PAMELA J. KAHLER, Corporation Counsel Dunn County
You have asked for my opinion whether the issuing fees prescribed by sections 29.09(10) and 29.092(15), Stats., may be reserved to the county clerk as part of the clerk's annual compensation in light of the changes made to section 29.09(7m) by 1987 Wisconsin Act 27. It is my opinion that the clerk may continue to receive such fees as compensation.
The county board is authorized by section 59.15(1)(a) to base the clerk's annual compensation on a straight salary, fees or part salary and part fees. Under section 59.15(1)(b), the clerk or any other officer on a salary basis or part fees and part salary is required to collect all fees authorized by law and pertaining to his office and to "remit all fees not specifically reserved to him by enumeration in the compensation established by the board pursuant to par. (a) to the treasurer at the end of each month unless a shorter period of remittance is otherwise provided."
When issuing hunting, trapping or fishing approvals, in addition to collecting the approved fee to be remitted to the Department of Natural Resources, the clerk is required to collect an issuing fee to compensate for services rendered in issuing the license or stamp. See secs. 29.09(7) and (10) and 29.092(15), Stats. In the past, Dunn County has reserved to the clerk the issuing fees paid for the issuance of the licenses and stamps under section 29.092. Your question is whether the clerk can continue to keep the issuing fees in light of the changes in section 29.09(7m).
Section 29.09(7) and (7m) are concerned with how and when the approval fees collected by the clerk are sent to the Department of Natural Resources. Section 29.09(7)(a) provides:
Any fees for approvals collected by the county clerk except any issuing fee shall be remitted to the department by the 20th of each month, with a report of the number of licenses issued by the *Page 268 clerk and his or her deputies during the preceding month with a report on the issuance of other approvals, as required by the department, and with a statement of the amount of money remitted. If the clerk does not remit, the clerk shall forfeit not more than $100.00.
Section 29.09(7m) used to provide for different accounting procedures depending on whether the issuing fee was kept by the clerk or by the county. Section 29.09(7m)(a) covered the situation where the clerk was authorized to keep the issuing fee and section 29.09(7m)(b) covered the situation where the county kept the issuing fee. Section 29.09(7m) provided, in part:
(a) Except as provided under par. (b), each county clerk, to whom all or part of the issuing fee established under s. 29.092(15) is reserved as permitted under sub. (7) or (d) and in accordance with s. 59.15(1), shall establish either in a credit union a share draft account, in a savings and loan association a checking or negotiable order of withdrawal account or in a bank a checking account to be used for the deposit of collections of fees for approvals. These collections shall be deposited by the county clerk in the account within one week after receipt. Payment to the department of the monthly remittance specified under sub. (7) shall be made by check, share draft or other draft drawn against the account. The account is subject to ch. 34 and s. 66.042(6). Other collections made by the county clerk and due the county also may be deposited in this account but if the account includes collections other than fees for approvals, the county clerk's record of the balance in the account is required to show separately the exact amounts of fees for approvals and other collections.
(b) If a county retains issuing fees established under s. 29.092(15) as permitted under sub. (s) or (10) and the county board requires the county clerk to deposit collections of fees for approvals with the county treasurer, the county clerk shall deposit collections of fees for approvals with the county treasurer within one week after receipt. Payment to the department of the monthly remittance specified under sub. (7) shall then be made by the county treasurer upon written order of the county clerk. If the county board does not require collections of fees for approvals to be deposited with the county treasurer, the county *Page 269 clerk shall make deposits and remittances of collections of fees for approvals as required under par. (a).
In 1987 Wisconsin Act 27, section 600n, the Legislature repealed section 29.09(7m)(a). In 1987 Wisconsin Act 27, section 600p, the Legislature amended section 29.09(7m)(b) to read as follows:
If a county retains issuing fees established under s. 29.092(15) as permitted under sub. (7) or (10) [and the county board requires the county clerk to deposit collections of fees for approvals with the county treasurer]*, the county clerk shall deposit collections of fees for approvals with the county treasurer within one week after receipt. Payment to the department of the monthly remittance specified under sub. (7) shall then be made by the county treasurer upon written order of the county clerk. [If the county board does not require collection of fees for approvals to be deposited with the county treasurer, the county clerk shall make deposits and remittances of collections of fees for approvals as required under par. (a)]*.
* [EDITORS' NOTE: THE TEXT CONTAINED WITHIN THE BRACKETS WAS STRICKEN THROUGH IN THE ORIGINAL TEXT.]
In my opinion the change in section 29.09(7m) does not affect the authority of the county board to permit the county clerk to receive the issuing fees as compensation. The change in section 29.09(7m) seems to simplify the manner in which the approval fees are handled. Under the altered statute, where the county clerk is authorized to keep the issuing fee, the county clerk, pursuant to section 29.09(7), remits to the Department of Natural Resources each month the approval fees that have been collected, except for the issuing fee which is kept by the clerk.
In situations where the county retains the issuing fee, section 29.09(7m)(b) now requires the clerk to send all of the fees to the treasurer who then forwards the appropriate amount to the Department of Natural Resources. This is also consistent with the procedures set forth in section 59.15(1)(b).
The change in section 29.09(7m) seems only to have simplified the procedure for handling the fees and did not alter the county board's authority to authorize the clerk to keep the issuing fee as part of his or her compensation.
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