The most offensive thing about this memo is that it was written 5 days before the meeting, yet not shared with the public or the lead sponsor. With staff like this . . . who needs political enemies.
Read the first paragraph, are you thinking what I am thinking? They who givith, can also taketh away . . . I think the staff have gotten a little too cocky . . .
August 3, 2012
TO: Kevin Connors, Director Land and Water Resources Department
FROM: Assistant Corporation Counsel, Mary M. Kasparek
RE: Authority of the Park CommissionYou have asked for an opinion as to how the statutory authority of the Park Commission relates to the statutory power conferred upon the County Board (“Board”) to govern on behalf of the county. For the reasons stated below, it is my opinion that the Park Commission has been granted specific exclusive authority by the Board to govern and manage county parks, subject only to the general supervisory authority of the Board.
This is an issue of statutory interpretation. Chapter 59 of the Wisconsin Statutes gives county boards broad governing authority. §59.02(1) provides that “the powers of a county as a body corporate can only be exercised by the board, or in pursuance of a resolution adopted or ordinance enacted by the board.” §59.51(1) affirms that a county board may exercise any organizational or administrative power without limitation because of enumeration and that “those powers shall be broadly and liberally construed and limited only by express language.” (Emphasis added). In my opinion, the statutorily-mandated establishment of a park commission with enumerated duties is one such limitation on the Board’s powers.
Chapter 27 of the Wisconsin Statutes requires that every county with a population of at least 150,000,but less than 500,000, shall establish a park commission. §27.05 states that a park commission “shall have charge and supervision” of all county parks and all lands acquired by the county for park or reservation purposes, subject to the general supervision of the county board and regulations prescribed by the county board. Included in the permitted duties of a park commission are the power to lay out, improve, maintain and govern county parks [27.05(1)] and the power to make rules for the regulation of the use and enjoyment of the county parks and open spaces by the public [27.05(1s)].
Dane County has codified the statutory authority of a park commission in its ordinances. §15.30(5) authorizes the Park Commission to, among other things, lay out, improve, maintain and govern all county parks and parkways, and to exercise its powers as provided in §27.05 of the statutes. §53.13 of the ordinances further expands on the role of the Park Commission by providing as follows: “the park commission is authorized to adopt additional or revised rules and regulations for the proper conduct and administration of the parks in the County of Dane not inconsistent with this ordinance, to grant permits in conformity with the provisions hereof and to perform such other acts with reference to the management of said parks as are lawful and as they may deem expedient, to promote the beauty and usefulness of said parks and to increase the comfort, safety, convenience and public welfare of the citizens of Dane County and of visitors to said parks in their use of the same.”
While the statutes do not specifically delineate the division of authority between a county board and a park commission, the rules of statutory construction coupled with the specific language of §27.05 support the conclusion that a park commission has the inherent authority to govern and regulate county parks, limited by only the general supervisory power of a county board to oversee county functions. It is a well-known tenet of statutory construction that a statute should be construed to give effect to all its provisions. State v. Anderson (1927) 211 N.W. 938, 191 Wis. 538. Every part in connection with the whole should be construed so as to make all parts harmonize and to give a sensible effect to each, and not to place one portion in antagonism to another. Harrington v. Smith (1871), 28 Wis. 43. Construing the statutes to allow for concurrent jurisdiction by the Park Commission and the Board would result in confusion over which body may assert their authority and when they may do so. Reading the statutes to permit the Park Commission to regulate county parks under the general supervision of the Board harmonizes the statutes. It is also well-established that where there is a specific statutory provision as well as a general provision, the specific provision must control and the general provision must be taken to affect only such cases within its general language as are not encompassed by a particular provision. Frank Lloyd Wright Foundation v. Town of Wyoming (1954), 66 N.W.2d. 642, 267 Wis. 599. In this instance, the statutes attribute specific powers to a park commission while only prescribing general supervisory powers to the county board.
Further, a closer reading of §27.05 shows that the Legislature attempted to define the powers of a county board in relation to a park commission by reserving certain specific approval functions within the powers vested in a park commission for a county board. A park commission may arrange for the disposal of sewage [27.05(1g)], acquire land for park purposes [27.05(3)] and acquire land for airport-related purposes [27.05(4)] only with approval and consent of the county board. Other park commission duties, including the ability to govern the parks and to establish regulation, contain no such limitations on a park commission’s power.
Please contact me if you have any questions or if I can provide further assistance on this issue.
Your head hurt? Enough legal mumbo-jumbo for a Friday morning. I’m sure we can find an attorney with a different interpretation of the law . . . meanwhile, if you need to catch up on what is going on, you can read the following posts:
Staff foul!
What’s all the fuss about?
Offending County Parks Memo
