Opinion No. Oag 13-77, (1977)

66 Op. Att'y Gen. 50 | Wis. Att'y Gen. | 1977

CHARLES M. HILL, SR., Executive Director Wisconsin Council onCriminal Justice

You ask three questions concerning the establishment and operation of detention homes and shelter care facilities.

Question One

"Under Wisconsin law, do counties have the authority to directly operate shelter care facilities?"

Section 48.31, Stats., provides counties with express authority to establish and operate juvenile detention homes and shelter care facilities.

Question Two

"Under Wisconsin law, do such facilities have to be licensed?"

Detention homes and shelter care facilities established and operated pursuant to sec. 48.31, Stats., do not require a ch. 48 license from the Department of Health and Social Services (hereinafter, Department).

Chapter 48, Stats., is silent regarding licensure of detention homes and shelter care facilities. Detention homes and shelter care facilities are not enumerated in sec. 48.66. Stats., which sets out the Department's licensing duties and powers. While the Department must approve plans for such facilities, sec. 48.31 (2), Stats., and make periodic inspections into safety and sanitation, sec. 46.17 (3), Stats., this authority does not involve licensing. Approval of the Department is limited to oversight of physical plant. 63 OAG 267 (1974).

The authority to determine the operating policies of county detention homes and shelter care facilities is vested solely in the judge(s) of the juvenile court.¹

Nevertheless, a juvenile detention home and shelter care facility established under sec. 48.31 may be licensed as a foster home. Such a license, while unnecessary for operation pursuant to sec. 48.31, may broaden the utility of the facility. In appropriate circumstances dependent and neglected children could be placed in the facility for foster care. In such an arrangement, however, the placing agency would retain its normal control over foster children in the facility.

Question Three

"If counties have the authority to establish and operate shelter care facilities and if they are not subject to licensing procedures, may a county sublease property for shelter care use?"

Counties may lease property for detention home or shelter care use.

In 65 OAG 93 (1976), I opined that county child welfareagencies do not have authority to lease foster home facilities. That conclusion was based on an analysis of the limited powers given county child welfare agencies by sec. 48.57, Stats., in the context of 57 OAG 184 (1968). Those authorities do not apply here.

Section 48.31, Stats., authorizes the county board to establish and operate detention homes and shelter care facilities. Accordingly, we must look to the authority of county boards. Section 59.07 (1), Stats., provides county boards with broad authority to acquire or lease property for public purposes.

BCL:PRS

¹ In counties having a population of 500,000 or more, the nonjudicial operational policies of sec. 48.31 facilities are established by the county board of public welfare as specified in sec. 48.06 (1), Stats.