Opinion No. Oag 32-77, (1977)

66 Op. Att'y Gen. 113 | Wis. Att'y Gen. | 1977

JACK MILL, Chief, Palmyra Volunteer Fire Department

Pursuant to sec. 19.98, Stats., you ask whether the Palmyra Volunteer Fire Department is subject to the provisions of the open meeting law, secs. 19.81-19.98, Stats., as created by ch. 426, Laws of 1975.

You state:

"The Palmyra Volunteer Fire Department is incorporated under the laws of the State of Wisconsin and is a non-profit organization engaged in providing fire protection service to the Palmyra Fire Protection District, which consists of the Village of Palmyra and Town of Palmyra, Jefferson County, Wisconsin.

"The Department holds regular monthly meetings and on occasion special meetings. The Department is primarily engaged in personnel matters and the raising of money for the purchase of fire equipment by the holding of carnivals, picnics, etc. The Department makes budget recommendations to the Palmyra Fire Protection District but has no other control over the budgeting process. The Palmyra Fire Protection District receives funds from the Village and Town to provide fire protection service but none of the money at any time is under the control of the Palmyra Volunteer Fire Department."

The answer to your question depends on whether the Palmyra Fire Department is a "governmental or quasi-governmental corporation" within the meaning of see. 19.82 (1), Stats., which describes the governmental bodies subject to the open meeting law as follows:

"(1) `Governmental body' means a state or local agency, board, commission, committee. council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order; a governmental or quasi-governmental corporation; or a formally constituted subunit of any of the foregoing, but excludes any such body or committee or subunit of such body which is formed for or meeting for the purpose of collective bargaining under subch. IV or V of ch. 111." (Emphasis added.)

I am of the opinion that the Palmyra Fire Department is not a "governmental or quasi-governmental corporation" within the meaning of sec. 19.82 (1), Stats., and is not a governmental body subject to the provisions of secs. 19.81-19.98, Stats.

The Palmyra Volunteer Fire Department was apparently organized as a nonstock, nonprofit corporation under ch. 181, Stats., pursuant to authority granted in sec. 213.05, Stats. It qualifies as a fire department under sec. 213.08, Stats. If it is located in a village, powers of the trustees are in part governed by sec.213.02, Stats., and under sec. 213.04, Stats., the village board of trustees would have power to disband the company.

In Tonn v. Strehlau, 265 Wis. 250. 61 N.W.2d 486 (1953), it was held that a volunteer fire company organized under sec. 213.05, Stats., was a privately organized corporation but that a town could appropriate money to such corporation for a public purpose.

Section 60.29 (18), Stats., authorizes a town board to establish a fire department or join with other towns, cities or villages in establishing a joint fire department; to contract with any fire department established by a town, city or village; or to contract "with any fire association, corporation or individual for the maintaining, housing and manning of the fire fighting equipment of such fire departments," and see. 60.29 (18m), Stats., makes a town liable for the services of "any fire department . . . appearing to fight fire in such town upon request" where the town does not provide protection under see. 60.29 (18), Stats.

In Rockwood Volunteer Fire Dept. v. Town of Kossuth, 260 Wis. 331,50 N.W.2d 913 (1952), the court held that the Town of Kossuth which had no fire department and had not contracted with one for protection, was liable for services provided even where the request came from a private citizen.

However, the fact that a private corporation provides fire service and receives payment therefor, pursuant to sec. 60.29 (18m), Stats., or under contract with a town pursuant to sec. 60.29 (18), Stats., does not in my opinion change the status of such corporation to a "governmental or quasi-governmental corporation." Even though a corporation may serve some public purpose, it is not a "governmental or quasi-governmental corporation" under sec. 19.82 (1), Stats., unless it also is created directly by the Legislature or by some governmental body pursuant to specific statutory authorization or direction.

BCL:RJV