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 director 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. 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
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 who separates from the classified service to fill an elective position shall have reinstatement privileges for 5 years following termination from the classified service or for one year following termination from the elective position, whichever is longer.
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 administrator 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
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)
Obstruction or falsifications of examinations. 230.43(1)(a)(a)
Any person who willfully, alone or in cooperation with one or more persons, defeats, deceives or obstructs any person in respect of the rights of examination or registration under this subchapter or any rules prescribed pursuant thereto, or
Who willfully, or corruptly, falsely marks, grades, estimates or reports upon the examination or proper standing of any person examined, registered or certified, pursuant to this subchapter, or aids in so doing, or
Who willfully or corruptly makes any false representations concerning the same, or concerning the person examined, or
Who 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 examined, registered or certified, being appointed, employed or promoted, or
Who personates any other person, or permits or aids in any manner any other person to personate him or her in connection with any examination, registration, application or request to be examined or registered, shall for each offense be guilty of a misdemeanor.
(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 competitive examination; 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 director in force at the time of such payments.
History: 1971 c. 270
; Stats. 1971 s. 16.38; 1977 c. 196
, 130 (5)
; 1977 c. 273
; Stats. 1977 s. 230.43; 1979 c. 221
; 1981 c. 140
; 1983 a. 27
s. 2200 (15)
; 2003 a. 33
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)(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 administrator.
Appeal of a personnel decision under this subchapter made by the administrator or by an appointing authority under authority delegated by the administrator under s. 230.05 (2)
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 procedure established under s. 230.04 (14)
, 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 administrator and the office 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)
, 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 director made under s. 230.09 (2) (a)
, the appeal shall be heard by a commissioner or 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 director. 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 s. 230.44 (1) (d). Board of Regents v. Wisconsin Pers. Comm. 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
Powers and duties of commission and division of equal rights. 230.45(1)(am)
Designate a commissioner or an attorney employed by the commission to serve as an arbitrator in arbitrations under s. 230.44 (4) (bm)
Serve as final step arbiter in the state employee grievance procedure established under s. 230.04 (14)
Keep minutes of its own proceedings and other official actions. All such records shall, subject to reasonable rules, be open to public inspection. Records of the director or the administrator which are confidential shall be kept confidential by the commission.
Adopt rules necessary to carry out this section. Notice of the contents of such rules and amendments thereto shall be given promptly to the director, the administrator and appointing authorities affected thereby.
The division of equal rights shall:
Receive and process complaints of discrimination of state employees under s. 111.375
. In the course of investigating or otherwise processing such a complaint, the division of equal rights may require that an interview with any state employee, except a management or supervisory employee who is a party to or immediately involved in the subject matter of the complaint, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the division of equal rights to give the appointing authority reasonable notice prior to the interview.
Receive and process complaints of retaliatory disciplinary action under s. 230.85
Keep minutes of its own proceedings and other official actions relating to this chapter. All such records shall, subject to reasonable rules, be open to public inspection. Records of the director or the administrator which are confidential shall be kept confidential by the division of equal rights.
Adopt rules necessary to carry out this section. Notice of the contents of such rules and amendments thereto shall be given promptly to the director, the administrator, and appointing authorities affected thereby.
The commission shall waive the investigation and determination of probable cause of any complaint that is filed by a complainant under sub. (1)
or s. 103.10 (12) (b)
at the complainant's request. If the commission waives the investigation and probable cause determination, the commission shall proceed with a hearing on the complaint. The commission's waiver of an investigation and probable cause determination does not affect the commission's right to attempt to resolve the complaint by conference, conciliation or persuasion.
(2) Subsection (1) (c)
does not apply to an employee who, using the agency grievance procedure, grieves his or her dissatisfaction with the evaluation methodology and results used to determine any discretionary performance award or the amount of such an award. Any such employee grievance shall be settled on the basis of the appointing authority's decision.
The commission shall promulgate rules establishing a schedule of filing fees to be paid by any person who files an appeal under sub. (1) (c)
or s. 230.44 (1) (a)
with the commission on or after the effective date of the rules promulgated under this subsection. Fees paid under this subsection shall be credited to the appropriation account under s. 20.425 (1) (i)
See also PC
, Wis. adm. code.
The power to investigate complaints and issue subpoenas is included within the meaning of "receive and process." 68 Atty. Gen. 403.
Duties of council on affirmative action.
The council on affirmative action in the office shall serve in a direct advisory capacity to the director and as part of that relationship shall evaluate the progress of affirmative action programs throughout the civil service system, seek compliance with state and federal regulations and recommend improvements in the state's affirmative action efforts as an employer. In carrying out its responsibilities, the council may recommend legislation, consult with agency personnel and other interested persons, conduct hearings and take other appropriate action to promote affirmative action. The council shall report at least once per year to the governor and the legislature.
State employees suggestion board. 230.48(1)
The state employees suggestion board shall do all of the following:
Formulate, establish and maintain a plan or plans to encourage and reward unusual and meritorious suggestions and accomplishments by state employees promoting efficiency and economy in the performance of any function of state government.
Appoint departmental or divisional committees to analyze and review suggestions and accomplishments of state employees submitted for consideration under the plan or plans established under par. (a)
, and make recommendations regarding the plan or plans to the state employees suggestion board.
Make and render awards to or for the benefit of state employees nominated to receive them in accordance with the plan or plans established under par. (a)
(2) Personnel, facilities and equipment.
The office shall appoint, under the classified service, a secretary and such other employees as are necessary to carry out the duties of the state employees suggestion board, and shall provide such facilities and equipment as that board requires for the proper performance of its work. The state employees suggestion board may request and shall receive from any state department any assistance that it requires.