Opinion
February 14, 2008
Jeffrey B. Fuge Corporation Counsel
Malia T. Malone Assistant Corporation Counsel
Tomma Broome Administrative Assistant
Laurie Finn Legal Secretary
The Honorable J. B. Van Hollen Wisconsin Attorney General P.O. Box 7857 Madison WI 53707-7857
Re: Authority of Human Services Departments to Receive Gifts.
Dear Attorney General Van Hollen:
Our office represents Polk County and the Polk County Human Services Department. Our office requests that the Office of the Wisconsin Attorney General provide a legal opinion on the question of whether human services departments, created under Wis. Stat. Sec. 46.23, have the authority to accept donations and/or gifts.
Our office has reviewed relevant statutes and has come to the conclusion that the language of Wis. Stat. Sec. 59.52(19) appears to place sole authority to accept gifts at the level of the County Board of Supervisors. Our office notes that Wis. Stat. Sec. 46.23(3)(b) 2.c. adopts, by reference, Wis. Stat. Sec. 46.22(1)(c) 8.b. In Wis. Stat. Sec. 22(1)(c) 8.b., the legislature specifically gives distinction to monies being spent as originating from those appropriated by the County Board Supervisors and those donated by individuals. It is reasonable to conclude that Sec. 46.22(l)(c) 8.b. authorizes social services and human services departments to accept and expend monetary gifts donated by individuals or private organizations. Most notably, the statutory language permitting expenditure of monetary donations is absent for any requirement that such donations must be appropriated by the County Board of Supervisors.
Our office also observes the language contained in 46.495(1)(d) that determines the calculations for the county's match for the distribution of community aids funds. County matching funds are defined as those from county tax levies, federal and state revenue sharing funds or private donations to the county that meet the requirements specified in Sec. 51.423(5). It is reasonable to conclude from the underscored language that Wis. Stat. Sec. 59.52(19) and appropriation through the County Board of Supervisors is required to complete the allocation of private donations for matching purposes under Sec. 46.495. Our office knows of no Wisconsin Attorney General opinion that addresses this issue of statewide concern.
It would appear from the specific reference contained in Sec. 46.22 conflicts with the legislative intent found within 46.495 and Sec. 59.52(19).
It has been the past practice of the Polk County Social Services Department and Human Services Department to accept and expend donations received from individuals and private organizations without action by the Polk County Board of Supervisors. That being a matter of statewide concern, our office seeks the legal opinion of the Wisconsin Attorney General as to whether the action of the County Board of Supervisors is required to accept the donation and, further, appropriate such donations for usage by the human services department.
If you require any further information in addressing this issue, please contact me directly at (715) 485-9282. We look forward to your response.
Very truly yours,
Jeffrey B. Fuge Polk County Corporation Counsel
JBF/lf
J.B. VAN HOLLEN ATTORNEY GENERAL Raymond P. Taffora Deputy Attorney General 114 East, State Capitol P.O. Box 7857 Madison, WI 53707-7857
Mr. Jeffrey B. Fuge Corporation Counsel Polk County 1005 West Main Street, Suite 100 Balsam Lake, WI 54810
Dear Mr. Fuge:
You ask whether gifts, grants, and donations to a county human services department created under Wis. Stat. § 46.23 may be accepted only by the county board of supervisors or instead may be accepted by the human services department itself.
In my opinion, because there is no explicit statutory authority for county human services departments to accept such items, the statutory scheme contemplates that gifts, grants, and donations to a county human services department created under Wis. Stat. § 46.23 may be accepted only by the county board of supervisors.
STATUTES INVOLVED
I. POWERS OF COUNTY BOARD OF SUPERVISORS.
Wisconsin Stat. § 51.423 provides in part:
(2) From the appropriations under s. 20.435(7)(b) and (o), the department shall distribute the funding for services provided or purchased by county departments under s. 46.23, 51.42, or 51.437 to such county departments as provided under s. 46.40. County matching funds are required for the distributions under s. 46.40(2) and (9)(b). Each county's required match for the distributions under s. 46.40(2) for a year equals 9.89% of the total of the county's distributions under s. 46.40(2) for that year for which matching funds are required plus the amount the county was required by s. 46.26(2)(c), 1985 stats., to spend for juvenile delinquency-related services from its distribution for 1987. Each county's required match for the distribution under s. 46.40(9)(b) for a year equals 9.89% of that county's amounts described in s. 46.40(9)(a) (intro.) for that year. Matching funds may be from county tax levies, federal and state revenue sharing funds, or private donations to the counties that meet the requirements specified in sub. (5). Private donations may not exceed 25% of generate the full amount of state and federal funds distributed for this period, the decrease in the amount of state and federal funds equals the difference between the required and the actual amount of county matching funds.
. . . .
(5)(a) A private donation to a county may be used to match the state grant-in-aid under s. 46.495(l)(d) or under sub. (2) only if the donation is both of the following:
1. Donated to a county department under s. 46.215, 46.22, 51.42 or 51.437 and the donation is under the administrative control of such county department.
2. Donated without restrictions as to use, unless the restrictions specify that the donation be used for a particular service and the donor neither sponsors nor operates the service.
Wisconsin Stat. § 59.52(19) authorizes the county board of supervisors to "[a]ccept donations, gifts or grants for any public governmental purpose within the powers of the county."
II. POWERS OF COUNTY HUMAN SERVICES DEPARTMENTS.
Wisconsin Stat. § 46.22(l)(c)8., provides that a county board may in its discretion grant a county human services department the power:
8. To administer child welfare services including services to juveniles who are delinquent and to children who are mentally retarded, dependent, neglected or nonmarital, and to other children who are in need of such services. In administering child welfare services the county department of social services shall be governed by the following:
a. The county department of social services may avail itself of the cooperation of any individual or private agency or organization interested in the social welfare of children in the county with a single-county department of social services or in the counties with a multicounty department of social services.
b. The county department of social services shall administer and expend such amounts as may be necessary out of any moneys which may be appropriated for child welfare purposes by the county board of supervisors in a county with a single-county department of social services or by the county boards of supervisors in counties with a multicounty department of social services or donated by individuals or private organizations.
ANALYSIS
Wisconsin Stat. § 59.52(19) expressly authorizes the county board of supervisors to "accept donations, gifts or grants for any public governmental purpose within the powers of the county." There is no similar language in Wis. Stat. § 46.22 expressly authorizing county human services departments, boards, or directors to accept gifts, grants, and donations. 73 Op. Att'y Gen. 125 (1984) concluded that the specific language concerning the acceptance of gifts, grants, and donations by the county board in what is now Wis. Stat. § 59.52(19) coupled with the lack of any comparable language in Wis. Stat. § 46.18 requires the county board, rather than the trustees of county institutions operated under Wis. Stat. § 46.18, to accept gifts, grants, and donations to such county institutions. Under the reasoning in 73 Op. Att'y Gen. 125, gifts, grants, and donations to a county human services department may be accepted only by the county board and may not by the county human services department itself.
I recognize that statutes not considered in 73 Op. Att'y Gen. 125 are involved here. Wisconsin Stat. § 51.423(5)(a)l. refers to funds "[d]onated to a county department under s. 46.215, 46.22, 51.42 or 51.437 . . . [provided that] the donation is under the administrative control of such county department" and Wis. Stat. § 46.22(l)(c)8.b. provides that a county board may in its discretion grant the county human services department the power to "administer and expend such amounts as may be necessary out of any moneys which may be appropriated for child welfare purposes by the county board of supervisors . . . or donated by individuals or private organizations."
Statutes relating to the same subject are to be construed together and harmonized. State v. Robinson, 140 Wis. 2d 673, 677, 412 N.W.2d 535 (Ct. App. 1987). Because there is no language in Wis. Stat. §§ 46.215, 46.22, 51.42 or 51.437 expressly authorizing the departments referred to in those statutes to accept gifts, grants or donations, I view the express language concerning the acceptance of gifts, grants, or donations by the county board in Wis. Stat. § 59.52(19) to be controlling. I therefore construe Wis. Stat. § 51.423(5)(a)l. as recognizing that a restriction by the donor to the effect that a gift, grant, or donation can only be used by one of the specified boards must be honored if the county board decides to accept a donation containing such a restriction. See Nelson v. Madison Lutheran Hospital Sanatorium, 237 Wis. 518, 523-25, 297 N.W. 424 (1941). Similarly, I construe the language in Wis. Stat. § 46.22(l)(c)8.b. as recognizing that funds donated for child welfare purposes that are accepted by the county board may be expended by the county human services department for such purposes without any appropriation of those donated funds by the county board to the human services department. I do not view Wis. Stat. § 46.22(1)(c)8.b. as expressly authorizing the county human services department to accept monetary donations.
It is the function of the county board of supervisors to establish the budget of the county human services department. See 73 Op. Att'y Gen. 96, 97 (1984); 69 Op. Att'y Gen. 128, 130-31 (1980). When establishing the budget of the county human services department, the county board must decide whether to appropriate the matching amounts that are required in order to obtain state funds under Wis. Stat. § 51.423. In doing so, the county board must decide whether to use private donations to match state funds, must be certain that any such private donations do not exceed twenty-five percent of the total county match under the limitation contained in Wis. Stat. § 51.423(2), and must be certain that any such private donations are sufficiently unrestricted so as to satisfy the requirements for matching funds in Wis. Stat. § 51.423(5)(a)l. and 2. Given the county board's extensive authority over the budget of the county human services department, it makes sense that the county board should decide whether or not to accept gifts, grants, or donations to the county human services department. There may be other, non-budgetary reasons why it would be preferable to authorize county human services departments themselves to accept gifts, grants, or donations. The Legislature could enact language like that in Wis. Stat. § 59.52(19) that would expressly authorize county human services departments to directly accept gifts, grants, or donations if there are valid policy reasons for doing so.
CONCLUSION
I therefore conclude that gifts, grants, and donations to a county human services department created under Wis. Stat. § 46.23 may be accepted only by the county board of supervisors and may not be accepted by the county human services department itself.
Sincerely,
J.B. Van Hollen Attorney General
JBVH:FTC:cla
CAPTION: Gifts, grants, and donations to a county human services department created under Wis. Stat. § 46.23 may be accepted only by the county board of supervisors and may not be accepted by the county human services department itself.