A guard or institutional aide or a state probation, extended supervision, and parole officer or any other employee whose duties include supervision and discipline of inmates or wards of the state at a state penal institution, including a juvenile correctional facility, as defined in s. 938.02 (10p)
, or while on parole supervision or extended supervision outside of the confines of the institutions, or supervision of persons placed on probation by a court of record, or supervision and care of patients at a state mental institution, and the University of Wisconsin Hospitals and Clinics.
A state employee who is not listed in this paragraph who is ordered by his or her appointing authority to accompany an employee listed in this paragraph while the listed employee is engaged in duties enumerated under sub. (1m) (b)
A state employee who is not listed in this paragraph who is ordered by his or her appointing authority to perform duties enumerated under sub. (1m) (b)
, when permitted, in lieu of a listed employee.
The full pay under par. (a) (intro.)
shall continue while the employee is unable to return to work as the result of the injury or until the termination of his or her employment upon recommendation of the appointing authority. At any time during the employee's period of disability the appointing authority may, at the expense of the employing agency, order physical or medical examinations to determine the degree of disability.
An employing agency that makes payments under this section is entitled to the right of subrogation for reimbursement to the extent that the injured employee may recover the reimbursed items in an action or claim in tort against any 3rd party. The repayment shall not exceed the total sums paid to the injured employee under this section and shall be limited to the total sum credited to the injured employee, as damages for pay and fringe benefits actually received in the settlement of any claim caused by the negligence of the 3rd party.
Any person who is employed by the University of Wisconsin Hospitals and Clinics Authority, who suffers an injury between June 29, 1996, and June 30, 1997, shall be covered under this section if the person, had he or she been a state employee, would have been covered under this section.
History: 1971 c. 164
; 1973 c. 333
; 1975 c. 39
; 1977 c. 26
; 1977 c. 196
, 130 (4)
; 1977 c. 418
, 924 (50)
; 1977 c. 447
; Stats. 1977 s. 230.36; 1979 c. 32
; 1979 c. 221
, 2202 (15)
; 1985 a. 29
; 1987 a. 27
; 1989 a. 31
; 1993 a. 98
; 1995 a. 27
; 1997 a. 283
; 1999 a. 63
; 2001 a. 16
; 2003 a. 83
; 2005 a. 22
See also ch. ER 28
, Wis. adm. code.
Discussion of s. 230.36, 1977 stats., continuation of pay to employee injured in hazardous employment, with respect to long-term disability. 68 Atty. Gen. 25.
Standards of performance and ratings. 230.37(1)
In cooperation with appointing authorities the administrator shall establish an employee performance evaluation program to provide a continuing record of employee development and, when applicable, to serve as a basis for pertinent personnel actions. Under the employee performance evaluation program established under this subsection, the administrator shall require each appointing authority to conduct at least an annual performance evaluation of each employee appointed by the appointing authority. Similar evaluations shall be conducted during the probationary period but may not infringe upon the authority of the appointing authority to retain or dismiss employees during the probationary period.
When an employee becomes physically or mentally incapable of or unfit for the efficient and effective performance of the duties of his or her position by reason of infirmities due to age, disabilities, or otherwise, the appointing authority shall either transfer the employee to a position which requires less arduous duties, if necessary demote the employee, place the employee on a part-time service basis and at a part-time rate of pay or as a last resort, dismiss the employee from the service. The appointing authority may require the employee to submit to a medical or physical examination to determine fitness to continue in service. The cost of such examination shall be paid by the employing agency. In no event shall these provisions affect pensions or other retirement benefits for which the employee may otherwise be eligible.
History: 1971 c. 270
; Stats. 1971 s. 16.32; 1977 c. 196
, 130 (4)
; 1977 c. 273
; Stats. 1977 s. 230.37; 1987 a. 140
; 2003 a. 33
; 2015 a. 55
See also ch. ER 45
, Wis. adm. code.
Political activities; public office. 230.40(1)
No person holding a position in the classified civil service may directly or indirectly solicit or receive subscriptions or contributions for any partisan political party or any political purpose while on state time or engaged in official duties as an employee. No person may orally solicit or by letter transmit any solicitation to a state office or be in any manner concerned in soliciting any assistance, subscription, or support for any partisan political party or purpose from any person holding any position in the classified civil service while on state time or engaged in official duties as an employee. No person holding any position in the classified civil service may during the hours when on duty engage in any form of political activity calculated to favor or improve the chances of any political party or any person seeking or attempting to hold partisan political office, nor engage in any political activity when not on duty to such an extent that the person's efficiency during working hours will be impaired or that he or she will be tardy or absent from work. Any violation of this section is adequate grounds for dismissal.
If a person in the classified service declares an intention to run for partisan political office the person shall be placed on a leave of absence for the duration of the election campaign and if elected shall separate from the classified service on assuming the duties and responsibilities of such office.
A person in the classified service may be granted upon concurrence by the person's appointing authority a leave of absence to participate in partisan political campaigning.
Persons on leave from the classified service under subs. (2)
shall not be subject to the restrictions of sub. (1)
, except as they apply to the solicitation of assistance, subscription or support from any person holding any position in the classified service.
The director shall administer this section.
History: 1971 c. 270
; Stats. 1971 s. 16.35; 1973 c. 334
; 1977 c. 196
; 1977 c. 273
; Stats. 1977 s. 230.40; 1979 c. 221
; 1997 a. 307
; 1999 a. 102
; 2015 a. 55
State employees covered by the Hatch Act cannot be discharged for partisan political participation while on leaves of absence under subs. (2) and (4). 63 Atty. Gen. 217.
Discussion of restrictions on political activities of state employees under federal and state law. 67 Atty. Gen. 315.
Classified state employees whose positions are federally funded, in whole or in part, and who are not covered by a collective bargaining agreement, are entitled to leaves of absence in order to run for partisan political office and cannot be compelled to resign. Leaves of absence for such employees are governed generally by terms of applicable collective bargaining agreements. 73 Atty. Gen. 131
The meaning of “declares an intention to run for office" in sub. (2) is discussed. 81 Atty. Gen. 135
Any person employed or appointed contrary to this subchapter, or to the rules established thereunder, shall be paid by the appointing authority so employing or appointing, or attempting to employ or appoint that person, the compensation agreed upon for any service performed under such appointment or employment, or attempted appointment or employment, or in case no compensation is agreed upon, the actual value of such services and any expenses incurred in connection therewith, and shall have a cause of action against such appointing authority, for such sum and for the costs of the action. No appointing authority shall be reimbursed by the state for any sums so paid or recovered in any such action.
History: 1971 c. 270
; Stats. 1971 s. 16.36; 1977 c. 196
; Stats. 1977 s. 230.41; 1991 a. 316
Misdemeanors; how punished. 230.43(1)
Hiring process; obstruction or falsifications.
Any person who, alone or in cooperation with one or more persons, does any of the following is, for each offense, guilty of a misdemeanor:
Willfully defeats, deceives or obstructs any person in respect of the rights of application or registration under this subchapter or any rules prescribed pursuant thereto.
Willfully or corruptly, falsely marks, grades, estimates, or reports upon an application or resume, or proper standing of any person evaluated, registered, or certified, pursuant to this subchapter, or aids in so doing.
Willfully or corruptly makes any false representations concerning the same, or concerning an applicant.
Willfully or corruptly furnishes any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any persons so evaluated, registered, or certified, being appointed, employed, or promoted.
Personates any other person, or permits or aids in any manner any other person to personate him or her in connection with any registration, application, or request to be evaluated or registered.
(2) Prohibited appointments.
Whoever, after a rule has been duly established and published, makes an appointment to office or selects a person for employment, contrary to such rule, or willfully refuses or neglects otherwise to comply with, or to conform to, this subchapter, or violates any of such provisions, shall be guilty of a misdemeanor. If any person is convicted under this subsection, any public office which such person may hold shall by force of such conviction be rendered vacant, and such person shall be incapable of holding public office for a period of 5 years from the date of such conviction.
Misdemeanors under this section are punishable by a fine of not less than $50 nor more than $1,000, or by imprisonment for not more than one year in the county jail or both.
(4) Rights of employee.
If an employee has been removed, demoted or reclassified, from or in any position or employment in contravention or violation of this subchapter, and has been restored to such position or employment by order of the commission or any court upon review, the employee shall be entitled to compensation therefor from the date of such unlawful removal, demotion or reclassification at the rate to which he or she would have been entitled by law but for such unlawful removal, demotion or reclassification. Interim earnings or amounts earnable with reasonable diligence by the employee shall operate to reduce back pay otherwise allowable. Amounts received by the employee as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the employee and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making such payment. The employee shall be entitled to an order of mandamus to enforce the payment or other provisions of such order.
(5) Taxpayers' suits.
The right of any taxpayer to bring any action to restrain the payment of compensation to any person appointed to or holding any office or place of employment in violation of this subchapter shall not be limited or denied by reason of the fact that the office or place of employment has been classified as, or determined to be, not subject to a competitive hiring process; however, any judgment or injunction in any such action shall be prospective only, and shall not affect payments already made or due to such persons by the proper disbursing officers, in accordance with the rules of the administrator in force at the time of such payments.
Back pay under sub. (4) is not an available remedy in reinstatement cases. Seep v. Personnel Commission, 140 Wis. 2d 32
, 409 N.W.2d 142
(Ct. App. 1987).
This section does not confer any special right of action. The statute ensures that actions brought to enjoin the compensation of improperly appointed officials are not limited to classified employees. Association of Career Employees v. Klauser, 195 Wis. 2d 602
, 536 N.W.2d 478
(Ct. App. 1995), 94-0632
Appeal procedures. 230.44(1)
Appealable actions and steps.
Except as provided in par. (e)
, the following are actions appealable to the commission under s. 230.45 (1) (a)
Decision made or delegated by director.
Appeal of a personnel decision under this subchapter made by the director or by an appointing authority under authority delegated by the director under s. 230.05 (2)
Decision made or delegated by administrator.
Appeal of a personnel decision under s. 230.09 (2) (a)
or 230.13 (1)
made by the administrator or by an appointing authority under authority delegated by the administrator under s. 230.04 (1m)
Demotion, layoff, suspension or discharge.
If an employee has permanent status in class, or an employee has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more, the employee may appeal a demotion, layoff, suspension, discharge or reduction in base pay to the commission as the final step in the state employee grievance process established under s. 230.445
, if the appeal alleges that the decision was not based on just cause.
Illegal action or abuse of discretion.
A personnel action after certification which is related to the hiring process in the classified service and which is alleged to be illegal or an abuse of discretion may be appealed to the commission.
Noncompetitive appointment of certain disabled veterans.
A personnel action under s. 230.275
by an appointing authority that is alleged to be illegal or an abuse of discretion. The director and the division may not be a party to any such appeal.
Discretionary performance awards.
This subsection does not apply to decisions of an appointing authority relating to discretionary performance awards under s. 230.12 (5)
or under the discretionary merit award program established under s. 230.04 (19)
, including the evaluation methodology and results used to determine the award or the amount awarded.
Corrections employee rights.
A determination that a person was discharged from the unclassified service for just cause under s. 230.337
Decisions affecting Milwaukee County employees by the department of health services.
A decision of the department of health services relating to a Milwaukee County employee under s. 49.825 (3) (b)
Decisions affecting certain county employees by the department of children and families.
A decision of the department of children and families relating to a county employee under s. 49.826 (3) (b)
All appeals filed under this section shall be in writing.
(3) Time limits.
Any appeal filed under this section may not be heard unless the appeal is filed within 30 days after the effective date of the action, or within 30 days after the appellant is notified of the action, whichever is later.
A hearing under this section shall be open to the public unless the appellant requests that the hearing be closed.
An employee shall attend a hearing under this subsection and testify when requested to do so by the commission. Any person not under the civil service who appears before the commission by order shall receive for his or her attendance the fees and mileage provided for witnesses in civil actions in courts of record under ch. 885
, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the commission and charged to the proper appropriation for the commission. No witness subpoenaed at the insistence of a party other than the commission is entitled to compensation from the state for attendance or travel, unless the commission certifies that his or her testimony was relevant and material to the matter.
Upon request of an employee who files an appeal of the decision of the administrator made under s. 230.09 (2) (a)
, the appeal shall be heard by the commissioner or an attorney employed by the commission serving as arbitrator under rules promulgated for this purpose by the commission. In such an arbitration, the arbitrator shall orally render a decision at the conclusion of the hearing affirming, modifying, or rejecting the decision of the administrator. The decision of the arbitrator is final and is not subject to review by the commission. An arbitrator's decision may not be cited as precedent in any other proceeding before the commission or before any court. The arbitrator shall promptly file his or her decision with the commission. The decision of the arbitrator shall stand as the decision of the commission. The decision of the commission is subject to review under ss. 227.53
only on the ground that the decision was procured by corruption, fraud, or undue means or that the arbitrator or the commission exceeded the arbitrator's or the commission's power. The record of a proceeding under this paragraph shall be transcribed as provided in s. 227.44 (8)
After conducting a hearing or arbitration on an appeal under this section, the commission or the arbitrator shall either affirm, modify or reject the action which is the subject of the appeal. If the commission or the arbitrator rejects or modifies the action, the commission may issue an enforceable order to remand the matter to the person taking the action for action in accordance with the decision. Any action brought against the person who is subject to the order for failure to comply with the order shall be brought and served within 60 days after the date of service of the decision of the commission or the arbitrator.
The commission may not remove an incumbent or delay the appointment process as a remedy to a successful appeal under this section unless there is a showing of obstruction or falsification as enumerated in s. 230.43 (1)
Any party in an action under this section may be present at a hearing in the action under this section, in person, by attorney or by any other agent.
The commission shall issue a decision on an action under this section within 90 days after the hearing on the action is completed.
The discharge of a probationary employee is not appealable as part of the “hiring process" under sub. (1) (d). Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545
, 309 N.W.2d 366
(Ct. App. 1981).
The commission had jurisdiction to hear the appeal of a career executive employee's reassignment to a job in a lower pay range who alleged that the reassignment was for disciplinary purposes and was unreasonable and an improper exercise of discretion. Basinas v. State, 104 Wis. 2d 539
, 312 N.W.2d 483
While this section's procedures may be available to persons other than affected employees, an action to have declared illegal an alleged intentional and systematic attempt to circumvent civil service laws for partisan political purposes was not barred due to a failure to meet the appeal time limits of this section. Association of Career Employees v. Klauser, 195 Wis. 2d 602
, 536 N.W.2d 478
(Ct. App. 1995), 94-0632
The plain meaning of “effective date of the action" in sub. (3) is the date on which the action takes effect. The action in this case was the extension of the employee's probation, and the extension took effect at the time his prior probationary period expired. Stern v. WERC, 2006 WI App 193
, 296 Wis. 2d 306
, 722 N.W. 2d 594
Grievance process for demotion, suspension, discharge, layoff, or reduction in base pay. 230.445(1)(a)
“Adverse employment decision" means a decision to demote, layoff, suspend without pay, discharge, or reduce the base pay of an employee.
“Employee" means an employee who has obtained permanent status in class or an employee who has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more.
An employee may file a complaint under this section concerning the application of a law, rule, or policy to an adverse employment decision against the employee. If an employee does not file a complaint or an appeal by an applicable deadline under sub. (3)
, the employee waives his or her right to appeal the adverse employment decision under this subchapter.
To commence the grievance process for an adverse employment action, an employee shall file a complaint with the employee's appointing authority challenging the adverse employment decision against the employee no later than 14 days after the employee becomes aware of, or should have become aware of, the decision that is the subject of the complaint.
An appointing authority, or his or her designee, who receives a timely complaint under subd. 1.
shall conduct any investigation he or she considers necessary, meet with the employee in person, and issue a decision, in writing, not later than 14 days after the date of which the appointing authority, or his or her designee, received the employee's complaint. If the appointing authority does not issue a written decision within 15 days after receiving the employee's complaint, the employee may appeal to the administrator under par. (b)
If an appointing authority does not find in favor of the employee under par. (a)
, the employee may appeal the appointing authority's decision by filing a complaint with the administrator. The employee may not file a complaint under this subdivision later than 14 days after the date of the appointing authority's decision.
If the administrator receives a timely complaint under subd. 1.
, the administrator shall review the complaint and the appointing authority's written decision, and shall issue a decision, in writing, no later than 30 days after the date the employee filed a complaint with the administrator. If the administrator does not issue a written decision within 31 days after receiving the employee's complaint, the employee may appeal to the commission under par. (c)
An employee or an appointing authority may appeal a decision issued by the administrator under par. (b)
by filing an appeal with the commission. The employee or appointing authority may not file an appeal with the commission under this paragraph later than 14 days after receiving the administrator's decision. Within 10 days of receiving an appeal, the commission shall determine whether all procedural requirements were completed properly and in a timely manner. If a procedural requirement was not met by the employee or if the appointing authority's appeal under this paragraph was not made in a timely manner, the commission shall dismiss the appeal. If all of the procedural requirements were met, the commission shall hear the appeal under s. 230.44 (4)
, except that the commission shall issue a decision on the appeal no later than 120 days after the date the appeal is filed with the commission.
To ensure that the commission issues its decision no later than 120 days after an appeal is filed under this paragraph, all of the following apply to a hearing before the commission for an appeal under this paragraph:
The parties shall participate in a pre-hearing conference no later than 20 days after the filing of the appeal. The commission shall set the date of the hearing at the pre-hearing conference.
Discovery shall be completed no later than 60 days after the appeal is filed.