition to the above requirement imposed on city clerks, both cities and villages
must annually publish a budget summary which, among other things, must include for
both the current budget and the proposed budget "revenue and expenditure totals, by
fund, for each governmental fund, and for each proprietary fund and the revenue and
expenditure totals for all funds combined". Section 65.90 (3) (b) 6., stats. Thus, the
repealed provision overlaps the requirements of s. 65.90, with the exception of the timing
of the publication.

Based on a sampling of cities, it appears that the publication requirement of s.
62.09 (11) (g) may typically be met by publication of the budget summary information
under s. 65.90 (3) (b). This may reflect not only the redundancy of 2 publications but also
the difficulty of obtaining audited expenditures for the prior year in time to meet the
March 15 publication deadline under s. 62.09 (11) (g).

Because s. 62.09 (11) (g) overlaps other requirements and because there is no policy
rationale for it to apply to cities and not villages, the provision is repealed.

AB213, s. 20 3Section 20 . 62.13 (1) of the statutes is amended to read:

AB213,15,24 62.13 (1) Commissioners. Except as provided in subs. (2g), (2m) and, (2s), and
5(8) (b) each city shall have a board of police and fire commissioners consisting of 5
6citizens, 3 of whom shall constitute a quorum. The mayor shall annually, between
7the last Monday of April and the first Monday of May, appoint in writing to be filed
8with the secretary of the board, one member for a term of 5 years. No appointment

1shall be made which will result in more than 3 members of the board belonging to
2the same political party. The board shall keep a record of its proceedings.

Note: See Sections 14 , 21, and 23 and the Notes thereto.

AB213, s. 21 3Section 21 . 62.13 (2g) of the statutes is created to read:

AB213,15,144 62.13 (2g) Contracting for police protective services. A city may enter into
5a contract for police protective services with a village, a town, another city, or a
6county. A city that contracts for police protective services shall pay the full cost of
7services provided. A city that contracts for all of its police protective services under
8this subsection and for all of its fire protective services under sub. (8) (b) is not
9required to have a board of police and fire commissioners. A city that contracts for
10all of its police protective services under this subsection, but not for all of its fire
11protective services under sub. (8) (b), shall have a board of police and fire
12commissioners under this section, but the board may only address issues related to
13the fire department. A city may not contract with a county to provide all of the city's
14police protective services under this subsection.

Note: This Section allows a city, like a village, to contract for police protective
services with a village, a town, another city, or a county. The city must pay the full cost
of services provided. If a city contracts under this provision with another city, village, or
town for all of its police protective services, the city is not required to have a board of police
and fire commissioners, but it must retain such a board if it continues to provide fire
protective services. (Note that the authority of a city to contract with a county for all of
its police protective services is controlled by current s. 62.13 (2s), stats.) Section 66.0301
(2), stats., also allows a municipality to contract with another municipality for services;
this authority is to be liberally construed.

AB213, s. 22 15Section 22 . 62.13 (8) of the statutes is renumbered 62.13 (8) (a).

Note: See Sections 14 , 21, and 23 the Notes thereto.

AB213, s. 23 16Section 23 . 62.13 (8) (b) of the statutes is created to read:

AB213,16,617 62.13 (8) (b) A city may enter into a contract for fire protective services with
18a village, a town, or another city. A city that contracts for fire protective services shall
19pay the full cost of services provided. A city that contracts for all of its fire protective

1services under this paragraph and for all of its police protective services under sub.
2(2g) is not required to have a board of police and fire commissioners. A city that
3contracts for all of its fire protective services under this paragraph, but not for all of
4its police protective services under sub. (2g), shall have a board of police and fire
5commissioners under this section, but the board may address only issues related to
6the police department.

Note: This Section allows a city, like a village, to contract for the provision of fire
protective services with a village, a town, or another city. The city must pay the full cost
of services provided. If a city contracts for all of its police and fire protective services, it
is not required to have a board of police and fire commissioners, but it must retain such
a board if it continues to provide police protective services. Section 66.0301 (2), stats., also
allows a municipality to contract with another municipality for services; this authority
is to be liberally construed.

AB213, s. 24 7Section 24. 62.15 (5) of the statutes is repealed and recreated to read:

AB213,16,118 62.15 (5) Rejection of bids; performance of work by city. (a) Unless the power
9has been expressly waived, the city may reject any bid. The board of public works
10may reject any bid, if, in its opinion, any combination has been entered into to
11prevent free competition.

AB213,16,1512 (b) If the council finds that any of the bids are fraudulent, collusive, excessive,
13or against the best interests of the city, it may, by resolution adopted by two-thirds
14of its members, reject any bids received and order the work done directly by the city
15under the supervision of the board of public works.

AB213,16,1716 (c) If a city performs any work under par. (b), it may secure all necessary
17materials to perform the work.

AB213,16,2018 (d) The city shall collect the cost of all work performed under par. (b) in the same
19manner as if done by any other person under contract with the city and may, subject
20to par. (e), defray such costs by special assessment.

AB213,17,4

1(e) If the city imposes a special assessment under par. (d), it may not assess
2against any property an amount that is greater than would have been assessed
3against the property had the lowest bid received under this section been accepted.
4The city shall bear any costs in excess of that bid.

Note: Section 62.15 (5), stats., provides that when a city directly performs public
construction because it has been determined that bids are fraudulent, collusive,
excessive, or not in the best interests of the city, the provisions of s. 61.54 (2) and (3), stats.,
will apply. The latter statute provides that in a similar situation a village: (1) may
purchase all necessary and proper tools and equipment; (2) may levy special assessments
up to the amount of the lowest rejected bid; and (3) must bear any costs in excess of the
lowest rejected bid. Because Section 10 of this bill in part repeals s. 61.54, this Section
incorporates the substance of s. 61.54 (2) and (3) in s. 62.15 (5).

AB213, s. 25 5Section 25. 66.0133 (3) of the statutes is amended to read:

AB213,17,216 66.0133 (3) Notice. Notwithstanding ss. 27.065 (5) (a), 30.32, 38.18, 43.17 (9)
7(a), 59.52 (29) (a), 59.70 (11), 60.47 (2) to (4), 60.77 (6) (a), 61.55, 61.56 61.54, 61.57,
862.15 (1), 62.155, 66.0131 (2), 66.0923 (10), 66.0925 (10), 66.0927 (11), 66.1333 (5) (a)
92., 200.11 (5) (d) and 200.47 (2), before entering into a performance contract under
10this section, a local governmental unit shall solicit bids or competitive sealed
11proposals from qualified providers. A local governmental unit may only enter into
12a performance contract if the contract is awarded by the governing body of the local
13governmental unit. The governing body shall give at least 10 days' notice of the
14meeting at which the body intends to award a performance contract. The notice shall
15include a statement of the intent of the governing body to award the performance
16contract, the names of all potential parties to the proposed performance contract, and
17a description of the energy conservation and facility improvement measures
18included in the performance contract. At the meeting, the governing body shall
19review and evaluate the bids or proposals submitted by all qualified providers and
20may award the performance contract to the qualified provider that best meets the
21needs of the local governmental unit, which need not be the lowest cost provider.

Note: Revises a cross-reference to reflect the treatment of ss. 61.54 to 61.56, stats.,
by this bill.

AB213, s. 26 1Section 26. 66.0505 (3) (a) 1. of the statutes is amended to read:

AB213,18,62 66.0505 (3) (a) 1. Notwithstanding the provisions of s. 59.10 (1) (c), (2) (c), (3)
3(f) to (j), 60.32, 61.193, 61.32, or 62.09 (6), an elective officer may send written
4notification to the clerk and treasurer of the political subdivision on whose governing
5body he or she serves that he or she wishes to refuse to accept the salary that he or
6she is otherwise entitled to receive.

Note: Revises a cross-reference to reflect the treatment of ss. 61.193 and 61.32,
stats., by this bill.

AB213, s. 27 7Section 27 . 66.0507 of the statutes is amended to read:

AB213,18,14 866.0507 Automatic salary schedules. Whenever the governing body of any
9city, village, or town enacts by ordinance adopts a salary schedule for some or all
10employees and officers of the city, village or town, other than members of the city
11council or village or town board, the salary schedule may include an automatic
12adjustment for some or all of the personnel in conformity with fluctuations upwards
13and downwards in the cost of living, notwithstanding ss. 60.32, 61.193, 61.32, 62.09
14(6) and 62.13 (7).

Note: Revises a cross-reference to reflect the treatment of ss. 61.193 and 61.32,
stats., by this bill.

AB213, s. 28 15Section 28. 66.0901 (2) of the statutes is amended to read:

AB213,19,1416 66.0901 (2) Bidder's proof of responsibility. A municipality intending to enter
17into a public contract may, before delivering any form for bid proposals, plans, and
18specifications to any person, except suppliers, and others not intending to submit a
19direct bid, require the person to submit a full and complete statement sworn to before
20an officer authorized by law to administer oaths. The statement shall consist of
21information relating to financial ability, equipment, experience in the work

1prescribed in the public contract, and other matters that the municipality requires
2for the protection and welfare of the public in the performance of a public contract.
3The statement shall be in writing on a standard form of a questionnaire that is
4adopted and furnished by the municipality. The statement shall be filed in the
5manner and place designated by the municipality. The statement shall not be
6received less than 5 days prior to the time set for the opening of bids. The contents
7of the statement shall be confidential and may not be disclosed except upon the
8written order of the person furnishing the statement, for necessary use by the public
9body in qualifying the person, or in cases of actions against, or by, the person or
10municipality. The governing body of the municipality or the committee, board, or
11employee charged with, or delegated by the governing body with, the duty of
12receiving bids and awarding contracts shall properly evaluate the statement and
13shall find the maker of the statement either qualified or unqualified. This subsection
14does not apply to a 1st class city.

Note: Current s. 66.0901 (2), stats., authorizes a municipality intending to execute
a public contract to require prospective bidders to provide information relating to
financial ability, equipment, work experience, in any other matters required by the
municipality for the protection of the public in the performance of the contract. Based on
the information, the municipality determines whether the prospective bidder is qualified.
If a municipality uses the prequalification procedure, s. 66.0901 (3), stats., prohibits a bid
from being received from any person who has not provided the required information on
qualifications.

The authority under s. 66.0901 (2) does not apply to a 1st class city (presently only
the city of Milwaukee). The 1st class city exemption was added to s. 66.0901 (2) by ch.
474, laws of 1955. At that time, the bidder prequalification procedure was a requirement,
not an option. The procedure was made optional by ch. 346, laws of 1957, but the 1st class
city exemption was not removed.

Because the optional prequalification authority applies to all cities other than the
city of Milwaukee and to all villages, there appears to be no reason to continue to deny
the city of Milwaukee the option of using the procedure. The city of Milwaukee has
indicated it desires the exemption to be removed.

AB213, s. 29 15Section 29 . 66.1103 (11) (a) of the statutes is amended to read: