John Foust - JCEDC Refusals
|
Jefferson Banner - Opinion John Foust - JCEDC Refusals |
| May 14, 2001
Dear County Board Supervisor, In recent conversations with various County Board Supervisors it was discovered that not all Supervisors had received a copy of the letter from David Wambach, District Attorney, regarding his opinion as to whether the Jefferson County Economic Development Corporation is an entity subject to Wisconsin's Open Meetings Law. Enclosed is a copy of the letter for your reading. Sincerely, Sheldon Mielke Christi Ott John Givens Enclosure CC: Jefferson County Board of Supervisors April 16, 2001 Steven J. Nass Dear Supervisor Nass: You requested an opinion from me, as the Jefferson County District Attorney, as to whether the Jefferson County Economic Development Corporation is an entity subject to Wisconsin's Open Meetings Law. I do not ordinarily provide advisory opinions (i.e. an opinion on a matter not directly before me as the result of a verified complaint - a prerequisite for action by the district attorney pursuant to sec. 19.97(1)). Nonetheless. I am making an exception in this case. I believe this question or issue of the applicability of the open meetings laws to the Jefferson County Economic Development Corporation is such that if unresolved, may unnecessarily distract or hinder the Jefferson County Board of Supervisors and/or the Jefferson County Economic Development Corporation from efficiently and expeditiously carrying out their respective responsibilities. It is my opinion, after careful consideration of the facts and law, that the Jefferson County Economic Development Corporation is not a governmental, nor quasi-governmental corporation under the broad definition of governmental body as defined and subsequently interpreted pursuant to sec. 19.82(1) Stats. As the Attorney General has stated, "Whether a particular private corporation resembles a governmental corporation closely enough to be a "quasi-governmental corporation" within the meaning of sec. 19.82(1) must be determined on a case-by-case basis, in light of all the relevant circumstances7 There is no particular test, equation or list of criteria, which can be applied to definitively characterize a private corporation as a quasi-governmental corporation subjecting it to the dictates of the open meetings laws. The JCEDC is a private corporation under sec. 501(c)(4) of the Internal Revenue Code of 1986 (as amended or revised). It began as a taxable, for profit corporation prior to taking on its 501(c)(4) status. Although currently housed in a government owned building, the JCEDC pays a fair market rent. Al! of the office supplies and durable goods used by the JCEDC are owned by the corporation and purchased with corporate dollars. Although the JCEDC does have a contract with the county and as a result of that contractual relationship, is paid with county tax dollars, such funding is not the sole source of funding for the JCEDC. The Board of Directors limits the number of elected officials, whether from the county or any municipal body within Jefferson County - or the communities of Whitewater, Waterloo, Cambridge or Watertown - to no more than three individuals. Those positions comprise a small minority of the total number of board members, their vote is not entitled to any greater weight than any other board member, those three positions are neither mandated nor required to be set aside and the county board cannot dictate to the JCEDC who it is that will fill those positions. Although the contract for economic development services between the JCEDC and Jefferson County requires quarterly meetings between the JCEDC and the budget committee (as well as an annual report to the County Board) the budget committee does not, pursuant to the contract, have the power or authority to direct the JCEDC to make any particular decision or take any action. The JCEDC does not own or control any land, development or business/industrial park property. The JCEDC has no authority to create rules, regulations, conveyance, restrictions, or laws. The JCEDC cannot restrict or prohibit development, nor can it authorize or approve development. Therefore, under an independent and objective analysis of the facts and circumstances compared to the backdrop of the law governing determinations of quasi-governmental corporation status, I find the Jefferson County Economic Development Corporation is not a quasi-governmental corporation and accordingly is not subject to the open meetings laws. Furthermore, a comparative analysis to the City of Jefferson Development Corporation (JDC) also supports my conclusion. The facts and circumstances surrounding the JCEDC stand in rather stark contrast to those noted in my September 7, 1999 letter in which I opined and concluded that the Jefferson Development Corporation was a quasi-governmental corporation under sec. 19.82(1) and subject to the open meetings law of Wisconsin. I recognize that absolute certainty is often elusive in the law and that there Is much truth in the old saying, "legal minds may differ". I do not consider myself to be either a state or national "authority" on the issues of open meetings laws, nor do I believe myself to be infallible. Nonetheless. I am certain and confident in my legal opinions and conclusions. Although I recognize this to be an important opinion, I did not consider it to be a difficult opinion, nor a close call. It continues to be my pleasure and privilege to serve our Jefferson County community. I will continue to strive to work cooperatively, whenever possible within the bounds of ethics and the law; whether it is with a member of government or a private citizen. Sincerely, DAVID J. WAMBACH DISTRICT ATTORNEY Cc: Marilyn Haroldson Wendall A. Wilson |