Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
Whether the rule or order that the subordinate allegedly violated is reasonable.
Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
Whether the effort described under subd. 3.
was fair and objective.
Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.
Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chief's department.
Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.
Further rules for the administration of this subsection may be made by the board.
No person shall be deprived of compensation while suspended pending disposition of charges.
Any person suspended, reduced, suspended and reduced, or removed by the board may appeal from the order of the board to the circuit court by serving written notice of the appeal on the secretary of the board within 10 days after the order is filed. Within 5 days after receiving written notice of the appeal, the board shall certify to the clerk of the circuit court the record of the proceedings, including all documents, testimony and minutes. The action shall then be at issue and shall have precedence over any other cause of a different nature pending in the court, which shall always be open to the trial thereof. The court shall upon application of the accused or of the board fix a date of trial, which shall not be later than 15 days after such application except by agreement. The trial shall be by the court and upon the return of the board, except that the court may require further return or the taking and return of further evidence by the board. The question to be determined by the court shall be: Upon the evidence is there just cause, as described under par. (em)
, to sustain the charges against the accused? No costs shall be allowed either party and the clerk's fees shall be paid by the city. If the order of the board is reversed, the accused shall be forthwith reinstated and entitled to pay as though in continuous service. If the order of the board is sustained it shall be final and conclusive.
The provisions of pars. (a)
shall apply to disciplinary actions against the chiefs where applicable. In addition thereto, the board may suspend a chief pending disposition of charges filed by the board or by the mayor of the city.
When it becomes necessary, because of need for economy, lack of work or funds, or for other just causes, to reduce the number of subordinates, the emergency, special, temporary, part-time, or provisional subordinates, if any, shall be dismissed first, and thereafter subordinates shall be dismissed in the order of the shortest length of service in the department, provided that, in cities where a record of service rating has been established prior to January 1, 1933, for the said subordinates, the emergency, special, temporary, part-time provisional subordinates, if any, shall be dismissed first, and thereafter subordinates shall be dismissed in the order of the least efficient as shown by the said service rating.
When it becomes necessary for such reasons to reduce the number of subordinates in the higher positions or offices, or to abolish any higher positions or offices in the department, the subordinate or subordinates affected thereby shall be placed in a position or office in the department less responsible according to the subordinate's efficiency and length of service in the department.
The name of a subordinate dismissed for any just cause set forth in this section shall be left on an eligible reemployment list for a period of 2 years after the date of dismissal, except that if the dismissal was for disciplinary reasons the subordinate may not be left on an eligible reemployment list. If any vacancy occurs, or if the number of subordinates is increased, in the department, the vacancy or new positions shall be filled by persons on the eligible reemployment list in the inverse order of the dismissal of the persons on the list.
The board of fire and police commissioners shall have the further power:
To organize and supervise the fire and police departments and to prescribe rules and regulations for their control and management.
To contract for and purchase all necessary apparatus and supplies for the use of the departments under their supervision, exclusive of the erection and control of the police and fire station buildings.
To audit all bills, claims and expenses of the fire and police departments before the same are paid by the city treasurer.
The provisions of this subsection shall apply only if adopted by the electors. Whenever not less than 42 days prior to a regular city election a petition therefor, conforming to the requirements of s. 8.40
and signed by electors equal in number to not less than 20% of the total vote cast in the city for governor at the last general election, shall be filed with the clerk as provided in s. 8.37
, the clerk shall give notice in the manner of notice of the regular city election of a referendum on the adoption of this subsection. Such referendum election shall be held with the regular city election, and the ballots shall conform with the provisions of ss. 5.64 (2)
, and the question shall be "Shall s. 62.13 (6)
of the statutes be adopted?"
If a city of less than 4,000 population has not by ordinance applied subs. (1)
to the city, the city may not suspend, reduce, suspend and reduce, or remove any police chief or other law enforcement officer who is not probationary, and for whom there is no valid and enforceable contract of employment or collective bargaining agreement which provides for a fair review prior to that suspension, reduction, suspension and reduction or removal, unless the city does one of the following:
Establishes a committee of not less than 3 members, none of whom may be an elected or appointed official of the city or be employed by the city. The committee shall act under sub. (5)
in place of the board of police and fire commissioners. The city council may provide for some payment to each member for the member's cost of serving on the committee at a rate established by the city council.
Appoint a person who is not an elected or appointed official of the city and who is not employed by the city. The person shall act under sub. (5)
in place of the board. The city council may provide for some payment to that person for serving under this paragraph at a rate established by the city council.
The salaries of chiefs and subordinates shall be fixed by the council. Unless the council otherwise provides, in cities of the 4th class rewards for the apprehension of criminals may be retained by the person entitled thereto. Such salaries when so fixed may be increased but not decreased by the council without a previous recommendation of the board. The council may provide that the salaries shall increase with length of service.
The council of every city of the fourth class shall provide for, and the chief of the police department shall assign to, each police officer in the service of such city one full rest day of 24 consecutive hours during each 192 hours, except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, demands that such day of rest not be given at such time. Arrangements shall be made so that each full rest day may be had at such time or times as will not impair the efficiency of the department.
The council of every city of the second or third class shall provide for, and the chief of the police department shall assign to, each police officer in the service of such city 2 full rest days of 24 consecutive hours each during each 192 hours, except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, demands that any such day of rest not be given at such time. Arrangements shall be made so that each full rest day may be had at such time or times as will not impair the efficiency of the department. This section shall not apply to villages to which s. 61.65
(7n) Hours of labor.
Except when a labor agreement under subch. IV of ch. 111
that governs hours of employment exists, the council of every 2nd, 3rd or 4th class city shall provide for a working day of not more than 8 hours in each 24 except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, demands that such workday shall be extended beyond the 8-hour period at such time; and, when such emergency ceases to exist, all overtime given during such emergency shall be placed to the credit of such police officer, and compensatory time under s. 103.025
(8) Fire department.
The council may provide by ordinance for either a paid or a volunteer fire department and for the management and equipment of either insofar as not otherwise provided for by law. In the case where a combination of paid and volunteer fire department is provided for, such city shall be reimbursed by the department of transportation, not to exceed $500 for any fire calls on a state trunk highway or on any highway that is a part of the national system of interstate highways and is maintained by the department of transportation.
(10m) Rules governing leaving city.
Subject to approval of the common council the fire chief may establish rules requiring fire fighters to obtain permission before leaving the city.
(11) Fire fighters, rest day.
The common council of every 4th class city, having a population of 5,000 or more and a fire department shall provide for, and the chief of the fire department shall assign to each full paid member thereof, a period of 24 consecutive hours off duty during each 72 hours, except in cases of positive necessity by some sudden and serious fire, accident or other peril, which, in the judgment of the chief engineer or other officer in charge demands that the day of rest not be given at that time. The provisions of this section shall not apply to cities having a 2-platoon or double shift system.
The common council, or other governing body of every city of the first, second and third class, whether organized under a general or special charter, having a paid fire department, shall provide for, and the governing power of the fire department shall divide the full paid fire fighting force in the fire department into 2 or more bodies or platoons. Each platoon shall work, or be on duty, alternately an equal number of hours or as nearly so as the governing power of the fire department of each such city decides, but no member of said platoon shall be on duty for a longer continuous period of time than the governing power of the fire department designates, except in cases of positive necessity by some sudden and serious fire, accident, or other peril, which in the judgment of the chief engineer or other officer in charge demands.
The hours of duty of each member of the fire fighting force of the fire department in every city of the first class shall be limited to 72 hours in any one week. If any such department shall be on a platoon system of hours of duty, 12 hours may be added to one of 2 successive weeks and such period of time deducted from the previous or succeeding week, as the case may be.
History: 1971 c. 41
; 1971 c. 213
; 1975 c. 94
, 91 (5)
; 1975 c. 199
; 1977 c. 20
; 1977 c. 29
s. 1654 (8) (c)
; 1977 c. 151
; 1981 c. 171
; 1981 c. 390
; 1981 c. 391
; 1985 a. 135
s. 83 (3)
, (5); 1985 a. 166
; 1987 a. 27
; 1989 a. 31
; 1991 a. 32
; 1993 a. 16
; 1995 a. 225
; 1999 a. 182
An amnesty agreement by a city not to prosecute a firefighter for striking, made as part of the settlement of the strike, does not bar a complaint by a citizen alleging a violation because of the strike. Durkin v. Board of Police & Fire Comm. 48 Wis. 2d 112
, 180 N.W.2d 1
A written charge of conduct unbecoming an officer filed by the chief was sufficiently specific when the officer does not object at the hearing. The fact that one member of the board prejudged the case was immaterial when the decision was unanimous. State ex rel. Richey v. Neenah Police & F. Comm. 48 Wis. 2d 575
, 180 N.W.2d 743
In 2nd and 3rd class cities, monthly compensation for purposes of computing a pension does not include employer contributions to the pension fund and health and life insurance. These items cannot be included by a collective bargaining agreement. State ex rel. Manitowoc v. Police Pension Bd. 56 Wis. 2d 602
, 203 N.W.2d 74
Standby time required of municipal police officers by the issuance of a "yellow alert" under which officers were required to leave their names, phone numbers, and locations with the station house and were forbidden to leave the city without permission, did not constitute work or overtime under (7n), since the officers were not confined at the police station and, although restricted in some senses, were basically free to spend the standby time for their own purposes. Theune v. Sheboygan, 67 Wis. 2d 33
, 226 N.W.2d 396
Legislatively created agencies or boards such as city police and fire commissions have the capacity to sue or be sued if that authority is necessary to carry out an express power or to perform an express duty, or if the action arises out of the performance of statutory powers or obligations. Racine Fire and Police Comm. v. Stanfield, 70 Wis. 2d 395
, 234 N.W.2d 307
Review of determinations of fire and police commissions may be had only by writ of certiorari or by the appeal procedure provided by the legislature since the procedure under sub. (5) (i) is exclusive and conclusive. A party failing to commence certiorari proceeding within 6 months of a decision is guilty of laches. State ex rel. Enk v. Mentkowski, 76 Wis. 2d 565
, 252 N.W.2d 28
A labor contract under s. 111.70 may limit the scope of the police chief's discretion under s. 62.13 (4) (a). Glendale Prof. Policemen's Asso. v. Glendale, 83 Wis. 2d 90
, 264 N.W.2d 594
By imposing an arbitrary and capricious penalty, a board exceeded its jurisdiction. State ex rel. Smits v. City of De Pere, 104 Wis. 2d 26
, 310 N.W.2d 607
A probationary officer had neither a constitutional nor a statutory right to a statement of specifications and a hearing on a city's decision not to retain him. Kaiser v. Bd. of Police & Fire Commrs. 104 Wis. 2d 498
, 311 N.W.2d 646
Service under sub. (5) (i) must be personal. Gibson v. Racine Police & Fire Comm. 123 Wis. 2d 150
, 366 N.W.2d 144
(Ct. App. 1985).
Because s. 62.13 protects police officers against wrongful discipline or discharge, a police officer cannot state a cause of action by invoking the public policy exception to the employment-at-will doctrine. Larson v. City of Tomah, 193 Wis. 2d 225
, 532 N.W.2d 726
A collective bargaining agreement cannot provide for the right to seek arbitration of a discipline decision rather than to seek a hearing before the police and fire commission under this section. City of Janesville v. WERC, 193 Wis. 2d 492
, 535 N.W.2d 34
(Ct. App. 1995).
Service of a notice of appeal under sub. (5) (i) is sufficient when served on the secretary of the police and fire commission. There is no requirement that the notice must first be filed with the court. Truttschel v. Martin, 208 Wis. 2d 361
, 560 N.W.2d 315
(Ct. App. 1997).
Sub. (5) (i) deprives the court of appeals jurisdiction to review orders issued by a circuit court under sub. (5) (i). Younglove v. City of Oak Creek, 217 Wis. 2d 133
, 579 N.W.2d 294
(Ct. App. 1998).
It is unconstitutional to condition continued public employment upon a waiver of the privilege against self-incrimination. An employee may be required to answer questions in a disciplinary hearing when granted immunity from criminal prosecution. There is no immunity for uncoerced false statements made during a disciplinary investigation. There also is no requirement for Miranda-like warnings, which in their absence would require the suppression of all statements made in the disciplinary proceedings. Herek v. Police & Fire Commission of Menomonee Falls, 226 Wis. 2d 504
, 595 Wis. 2d 113
(Ct. App. 1999).
A police officer promoted to sergeant, subject to a one-year period of probation, could not be demoted without a just cause hearing under sub. (5) (em). An original appointment is on a probationary basis under s. 165.85 (4) (b). Once that period has passed, no promotion can be taken away without a hearing under sub. (5) (em). Antisdel v. City of Oak Creek Police and Fire Commission, 2000 WI 35, 234 Wis. 2d 154
, 309 N.W.2d 464
A citizenship requirement for peace officers is constitutional. 68 Atty. Gen. 61.
A mayor in a city with a police and fire commission does not have the authority to order a police chief to reinstate a discharged probationary police officer. 81 Atty. Gen. 1
A firefighter's dismissal violated due process. Schulz v. Baumgart, 738 F.2d 231
Police accountability in Wisconsin. 1974 WLR 1131.
The common council may purchase, equip, operate and maintain ambulances and contract for ambulance service with one or more providers for conveyance of the sick or injured. The common council may determine and charge a reasonable fee for ambulance service provided under this section.
History: 1991 a. 39
Highway safety coordinator.
In cities with a population of 150,000 and more, the mayor may appoint a city highway safety coordinator who shall be a member of the city agency or commission responsible for traffic accident analysis and traffic safety related matters. The commission or agency shall meet at least quarterly to review city traffic accident data and other traffic safety related matters.
History: 1983 a. 291
Board of public works. 62.14(1)
How constituted; terms.
There shall be a department known as the "Board of Public Works" to consist of 3 commissioners. In cities of the 2nd class the commissioners shall be appointed by the mayor and confirmed by the council at their first regular meeting or as soon thereafter as may be. The members of the first board shall hold their offices, 1, 2 and 3 years, respectively, and thereafter for 3 years or until their successors are qualified. In all other cities the board shall consist of the city attorney, city comptroller and city engineer. The council, by a two-thirds vote, may determine that the board of public works shall consist of other public officers or persons and provide for the election or appointment of the members thereof, or it may, by a like vote, dispense with such board, in which case its duties and powers shall be exercised by the council or a committee thereof, or by such officer, officers or boards as the council designates. The words "board of public works" wherever used in this subchapter shall include such officer, officers, or boards as shall be designated to discharge its duties.
The members of the board of public works shall, on the first Tuesday in May of each year, choose a president of the board from their number, and in cities of the first class a secretary; in other cities the city clerk shall be the secretary of the board.
The commissioners of public works in cities of the second class shall receive a salary, but in all other cities the salaries of the attorney, comptroller and engineer respectively shall be in full for their services as members of such board.
(4) Rules for, by council.
The council may make such rules as the council deems proper, not contravening this subchapter, for the government of the board of public works and the manner in which the business of said board shall be conducted.
(5) Quorum; record; report.
A majority of the board shall constitute a quorum for doing business. They shall keep a record of all their proceedings, which shall be open at all reasonable times to the inspection of any elector of such city, and shall make a report to the council on or before the first day of March in each year, and oftener if required.
It shall be the duty of the board, under the direction of the council, to superintend all public works and keep the streets, alleys, sewers and public works and places in repair.
Unusual use of streets.
No building shall be moved through the streets without a written permit therefor granted by the board of public works, except in cities where the council shall, by ordinance authorize some other officer or officers to issue a permit therefor; said board shall determine the time and manner of using the streets for laying or changing water or gas pipes, or placing and maintaining electric light, telegraph and telephone poles therein; provided, that its decision in this regard may be reviewed by the council.
In case any corporation or individual shall neglect to repair or restore to its former condition any street, alley or sidewalk excavated, altered or taken up, within the time and in the manner directed by the board, said board shall cause the same to be done at the expense of said corporation or individual. The expense thereof, when chargeable to a lot owner, shall be certified to the city clerk by the board, and if not paid shall be carried into the tax roll as a special tax against the lot.
(7) Records of city engineer.
The city engineer shall keep on file in the engineer's office, in the office of the city clerk, a record of all the engineer's official acts and doings and also a copy of all plats of lots, blocks and sewers embraced within the city limits, all profiles of streets, alleys and sewers and of the grades thereof, and of all drafts and plans relating to bridges and harbors and of any buildings belonging to the city; and shall at the same place keep a record of the location of all bench marks and permanent corner stakes from which subsequent surveys shall be started; which said records and documents shall be the property of the city and open to the inspection of parties interested, and shall be delivered over by said engineer to the engineer's successor or to the board of public works. Whenever requested, the engineer shall make a report of all doings of the engineer's department to the board of public works.
History: 1977 c. 151
; 1991 a. 316
Public works. 62.15(1)(1)
Contracts; how let; exception for donated materials and labor.
All public construction, the estimated cost of which exceeds $15,000, shall be let by contract to the lowest responsible bidder; all other public construction shall be let as the council may direct. If the estimated cost of any public construction exceeds $5,000 but is not greater than $15,000, the board of public works shall give a class 1 notice, under ch. 985
, of the proposed construction before the contract for the construction is executed. This provision does not apply to public construction if the materials for such a project are donated or if the labor for such a project is provided by volunteers. The council may also by a vote of three-fourths of all the members-elect provide by ordinance that any class of public construction or any part thereof may be done directly by the city without submitting the same for bids.
(1a) Escalator clauses.
Contracts may include escalator clauses providing for additional charges for labor and materials if as a result of general inflation the rates and prices of the same to the contractor increase during performance of the contract. Such escalator provision shall be applicable to all bidders and shall not exceed 15 per cent of the amount of the firm bid nor the amount of the increase paid by the contractor. Each bid on a contract which is to include an escalator provision shall be accompanied by a schedule enumerating the estimated rates and prices of items of labor and materials used in arriving at the bid. Only as to such items as are enumerated shall an increased charge be allowed the contractor.
(1b) Exception as to public emergency.
The provisions of sub. (1)
and s. 281.41
are not mandatory for the repair and reconstruction of public facilities when damage or threatened damage thereto creates an emergency, as determined by resolution of the board of public works or board of public utility commissioners, in which the public health or welfare of the city is endangered. Whenever the city council determines by majority vote at a regular or special meeting that an emergency no longer exists, this subsection no longer applies.
(1c) Increased quantity clauses.
Contracts may include clauses providing for increasing the quantity of construction required in the original contract by an amount not to exceed 15 per cent of the original contract price.
(2) Plans; contract; bond.
When the work is required or directed to be let to the lowest responsible bidder, the board of public works shall prepare plans and specifications for the same, containing a description of the work, the materials to be used and such other matters as will give an intelligent idea of the work required and file the same with the city clerk for the inspection of bidders, and shall also prepare a form of contract and bond with sureties required, and furnish a copy of the same to all persons desiring to bid on the work.
(3) Advertisement for bids.
After the plans, specifications and form of contract have been prepared, the board of public works shall advertise for proposals for doing such work by publishing a class 2 notice, under ch. 985
. No bid shall be received unless accompanied by a certified check or a bid bond equal to at least 5% but not more than 10% of the bid payable to the city as a guaranty that if the bid is accepted the bidder will execute and file the proper contract and bond within the time limited by the city. If the successful bidder so files the contract and bond, upon the execution of the contract by the city the check shall be returned. In case the successful bidder fails to file such contract and bond the amount of the check or bid bond shall be forfeited to the city as liquidated damages. The notice published shall inform bidders of this requirement.
(4) Sureties, justification.
The sureties shall justify as to their responsibility and by their several affidavits show that they are worth in the aggregate at least the amount mentioned in the contract in property not by law exempt from execution. A certified check in amount equal to 5% of the bid, and a provision in the contract for the retention by the city of 20% of the estimates made from time to time may be accepted in place of sureties.
(4m) Substantial compliance.
If any certified check or bid bond is in substantial compliance with the minimum guaranty requirements of subs. (3)
, the letting authority may, in its discretion, accept such check or bid bond and allow such bidder 30 days to furnish such additional guaranty as may be required by said authority. Substantial compliance hereunder may be found if said check or bond is insufficient by not more than one-fourth of one per cent of the bid.
(5) Rejection of bids.
The power to reject any and all bids shall exist unless expressly waived. The board of public works may reject any and all bids, if, in their opinion, any combination has been entered into to prevent free competition. The council may, if it be of the opinion that any of the bids are fraudulent, collusive, excessive or against the best interests of the city, by resolution adopted by two-thirds of its members, reject any or all of the bids received and order the work done by the city directly under the supervision of the board of public works and s. 61.54 (2)
shall apply to the performance of such work.
(6) Incompetent bidders.
Whenever any bidder shall be, in the judgment of said board, incompetent or otherwise unreliable for the performance of the work on which the bidder bids, the board shall report to the council a schedule of all the bids for such work, together with a recommendation to accept the bid of the lowest responsible bidder, with their reasons; and thereupon the council may direct said board either to let the work to such competent and reliable bidder or to readvertise the same; and the failure to let such contract to the lowest bidder in compliance with this provision shall not invalidate such contract or any special assessment made to pay the liability incurred thereunder.
(7) Patented material or process.
Any public work, whether chargeable in whole or in part to the city, or to any lot or lots or parcels of land therein, may be done by the use of a patented article, materials or process, in whole or in part, or in combination with articles, materials, or processes not patented, when the city shall have obtained from the owner of the patented article, materials or process, before advertising for bids for such work, an agreement to furnish to any contractor, desiring to bid upon such work as a whole, the right to use the patented article, materials and processes in the construction of said work, and also to furnish to any contractor the patented article itself upon the payment of what the authorities of said city charged with the duty of letting a contract for such public work shall determine to be a reasonable price therefor, which price shall be publicly stated and furnished upon application to any contractor desiring to bid on said work.
(8) Alternative plans and specifications.
Different plans and specifications for any public work may be prepared by the proper authorities requiring the use of different kinds of materials, whether patented or not, thereby bringing one kind of article, material or process in competition with one or more other kinds of articles, materials or processes designed to accomplish the same general purpose, and bids received for each such kind of article, material or process, and thereafter a contract let for one kind of article, material or process; provided, that before any contract is let all the bids received shall be opened, and considered before the kind of article or process to be used in such work shall be decided upon by the proper city authorities, and thereupon the proper city authorities shall first determine which kind of article, material or process shall be used in the work, and the contract shall be let to the lowest responsible bidder for the kind of article, material or process so selected for use in the proposed public work.
Any contract for doing public work may contain a provision requiring the contractor to keep the work done under the contract in good order or repair for not to exceed 5 years.