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COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                   96-1904
†Petition for Review filed.
Complete Title
of Case:
JAMES N. ELLIOTT AND
MILWAUKEE BUILDING AND
CONSTRUCTION TRADES COUNCIL,
PLAINTIFFS-APPELLANTS,†
V.
MICHAEL L. MORGAN, THE CITY OF MILWAUKEE,
MILWAUKEE RIVERWALK DISTRICT, INC. AND
BUSINESS IMPROVEMENT DISTRICT NO. 15,
DEFENDANTS-RESPONDENTS.
Opinion Filed:                              October 21, 1997
Submitted on Briefs:                        ---
Oral Argument:                              July 31, 1997
JUDGES:                                     WEDEMEYER, P.J., SCHUDSON, J. and LaROCQUE, Reserve Judge
Concurred:                                  ---
Dissented:                                  SCHUDSON, J.




Appellant
ATTORNEYS:                                                                 On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of Matthew R. Robbins and Frederick C. Miner of Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C. of Milwaukee.
There was oral argument by Matthew R. Robbins.
Respondent
ATTORNEYS:                                                                 On behalf of the defendants-respondents Michael L. Morgan and the City
of Milwaukee, the cause was submitted on the brief of Grant F. Langley,
city attorney and Linda Uliss Burke, assistant city attorney.  There was
oral argument by Linda Uliss Burke.
Respondent
ATTORNEYS:                                                                 On behalf of the defendants-respondents Milwaukee Riverwalk District,
Inc. and Business Improvement District No. 15, the cause was submitted
on the brief of Kathleen S. Donius and Daniel J. LaFave of Reinhart,
Boerner, Van Deuren, Norris & Rieselbach, S.C. of Milwaukee.  There
was oral argument by Kathleen S. Donius.




COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This  opinion  is  subject  to  further
editing. If published, the official version will appear
in the bound volume of the Official Reports.
October 21, 1997
A party  may  file  with  the  Supreme  Court a
                                                                     Marilyn L. Graves         petition to review an adverse decision by the Court
                                                                     Clerk, Court of Appeals   of Appeals.  See § 808.10 and RULE 809.62, STATS.
                                                                     of Wisconsin
No.                                                                  96-1904
                                                                     STATE OF WISCONSIN        IN COURT OF APPEALS
JAMES N. ELLIOTT AND
MILWAUKEE BUILDING AND
CONSTRUCTION TRADES COUNCIL,
PLAINTIFFS-APPELLANTS,
V.
MICHAEL L. MORGAN, THE CITY OF MILWAUKEE,
MILWAUKEE RIVERWALK DISTRICT, INC. AND
BUSINESS IMPROVEMENT DISTRICT NO. 15,
DEFENDANTS-RESPONDENTS.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:   WILLIAM J. HAESE, Judge.   Affirmed.
Before  Wedemeyer,  P.J.,  Schudson,  J.,  and  LaRocque,  Reserve
Judge.




No. 96-1904
WEDEMEYER, P.J.     James N. Elliott and the Milwaukee Building
and Construction Trades Council appeal from a judgment entered after the trial
court  granted  Michael  L.  Morgan,  the  City  of  Milwaukee,  the  Milwaukee
Riverwalk District, Inc., (MRD) and the Business Improvement District No. 15’s
(BID) motion for summary judgment.   Elliott claims the trial court erred when it
concluded that portions of the construction of the Riverwalk project were not a
“public  work”  subject  to  the  requirements  of                                       § 66.293,  STATS.                  (1993-94).1
Because the Riverwalk project does not constitute a public work, we affirm.
I.   BACKGROUND
This case involves the Riverwalk development project in downtown
Milwaukee, which consists of a system of sidewalks, decorative lighting, and
landscaping along the Milwaukee River, extending from Clybourn Street at its
southern  boundary  to  Pleasant  Street  at  the  north.     The  City  entered  into
agreements to provide grant money to the two entities who are developing the
Riverwalk project:   the Business Improvement District No. 15 and the Milwaukee
Riverwalk District, Inc.
A.  Business Improvement District.
The pertinent undisputed facts are as follows.   A “BID” is governed
by a board of directors, appointed by the municipality’s “chief executive officer,”
here the mayor, and confirmed by the municipality’s legislative body, here the
Common Council.   Section 66.608(3)(a), STATS.                                           “The board shall have at least 5
members.   A majority of board members shall own or occupy real property in the
business improvement district.”    Id.    A BID board is authorized to  “have all
1 All further references are to the 1993-94 statutes unless otherwise indicated.
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No. 96-1904
powers necessary or convenient to implement the operating plan, including the
power to contract,” if those powers are “specified in the operating plan as adopted,
or amended and approved” pursuant to § 66.608, STATS.   Section 66.608(3)(d),
STATS.    The agreement for the Riverwalk project gives the board of BID the
authority to obtain property in connection with the project and to construct, as well
as                                                                                       “[c]ontrol  or  own,  operate  and  maintain  or  cause  to  be  operated  and
maintained,” the project segments that are not designated for control by the City.
Private property owners petitioned for the creation of the BID.   The creation of the
BID was approved by the Milwaukee Common Council in March 1994.   The BID
is funded by  $8,537,000 in grant funds from the City of  Milwaukee, and by
$1,945,000 from special assessments on private property within the district.
B.  Milwaukee Riverwalk District.
The MRD is a non-profit Wisconsin corporation.   It is funded by
$759,000 in a grant from the City of Milwaukee and by $100,000 from Midwest
Express.   The MRD agreed to “further[] Riverwalk construction and development
along certain segments of the Milwaukee River.”
None  of  the  improvements  which  are  the  subject  matter  of  this
lawsuit will be owned, leased or operated by the City of Milwaukee.   The project
segments that are to be owned by the City are governed by the wage-rate laws of
§ 66.293, STATS., and are not at issue here.
Elliott  filed  a  complaint  against  Morgan  and  the  City,  seeking
injunctive relief on the basis that the entire Riverwalk Project is subject to the
wage-rate laws of § 66.293, STATS., because the project is a “public work.”   The
Honorable  George  A.  Burns,  Jr.,  denied  the  request for  injunctive  relief, and
dismissed the complaint on the basis that the portions of the project that are
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No. 96-1904
privately owned are not public works and therefore are not subject to the wage-
rate laws.   We affirmed the dismissal on the grounds that Elliott failed to join
indispensable parties, namely the BID and MRD.   Elliott v. Morgan, No. 95-0759,
unpublished slip op.  at  2  (Wis. Ct. App. Nov.  7,  1995).    Elliott filed a new
complaint adding BID and MRD as defendants.    Both sides filed motions for
summary judgment.   The trial court granted the defendants’ motion, ruling that the
project does not constitute a public work because that term applies only to “public
improvements  performed  upon  premises  owned  by  the  City.”2    Elliott  now
appeals.
II.   DISCUSSION
Elliott argues that the Riverwalk project is a public work because:
(1) it  is  work  done  by  contract  for  the  City;                                   (2) it  is  of  a  public  nature  and
character; and  (3) the  City provided funding for  the  project and  is exhibiting
pervasive control over the project.   The City, BID and MRD counter that although
the project assumes a public purpose, it is not a public work because:                  (1) the
project involves improvements to privately owned property; (2) the City will not
be using or maintaining the Riverwalk; (3) neither public financing nor use by the
public at large will transform a private construction project into a public work; and
(4) the City is not undertaking the work covered by the project.   The trial court
agreed with the City.
This case involves the interpretation of statutes to undisputed facts,
which is a question of law that we review independently.    See Golden Valley
Supply Co. v. American Ins. Co., 195 Wis.2d 866, 866, 537 N.W.2d 58, 59 (Ct.
2  The trial court presiding over this action was the Honorable William J. Haese.
4




No. 96-1904
App.  1995).   In addition, this case comes to us following a grant of summary
judgment.    In reviewing a grant of  summary judgment, we employ the same
methodology utilized by the trial court.   See Grotelueschen v. American Family
Mut. Ins. Co., 171 Wis.2d 437, 446-47, 492 N.W.2d 131, 134 (1992).   On this
basis, again, our review is de novo.   See id.
The statute at issue in this case is  § 66.293(3), STATS.  (1993-94),
which provides in pertinent part:
Every municipality, before making a contract by direct
negotiation or soliciting bids on a contract, for any project
of  public  works                                                                                      …  shall  apply  to  the  department  of
industry,  labor  and  human  relations  to  ascertain  the
prevailing wage rate, hours of labor and hourly basic pay
rates in all trades and occupations required in the work
contemplated.…  If  any  contract  for  a  project  of  public
works                                                                                                  …  is  entered  into,  the  wage  rates  and  hours
determined by the department … shall be incorporated into
and made a part of the contract.    No laborer, worker or
mechanic employed directly upon the site of the project …
may be paid less than the prevailing wage rate in the same
or most similar trade or occupation ….
The  issue  presented,  therefore,  is  whether  the  City has  made  or
entered into a contract for public works.   If so, it is subject to § 66.293(3), STATS.,
and MILWAUKEE ORDINANCE § 309-25,3 and should be required to incorporate the
3  MILWAUKEE ORDINANCE § 309-25, provides in pertinent part:
Minimum Wage Provisions Applicable to City Contractors.
Hereafter all skilled and unskilled laborers employed in any
work  done  by  contract  for  the  city  of  Milwaukee,  by  any
contractor or subcontractor performing work for the city, either
new construction work or repair work on any roads, bridges,
sewers,  streets,  alleys,  buildings  or  any  other  public  work
whatsoever, shall receive and be paid a sum of not less than the
current  rate  of  per  diem  wages  established  by  the  common
council of said city on city work.
All parties agree that the state statute, § 66.293, STATS., and the city ordinance, § 309-
25 employ the term “public work” in a similar fashion.   The only distinction between the two
laws is that the ordinance is specifically tailored and expressly limited to the City’s obligations.
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No. 96-1904
prevailing  wage  rate  into  the  contract.4    For                                                     § 66.293(3)  to  apply,  we  must
conclude  that:                                                                                          (1) the  City  must  have  entered  into  the  contract;  and   (2) the
contract involved a public work.   Elliott concedes that the City itself did not enter
into a contract with companies actually performing the work.   Instead, he argues
that the grant agreements that the City entered into with BID and MRD act as the
“the contract.”   He suggests that the City cannot subvert the requirements of the
statute by entering into an agreement with BID and MRD, that in turn actually
contracted with the construction companies who performed the work.   Elliot also
argues that BID is actually an alter ego of the City because it is created by the
City.   The authorities he cites in support of this proposition, however, are non-
persuasive  foreign  case  law.     Each  case  cited  by  Elliott  on  this  point  is
distinguishable, either factually or legally because the Wisconsin statute differs
4  We note with interest that there is no evidence in the record that the workers hired to
construct this project did not receive the prevailing wage rate.   In the absence of this information,
a decision on the merits in this case may seem somewhat unusual.  Nonetheless, at oral argument,
both sides requested that we decide the merits of the matter.   In the interest of furthering the
administration of justice, we comply with the request.
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No. 96-1904
from the statute at issue in the foreign cases.5    Moreover, the agreements that
Elliott  labels                                                                                        “the  City  contract”  are  simply  agreements  that  detail  the
requirements  for  obtaining  the  grant  money.    The  City  did  not  solicit  bids,
negotiate or enter into any construction contracts for the work in question.
In  examining  our  statute,  the  legislative  policy  underlying  the
statute, and the governing law, we conclude that the portions of the Riverwalk
project at issue  (the non-City owned segments) do not constitute public works.
The interpretation that Elliott attempts to give the statute is consonant with his
interest in promoting individual workers’ desire to be paid the prevailing wage.
This interest, though laudable and wholesome, cannot be reached on the basis of
the current statute.   As noted in footnote  5, many other jurisdictions, similarly
mindful  of  promoting  the  prevailing  wage  rate,  have  more  fully  defined  this
purpose  by enacting  a  statute  that  more  broadly defines a  public  work.    We
presume that our legislature, in its wisdom, is familiar with this growing body of
5  Elliott cites Building & Construction Trades Department, AFL-CIO v. Turnage, 705
F. Supp. 5 (D.D.C. 1988).   In this case, however, the government directly contracted with a
building company for the construction and leasing of a clinic for the government.  See id.  He also
directs  this  court  to  Lycoming  County  Nursing  Home  Ass’n,  Inc.  v.  Commonwealth  of
Pennsylvania, 627 A.2d 238 (Pa. Ct. App. 1993).  This case is distinguishable because the statute
at issue differs from Wisconsin’s and because the property at issue was actually owned by the
municipality.   See id. at 240-42 (statute required only partial public funding to make a project a
public work).   Likewise, Hardin Memorial Hospital, Inc. v. Land, 645 S.W.2d 711 (Ky. App.
1983) involved a much broader statute than Wisconsin’s and involved county-owned land.   See
id. at                                                                                                 713  (statute provides that any public funding makes the project public).   We are not
persuaded by United States ex rel. Noland Co. v. Irwin, 316 U.S. 23 (1942), because that case’s
application is limited to the National Industrial Recovery Act.   See United States ex rel. General
Elec. Supply Co. v. U.S. Fidelity & Guar. Co., 11 F.3d 577 (6th Cir. 1993).   Central Arizona
Water & Ditching Company v. City of Tempe, 680 P.2d 829 (Ariz. App. 1984), differs from the
instant case because the construction involved City improvements.  See id.  The City prepared the
plans, invited the bids, selected the builder and prepared all contract documents.   See id. at 313.
Elliott also cites State ex rel. Webster v. City of Camdenton, 779 S.W.2d 312 (Mo. App. 1989).
That case, however, involved work for the City because the project was to be used by the City on
land formerly owned by the City and leased to it.   Id.   It also was governed by a broader statute.
See id. at 316 (statute denominates a public work any project financed in part by public funds.).
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No. 96-1904
foreign legislation, which broadly defines a public work to include any project that
is funded in part by public money.   For reasons unknown, however, our legislature
has not taken the same expansive steps to broaden the definition of a public work
to include any project which receives public funding.   Because this task is a policy
determination left to the legislature, we cannot read such an interpretation into the
wording of our limited statute, which does not define the term.
In determining what is and what is not a public work, we are offered
guidance by our Attorney General.   Attorney General’s opinions may be viewed
by this court as persuasive guides as to the meaning and purpose of legislative
enactments.   See Green v. Jones, 23 Wis.2d 551, 558, 128 N.W.2d 1, 4 (1964).   In
64 OAG 100, the Attorney General addressed the question of the definition of a
public work:
Not all turnkey projects are public works projects.    For
example, turnkey projects financed by industrial revenue
bonds  under  sec.                                                                      66.521,  Stats.,  typically  are  private
industrial projects.   Although the use of public financing
under  sec.                                                                             66.521  serves  a  public  purpose  sufficient  to
support  the  constitutionality  of  the  law,  the  projects
financed thereby do not, merely as a consequence of the
method of financing, become public in character.
….
Whether  a  particular  project  is  public  or  private
requires an analysis of the specific factors involved.   Each
case  must  be  separately evaluated.    Generally speaking,
however, a public works project is one for the use of a
public body.… The fact of public improvement through
public monies or through ultimate public ownership does
not itself make the project one of public works.
(Citations omitted).   As the Attorney General opines, the source of funding for a
project  does  not  control  whether  the  project  constitutes  a  public  work.
Accordingly, Elliott’s contention that the large grants provided by the City to BID
and MRD make this project a public work is incorrect.   The fact that a project has
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No. 96-1904
a public purpose, which justifies the involvement of public financing, does not
make the project a public work.    See Warren v. Reuter,  44 Wis.2d  201,  216,
170 N.W.2d 790, 796 (1969).6   It is true that the Riverwalk will serve a public
purpose  and  the  public  will  have  access  to  the  walkway.    Doubtless,  it  will
improve  business  by  providing  additional  access  to  the  businesses  along  the
walkway.   It will undoubtedly make the City of Milwaukee more beautiful and
hopefully will promote, attract, stimulate and revitalize commerce and industry
within the City.   Nonetheless, a public purpose does not automatically denote a
public work.  Significant is the factor that the public will not “own” the Riverwalk.
Additional support for our conclusion that the Riverwalk is not a
public  work,  may be  found within City of  Milwaukee  Ordinances addressing
“Public  Works”.     Section                                                                            309-01  makes  the  Department  of  Public  Works
responsible for “all matters relating to the design, construction, maintenance and
operation of the physical properties of the City of Milwaukee.”                                         (Emphasis added).
Section 309-21 provides in pertinent part:                                                              “Any laborer or mechanic employed by
any contractor or subcontractor of the City of Milwaukee upon any of the public
works of this city is hereby limited to .…”                                                             (Emphasis added).   These references
support the fact that a public work relates to work done for the City on City-owned
property.   The Riverwalk project is not being constructed by the City or for the
City.   Nor is it on property owned by the City.
6  Elliott suggests that the control exerted by the City over the project makes the project a
public work.   We are not persuaded.   The controls that Elliott refers to are certain conditions the
City imposed in exchange for providing the grant money to BID and MRD.   When the City
decides to gift money for a project involving a public purpose, it is required to impose certain
conditions to ensure that the public purpose of the funding of private projects is carried out.   See
Warren v. Reuter, 44 Wis.2d 201, 216, 170 N.W.2d 790, 796 (1969).
9




No. 96-1904
Blaser & Kammer v. Don Ganser & Associates, Inc.,  19 Wis.2d
403, 120 N.W.2d 629 (1963) provides further support for our conclusion.   In that
case, our supreme court held that the construction of apartment buildings by a
private non-profit corporation was not a  “public improvement or public work”
even  though  the  buildings  were  intended  to  house  University  of  Wisconsin
students and the state engineer approved the plans, specifications and principal
construction contract.    See id. at  409,  120 N.W.2d at  632-33.    This decision
undercuts  Elliott’s  claim  that  use  by  the  public  and  control  by  city  officials
converts a project into one for public work.
One of the major premises of Elliott’s contention is that the Green v.
Jones case compels a conclusion that this project is a public work.   Although the
Green court concluded that the workers in that case were entitled to the prevailing
wage, the facts are distinguishable.   See Green, 23 Wis.2d at 562-64, 128 N.W.2d
at 6-7.   Green involved the construction of a public highway and the relationship
of the truckers to the project rather than what we have here-the nature of the
project itself.   See id.
The improvements at issue here will not be owned by the City.   They
will not be operated or maintained by the City.   The City will not be using these
portions of the Riverwalk.   Rather, others, including the private property owners
who abut that portion of the Riverwalk will own, operate, maintain and use the
improvements.   The private property owners are responsible for its upkeep and the
utilities associated with the lighting of the project.   All the risks associated with
ownership fall on the private entity.   So, although the Riverwalk may look like a
public work, and may even smell like a public work, it does not quite quack like
one.   The facts demonstrate that the City does not own those portions at issue here,
nor will ownership ever accrue to the City.   Moreover, the City will not use the
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No. 96-1904
Riverwalk, it will not maintain or lease it, and will not in any way be responsible
for it.
In accordance with the language of the statute and ordinance, the
Attorney  General’s  opinion,  and  pertinent  case  law,  we  conclude  that  in
determining whether a project constitutes a public work, each project must be
evaluated separately.   The pertinent factors to consider include the nature and the
character of the project, the ownership, use and maintenance of the project, and
whether  the  work  is  being  done  for  the  appropriate  municipality.     After
considering these factors as pertinent to the instant case, we agree with the trial
court’s conclusion that the Riverwalk project is not a public work and therefore is
not governed by § 66.293, STATS., or ordinance § 309-25.
By the Court.—Judgment affirmed.
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No. 96-1904 (D)
SCHUDSON, J. (dissenting).   I agree with the majority's view that in
determining whether a project is a "project of public works" under § 66.293(3),
STATS., we must look at the particular characteristics of the project and evaluate
the "pertinent factors" including those the majority discusses.   Majority slip op. at
11.   Here, when I do so, I conclude that the Riverwalk is a "project of public
works."
As the majority acknowledges, the City of Milwaukee has provided
the overwhelming portion of the funding for the Riverwalk-a total of $9,296,000,
while special assessments on private property account for $1,945,000 and Midwest
Express has contributed $100,000.   In addition, the City, through the BID and the
MRD it established, has maintained virtually complete control over the creation,
potential termination, design, and implementation of the project.   Thus, clearly, the
BID and the MRD have served as the City's "alter-egos" and have provided the
apparatus through which the City has been able to exert such control.   Finally and
simply, the Riverwalk, in form and function, is so apparently a "project of public
works" that swimming through the statutes and case law to conclude otherwise
seems a strenuous upstream effort to defy common sense.
The flaw in the majority's reasoning is reflected by its emphasis on
the distinction between the City owned and non-City owned segments of  the
Riverwalk.   Granted, if such a distinction facilitates a realistic determination of
whether a project is one "of public works," it should be embraced.   Here, however,
where the project is a sidewalk linking private and public properties and providing




No. 96-1904 (D)
a walkway for all citizens using both private and public facilities, I believe the
segmented analysis renders an unrealistic result.   Indeed, without the cooperative
linkage of the private and public segments, I suspect the City would not have been
inclined to provide millions of dollars and, certainly, the Riverwalk would not
have been possible.
Thus,  I  believe  that  the  majority's  segment-based  analysis  has
undermined what should have been a commonsense evaluation of whether the
Riverwalk is a "project of public works."   Attempting to apply that commonsense
evaluation, I conclude that the Riverwalk is a "project of public works" subject to
the  prevailing  wage  requirements  of                                               § 66.293(3),  STATS.     Accordingly,  I
respectfully dissent.
2

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