Wisconsin Legislature: AB213,6,13

• Repeals officer-of-the-peace status of village board members for consistency
with the former repeal of police powers for city council members.

• Repeals the current directive that applies to city clerks, but not village clerks, to
annually publish as a class 1 notice a statement showing the receipts and disbursements
as to each fund during the preceding fiscal year.

• Extends the current authority of 1st, 2nd, and 3rd class cities to regulate political
signs larger than 11 square feet in area to include 4th class cities and villages.

• Repeals the statute providing that counties and cities are strictly liable, subject
to contributory negligence principles, for injuries to persons or property caused by a mob
or riot within their respective jurisdictions.

• Consistent with law that applies to villages, expressly authorizes cities to
contract for police protection with a village, a town, another city, or a county and
authorizes cities to contract for fire protection with a village, a town, or another city.

• Clarifies that the condemnation procedure under s. 32.05, stats., may be used for
certain housing and urban renewal condemnation in villages, as well as in cities.

• Authorizes a 1st class city, consistent with the authority of other classes of cities
and of villages, to use the bidder prequalification procedure for public contracts.

Additional information is contained in the Notes to individual Sections of the bill.

AB213, s. 1 1Section 1. 12.04 (4) (b) of the statutes is amended to read:

AB213,3,72 12.04 (4) (b) In addition to regulation under par. (a), a 1st, 2nd or 3rd class city,
3or a town, municipality may regulate the size, shape or placement of a sign exceeding
411 square feet in area. This paragraph does not apply to a sign which is affixed to
5a permanent structure and does not extend beyond the perimeter of the structure,
6if the sign does not obstruct a window, door, fire escape, ventilation shaft or other area
7which is required by an applicable building code to remain unobstructed.

Note: Section 12.04 (2), stats., generally permits an individual to place a sign
containing a political message on residential property owned or occupied by that
individual during an election campaign period. However, under sub. (4) (a) of the statute,
counties and municipalities may regulate the size, shape, or placement of any political
sign that has an electrical, mechanical, or audio apparatus and may regulate any political
sign in an order to ensure traffic or pedestrian safety. Subsection (4) (b) of s. 12.04 further
authorizes the regulation of the size, shape, or placement of any political sign that is more
than 11 square feet in area, but extends that regulatory authority only to 1st, 2nd, and
3rd class cities and towns. Thus, 4th class cities and villages do not enjoy the latter
authority.

It is not apparent from the legislative history or from a policy standpoint why the
regulatory authority extended by s. 12.04 (4) (b), stats., does not also apply to 4th class
cities and villages. Therefore, the bill extends the authority to all municipalities, which
will include 4th class cities and villages in addition to other classes of cities and to towns.
See s. 5.02 (11).

It is recognized that the implementation of the authority granted under s. 12.04
can raise first amendment issues relating to content-based regulation of speech.
However, notwithstanding that issue, it was determined that the regulatory authority
should be extended to all municipalities, consistent with the special committee's
directive.

AB213, s. 2 8Section 2. 32.05 (intro.) of the statutes is amended to read:

AB213,4,24

132.05 Condemnation for sewers and transportation facilities. (intro.)
2In this section, "mass transit facility" includes, without limitation because of
3enumeration, exclusive or preferential bus lanes if those lanes are limited to
4abandoned railroad rights-of-way or existing expressways constructed before
5May 17, 1978, highway control devices, bus passenger loading areas and terminal
6facilities, including shelters, and fringe and corridor parking facilities to serve bus
7and other public mass transportation passengers, together with the acquisition,
8construction, reconstruction and maintenance of lands and facilities for the
9development, improvement and use of public mass transportation systems for the
10transportation of passengers. This section does not apply to proceedings in 1st class
11cities under subch. II. In any city, condemnation for housing under ss. 66.1201 to
1266.1211, for urban renewal under s. 66.1333, or for cultural arts facilities under
13subch. V of ch. 229, may proceed under this section or under s. 32.06 at the option
14of the condemning authority. In any village, condemnation for housing under ss.
1566.1201 to 66.1211 or for urban renewal under s. 66.1333 may proceed under this
16section or under s. 32.06 at the option of the condemning authority. Condemnation
17by a local exposition district under subch. II of ch. 229 for any exposition center or
18exposition center facility may proceed under this section or under s. 32.06 at the
19option of the local exposition district. All other condemnation of property for public
20alleys, streets, highways, airports, spaceports, mass transit facilities, or other
21transportation facilities, gas or leachate extraction systems to remedy
22environmental pollution from a solid waste disposal facility, storm sewers and
23sanitary sewers, watercourses or water transmission and distribution facilities shall
24proceed as follows:

Note: Clarifies that the condemnation procedure under s. 32.05, stats., may be
used in villages for condemnation for housing under ss. 66.1201 to 66.1211, stats., and
for urban renewal under s. 66.1333, stats.

There are 2 general condemnation procedures under state statute. One procedure
is found in s. 32.05, stats., the other in s. 32.06, stats. Procedural and timeliness
considerations may make the s. 32.05 procedure more advantageous to a condemnor than
the s. 32.06 procedure. (Under the s. 32.05 procedure, if the condemnor and property
owner are unable to agree on the purchase price, the condemnor sets the purchase price
and, upon payment of that price to the property owner, title to the property passes to the
condemnor. The property owner then has the burden of contesting the compensation, if
the property owner so chooses, before the county condemnation commission or circuit
court. In contrast, under the s. 32.06 procedure, if the condemnor and property owner
are unable to agree on the purchase price, the purchase price is determined by the county
condemnation commission before the condemnor acquires title. The condemnor has the
burden of bringing the compensation issue before the condemnation commissioners. The
condemnor is required to pay the price determined by the commission and title to the
property passes upon payment.)

Cities have housing authority under ss. 66.1201 to 66.1211, stats., and urban
renewal authority under s. 66.1333, stats. Under s. 66.1339, stats., villages have all of
the powers of cities under ss. 66.1201 to 66.1329 and ss. 66.1331 to 66.1337, stats.

Cities have express authority under s. 32.05 (intro.) to use the condemnation
procedure under that section for the housing and urban renewal authority cited above.
(Alternatively, the s. 32.06 procedure may be used.) There is no express authority for
villages to use the condemnation procedure under s. 32.05 for these purposes. The failure
to expressly include housing and urban renewal condemnations in villages under the
32.05 procedure raises doubt about whether that authority exists in villages by
implication.

Because there is no apparent policy rationale for not extending the authority to use
the s. 32.05 procedure for condemnations in villages for these purposes, the section is
amended to expressly include that authority.

AB213, s. 3 1Section 3 . 61.193 of the statutes is created to read:

AB213,5,5 261.193 Establishing and changing compensation for elective offices.
3(1) In this section, "compensation" means a salary, a per diem compensation for each
4day or part of a day necessarily devoted to the service of the village and the discharge
5of duties, or a combination of salary and per diem compensation.

AB213,6,2 6(2) Except as provided in sub. (3), and subject to s. 61.32, the compensation for
7an elective village office shall be established before the earliest time for filing
8nomination papers for the office or, if nomination papers are not used, before the
9caucus date determined under s. 8.05 (1) (a). After that time or date, no change may
10be made in the compensation for the office that applies to the term of office for which

1the deadline or date applies. The compensation established for an elective office
2remains in effect for ensuing terms unless changed.

AB213,6,4 3(3) In a newly incorporated village, the compensation for an elective office may
4be established during the first term of office.

Note: Creates a provision for establishing and changing compensation for village
elective offices that corresponds to the provision applicable to city elective offices, created
by Section 17 of this bill.

The requirement that the compensation, as defined, for an elective village office be
established before the earliest time for filing nomination papers for the office or before
the caucus date 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 par. (b) restate language deleted from current s.
61.32, stats., by Section 8 of this bill, although the current law provision applies only to
the village president and trustees and the new language applies more broadly, to all
elective officers. Paragraph (c) is new and corresponds with a provision that currently
applies to newly incorporated cities. See Sections 17 and 18 of this bill.

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 village board members). See Section 27 of this bill.

AB213, s. 4 5Section 4 . 61.23 (1) of the statutes is amended to read:

AB213,6,136 61.23 (1) Except as otherwise provided by law, the term of office of all village
7officers is 2 years. Persons serving in appointive offices shall serve until their
8respective successors are appointed and qualify, unless otherwise provided by
9ordinance. If any officer other than a trustee is absent or temporarily incapacitated
10from any cause the board may appoint some person to discharge the officer's duties
11until the officer returns or until such disability is removed. If a trustee is temporarily
12incapacitated because of physical or mental disability, the board may appoint a
13person to discharge the trustee's duties until the disability is removed.

Note: Persons serving in appointive offices in a village serve until their respective
successors are appointed and qualify. This Section amends current law to provide that
a village, by the adoption of an ordinance, may create a different method of determining
when the term of an appointed officer ends. See also Section 15 of this bill.

AB213, s. 5 14Section 5. 61.31 (title) of the statutes is amended to read:

AB213,7,1

161.31 (title) Peace officers, who are powers.

AB213, s. 6 2Section 6. 61.31 (1) of the statutes is repealed.

Note: Repeals the following language: "The president and each trustee shall be
officers of the peace, and may suppress in a summary manner any riotous or disorderly
conduct in the streets or public places of the village, and may command assistance of all
persons under the same penalty for disobedience provided in s. 61.28 [$10 forfeiture].".

There is no corresponding provision that applies to members of the city council.
At one time, city council members had the "powers of a city policeman". Section 62.09 (14),
1981-82 stats. That provision was repealed by 1983 Wisconsin Act 210.

There is no apparent policy rationale for extending peace officer status to village
presidents and trustees and not extending the same powers to common council members,
particularly in light of the former repeal of the latter.

Because it appears the provision is little used and little known, and because of
concerns with possible liability, the provision is repealed.

AB213, s. 7 3Section 7. 61.31 (2) of the statutes is renumbered 61.31.

AB213, s. 8 4Section 8 . 61.32 of the statutes is amended to read:

AB213,8,16 561.32 Village board; meeting; salaries. The trustees of each village shall
6constitute a board designated the "Village Board of" (name of village) in which shall
7be vested all the powers of the village not specifically given some other officer. A
8majority of the members-elect shall constitute a quorum, but a less number may
9adjourn from time to time. The president shall preside at all meetings when present.
10In the president's absence the board may select another trustee to preside. Regular
11meetings shall be held at such time as may be prescribed by their bylaws. Special
12meetings may be called by any 2 trustees in writing, filed with the clerk, who shall
13thereupon seasonably notify all the trustees of the time and place thereof in the
14manner directed by the bylaws. All meetings shall be open to the public. The board
15shall keep a record of all its proceedings, and if there is a newspaper published in any
16village, the board shall cause the proceedings to be published therein as a class 1
17notice, under ch. 985. The proceedings for the purpose of publication shall include
18the substance of every official action taken by the governing body. If there is no

1newspaper published in the village, the board may cause the proceedings to be
2published in a newspaper having general circulation in the village, posted in several
3public places or publicized in some other fashion, in such manner as the board
4directs. Nothing herein shall be construed as requiring the republication of any
5proceeding, ordinance or other matter or thing which has already been published
6according to law, nor shall anything herein be construed to relieve any village from
7publishing any proceeding, ordinance or other matter or thing required by law to be
8published. Notwithstanding the provisions of s. 985.08 (4), the fee for any such
9publication shall not exceed the rates specified in s. 985.08 (1). The board has power
10to preserve order at its meetings, compel attendance of trustees and punish
11nonattendance and it shall be judge of the election and qualification of its members.
12The president and board of trustees of any village, whether operating under general
13or special law, may by a three-fourths vote of all the members of the village board
14determine that an annual a salary be paid the president and trustees. Salaries
15heretofore established shall so remain until changed by ordinance and shall not be
16increased or diminished during their terms of office.

Note: Section 61.32, stats., provides in part that a village board may, by a
three-fourths vote of all the board members, determine that an annual salary be paid the
village president and trustees. Section 62.09 (6) (a), stats., provides that salaries, with
no reference to whether they are paid annually or on some other basis, shall be paid the
mayor or alderpersons of a city only when ordered by a vote of three-fourths of all the
members of the common council. This Section amends s. 61.32 to comport with the
language of s. 62.09 (6) (a) by removing the requirement that the salaries of a village
president and village board members be described as annual salaries. [The village
language first appeared in ch. 44, laws of 1905, and the city language first appeared in
ch. 326, laws of 1889, Sec. 30.]

The stricken last sentence is restated in s. 61.193, stats., created by Section 3 of
this bill.

AB213, s. 9 17Section 9. 61.50 (1) of the statutes is amended to read:

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.