*1 COUNTY, KEWAUNEE Petitioner-Respondent, WISCONSIN EMPLOYMENT RELATIONS

COMMISSION, Respondent-Co-Appellant, 2959, AFSCME, COUNCIL 40 & LOCAL AFL-CIO, Respondent-Appellants. Appeals

Court of Orally No. argued 86-1800. June August 1987. Decided 11, 1987.

(Also reported 839.) in 415 N.W.2d *3 For respondents-appellants there were briefs and Cates, F. oral argument by Bruce Ehlke of Lawton & S.C. Madison. of

For respondent-co-appellant there by were briefs Hanaway, Donald J. D. general, John attorney and Niemisto, attorney general, assistant argu- and oral Niemisto, ment by John D. of Madison. petitioner-respondent a there was brief For Spindler Nash, Miller and Joan Ravanelli John M. Spindler, Grimstad, of Manitowoc.

Dean & LaRocque Myse, Cane, P.J., and JJ. Before Employment MYSE, The Relations J. Wisconsin (WERC) and Local 2959 of Wisconsin Commission Municipal County Employees, No. and Council AFSCME, ing (union), appeal judgment a revers- AFL-CIO commission’s determination Lorraine County employee holding Reimer, Kewaunee a probate, probate positions combined registrar, probate commissioner, and court was bargain- municipal employee to the collective entitled Municipal ing Employment rights in the set forth (MERA), 111.77, 111.70 to Act secs. Relations They argue erroneously that the circuit court deter- precluded from mem- mined that Reimer was union falling positions bership because her involve duties "managerial” exception They to MERA. within argue erroneously that the concluded that also court county judges statutory authority because have registers probate, appoint discharge probate registrars, special commissioners, court determining ap- exception exists whether MERA agree plies the commission to such officials. We judgment and the union on both issues. *4 reversed. petition June, 1984,

In a filed with sought commission that to exclude Reimer from bargaining Relying unit. on sec. union’s collective 111.70(l)(i), county argued Stats., that Reimer’s probate/probate regis- duties as trar/probate superviso- court of a commissioner were managerial, ry, nature, that, or there- executive municipal employee falling fore, she was not a within 111.70(l)(i) scope the municipal employee of MERA. Section defines "any employed by as individual municipal employer supervisor other than ... [a] ... employe.” or executive

The commission determined that Reimer’s func- managerial, supervisory, tion did not involve or execu- municipal that, therefore, tive duties and employee she was a 111.70(l)(i). making as defined sec. In this determination, the commission noted that because by Reimer’s duties statute, were defined there was any, opportunity little, if for her to affect the formula- implementation manage- tion, determination, or policy. ment

The commission also determined that Reimer’s budget preparing failed duties establish she managerial employee. awas The found commission possess that Reimer did not county’s commit the that, resources. The commission noted exception, budget prepared with one the 1985 appropriations Reimer contained the same for the expenditures same kind of as the 1984 that had prepared by judge. Consequently, been the com- mission concluded that these duties were ministerial pro- only because Reimer’s duties involved jecting continuing operations. the cost of current county appealed

The the commission’s decision to agreed the circuit court. court commis- positions provide oppor- sion that Reimer’s did not tunity significantly formulation, affect the determi- implementation management policy nation, or supervisory therefore, that, duties her were not or relying However, executive nature. on Eau Claire County WERC, 363, 366, 122 Wis. 2d (Ct. 1984), App. 429, 430-31 the court determined *5 managerial employee had because she Reimer was county’s resources. to commit register pro- Claire, in held that a In Eau we registrar bate/probate be- did have such forwarding budget "by to the a recommended cause probate county board, ... created budget.” 369, 362 at 432. The Id. at N.W.2d control- concluded that Eau Claire was circuit court ling preparing the duties included because Reimer’s submitting county it to the board for its and approval. reversing decision,

In the court the commission’s posi- unique that the nature Reimer’s determined exception special to the indicia tions created a normal employee used to whether an should be determine membership. eligible union The court that a for noted appoint, discharge, empowered by judge statute to is working registers in and describe the probate, probate conditions of registrars, and court commis- 757.72(4), 851.71(1), 865.065(1), sioners. Sections Therefore, court concluded that these statu- powers tory would conflict an individual’s collec- rights bargaining tive under MERA. appeal,

On the commission and the contend union applied erroneously that the circuit court Eau Claire determining that Reimer’s duties demon- managerial employee. strated that she was a Con- county light versely, of Eau contends correctly Claire, the court determined that because prepared Reimer and submitted county approval, managerial for its she was a board employee. that the We conclude the circuit holding misinterpret also court our in Eau Claire. We the commission’s determination that conclude supported Reimer not a is *6 Finally, the evidence. we conclude that no conflict statutory powers the between court’s and the MERA judge appointing exists. A an individual to such a position provisions would not be bound the of an employment representing contract between a union county provisions that individual and a if these constitutionality discharge restricted the to its duties. reaching decision, In our we must examine the underlying bright-line of this facts case. No test exists determining employed for register whether an individual as a probate, probate registrar, or court subject commissioner is to MERA is therefore eligible membership. for Rather, union this determi- case-by-case nation a involves examination of the responsibilities, powers duties, of these offices. See Claire, 122 367-68, Eau Wis. 2d at 362 431; N.W.2d at Village Bay WERC, also see 103 Wis. of Whitefish (Ct. 1981). App. 443, 448, 2d 20 analysis A two-fold is used to determine whether "managerial” meaning an is within the 111.70(l)(i). test, sec. Under the first court a deter- employee participates mines whether the in the implementation formulation, determination, and management policy. Claire, Eau 122 Wis. 2d at undisputed 367-68, 362 N.W.2d at 431. It is that managerial employee Reimer is not a under this test. test, Under the second a court whether determines the employee possesses authority commit the employer’s authority resources. Id. This is defined as power original budget an the establish or to allocate differing program purposes funds for under such a budget. power However, Id. the to make ministerial expenditures is a factor. Id. manage- Claire, issue was whether

In Eau involving employee’s exception MERA rial employer’s resources was to commit the light requirement applicable, departmental budget imple- approve its before board 368-69, 432. at We Id. at N.W.2d mentation. prepare ability to and submit an concluded was the board sufficient county’s contrary to finding resources because commit test would rendered the second of the have meaningless. analysis Id. misplaced. county’s on Eau reliance Claire *7 budgetary what an did not define duties Eau Claire possess employee must to establish that he or she has authority employer’s an effective to commit resources. Rather, in Eau That issue was not raised. Claire we authority expend employ- addressed whether the to an though may even ultimate author- er’s resources exist appropriate ity funds lies the board. to The language of the should not be read as decision budget equating reducing of the ministerial task a to writing submitting county it and to board with the original budget. authority prepare an The two concepts if in differ in substance not form. preparing

Here, the commission determined submitting standing board, to the alone, status under did establish sec. 111.70(l)(i). making determination, In this com- meaning authority of mission refined the "effective employer’s manageri- commit under the an resources” defining "original budget” al test the term described in Eau Claire. The commission noted that to be managerial, prepar- employee’s considered an ing necessarily duties must involve the "the and level services determine kind of to be

354 provided; employees the kind and of number to be providing services; utilized the kind and number of capital improvements system by made; to be and the provided, including will which services be the use of outside contractors.” interpretation presents ques

The aof statute of tion 227.57(5), law that is without reviewed deference. Section light agency’s Nevertheless, of an expertise given interpre area, in a we will sustain its upon it tation if rests a rational basis and is consistent purposes City with the of the statute. Milwaukee v. of (1976); WERC, 709, 715, 71 63, Wis. 2d 66 227.57(10), exper also sec. see Stats. The commission’s distinguishing municipal manage tise between employees City rial is well Milwaukee, established. 2dWis. at 66. N.W.2d at interpretation commission’s sec. 111.70(l)(i) is reasonable and consistent with the purposes permit municipal MERA, which is to employees desiring opportunity collectively bargain municipal employer. employ- with For an ee’s duties to constitute employer’s resources, to commit an *8 possess power discretionary must type the to determine the provided

and level of services to be and the by manner and means which those services will be delivered.

Formulating budget, opposed merely a as to submitting budget, determining a involves the ser- required, persons necessary vices the number of quantity type services, deliver those and the and equipment supplies provide required and those Consequently, possess services.

355 employer’s resources, an an to commit preparing budget possess must the effectively the and the manner recommend amount expended support will of each of the which funds be provided. This distinction is consistent with services effectively purposes it possess of MERA distin- the because employees managerial guishes those who Claire, 122 from those who do not. See Eau interests 367-68, 362 at 431. at N.W.2d Wis. 2d light above, we confirm the commission’s In the involving budgetary duties determination paper reducing act of numbers to ministerial submitting them to the fails to meet test of board submitting original budget. This focuses an test on by power the manner and method which to determine discharges responsibility. Submitting its last the office year’s budget if it reflects the affirmative decisions of person preparing budget is meet sufficient to Submitting this that does not reflect the test. preparer an of its not decisions fails this test. must next determine whether evidence

We supports the commission’s determinations Reim- that, are ministerial and conse- er’s duties quently, employee. she is not a reviewing agency’s findings, this court In applies the circuit court. the same standard as CUNA Dept. Revenue, 120 2d Wis. Mutual v. Wisconsin (Ct. 1984). App. 541, 445, 451, 355 544 Review N.W.2d 227.57(1), An Stats. is confined to the record. Section finding agency’s if of fact will be disturbed supported State, Gilbert v. substantial evidence. (1984); 168, 195-96, sec. 119 Wis. 2d 227.57(6), "such evidence is relevant Substantial *9 might accept evidence as reasonable mind as ade quate support Gilbert, a conclusion.” 119 Wis. 2d at 195-96, 349 N.W.2d at 80. If more than one inference reasonably can be drawn from evidence, agency’s determination is conclusive. Vocational Tech. DILHR, 230, 240, Wis. 2d 46-47 (1977); 227.57(6), sec.

The commission’s determination that Reimer’s budgetary managerial duties failed confer status is supported by substantial evidence. This determination upon testimony was based of Reimer and a board member as well as various documents that described Reimer’s official duties. With one minor exception, prepared the 1985 Reimer contained appropriations expendi- type the same for the same budget prepared by judge. tures as the 1984 Based upon evidence, this the commission found that Reim- adopting existing er’s was limited to adjustments anticipated changes for the supplies. Consequently, budgetary in the cost of her primarily projecting duties involved the cost contin- uing operations. prepara- Therefore, current the act of policy tion did not reflect decisions Reimer made. The commission determined that Reimer’s du- ministerial, ties were and did not confer accordingly, municipal that, status she was a purview within the of MERA. Because these findings supported by are the evidence and reasonable required accept therefrom, inferences drawn we are though finding contrary them as conclusive even may be reached from the same evidence. Id.

Finally, county argues permitting Reim- bargaining rights er to invoke her collective under only separation MERA would not violate the *10 judge’s statutory powers interfere with doctrine and discharge, disrupt appoint and but also probate, probate working registers in of the conditions registrars, probate Sections court commissioners. and 865.065(1), 851.71(1), 757.72(4), and possible, must harmonized MERA be Whenever provisions of the law. other Glendale with Prof. City Glendale, 90, 2d 83 Wis. v. Policemen’s Ass’n (1978); Muskego- 594, 103-04, 264 see N.W.2d 601 also Norway 556, WERB, 540, 35 Wis. 2d 151 Con. Sch. v. (1967). separation powers 617, The N.W.2d 624-25 acting prohibits legislature in from doctrine prov- spheres exclusively that are within certain 31, Holmes, 46, 106 2d ince of courts. State Wis. (1982). not, 703, does 710 The doctrine 315 N.W.2d exercising legislature prohibit however, legislative from its powers may way in that in some areas legislature’s judicial decla- branch. Id. affect implemented they do must insofar as rations be impair or their the courts constitutional embarrass Id. function. separa-

Here, be with the MERA can harmonized powers statutory court’s author- tion of doctrine and a discharge appoint persons ity them from the probate, probate registrar, offices in a labor court commissioner. Provisions contrary that to law are unenforceable. contract are 563, 602, 612, 75 2d WERC v. Local No. Wis. Teamsters (1977). any provision Thus, agreement the union and the collective labor between hampers operation county a court its or constitutional would be interfers its functions any provision Furthermore, void. contractual judge conflicts with the vested in a appoint position or remove someone from such a may rights would also be void. Reimer invoke her negotiate under MERA and with the on those labor matters not entrusted to the courts.

By Judgment reversed.1 Court.— agree (dissenting). CANE, majori- P.J. I with the ty opinion until it concludes that there is substantial *11 support evidence to the commission’s conclusion that budgetary disagree Reimer’s duties were ministerial. I authority with the conclusion Reimer’s was adopting existing budget adjust- limited to an with anticipated changes supplies ments for in the cost of existing consequently, that, or level of services and budgetary primarily projecting her duties involved continuing operations. the cost of current Because authority prepare department’s Reimer’s to her bud- get was more than nature, ministerial in I would affirm the circuit court. only are test, i.e.,

We concerned the second employee whether the had the to agree employer’s commit the I resources. with the interpretation commission’s this means au- the thority original budget an establish or to allocate differing program purposes for funds from an budget. agree employee qualify I also that an not does managerial employee as a when the process it 1The union contends that denied was due of law hearing because the circuit court rendered its decision without a or the submission of trial briefs. Because we that Reimer conclude managerial meaning is not within the of sec. 111.70(l)(i) dispositive appeal, and that conclusion is we of this do 296, 300, 277 Hoffman, not address this issue. Wis. See Gross 227 (1938). 663, N.W. budget merely

prepare the ministerial nature. Consequently, employee whose duties are limited continuing opera- projecting current the costs of under status this tions does not obtain test.

Here, found that Reimer’s 1985 the commission appropriations budget contained for same kinds budget prepared expenditures by the 1984 that was as judge judge. her in the preparing It found that the assisted also findings, budget. it the 1985 From these budgetary duties were ministerial concluded that her opera- to conduct the in nature because the decision judge her duties tions was made primarily projecting the cost of the continu- involved findings ing operations. sup- These are current ported by the evidence. prepared

Reimer that she her for testified which office was budget. separate budget from the circuit court She judge had because indicated that seen get she had to with him the breakdowns for work prior to time work in some months she started to *12 finding factual that the this office. The commission’s budget preparation judge in her the of the is assisted asking unsupported by the evidence. Reimer’s the previous judge years for from does not information "assisting” budget judge in her or in the result the being prepared for another. judge operates it the court but Reimer who is responsibility independent to

has the make certain support the are the administrative functions done to is court. manner she does that her How and what budget, however, not another decision. Her is that of operations merely or her office ministerial because approval, county Subject to board are court related. authority the sole Reimer has to determine the employees and kind number providing to be utilized in any services, these the kind and nature of capital expenditures system by made, to be and the provided. which the be services would only The commission must determine whether authority types she has to make these of decisions submitting budget, not whether she in fact authority. example, exercised this For the fact that in provide any large capital 1985 Reimer did not for expenditures undisputed is not relevant. The fact is capital that she had the sole to decide what expenditures necessary operate were to her office. budget

Prior to for the offices probate, probate registrar, court com- budget. missioner was included in the circuit court budget separate budget Thus, the 1985 was the first many appropria- for this office. The fact that of the budget prior tions had similar years accounts for the expected. However, not unusual and should be appropriation requested amounts she for the categories example, various differed. For the 1985 budget appropriation library contained an for the for expenditure which no had been made 1984. She did simply budget fill in the for the or blanks extend budget. prepared original Rather, the 1984 budget she an necessary operate that she deemed her office.

Admittedly, budget large budget her is not a when compared However, to the other offices. upon size of the is not what should be relied employee possesses authority determine whether the county’s undisputed to commit the resources. The fact prepare is that she had the annual her for office and she did exercise *13 preparing on her based when Therefore, from the evi- I would conclude forecasts. had no alternative but that the commission dence managerial employee. She that Reimer conclude was submit an had the effective budget, not ministerial duties were and her nature.