*1 Building James N. Elliott and Milwaukee and Con Plaintiffs-Appellants,† Council, struction Trades Michael L. of Milwaukee, Morgan, Milwaukee District, Riverwalk Inc. and Business

Improvement 15, District No. Defendants-

Respondents. Appeals Court of argument No. July 96-1904. Oral 1997.—Decided October 21, 1997.

(Also 866.) reported in 571 N.W.2d to review denied. †Petition *2 plaintiffs-appellants,

On behalf of the the cause was submitted on the briefs ofMatthew R. Robbins and Goldberg, Previant, Frederick Uelmen, C. Miner of Brueggeman, Gratz, Miller & S.C. of Milwaukee. There argument by was oral Matthew R. Robbins. defendants-respondents On behalf of the Michael Morgan City Milwaukee, L. and the the cause was Langley, city submitted on the brief of Grant F. attor- ney city attorney. Burke, and Linda Uliss assistant argument by There was oral Linda Uliss Burke. defendants-respondents On behalf of the Milwau- District, kee Riverwalk Inc. and Business *3 Improvement District No. the cause was submitted on the brief ofKathleen S. Donius and Daniel J. LaFave Reinhart, Boerner, Deuren, Rieselbach, of Van Norris & argument by S.C. of Milwaukee. There was oral Kath- leen S. Donius. Wedemeyer, P.J., Schudson,

Before J., and Daniel LaRocque, Judge. L. Reserve

WEDEMEYER, P.J. James N. Elliott and the Building Milwaukee and Construction Trades Council appeal judgment from entered after the trial court granted Morgan, City Milwaukee, Michael L. (MRD) District, Inc., Milwaukee Riverwalk and the (BID) Improvement Business District No. 15's motion summary judgment. Elliott claims the trial court erred it when concluded that of the construc- "public tion of the Riverwalk were not a work" subject requirements § 66.293, STATS.

(1993-94).1 not does Because the Riverwalk public work, we affirm. constitute a

I. BACKGROUND pro- development the Riverwalk This case involves ject Milwaukee, consists of a which in downtown landscap- lighting, system sidewalks, decorative extending along ing River, from Milwaukee boundary Clybourn to Pleasant Street at its southern agreements entered into Street at the north. money provide the two entities who are to to project: developing the Business the Riverwalk Improvement the Milwaukee No. 15 and District District, Inc. Riverwalk Improvement District.

A. Business undisputed pertinent A facts are as follows. appointed governed directors, "BID" is a board municipality's officer," executive here the mayor, "chief legislative by municipality's

and confirmed 66.608(3)(a), body, Section here the Common Council. A at least 5 members. STATS. "The board shall have occupy majority real shall own or of board members improvement property A in district." Id. the business powers necessary all BID is authorized to "have board implement operating plan, includ- or convenient powers ing power contract," if those plan adopted, "specified operating as or amended *4 approved" pursuant § 66.608, Stats. Section and 66.608(3)(d), agreement STATS. for Riverwalk authority project gives BID to obtain the board property and to con- in connection with the unless All further references are to the 1993-94 statutes otherwise indicated. "[c]ontrol operate

struct, own, as well as and operated maintain or cause to be maintained," project segments designated by that are not for control property petitioned Private owners for the creation of the BID. The creation of the BID was approved by the Milwaukee Common Council in March grant BID 1994. The is funded $8,537,000 in funds City from the of Milwaukee, and $1,945,000 from special private property assessments on within the district.

B. Milwaukee Riverwalk District. non-profit corporation.

The MRD is a Wisconsin It $759,000 is funded in a from the of Mil- Express. waukee $100,000 from Midwest agreed "further[ ] MRD Riverwalk construction and development along segments certain of Milwaukee River." improvements subject

None of the which are the operated matter by owned, of this lawsuit will be leased or project segments of Milwaukee. The that governed by wage- are to be owned are § Stats., 66.293, rate laws of and are not at issue here. complaint against Morgan Elliott filed a and the City, seeking injunctive relief on the basis that Project subject wage-rate entire Riverwalk to the § "public Stats., 66.293, laws of because the ais George work." The request Burns, Jr., Honorable A. denied the injunctive relief, and dismissed the com- plaint on the basis privately owned are not works and therefore subject wage-rate

are not laws. affirmed the We grounds join dismissal on the that Elliott failed to indispensable parties, namely the BID and MRD. Elli- (Wis. Morgan, unpublished op. ott v. 95-0759, No. at 2 *5 1995). complaint App. Elliott filed a new Ct. Nov. adding filed Both sides BID and MRD as defendants. summary judgment. The trial court motions ruling project granted motion, the defendants' that term constitute a work because does not upon improvements performed applies only "public City."2 appeals. premises Elliott now owned

II. DISCUSSION project pub- argues is a Elliott that the Riverwalk (1) it is done contract for lic work because: work (3) (2) City; character; and it is of a nature and funding project provided and is exhibit- for the the ing pervasive City, project. BID

control over although assumes a MRD counter that (1) public purpose, it not a work because: improvements privately involves (2) using maintaining property; will not be (3) financing nor use Riverwalk; neither large will transform a construc- at (4) public work; is not tion into a undertaking project. trial work covered agreed court with interpretation of statutes to case involves the

This question undisputed of law that we facts, which is a Valley Supply independently. See Golden Co. review 866, 866, Co., 195 2d 537 N.W.2d American Ins. Wis. 1995). (Ct. App. addition, In this case comes to us 58, 59 reviewing grant summary judgment. following In summary judgment, employ we the same methodology trial court. See Grotelues utilized action was the Honora presiding The trial court over this J. Haese. ble William Family Co., v. American 2d

chen Mut. Ins. Wis. (1992). 437, 446-47, 492 131, 134 basis, N.W.2d On *6 again, our is de See id. review novo. 66.293(3), § at in this case is statute issue (1993-94), provides pertinent part: which in

Stats.

Every municipality, making before a contract contract, negotiation soliciting direct or bids on a any works . . . shall apply industry, and human relations department labor rate, prevailing wage to ascertain the hours of labor hourly in pay occupa- basic rates all trades and required contemplated. any tions in the work ... If contract for a works ... is entered into, wage rates and hours determined incorporated and made department.. . shall be into laborer, part of the contract. No worker or employed directly upon pro- mechanic the site of the ject may paid prevailing wage . . . be less than the in occupation rate the same or most similar trade or presented, City therefore, is The issue whether or contract for works. If has made entered into a 66.293(3), subject § so, it is to and Milwaukee Stats., required § 309-25,3 and should be to incor- Ordinance §309-25, provides pertinent in Milwaukee Ordinance part: Applicable City Wage

Minimum Provisions Contractors. any employed all and unskilled laborers work Hereafter skilled Milwaukee, city by any or done contract for the contractor city, performing subcontractor work for the either new construc- sewers, streets, any roads, bridges, repair on tion work or work whatsoever, alleys, any buildings receive other work shall per paid a sum of not less than the current rate of diem and be city city wages by the common council of said on work. established statute, 66.293, agree parties All that the state STATS., § ordinance, city employ "public the term work" and the § 309-25 wage porate prevailing rate into contract.4 For 66.293(3) (1) apply, City § must conclude that: we (2) contract; entered into the the con- must have tract involved a work. Elliott concedes that the City companies itself did not enter into a contract with actually performing argues Instead, he work. grant agreements entered into with suggests BID and MRD act as "the contract." He requirements the by entering cannot subvert the of the statute agreement MRD,

into an actually with BID and in turn thát contracted with construction performed argues companies Elliot who work. also actually ego that BID an it is alter because is support created The authorities he cites in proposition, non-persuasive however, of this eign for- point case law. Each case cited Elliott on this *7 distinguishable, factually legally either the because Wisconsin statute differs from the statute at issue in foreign agreements Moreover, cases.5 that Elli- only in a The similar fashion. distinction between the two laws specifically expressly that the ordinance is tailored and lim- is City's obligations. ited to the 4We note with interest that there is no evidence in the record that the workers hired to construct this did not prevailing wage receive the rate. In the absence of this informa tion, may a decision on the merits in this case seem somewhat Nonetheless, argument, requested unusual. at oral both sides that we decide the In merits of the matter. the interest of fur thering justice, comply the administration of we with request. 5 Building Department, Elliott cites & Construction Trades (D.D.C. 1988). case, Turnage, Supp. AFL-CIO v. 705 F. In however, government directly building contracted with a company leasing for the construction and of a clinic for the government. See id. He Lycoming also directs this court to Ass'n, County Nursing Home Inc. v. Commonwealth Penn- agreements simply "the contract" are ott labels obtaining requirements for that detail the money. negotiate bids, or enter did not solicit any for the work in into construction contracts question. policy legislative examining statute,

In our governing underlying law, statute, we con- at issue the Riverwalk clude that the (the non-City segments) do not constitute owned attempts give interpretation that Elliott works. promoting with his interest the statute consonant (Pa. 1993). case is sylvania, App. Ct. This 627 A.2d 238 at issue differs from Wis- distinguishable because the statute actually at issue was property consin's and because the (statute only required municipality. See id. at 240-42 work). Like- public funding to make a partial Land, wise, 645 S.W.2d 711 Hospital, Memorial Inc. v. Hardin 1983), statute than Wiscon- (Ky. App. involved a much broader (statute county-owned id. at 713 land. See sin's and involved funding project public). We any public makes provides Irwin, Noland Co. v. persuaded by United States ex rel. are not (1942), application is limited to that case's 316 U.S. 23 because Recovery Act. See United States ex rel. Industrial the National Co., 11 Fidelity & Guar. F.3d Supply Co. v. U.S. General Elec. 1993). (6th Ditching Company & Cir. Central Arizona Water (Ariz. 1984), App. differs from City Tempe, 680 P.2d 829 City improve- the construction involved instant case because bids, City prepared plans, invited id. The ments. See See all documents. prepared contract selected the builder *8 State ex rel. Webster id. at 313. Elliott also cites 1989). (Mo. case, Camdenton, App. That how- 312 779 S.W.2d to ever, was be because involved work for City and leased formerly City on land used See id. at 316 by a broader statute. governed it. Id. It also was (statute part any project financed public a work denominates funds.). by public

261 paid prevailing individual workers' desire to be wage. though interest, wholesome, This laudable and cannot be reached on the basis of the current statute. many jurisdictions, 5, As noted in footnote other simi- larly promoting prevailing wage rate, mindful of fully purpose by enacting more have defined this broadly public statute that more defines a work. We presume legislature, wisdom, that our in its is familiar growing body foreign legislation, this with broadly which any project defines a work include part public money. that is funded in For reasons legislature unknown, however, our has not taken the expansive steps same to broaden the definition of a any project pub- work to include which receives funding. policy lic Because this task is a determination legislature, interpre- left to the we cannot read such an wording tation into the statute, of our limited which does not define the term. determining

In is and what what is not a guidance by Attorney work, we are offered our General. Attorney opinions may General's be viewed persuasive guides meaning pur- court as as to the pose legislative Jones, enactments. See Green v. (1964). 551, 558, Wis. 2d 128 N.W.2d In 64 OAG Attorney question 100, General addressed the the definition of a work: all turnkey projects Not are public projects. works example, turnkey projects For financed indus- trial 66.521, Stats., revenue bonds under sec. typically projects. industrial Although the use of public financing under sec. 66.521 serves purpose support sufficient to the constitu- tionality law, the projects thereby financed do *9 method of of the not, merely consequence as a public character. financing, become public pri- project is particular a Whether factors analysis specific of the requires an vate separately evaluated. must be involved. Each case however, pro- works public a Generally speaking, The fact of body.... a public the use of ject is one for monies or through public improvement public does not itself ownership through public ultimate one of works. project make the omitted.) (Citations Attorney opines, the General As funding project does not control for a source of the project Accord- a work. the constitutes whether ingly, large grants that the contention Elliott's project provided MRD make the to BID and project has a that a The fact is incorrect. a work pub- justifies public purpose, the involvement which financing, work. a not make lic does 216, 170 N.W.2d 201, 2d Reuter, 44 Wis. v. See Warren (1969).6 Riverwalk will true that It is 790, 796 public purpose have access will a serve improve walkway. business Doubtless, it will along providing access to businesses additional undoubtedly walkway. of Milwau- make It will promote, hopefully attract, will more kee beautiful City over the control exerted suggests that Elliott per are not public work. We a project makes are certain conditions Elliott refers to suaded. controls money to exchange providing City imposed in for gift money a decides MRD. When the BID and impose certain con required to purpose, it is involving public funding public purpose ditions to ensure Reuter, 44 Wis. 2d out. See Warren projects is carried (1969). 201, 216, 170 N.W.2d industry stimulate and revitalize commerce and within public purpose Nonetheless, does not auto- *10 matically public Significant denote a work. is the factor public will not "own" the Riverwalk. support

Additional for our conclusion that the public may work, Riverwalk is not a within be found City addressing of Milwaukee Ordinances "Public Department Works." Section 309-01 makes the of Pub- responsible relating lic Works for "all matters to the design, operation construction, maintenance and of the physical properties City (Empha- the Milwaukee." added.) provides pertinent part: sis Section 309-21 "Any employed by any laborer or mechanic contractor City upon any or subcontractor of the of Milwaukee public city hereby works this is limited to . . . ." added.) (Emphasis support These references the fact that a work relates to work done for the on City-owned property. project The Riverwalk is not being City. constructed or for the Nor is it property City. on

Blaser & Kammer v. Don Associates, Ganser & (1963), provides Inc., 19 403, Wis. 2d 120 N.W.2d 629 support further for our conclusion. In case, that our supreme apartment court held that the construction of buildings by private non-profit corporation a was not a "public improvement though or work" even buildings University were intended to house ofWiscon- engineer approved sin students and the state plans, specifications principal construction con- tract. See id. at 120 N.W.2d at 632-33. This decision undercuts Elliott's claim that use by city project and control officials converts a into one work. major premises is of Elliott's contention One of compels conclusion that Jones case Green Although the Green court work. in that entitled workers case were concluded wage, distinguishable. prevailing See the facts 562-64, 128 2d 6-7. Green Green, 23 Wis. at N.W.2d at public highway and the the construction of a involved relationship than of the rather truckers See itself. we have here-the nature what id. improvements at issue here not be owned will They City. operated maintained not be will using theof will not be these including private prop- others, Rather,

Riverwalk. portion erty will ofthe Riverwalk owners who abut that operate, improvements. The use the own, private property maintain and *11 upkeep responsible its

owners lighting of the with the and the utilities associated ownership project. with fall on All the risks associated may entity. although So, the Riverwalk may like a work, smell like a and even look quack quite The facts like one. work, it does not City not those does own demonstrate ownership here, accrue to nor ever at issue will Riverwalk, it Moreover, not use the will any way in be it, and will not not maintain or lease will responsible for it. language the statute and of

In accordance with perti- Attorney opinion, and ordinance, General's determining law, conclude that nent case we pro- project public work, each constitutes whether pertinent ject separately. The must be evaluated nature the character consider include the and factors to ownership, project, use maintenance and project, being and whether the work is done for the appropriate municipality. considering After these fac- pertinent agree tors as case, the instant we with the trial court's conclusion that the Riverwalk governed by not a work and therefore is not § 66.293, § or ordinance 309-25. Stats.,

By Judgment affirmed. Court.— (dissenting). agree SCHUDSON, J. I with the majority's determining view that in whether a "project 66.293(3), § is a works" under Stats., particular we must look at the characteristics of the "pertinent including and evaluate the factors" majority Majority op. those the discusses. Here, at 265. "project so, when I I do conclude that the Riverwalk is a works." majority acknowledges, As the of Milwau- provided overwhelming portion kee has of the funding for the Riverwalk —a total of $9,296,000, while special private property assessments on account for Express $1,945,000 and Midwest has contributed City, through $100,000. addition, In the BID and virtually the MRD it established, has maintained com- plete potential control creation, over the termination, design, implementation project. Thus, clearly, City's the BID and the MRD have served as the "alter-egos" provided apparatus through and have which the has been able to exert such control. Finally simply, the Riverwalk, in form and func- *12 apparently "project public tion, is so a of works" that swimming through the statutes and case law to con- upstream clude otherwise seems a strenuous effort to defy common sense. majority's reasoning

The flaw in the is reflected emphasis its on the distinction between the owned non-City segments of Riverwalk. and Granted, if facilitates a realistic such a distinction public a is one "of determination of whether Here, however, where works," it should be embraced. private linking is a sidewalk and walkway providing properties a all citizens and private using facilities, I believe both analysis segmented an unrealistic result. renders cooperative linkage Indeed, without the segments, suspect I not have would provide and, of cer- inclined to millions dollars been tainly, possible. would not have been Riverwalk segment-based majority's Thus, I believe analysis has undermined should have been what is a Riverwalk commonsense evaluation whether Attempting apply "project works." evaluation, I conclude commonsense subject "project works" Riverwalk prevailing 66.293(3), wage requirements § Stats. Accordingly, respectfully I dissent.