Building and Const. Trades Council of South Cent. Wisconsin v. Waunakee Community School Dist.

• Decision Date: 21 May 1998
• Docket Number: No. 97-3282,97-3282
• Citation: 221 Wis.2d 575,585 N.W.2d 726
• Parties: , 130 Ed. Law Rep. 281 BUILDING AND CONSTRUCTION TRADES COUNCIL OF SOUTH CENTRAL WISCONSIN, Billy Harrelson, Thomas Kiesgen and Mitchell Terhaar, Plaintiffs-Appellants, d v. WAUNAKEE COMMUNITY SCHOOL DISTRICT, J.P. Cullen & Sons, Inc., Electri-Tec Electrical Construction, Inc., Maly Roofing Co., Inc., and Gene Hamele, Defendants-Respondents. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 726

585 N.W.2d 726

221 Wis.2d 575, 130 Ed. Law Rep. 281

BUILDING AND CONSTRUCTION TRADES COUNCIL OF SOUTH CENTRAL WISCONSIN, Billy Harrelson, Thomas Kiesgen and Mitchell Terhaar, Plaintiffs-Appellants,^d v. WAUNAKEE COMMUNITY SCHOOL DISTRICT, J.P. Cullen & Sons Inc., Electri-Tec Electrical Construction, Inc. Maly Roofing Co., Inc., and Gene Hamele Defendants-Respondents.

No. 97-3282.

Court of Appeals of Wisconsin.

Oral Argument May 21, 1998.

Opinion Released Aug. 27, 1998.

Opinion Filed Aug. 27, 1998.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Matthew R. Robbins, John J. Brennan and Jill M. Hartley of Previant, Goldberg, Uelmen, Gratz, Miller and Brueggeman, S.C. of Milwaukee. Oral argument by Matthew R. Robbins.

On behalf of the defendants-respondents, the cause was submitted on the briefs of James K. Pease, Jr., Douglas E. Witte, and Devon R. Baumbach of Melli, Walker, Pease & Ruhley, S.C. of Madison; Dennis M. White of Brennan, Steil, Basting & MacDougall, S.C. of Madison; and Michael J. Westcott and Paul Voelker of Axley Brynelson, LLP of Madison. Oral argument by James Pease, Jr., and Edith Merila.

Before DYKMAN, P.J., and EICH and ROGGENSACK, JJ.

EICH, Judge.

The Building and Construction Trades Council of South Central Wisconsin and several individual labor union officials (collectively the Council) appeal from an order dismissing their open-records law mandamus action against the Waunakee School District. The Council requested that the District provide it access to the payroll records of certain subcontractors working on a school construction project. The sole issue is whether the open records law, §§ 19.31-36, STATS., considered in light of the prevailing wage law, § 66.293, requires the District to obtain the records from the subcontractors and provide them to the Council. We conclude that it does not and affirm the circuit court's order.

The facts are not in dispute. The District contracted with J.P. Cullen & Sons to build an elementary school and administration building. Cullen subcontracted portions of the work on the project to the Electri-Tec Electrical Construction Company and the Maly Roofing Company. Neither Maly nor Electri-Tec had any contractual relationship with the District. The Council submitted a request to the District to inspect

all payroll records for every laborer, workman and mechanic employed by Electri-Tec [and Maly] ..., for all work performed on the Prairie Elementary School and Administration Building project. This records request includes, but is not limited to: the names, addresses and telephone numbers of each employee; the classification/ trade/occupation of each employee; the number of hours worked by each employee and the wages and benefits earned by each employee. ¹

The District denied the request, explaining that it had not generated, nor did it possess, any such records and that, based on its understanding, neither did its general contractor, Cullen. The Council then brought this action seeking the District's compliance with its request. The District, Cullen and the subcontractors moved for summary judgment and the trial court granted the motion. The Council appeals from the court's order dismissing its action.

We review summary judgments de novo, applying the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). The remedy is appropriate in cases where there is no genuine issue of material fact and the moving party has established his or her entitlement to judgment as a matter of law. Germanotta v. National Indem. Co., 119 Wis.2d 293, 296, 349 N.W.2d 733, 735 (Ct.App.1984). That is the situation here: the pleadings state and join the issues, and the affidavits and other proofs filed by the parties reveal no disputed issues of fact, leaving only the legal issues for resolution. See, e.g., State Bank of La Crosse v. Elsen, 128 Wis.2d 508, 511, 383 N.W.2d 916, 917 (Ct.App.1986).

We begin by considering the underlying policy and applicable provisions of the open records law. Recognizing that "a representative government is dependent upon an informed electorate," the legislature enacted the law to provide Wisconsin citizens "the greatest possible information regarding the affairs of government and the official acts of [public] officers ." Section 19.31, STATS. In furtherance of that policy, § 19.35(1) gives anyone the "right to inspect any record." Section 19.32(2) defines "record" as "any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded which has been created or is being kept by an authority," and § 19.32(1) defines "authority" as including "a state or local office, board, or public body corporate and politic ." As the Council correctly observes, we have consistently recognized the "strong public policy in openness of government" expressed in the open records law, and the statutory presumption of "complete public access" to the records of public agencies. Milwaukee Journal v. University of Wis. Bd. of Regents, 163 Wis.2d 933, 935-36, 472 N.W.2d 607, 609 (Ct.App.1991).

The portion of the open records law lying at the heart of this dispute is in the section setting forth "limitations" on the access to, and the withholding of, records--specifically, the "contractors' records" provisions of § 19.36(3), STATS., stating that "[e]ach authority shall make available for inspection any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority." This statute is the primary underpinning for the Council's claimed right to inspect Maly's and Electri-Tec's records.

The Council's first argument is based on what it sees as the interplay between the state "prevailing wage rate law," § 66.293, STATS., and the "contractors' records" provisions of § 19.36(3). It proceeds as follows: (1) Section 66.293--which is incorporated into the contracts between the District and Cullen, and also the contracts between Cullen and its subcontractors--requires compliance with all applicable laws and regulations, including minimum wage rates, and also requires that accurate payroll records be kept for all work done on the project; (2) under cases such as Strong v. C.I.R., Inc., 184 Wis.2d 619, 624, 516 N.W.2d 719, 721-22 (1994), Cullen, as the general contractor, has a duty to ensure that all workers on the job--including those employed by subcontractors--are paid the prevailing wage; (3) therefore, according to the Council, "the subcontractors' payroll records are subject to inspection under § 19.36(3)," and the District, as the public "authority" for whose benefit the project is being undertaken, is obligated to obtain and provide the records to the Council.

The problem with the argument, of course, is that § 19.36(3), STATS., plainly addresses contracts between the "authority"--here the District--and the party whose records are being sought. It requires the District to make available for inspection any record that is either produced or collected "under a contract entered into by the authority [e.g., the District] with a person other than an authority [e.g., Cullen]" to the "same extent as if the record were maintained by the authority." But the Council is not seeking any records produced or collected under the District's contract with Cullen. Its request goes to another level entirely: It seeks information that Cullen's subcontractors--which, like Cullen, are private, rather than public, entities--produced for their own independent purposes. And it offers as grounds for such access not the contract between the District and Cullen--which is the only contractual relationship specified in § 19.36(3)--but the separate contracts between Cullen and its subcontractors.

The Council has not provided us with any authority that would bridge the gap between (a) the requirement in § 19.36(3) that the District disclose records produced or collected under its contract with Cullen, and (b) the records it seeks, which are, as indicated, the payroll records of two companies who had entered into subcontracts with Cullen--subcontracts to which the District is not a party. Instead, the Council criticizes the trial court's decision denying its request by asserting that "Cullen's decision to subcontract part of its obligations under [its] contract [with the District] does not excuse its duty to ensure compliance with the prevailing wage law nor does it preclude the mechanisms available for monitoring compliance." And it characterizes the trial court's decision as "an invitation to evade the law" because, "[u]nder [its] rationale," a contractor could subcontract all work on a given public project and thus evade all of the requirements of the prevailing wage law. We are not persuaded.

The purpose of the open records law is, as we have noted above, to shed light on the workings of government and the acts of public officers and employees. The purpose of the prevailing wage law is to set the prevailing wage rates and hours of work for employees of private employers working on public works projects. The wage law contains specific statutory procedures for monitoring and securing compliance with its requirements. Section 66.293(10)(c), STATS., for example, states that, upon the request of "any person," the Department of Workforce Development "shall inspect the payroll records of any contractor, subcontractor or agent performing work on a project that is subject to this section to ensure compliance with this section." And the law provides both civil remedies and criminal penalties for violation of its terms. Section 66.293(11).

The Council refers us to three out-of-state cases in support of its argument; but we do not believe they advance its position to any significant degree. It cites O.G. Sansone Co. v. Department of...