i.e. the Schmidt/Bidar-Sielaff version that labor is supporting.
I bolded the highlights for you. Since I’m throwing so much at you this morning. If you are interested in more, Lauren Cnare and Shiva Bidar-Sielaff will join me on WORT (89.9 FM) A Public Affair at noon and your calls welcome. 256-2001.
The Bidar-Sielaff/Schmidt Alternate.
This new proposal essentially proposes to retain MCAD as both the operator and the new owner of the Overture facility. To the extent I understand the resolution, it raises a number of legal issues:
1. I have questions regarding what is intended by some parts of the resolution and some possible suggested clarifications that I will discuss with the drafters separately from this memo.
2. This Alternate states that MCAD is to assume the employees of the Overture Center and to retain existing benefits. This would require a statutory change, as secs. 40.02(28) and (36), Wis. Stats., explicitly exclude MCAD from being an employer covered by WRS.
3. In addition, the employees of MCAD would lose other benefits of public employment. Although MCAD is an “employer” under sec. 111.02(7), Wis. Stats., making it subject to non-discrimination and other requirements of chapter 111, it explicitly is not a “municipal employer” under sec. 111.70(1)(j), Wis. Stats., meaning that its employees are not subject to the jurisdiction of the Wisconsin Employment Relations Commission for bargaining purposes and do not have the protections of the Wisconsin Municipal Employment Relations Act. The employees would presumably be subject to jurisdiction of the National Labor Relations Board like other non-public employees.
4. I was asked if something like this could be accomplished through an intergovernmental agreement with the City of Madison. Yes, it could, so long as the employees clearly remained employees of the City of Madison. This would allow the invocation of the loaned public employee law. It is the same as the current status under the Operation and Cooperation Agreement between the City and MCAD, which is an intergovernmental agreement pursuant to sec. 66.0301, Stats.
5. I was asked about the legislative history of the provisions cited above that exclude MCAD from the WRS and MERA. From the legislative history files that I was able to review today, I could find no clear explanation for these exclusions, other than to speculate that the Legislature intended that cultural arts district employees should not have the same rights as municipal employees. These exclusions were in the original bill as proposed (1999 AB 853) and continued in Assembly Substitute Amendment 1, which was approved by the Assembly and the Senate without further amendment. No amendments were proposed to remove these limitations. They remained in the legislation as adopted and signed by the Governor as 1999 Act 65 (effective April 26, 2000).
6. I was also asked about creation by the City of its own non-profit entity that might be able to take advantage of the loaned employee law and retain public benefits for the employees. The loaned employee law, sec. 230.047, Stats., makes specific mention of one public body loaning employees to another public body, and includes an “instrumentality” of the State as part of the definition of a local government, sec. 230.047(2)(a), Stats. Traditionally, an “instrumentality” of a public body is some separate organization, such as a private non-profit entity, that is totally controlled by the public body and used to carry out some or all of the governmental body’s public purposes. It is often an issue in tax law. The Legislature must have included the phrase in the loaned employee law to allow some greater flexibility beyond traditional governmental entities.
I have not examined this option in detail. The entity would have to be set up carefully to avoid issues with the IRS and to be certain it would be recognized by the State and federal governments as nothing more than an arm of the City of Madison, thus allowing it to qualify as an instrumentality that could utilize public employees. As a practical matter, the level of effective control that the City would have to exert over such an entity would raise questions as to why it was more effective than simply having the City itself undertake operational responsibilities.
Once again, I find his analysis less than decisive and therefore, less than helpful. Too many qualifiers. If’s, maybe’s and guesses. On the other hand, there were not really any decisive road blocks either.
