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Appointed Clerk, Treasurer or Clerk-Treasurer

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1. Q. How is the elective office of clerk, treasurer or clerk-treasurer turned in to an appointive office, the selection of which is vested in the town board?

A. The procedural options that are available to convert the position(s) to “appointed” vary depending on the size of the town. In a town with a population over 2,500, the electors may vote to have the position(s) become appointed at a town meeting of the electors. Wis. Stat. § 60.10(1)(b)(2m) & 60.30(1e)(e). Towns with smaller populations, and towns exceeding 2,500 that choose not to use the above procedure, may also convert the office(s) to “appointed” by following a different set of steps. First, the town board must enact an ordinance that provides for the appointment of the position(s). Wis. Stat. § 60.10(1e)(a). A sample appointment ordinance is available on the WTA website under Legal Info. Next, the town board must call a referendum for the electors to approve the ordinance--the call for the referendum is made a part of our sample ordinance. The referendum must be held not sooner than 70 days after the referendum is called by the town board and the referendum must be held at the next spring or general election. Wis. Stat. § 60.30(1e)(b). That means that a town board wishing to use this method should adopt such an ordinance at a properly noticed town board meeting on or before August 25, 2014 in order to have the question go on the ballot at the general election in November. If the town waits to put the question on the April 2015 ballot, the change will not become effective until the start of the new terms in April 2017. If such an ordinance is approved in a referendum or the switch will occur because of a town elector meeting vote, the change from an elective to an appointive office may not take effect until the term of the incumbent expires. For example, if the ordinance is approved at the general election this fall, the ordinance takes effect upon the expiration of the term(s) of the incumbent officer(s). However, if the ordinance were adopted after the August deadline and placed on the spring election ballot at which the office of the town clerk and/or treasurer is filled, the ordinance would take effect upon the expiration of the term or terms of each officer who is elected at that election. That means the town would essentially have to wait 2 more years for the office to become appointive. As a result, any town attempting to make the switch by referendum needs to be sure to get the ordinance passed prior to the August 2014 deadline if it wants the switch to become effective in April of 2015. NOTE: Not sooner than 2 years after the position becomes appointive, the town board may enact an ordinance to return the office to an elective position, without a referendum or a town elector meeting vote. Wis. Stat. § 60.30(1e)(d) & 60.30(1e)(g).

2. Q. Why do towns switch to having an appointed clerk or treasurer?

A. The positives or negatives often depend on one’s perspective. But some of the key differences are as follows: Appointed clerks and treasurers: 1. Do not have to be town residents. 2. Have their qualifications, job descriptions, and wages/benefits set by the town board as they are essentially town employees hired by the board. 3. Cannot be removed by the board during their term of office, unless there is “cause” for removal (misconduct in office or neglect of duties). The board can simply choose not to re-appoint an official at the end of his or her term without having to establish cause. 4. Can be appointed for a term not to exceed 3 years at one time. Can be appointed for a shorter term such as six months or one year or whatever the board deems appropriate. Elected clerks and treasurers: 1. Do have to be town residents. 2. Are answerable to the electorate and cannot be required by the board to hold specific qualifications or obtain training (unless required by state law-such as election training for clerks). 3. Can be recalled from office like other elected officials, but cannot be removed from office by a board vote. 4. Are elected for two year terms at the spring election in odd-numbered years.

3. Q. How many appointed town clerks and treasurers are there in Wisconsin? How many hold the combined office?

Out of 1,255 towns, there are currently: 188 appointed clerks; 122 appointed treasurers; 101 appointed clerk-treasurers and 106 elected clerk-treasurers.

Fireworks

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1. Q. Someone has called the town asking for a fireworks permit. Why do they need a permit from the town?

A. Under state law, fireworks may generally only be sold to members of the public for recreational use if they are the holder of a valid user’s permit meeting the requirements of s. 167.10(3), Wis. Stat. As a result, people wishing to use or possess fireworks within the town must get a permit from the town. Permits are not required to transport fireworks through the town on the way to another location, as long as the person transporting the fireworks remains in the town for less than 12 hours. See s. 167.10(3)(bm), Wis. Stat. Likewise, people who are not state residents can buy fireworks without a permit and transport them out of state as long as they don't stay in any municipality for more than 12 hours. If they intend to use the fireworks in Wisconsin or plan to stay in any Wisconsin municipality with the fireworks for 12 or more hours, they need a valid permit.

2. Q. Who may issue a town fireworks permit?

A. Pursuant to s. 167.10(3), no person may possess or use fireworks without a user’s permit issued by the chairperson of the town in which the possession or use is to occur. The chair may delegate the authority to issue fireworks permits to another person, such as a town employee, if desired. Town board action is not required to issue the permit. However, the WTA believes that it is not appropriate for the town chair to delegate the authority to issue fireworks user permits to fireworks dealers. Obviously, the dealer's interest is in making the sale and one would not expect him or her to be particularly vigilant in determining who should or should not be given a permit.

3. Q. What should the chair consider when deciding whether to issue a user permit?

A. Factors the chair should consider include desired time of use, drought conditions, and population/building density in the location where the fireworks are to be used. If the density is high, the chair might require proof of neighbor consent before the permit will be issued. The chair may refuse to issue a permit if the risk of fire is high, the applicant fails to file a requested bond, the population density in the location is too high, neighbors do not consent, etc. Keep in mind that the permit issuer has the discretion to require an indemnity bond or liability insurance as a condition of issuing the permit. The level of protection needed may vary depending on whether a group of neighbors or a more sophisticated entity is making the request. See s. 167.10(3)(e).

4. Q. What items are considered “fireworks”?

A. The state statute defines what items constitute “fireworks” and what items do not. See s. 167.10(1), Wis. Stat. Certain items, such as sparklers and cone fountains, have been specifically excluded from the state definition. If an item has been excluded from the definition, no permit is required unless the town has a local ordinance requiring a permit for the item. See s. 167.10(5)(a)1, Wis. Stat. A commonly used rule of thumb is that a permit is required under state law if the device explodes or leaves the ground.

5. Q. Who is eligible for a fireworks permit?

A. Any individual or group of individuals, public authorities, fair associations, amusement parks, park boards, civic organizations, and farmers who use the fireworks against predatory birds or animals may request a permit. See s. 167.10(3)(c). However, permits may not be issued to minors. See s. 167.10(3)(h).

6. Q. What information must the user permit contain?

A. The permit must contain the permit holder’s name and address, the date on and after fireworks may be purchased, the general kind and approximate quantity of fireworks that may be purchased, the date and location of permitted use and any other special conditions prescribed by ordinance. A sample permit is located in the Town Law Forms book. The Town Law Forms are available online. You can link to them through our website or go to http://www.legis.state.wi.us/rsb/townlaw.htm After clicking on the list of forms, scroll down to 167.10 to find the sample fireworks permit.

7. Q. Should a fireworks user permit be issued to someone that wants to sell fireworks from a stand?

A. Dealers with a federal license are exempt from needing an additional permit from the town in order to sell fireworks. See City of Wisconsin Dells v. Dells Fireworks Inc., 197 Wis.2d 1, 19, 539 N.W.2d 916 (Ct. App. 1995). So, while the dealer does not need a permit from the town to engage in sales, the dealer is required to ensure that he or she is only selling fireworks to someone that has been issued a valid user's permit or is exempt from needing such a permit.

8. Q. Can a town board require dealers to get a permit from the town in order to sell fireworks within the town?

A. Towns have the authority to adopt local ordinances regulating the sale, possession or use of fireworks, so this would be an option. However, if there is no town ordinance requiring a permit, federally licensed sellers do not have to get a permit from the town in order to sell their product. Keep in mind that dealers do have to comply with any zoning ordinances or other laws that restrict where commercial businesses can be located within the town.

9. Q. Who gets a copy of the user permit?

A. A copy of the permit must be given to municipal fire and/or law enforcement officials at least two days before the date of the authorized use. See s. 167.10(g). A municipality putting on its own fireworks display is not required to have a permit. However, the two-day notice requirement must still be followed, s. 167.10(3)(b)1.

10. Q. Can a town be held liable for issuing a fireworks permit?

A. Section 167.10(7m), Wis. Stat., creates a civil liability exemption for municipalities (and their agents) who issue fireworks permits. This means that a town should not be held liable for damage to people or property caused by fireworks simply because the town issued a fireworks permit. However, town chairs (and their designees) must still use common sense when issuing permits and permits should not be issued when drought conditions are present or other unusual safety concerns exist.

11. Q. If the town is concerned that a local stand is selling fireworks to state residents who have not obtained a user permit, what can be done?

A. The town may file a lawsuit against the seller and seek an injunction and forfeitures. See s. 167.10(8), Wis. Stat. In addition, a town board has the authority to adopt an ordinance to prohibit the sale, use or possession of fireworks within the town. See s. 167.10(5), Wis. Stat. Hopefully, such an extreme measure can be avoided if dealers are made aware of the law and purchasers obtain the necessary permits.

Minutes

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1. Q. What information should town board meeting minutes contain?

A. The minutes of a governmental body should be a true and accurate record of the proceedings. The minutes should contain the name of the body; the names of the members of the body who are present or absent; the time, date, and location of the meeting; and a record of any action taken by the body. The minutes are not meant to be a transcript of every word that is said during the meeting. Rather, particular attention should be taken to record the exact wording of any motions made and seconded. Other matters should be of a general nature, stating the topic of discussion and who spoke on the topic. For example, “Resident Mary Smith spoke in favor of reducing the speed limit on Smith Road.” Minutes should not include the opinions or editorial comments of the minute taker. At times when the board is being asked to grant a permit, license, rezone, etc., care must also be taken to record the reasoning for the board’s decision in case there is an appeal.

2. Q. Who has the last word on how the final official minutes will read?

A. The body that had the meeting will have the final say over how the final minutes of its meeting will read. So, for example, if a clerk adds extra details from a town board meeting that the town board does not want in the minutes or the clerk fails to add additional comments or details that the board wants the minutes to include, a board member may make a motion to amend the minutes before they are finally adopted. If there is a second and a majority vote of the board members to amend the minutes, they must be amended as directed and the final version of the minutes should include any changes approved by the board. How much discussion and how many details from citizen comments, for example, should be included in the minutes is determined by the local preference of the governing body. I know that sometimes clerks feel that a board is improperly amending the minutes to change the reality of what they perceived happened, but, again, the clerk does not have the final say on the minutes. That is left to the body. If a board tries to rewrite history or falsify the minutes, such actions may be grounds for a district attorney to file a charge of misconduct in office pursuant to s. 946.12, Wis. Stat. The town might also be sued for some other reason as a result of such actions. But, the town clerk must accept that the final version of the minutes is that version approved by the body.

3. Q. Who approves the minutes of a town elector meeting, such as the annual meeting?

A. The minutes from a town elector meeting are approved by the town electors at a subsequent town elector meeting. Whether the annual meeting minutes get approved by the electors in the fall at the town elector meeting that is called to approve the tax levy or at the next year’s annual meeting is unimportant. This is because the town clerk is to post in 3 places or publish a copy of all motions, resolutions or other actions taken at a town elector meeting within 30 days of the meeting. See s. 60.80(1)(a), Wis. Stat. The motions, resolutions and other actions become effective the day after posting or publication, s. 60.80(3), Wis. Stat. So, again, approval of the minutes from a town elector meeting is really just a formality and the electors are not required to approve the minutes of a special town elector meeting within any specified time frame.

4. Q. Should minutes be taken of a closed session?

A. Yes, minutes of all proceedings, whether open or closed, should be taken. However, the minutes from a closed session may not always be immediately available for public inspection under the public records law. For this reason, the minutes of a closed session should be kept separate from the minutes of regular open session meetings until the need to keep the minutes closed no longer remains. If there is a public records request to see the minutes of a closed session, and the clerk is unsure if the minutes still need to remain closed, he or she may consult the town board members on the matter. But, the town may have to enlist the assistance of the town attorney if the question remains unclear. As in open session, the minutes of a closed session should include the exact language of any motions made and seconded, and not a transcript of the proceedings. If no action is taken, the minutes should merely identify the topic of discussion and do not need to include specific details of the discussion. The minutes from a closed session should also include the motion and roll call vote to go into closed session, the chair’s announced purpose for the closed session and the specific statutory exemption under s. 19.85 which allows for the closed session. See s. 19.85(1), Wis. Stat.

5. Q. Is there a statutory timeframe in which the minutes of a town board meeting must be prepared?

A. For most meetings there is no statutory timeframe in which the minutes must be prepared or approved. We recommend that the clerk and the town board work out a reasonable timeframe in which the minutes are to be prepared and approved. The goal is to insure that the minute taker is able to use recent memory to prepare the minutes and that the public may also have prompt access to the minutes. Also, the members of the governmental body like to review the proposed (draft) minutes while their memory of the meeting is still fresh. The minutes of a town elector meeting, such as the annual meeting, must be prepared and filed in the office of the town clerk within 5 days of the meeting. See s. 60.15, Wis. Stat.

6. Q. Are the handwritten notes taken by the minute taker during the meeting a public record?

A. Generally, handwritten notes taken for the originator’s personal use are not a public record. See s. 19.32(2), Wis. Stat. However, once the clerk prepares the draft version of the minutes to be distributed to the board for approval, the draft minutes become a public record and are subject to disclosure if a public record request is made. Any copies of such draft minutes should clearly indicate that they are draft minutes, subject to change, pending final approval by the body.

Combining the offices of Clerk & Treasurer

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1. Q. How are the offices of town clerk and town treasurer combined?

A. The town electors may combine the offices of town clerk and town treasurer by a vote at an annual meeting or another town meeting of the electors where that item specifically appears on the agenda for the meeting. The procedure to combine offices is the same for all towns, regardless of size. Wis. Stat. § 60.305(1)(a). A combination of offices under this provision also takes effect after the current terms of office expire. Wis. Stat. § 60.305(4)(a). The combination of town offices may be revoked in the same way they were combined, by a vote at a proper town elector meeting. Wis. Stat. § 60.305(4)(c). If the town wishes to try and accomplish this change, I suggest conducting the elector meeting no later than mid November of 2014. This is because the clerk will need to provide a notice of what offices are up for election in the spring on November 25th. In order for that notice to be accurate, the town needs to resolve the issue before then.

Budget Adoption

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1. Q. How does a town determine its tax rate? For example, we want to show our taxpayers how many dollars per thousand of assessed value they would pay if we stay with our allowable tax levy and how much that amount would go up if they approve our proposed town levy limit increase. How can we show that to them?

A. The calculation to figure out the tax rate is pretty simple. The town tax rate is determined by dividing the town tax levy by the total assessed value of the town. See the sample below: Town Tax Levy ÷ Assessed Value of Town = Town Tax Rate So, if the amount of the town's allowable tax levy for this year is $100,000 and the town's total assessed value is $ 20,000,000, the equation to determine the tax rate would be: $100,000 ÷ $20,000,000 = .005. To figure out the tax rate per thousand of assessed value, multiply .005 x $1,000 which equals $5.00. That means if the electors only approve the maximum allowable tax levy, the tax rate will equate to a tax bill of $5.00 per thousand of assessed value and someone with a home assessed at $150,000 would have to pay a town tax of $750. To show how much the town tax will go up if the electors are asked to exceed the levy limit by 20%, for example, the same equation must be re-calculated with the proposed levy increase. Therefore, if the board is proposing that the levy be increased to $120,000, the calculation would be $120,000 ÷ $20,000,000 = .006 which equals a town tax of $6.00 dollars per thousand of assessed value and someone with a home assessed at $150,000 would have to pay a town tax bill of $900.

2. Q. Our town has traditionally had a contingency reserve. Is there a recommended dollar amount that we should set aside in that reserve each year?

A. State law does not dictate how much money can or should be set aside in a contingency reserve. However, remember that towns are not to levy for a surplus, so a contingency fund should not be a big unallocated reserve that just sits in the bank with no apparent purpose. A contingency reserve should be created with the idea that it will help with cash flow for unanticipated expenditures like equipment repairs, extra snowplowing, etc. We generally recommend that a contingency reserve contain an amount somewhere between 5% or 10% of the town's total yearly operating budget--but this is just a suggestion. The desired amount should be set by the board keeping in mind past experience, existence of other available funds that could be tapped if needed, financial capacity of the town and community sentiment.

3. Q. I know that we have to post our notice of a public hearing on the budget and a budget summary in 3 public places at least 15 days prior to the hearing under s. 65.90(3), Wis. Stat., but what specific information does the budget summary need to contain?

A. The information required to be included in the budget summary comes straight from the state statute requiring the notice. Section 65.90(3)(b), Wis. Stat. states: Any budget summary required under par. (a) shall include all of the following for the proposed budget and the budget in effect, and shall also include the percentage change between the budget of the current year and the proposed budget: 1. For the general fund, all expenditures in the following categories: a. General government. b. Public safety. c. Public works. d. Health and human services. e. Culture, recreation and education. f. Conservation and development. g. Capital outlay. h. Debt service. i. Other financing uses. 2. For the general fund, all revenues from the following sources: a. Taxes. b. Special assessments. c. Intergovernmental revenues. d. Licenses and permits. e. Fines, forfeitures and penalties. f. Public charges for services. g. Intergovernmental charges. h. Miscellaneous revenue. i. Other financing sources. 3. Revenue and expenditure totals for each impact fee that is imposed by a municipality. 4. All beginning and year-end governmental and proprietary fund balances. 5. The contribution of the property tax to each governmental fund and to each proprietary fund that receives property tax revenue and the totals for all funds. 6. Revenue and expenditure totals, by fund, for each governmental fund, and for each proprietary fund and the revenue and expenditure totals for all funds combined. (bm) Any budget summary created under par. (a) shall include an itemization of proposed increases and decreases to the current year budget due to new or discontinued activities and functions.

4. Q. When the board adopts the final budget, should it be a general one or a detailed one?

A. We recommend that the board adopt a budget with broad general categories like those noted above for the budget summary. This will reduce the need for budget amendments later in the year. See s. 65.90(5), Wis. Stat. A more detailed "working" budget can certainly be used by the clerk and board to keep track of town finances during the year. But, formal budget amendments would then only be required if the more general budget adopted by the board needs adjusting.