COMMON DILEMMAS CLERKS AND TREASURERS FACE AND HOW TO SOLVE THEM Carol Nawrocki, Assistant Director Jann Charette, WTA Legal Counsel
Question 1: Recently, a clerk learns that she has been eligible to receive retirement benefits through the Wisconsin Retirement System since 2007. However, she and the town never paid in contributions. Through discussions with WRS, she learns that there is a payment due by the end of the month in the amount of $27,000. Part of this payment includes an amount which the clerk should have been contributing since 2007. The clerk has a pre-signed check in her office. What should the clerk do? A. Ask the chairperson to place this item on the next town board meeting agenda to discuss. B. Write a check to the WRS for $27,000 and mail it out since the board cannot meet until after this payment is due. C. mail it out since the board cannot meet until after the payment is due. D. Receive approval from the town chairperson to write and mail the check to the WRS.
Answer to Question #1: Best Answer = A: Ask the chairperson to place this item on the next town board meeting agenda to discuss. 1. Keeping pre-signed checks violates the checks and balance system set up in s. 66.0607(3), Wis. Stats. It is ok for the clerk to store blank checks but not pre-signed ones. Having checks pre-signed opens the town up to dishonesty and theft. 2. Cannot write a check for an item or bill that has not been duly authorized by the town board. See s. 60.44(2)(a)2., Wis. Stats. 3. If the clerk drafts and mails out a check that included the amount that the employee was required to contribute, could be charged with a Class H felony for theft. See s. 943.20(3), Wis. Stats., Felony H- theft in the amount of $5,000-$10,000.
Question 2: You have learned that the town chair has contacted the other board members to see if they will be available for a special closed session meeting next week. You were not directly told about this meeting and only heard about it when a board member contacted you to see if the town hall was available for use that evening. As a clerk, what should you do? A. Report the board members for violating the open meetings law because they talked to each other outside of a meeting. B. Show up for the meeting and record the minutes as usual. C. D. Breathe a sigh of relief, you get to stay home that night.
Answer to Question #2: Best Answer = D: Breathe a sigh of relief, you get to stay home that night. 1. the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, While they are meeting on official business, it is not Open Meetings violation when the discussion is one of administrative (setting date and time of meeting) in nature. 2. The town board does not need to invite the clerk or treasurer into a closed session.
Question 3: The board would like to adopt an ordinance restricting new high capacity wells from being drilled in the town without prior approval of the town board. The board has asked you to put together a draft ordinance for their review at the next board meeting. As clerk, what should you do? A. Search online for a sample from another town you can cut and paste as needed. B. C. Tell the board you are not an attorney and they will need to discuss and vote on whether to hire an attorney to do this. D.
Answer to Question #3: Best Answer = C: Tell the board you are not an attorney and they will need to discuss and vote on whether to hire an attorney to do this. 1. Towns are preempted from adopting an ordinance regulating high capacity wells. It is a very dangerous practice to cut and paste language from other ordinances, know whether the town even has the authority to adopt such an ordinance. 2. WTA attorneys provide legal information, not legal advice. 3. Clerk may not call town attorney without Town Board approval to do so.
Question 4: discussing whether to purchase a security system for the town hall. Cameras will be installed and town staff will need to use security badges. You think the system is a waste of money. As town treasurer, what should you do? A. Refuse to sign the check if the board votes to purchase the system. B. Interject with your thoughts when this item comes up on the agenda for discussion. C. Ask the clerk to interject during the meeting because he also thinks this is a bad idea and the board always listens to him. D. Contact each of the board members in advance of the meeting and explain why you oppose the idea.
Answer to Question #4: Best Answer = D: Contact each of the board members in advance of the meeting and explain why you oppose the idea. 1. Neither the treasurer or the clerk are members of the board so they do not have the ability to discuss this matter unless asked by the town board to do so. 2. Sec. 60.30(5)(b), Wis. Stats., allows the board to appoint a perform.
Question 5: An elderly lady arrived at the town hall to pay her taxes as you were locking up to leave for the day. Instead of turning her away to come back another time, you open up the door and allow her to pay her taxes. She was so grateful, she sent you a nice note, a box of chocolates, and a $50 gift card for a department store. As town treasurer, what should you do? A. and buy a new coffee maker for the town office at the store. B. Enjoy your gifts. You deserve a reward for going above and beyond! C. D. Return the gifts to the taxpayer and ask her to make a donation to your re-election campaign instead.
Answer to Question #5: Best Answer = A: Put the chocolates out for the public to eat at at the store. Local public officials should not accept: 1. Items or services offered because of public position. 19.59(1)(a). 2. Items that could influence judgment. 19.59(1)(b). 3. Rewards for official action. S. 19.59(1)(b). 4. Transportation or traveling accommodations. 946.11 May accept: 1. Items and services unrelated to public position. 2. Expenses provided by or for the benefit of the local governmental unit. 3. Items of insubstantial value. See Wisconsin Ethics Commission guide at: https://ethics.wi.gov/resources/1219- ReceiptOfItemsAndServicesByLocalOfficals.pdf.
Question 6: On Friday, the chair sent you an agenda for a special town now 10 a.m. on Sunday and you notice that the agenda says the meeting will be on Tuesday, June 17 th at 7p.m., but the 17 th is a Monday. As clerk, what should you do? A. Hope no one notices since all of your meetings are on Mondays and the usual attendees know this. B. Contact the chair and let her know the meeting will have to C. Correct all of the notices today so that they say Monday. D. Go ahead as planned, but contact each of the bidders early on Monday to make sure that they know when the meeting is.
Answer to Question #6: Best Answer = B: Contact the chair and let her know the properly noticed. 1. The board is unable to fix an open meetings law violation after the fact. It will have to wait and see if anyone files an open meetings complaint. If found to have violated open meetings law, actions taken at meeting are voidable. See s. 19.97(3). 2. The town board, not the clerk and treasurer, are subject to penalties, if they knowingly attend a meeting that is being held in violation of the Open Meetings Law. See s. 19.96, Wis. Stats.
Question 7: An owner alcohol retail license. Owner has received an offer to purchase from buyer to purchase the restaurant. Buyer is waiting for financing to come more originals or reserves to issue. It is June 15th and closing of the sale will not occur before June 30 th. As the clerk, what should you do? A. If the owner meets the qualifications, publish the notice of the alcohol retail license application for the next town board meeting. B. Recommend to the town board that that it issue the renewal license to the buyer once the sale is finalized. C. Recommend that the town board grant a renewal license to the owner and a provisional to the buyer. D. license to the owner with written commitment that he will surrender it upon sale of restaurant being finalized.
Answer to Question #7: Best Answer = A: If the owner meets the qualifications, publish the notice of the alcohol retail license application for the next town board meeting. 1. Alcohol retail licenses can only be transferred from person to person when licensee dies, becomes bankrupt, or makes an assignment for the benefit of creditors. See s. 125.04(12)(b). 2. 3. licenses available to issue. See s. 125.185(5). condition of issuance or renewal.
Question 8: The town will be conducting a revaluation of its properties in 2019. Your elected assessor informs you, the clerk, that he is going to be resigning his position in 2019. He recommends that you put out a request for proposal to fill his position. What should the clerk do? A. Inform him of the process of resigning from a town office. B. Ask the town board chair to place this item on the agenda for the next town board meeting. C. Draft a request for a proposal for a new assessor and publish it in the newspaper. D. Contact the Department of Revenue to let them know you will be getting a new assessor.
Answer to Question #8: Best Answer = B: ask the town board chair to place this item on the agenda for the next town board meeting. 1. Pursuant to s. 17.01(13)(b), Wis. Stats., town officers, other than the clerk, submit written resignations to the town clerk. st. The assessor would need to submit a letter of resignation before the town board could act. 2. The clerk cannot determine unilaterally to advertise for a position. The town board must give him/her authority to do so. 3. The Department of Revenue wants assessors who are qualified and certified to serve as such. They would be notified after the appointment.
Question 9: The clerk serves as the secretary of the plan commission and uses his personal computer to conduct town business. One of the residents, who was recently denied a CUP by the town board, submits a public record request to view all e-mails sent and received between the clerk and the plan commission members as well as all e-mails sent and received between the clerk and the town board. The resident wants to meet with him at the town hall office to view these e-mails in person. What should he do? A. Set a date and time to meet with this person to review the e- mails on his personal computer. B. Refuse the request since the e-mails are on his personal computer. C. D. Print all of the e-mails and charge the resident the actual, necessary and direct cost of copying the e-mails.
Answer to Question #9: Best Answer = A: Set a date and time to meet with this person to review the e-mails on his personal computer if this record is a public record. Alternative Answer = C: Review attorney if the record is attorney/client privilege or could be part of current or future litigation or if you are otherwise unsure whether to disclose under the balancing test. 1. Pursuant to s. 19.35(1), Wis. Stats., requestor has a right to inspect any record, regardless of whether it is on your personal computer. 2. Pursuant to s. 19.35(3), Wis. Stats., may charge the actual, necessary and direct cost of reproduction. If cost exceeds $5.00, may request prepayment.
Question 10: I am a new clerk. When I took over this position a few months ago, I inherited 30 years worth of town documents from the previous clerk. I know that many of these documents are old and outdated. Our home has a fire pit in the backyard. What should I do? A. Toss old receipts, bank statements, and cancelled checks, but retain assessment rolls and ledgers. B. Check to see if the town has any local ordinances or policies regarding the destruction of public records. C. Invite all of the neighboring clerks to my home and host the session. D. Store these documents in the town hall and let the next clerk deal with them.
Answer to Question #10: Best Answer = B: Check to see if the town has any local ordinances or policies regarding the destruction of public records. 1. Prior to destruction of public records, Wisconsin Historical Society must be given notice in writing to determine if they want to preserve any of the town records. Sample resolution adopted by town board in Wisconsin Town Law Forms book- s.19.21(3). 2. Town board may adopt ordinance for the destruction of public records. Certain records must be retained permanently and others for a certain number of years.
Question 11: An elector of the town, who is physically disabled and uses a in person absentee voting hours published in the newspaper. equipment located at it. What should the clerk do? A. Run quickly to the town hall and pick up the AutoMark ballot marking machine. B. Tell the elector to return to his/her vehicle so that you can bring the ballot to him/her there. C. vote absentee by mail. D. Hold all voting, including in person absentee voting, in an accessible location.
Answer to Question #11: Best Answer = B: Tell the elector to return to his/her vehicle so that you can bring the ballot to him/her there or Best Answer = D: Hold all voting, including in person absentee voting, in an accessible location. 1. Municipalities must have polling places that are fully accessible including one accessible voting component. Clerks required to complete Polling Place Accessibility Survey for each polling place. The Automark machine assists voters with hearing and vision concerns. 2. If a person is a qualified elector, must be given the opportunity to vote.