Compatibility of Offices 1
Can a member of a municipality's governing body hold another office or position of employment with the municipality?
With a few limited exceptions, the answer is no. The law prohibits the same person from holding two public offices or an office and a position where one post is superior to the other or where, from a public policy perspective, it is improper for the same person to hold both. Otradovec v. City of Green Bay, 118 Wis.2d 393, 347 N.W.2d 614 (Ct. App. 1984). In Otradovec, the court of appeals held that the office of alderman was incompatible with the position of appraiser in the city assessor’s office because the alderman could vote on the contracts setting the terms of his employment and could vote on the appointment of his boss, the assessor. The court held that abstention would not cure the conflict. Id.
Thus, the general rule is that a governing body member cannot hold another municipal office or position unless it is specifically authorized by statute. This is because the governing body exercises control over such matters as the salaries, duties and removal or discipline of most other municipal officers and employees. Even where a department is under the control of a board or a commission, like the police and fire commission or a utility commission, the governing body still exercises budgetary and general supervisory control over the departments and appoints board or commission members. Compatibility of Offices 583.
What happens if someone takes an incompatible office or position of employment? Although case law establishes that a person taking a second, incompatible office is deemed to have vacated the first office (Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163 (1941)), it is not clear what the result of holding an incompatible office and position of employment is. In Otradovec, the court of appeals went along with the circuit court’s decision to allow the person to choose between the office and position and declined to decide whether a person taking an incompatible office would be deemed to have vacated the position or would be able to choose which to keep.
There are a few statutory exceptions which should be noted.
Governing body members may represent the governing body on city, village or town boards and commissions where no additional compensation other than a per diem, if one is paid to other board or commission members, is paid such representatives. Wis. Stat. § 66.0501(2).
A volunteer fire fighter, emergency medical services practitioner, or emergency medical responder in a city, village or town whose annual compensation from one or more of those positions, including fringe benefits, does not exceed $25,000, if the city, village or town has a population of 5,000 or less, may also hold an elected office in that city, village or town. Wis. Stat. § 66.0501(4)(a).
A volunteer fire fighter, emergency medical services practitioner, or emergency medical responder in a city, village or town whose annual compensation from one or more of those positions, including fringe benefits, does not exceed $15,000, if the city, village or town has a population of more than 5,000, may also hold an elected office in that city, village or town. Wis. Stat. § 66.0501(4)(a).
A local public official, as defined in Wis. Stat § 19.42(7x), may serve as an election official appointed under Wis. Stat. § 7.03(2)(a) and be compensated for that service, as provided under § 7.03. Wis. Stat. § 66.0501(4)(b). However, the official may not be a candidate for any office to be voted for at an election at which they serve.
A member of a governing body may also serve as county supervisor. Sec. 59.10(4). [See Compatibility of Office FAQ 4 for a more detailed explanation of sec. 59.10(4).]