The power granted under sub. (5) is broader than that granted under Art. XI, s. 3. Sub. (5) does not limit a city's authority to act only in local affairs. A city may act in matters of state-wide concern if the conditions of the 4-part test stated in this case are met. DeRosso Landfill Co. v. City of Oak Creek, 191 Wis. 2d 46
, 528 N.W.2d 468
(Ct. App. 1995).
The state regulatory scheme for tobacco sales preempts municipalities from adopting regulations that are not in strict conformity with those of the state. U.S. Oil, Inc. v. City of Fond du Lac, 199 Wis. 2d 333
, 544 N.W.2d 589
(Ct. App. 1995), 95-0213
One who deals with a municipality does so at his or her own risk and may be subject to any provisions of law that might prevent him or her from being paid by a municipality even though the services are rendered. Unless the power to bind the municipality financially has been specifically delegated, the only entity with the statutory authority to contract is the municipality. Holzbauer v. Safway Steel Products, Inc. 2005 WI App 240
, 288 Wis. 2d 250
, 712 N.W.2d 35
When a challenge to the exercise of police powers is directed at the legislative means employed, the issue is properly framed as one of substantive due process. The legislative means chosen must have a rational relationship to the purpose or object of the enactment; if it has, and the object is a proper one, the exercise of the police power is valid. The fundamental inquiry is not whether the challenged provisions in an ordinance are rationally related to the stated purpose of the ordinance but whether the challenged provisions are rationally related to any legitimate municipal objective. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 2011 WI App 45
, 332 Wis. 2d 459
, 798 N.W.2d 287
An ordinance is not invalid as unreasonable merely because substantially the same result might be accomplished by the enactment of a different type of ordinance, or because a less burdensome course might have been adopted to accomplish the end. The correct standard is whether the legislative means chosen has a rational relationship to the permissible object. Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, 2011 WI App 45
, 332 Wis. 2d 459
, 798 N.W.2d 287
The fact that the regulation of sex offenders is a matter of statewide concern does not preclude municipalities from using their home-rule powers to impose further restrictions consistent with those imposed by the state. An ordinance regulating an area of statewide concern is preempted only if: (1) the legislature has expressly withdrawn the power of municipalities to act, (2) the ordinance logically conflicts with state legislation, (3) the ordinance defeats the purpose of state legislation, or (4) the ordinance violates the spirit of state legislation. City of South Milwaukee v. Kester, 2013 WI App 50
, 347 Wis. 2d 334
, 830 N.W.2d 710
A city probably can contract with a county to provide fire protection to a county institution located outside of boundaries of the city. 62 Atty. Gen. 84.
A municipality has no jurisdiction over chemical treatment of waters to suppress aquatic nuisances. The department of natural resources is granted statewide supervision over aquatic nuisance control under s. 144.025 (2) (i) [now s. 281.17 (2)]. Applications for permits to chemically treat aquatic nuisances under s. 144.025 (2) (i) may be denied even though statutory and regulatory requirements have been met if the chemical treatment would be counter-productive in achieving the goals set out in s. 144.025 (1) [now s. 281.11]. 63 Atty. Gen. 260.
Local units of government may not create and accumulate unappropriated surplus funds. However, a local unit of government may maintain reasonable amounts necessary in the exercise of sound business principles to meet the immediate cash flow needs of the municipality during the current budgetary period or to accumulate needed capital in non-lapsing funds to finance specifically identified future capital expenditures. 76 Atty. Gen. 77
Article VIII, section 5 restricts the state from levying taxes to create a surplus having no public purpose. Although the constitutional provision does not apply directly to municipalities, the same limitation applies indirectly to them because the state cannot delegate more power than it has. 76 Atty. Gen. 77
Conflicts between state statute and local ordinance in Wisconsin. 1975 WLR 840.
Madison's Minimum-Wage Ordinance, Section 104.001, and the Future of Home Rule in Wisconsin. Burchill. 2007 WLR 151.
Defense of officers by city attorney. 62.115(1)(1)
The common council of any city, however incorporated, may by ordinance or resolution authorize the city attorney to defend actions brought against any officer or employee of such city or of any board or commission thereof, growing out of any acts done in the course of employment, or out of any alleged breach of duty as such officer or employee, excepting actions brought to determine the right of such officer or employee to hold or retain that person's office or position, and excepting also actions brought by such city against any officer or employee thereof.
Nothing in this section contained, nor any action taken by any city or by any city attorney pursuant to the provisions of this section, shall be construed to impose any liability, either for costs, damages or otherwise, upon such city or city attorney.
History: 1991 a. 316
The calendar year shall be the fiscal year.
Annually on or before October 1, each officer or department shall file with the city clerk an itemized statement of disbursements made to carry out the powers and duties of the officer or department during the preceding fiscal year, a detailed statement of the receipts and disbursements on account of any special fund under the supervision of the officer or department during the year and of the condition and management of the fund and detailed estimates of the same matters for the current fiscal year and for the ensuing fiscal year.
The city treasurer shall keep separate all special funds, and the city clerk shall keep a separate account with the general fund for each officer or department through which disbursements are made from the general fund to carry out the powers and duties of such officer or department. The council shall examine and adjust the accounts of the clerk, treasurer and all other officers or agents of the city after the same shall have been audited by the comptroller.
(5) License moneys.
Moneys received for licenses may be used for such purpose as the council shall direct in the absence of specific appropriation by law.
(6) Funds; appropriations; debts. 62.12(6)(a)
Unless otherwise provided by law city funds shall be paid out only by authority of the council. Such payment shall be made in the manner provided by s. 66.0607
The council shall not appropriate nor the treasurer pay out:
Funds appropriated by law to a special purpose except for that purpose;
Funds for any purpose not authorized by the statutes; nor
Funds from any fund in excess of the moneys therein.
No debt shall be contracted against the city nor evidence thereof given unless authorized by a majority vote of all the members of the council.
(7) City depositories.
The council shall designate the public depository or depositories within this state with which city funds shall be deposited, and when the money is deposited in such depository in the name of the city, the treasurer and bondsmen shall not be liable for such losses as are defined by s. 34.01 (2)
. The interest arising therefrom shall be paid into the city treasury.
All claims and demands against the city shall be itemized and filed with the clerk, who shall deliver the same to the comptroller for examination. The comptroller shall within 30 days thereafter examine such claim or demand and return the same to the clerk with the comptroller's report thereon in writing, who shall place the same before the council for action at its next meeting.
Payment of regular wages or salary pursuant to the budget and salary schedule adopted by the council may be by payroll, verified by the proper official, and filed in time for payment on the regular pay day.
The council may loan money to any school district located within the city, or within which the city is wholly or partially located, in such sums as are needed by such district to meet the immediate expenses of operating the schools thereof, and the board of the district may borrow money from such city accordingly and give its note therefor. No such loan shall be made to extend beyond August 30 next following the making thereof or in an amount exceeding one-half of the estimated receipts for such district as certified by the state superintendent of public instruction and the local school clerk. The rate of interest on any such loan shall be determined by the city council.
History: 1973 c. 90
; 1975 c. 39
; 1977 c. 113
; 1977 c. 142
; 1977 c. 203
; 1977 c. 272
; 1979 c. 34
; 1979 c. 175
; 1981 c. 20
; 1983 a. 27
; 1983 a. 189
s. 329 (17)
, (21); 1985 a. 29
; 1991 a. 316
; 1995 a. 27
; 1997 a. 27
; 1999 a. 150
See ss. 62.25
for actions upon claims.
See s. 66.0609 for an alternative system of approving claims.
Local government units cannot include the value of tax-exempt manufacturing machinery and specific processing equipment and tax exempt merchants' stock-in-trade, manufacturers' materials and finished products, and livestock in their property valuation totals for non-tax purposes, such as for municipal debt ceilings, tax levy limitations, shared tax distributions, and school aid payments. 63 Atty. Gen. 465.
Police and fire departments. 62.13(1)(1)
Except as provided in subs. (2g)
, and (8) (b)
each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum. The mayor shall annually, between the last Monday of April and the first Monday of May, appoint in writing to be filed with the secretary of the board, one member for a term of 5 years. No appointment shall be made which will result in more than 3 members of the board belonging to the same political party. The board shall keep a record of its proceedings.
Except as provided under sub. (6m)
, subs. (1)
shall not apply to cities of less than 4,000 population except by ordinance adopted by a majority of all the members of the council. A repealing ordinance may be adopted by a like vote.
A city that creates a joint police or fire department with a village under s. 61.65
is not required to create a separate board of police and fire commissioners under this section. The city shall create a joint board of commissioners to govern the joint department, as required in s. 61.65
. If the city also creates one separate protective services department in addition to the joint protective services department, the city shall create a separate board of commissioners to govern that department. A city's joint board of commissioners is subject to s. 61.65 (3g) (d)
. A city's separate board of commissioners is subject to this section.
A city may provide police and fire protection services by any of the following:
A combined protective services department which is neither a police department as otherwise constituted under this section nor a fire department as otherwise constituted under this section, in which the same person may be required to perform police protection and fire protection duties without being required to perform police protection duties for more than 8 hours in each 24 hours except in emergency situations, as described under sub. (7n)
Persons in a police department or fire department who, alone or in combination with persons designated as police officers or fire fighters, may be required to perform police protection and fire protection duties without being required to perform police protection duties for more than 8 hours in each 24 hours except in emergency situations, as described under sub. (7n)
The governing body of a city acting under par. (a)
may designate any person required to perform police protection and fire protection duties under par. (a)
as primarily a police officer or fire fighter for purposes described in subs. (7m)
, and (11)
and ss. 891.45
, and 891.455
(2g) Contracting for police protective services.
A city may enter into a contract for police protective services with a village, a town, another city, or a county. A city that contracts for police protective services shall pay the full cost of services provided. A city that contracts for all of its police protective services under this subsection and for all of its fire protective services under sub. (8) (b)
is not required to have a board of police and fire commissioners. A city that contracts for all of its police protective services under this subsection, but not for all of its fire protective services under sub. (8) (b)
, shall have a board of police and fire commissioners under this section, but the board may only address issues related to the fire department. A city may not contract with a county to provide all of the city's police protective services under this subsection.
(2m) Joint departments, contract services. 62.13(2m)(a)(a)
A city may create a joint police department or a joint fire department, or both, with another city.
A city that creates a joint police department or a joint fire department, or both, with another city under par. (a)
is not required to create a separate board of police and fire commissioners under this section. The cities shall create a joint board of commissioners to govern the joint department. If only one joint department is created, each city shall retain its existing board of police and fire commissioners to govern the separate department. The cities may jointly determine the number of commissioners to be appointed to the joint board by each city and the length of the commissioners' terms. A majority of the commissioners is a quorum. A joint board of commissioners that is created under this paragraph to govern a joint police department is subject to the provisions of subs. (3)
, a joint board of commissioners that is created under this paragraph to govern a joint fire department is subject to the provisions of subs. (8)
and a joint board of commissioners that is created under this paragraph to govern a joint police and fire department is subject to the provisions of subs. (2)
(2s) Abolition of police department, county law enforcement. 62.13(2s)(a)(a)
Subject to pars. (b)
, a city may abolish its police department or combined protective services department if it enters into a contract with a county under s. 59.03 (2) (e)
for the county sheriff to provide law enforcement services in all parts of the city. If the city is located in more than one county, it may not abolish its police department or combined protective services department under this paragraph unless the city enters into a contract under this paragraph with the county in which the greatest amount of the city's equalized value, population or territory is located. If a city that is located in more than one county enters into a contract with a county under this paragraph, the jurisdiction of the contracting county's sheriff and deputies includes the entire territory of the city.
If a city wishes to contract with a sheriff for law enforcement services, the common council shall adopt a resolution, as described under s. 59.03 (2) (a)
, requesting that such services be provided. The resolution shall provide that such services are to be provided exclusively by the county.
The contract described under par. (a)
shall address at least all of the following elements:
The division, with the county, of the city's assets and liabilities that relate to the city's police department and the amount that the county will pay, if any, for such assets.
A description of the level of law enforcement and the number of deputies that the county will provide to the city and the amount that the city will pay for the services in excess of the city's portion of the county's law enforcement levy.
A procedure for the city to request, or require, that the county provide additional law enforcement services and the cost the county may charge the city for providing additional services.
The term of the agreement and procedures for the renewal, extension, or termination of the agreement.
No contract that is entered into under this subsection may take effect until all of the following occur:
The governing bodies of the city and the county approve the contract.
The expiration of any collective bargaining agreement between the city and its police department employees.
The city and county discuss the provision of emergency “911" telephone service within the area to which the contract applies.
The board shall appoint the chief of police and the chief of the fire department or, if applicable, the chief of a combined protective services department, who shall hold their offices during good behavior, subject to suspension or removal by the board for cause.
The chiefs shall appoint subordinates subject to approval by the board. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file with the clerk.
Any person who, on June 23, 1943 has served and acted as a full-time city police patrolman, patrolwoman or police officer performing the services by virtue of regular assignment therefor under the orders and supervision of the chief of police of said city, and receiving his or her salary on the regular official payroll of said police department for a continuous period of more than 10 years, although not regularly appointed from an eligible list, is deemed to have been regularly appointed, as of the time of the commencement of his or her service.
For the choosing of such list the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.
The examination shall be free for all U.S. citizens over 18 and under 55 years of age, with proper limitations as to health and, subject to ss. 111.321
, and 111.335
, arrest and conviction record. The examination, including minimum training and experience requirements, shall be job-related in compliance with appropriate validation standards and shall be subject to the approval of the board and may include tests of manual skill and physical strength. All relevant experience, whether paid or unpaid, shall satisfy experience requirements. The board shall control examinations and may designate and change examiners, who may or may not be otherwise in the official service of the city, and whose compensation shall be fixed by the board and paid by the city. Veterans and their spouses shall be given preference points in accordance with s. 63.08 (1) (fm)
The council of any city of the 2nd, 3rd or 4th class may provide that members of the police force shall be of both sexes. The fire and police commission shall select each police officer from an eligible list.
(5) Disciplinary actions against subordinates. 62.13(5)(a)(a)
A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate.
Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate.
A subordinate may be suspended for just cause, as described in par. (em)
, by the chief or the board as a penalty. The chief shall file a report of such suspension with the commission immediately upon issuing the suspension. No hearing on such suspension shall be held unless requested by the suspended subordinate. If the subordinate suspended by the chief requests a hearing before the board, the chief shall be required to file charges with the board upon which such suspension was based.
Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885
If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require.
No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e)
, based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b)
, unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable:
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.