AB606: Bill Text

LRB-4368/1

MES&MED:emw&amn

2017 - 2018 LEGISLATURE

2017 Assembly BILL 606

October 27, 2017 - Introduced by Representatives Brandtjen, Gannon, Horlacher, Hutton, Jacque, Knodl, Murphy, Novak, Ott, Sanfelippo, Skowronski, Thiesfeldt and Wichgers, cosponsored by Senators Wanggaard and Vukmir. Referred to Committee on Local Government.

AB606,1,12 An Act to repeal 62.50 (12) and 62.50 (26); to renumber 62.50 (1e) (a) to (d); to renumber and amend 62.50 (1h); to amend 62.13 (1), 62.13 (5) (em) (intro.), 62.13 (5) (em) 1., 62.13 (5) (em) 5., 62.50 (1e) (intro.), 62.50 (6), 62.50 (7) (a), 62.50 (11), 62.50 (13), 62.50 (17) (a), 62.50 (17) (b) (intro.), 62.50 (17) (b) 1., 62.50 (17) (b) 5., 62.50 (18), 62.50 (19), 62.50 (20), 62.50 (21), 62.50 (22), 62.51 (1) (a) and 66.0502 (4) (b); and to create 62.50 (1e) (ae), 62.50 (1e) (bm) (intro.), 62.50 (1h) (b), 62.50 (3) (d) and (e), 62.50 (5m), 62.50 (21m), 63.25 (1) (e) and 66.0502 (4) (e) of the statutes; relating to: changes affecting a first class city board of fire and police commissioners, chiefs, officers, and fire fighters, police and fire departments and boards of police and fire commissioners in other cities, villages, and certain towns, veterans preference points awarded by first class cities, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes that affect first class city (presently only Milwaukee) police and fire departments, and the board of fire and police commissioners. The bill makes some similar changes that affect other cities, villages, and towns, a change related to the standard of proof in disciplinary procedures that affects both a first class city and other cities, villages, and certain towns, and a change that applies to the makeup of boards of police and fire commissioners. Currently, not more than three members of a first class city seven-person board, or four members of a first class city nine-person board, may be members of the same political party. Under the bill, members who are affiliated with a political party must be selected by the mayor from lists submitted by the chief officer of each of the two major political parties. Under the bill, the board of a first class city must have at least one member with professional law enforcement experience and at least one member with professional fire fighting experience. With regard to other cities, villages, and certain towns, the bill requires their boards to have at least one member who has either professional law enforcement experience or professional fire fighting experience. The law enforcement and fire fighter members are selected by a first class city mayor from a list of names submitted by the respective associations of members of the police department and fire department. Political party affiliation requirements do not apply to the law enforcement and fire fighter members of the board, but such members are generally restricted from making financial contributions to political candidates within three years of their appointment.

The bill also specifies that when a three-member panel of a first class city board conducts a trial to evaluate a complaint filed against a member of either department, at least one member of the panel must have professional law enforcement experience if the accused is a police officer, and one such member must have professional fire fighting experience if the accused is a fire fighter.

The bill authorizes such a board to adopt rules to allow the use of a hearing examiner, who must be agreed to by the parties, to assist the board with disciplinary hearings and appeals. In addition, the bill removes the executive secretary of the board from the mayor's cabinet.

The bill creates the office of independent monitor. This person acts as the principal staff of a first class city board, reviews certain situations or investigations involving the police or fire department, evaluates police and fire department policies and practices, and issues periodic reports to the public relating to the status and outcome of complaints that have been filed. The independent monitor is appointed by the mayor and confirmed by the common council and serves a four-year term, although he or she serves at the pleasure of the board and may not be removed by the mayor or common council.

When a first class city board appoints a chief of either department, the bill requires the board to meet in closed session with representatives of the employee association whose members will serve under the proposed chief. Currently, if a first class city board discharges, suspends, or reduces in rank an officer or member of either department, the individual so disciplined may appeal that decision to a circuit court. Under the bill, an individual who is so disciplined may choose to appeal the board's decision either to a circuit court or to an arbitrator who is selected jointly by the parties. An individual who is disciplined and appeals to an arbitrator may appeal the arbitrator's decision to a circuit court. Currently, when the board issues a decision in a disciplinary hearing, it uses a just cause standard which consists of several elements. One of the elements requires the board to determine whether the chief of the police or fire department discovered substantial evidence that the subordinate violated the rule or order as described in the charges against the subordinate. The bill changes the standard from substantial evidence to clear and convincing evidence. This change, from substantial evidence to clear and convincing evidence, also applies to other cities, villages, and certain towns.

The bill also creates a scope of review under which a court or arbitrator is to review an appeal of a first class city board's discipline of an officer or member of either department. Under the bill, a court or arbitrator must review the evidence independently and without deference to the board's findings; must reverse the board's decision if it finds that fairness or correctness of the action has been impaired by material or procedural errors; and must set aside or modify the board's decision if it finds that the board erroneously interpreted a provision of law, or may remand the case to the board for further action that is consistent with current law.

The bill also requires the court or arbitrator to reverse the board's decision if it finds that the board's exercise of discretion is outside of its delegated powers; is inconsistent with a board rule, policy, or practice, unless the board's deviation is adequately explained; or violates the constitution or the statutes. The bill also authorizes a court or arbitrator to take additional testimony, depositions, and interrogatories, and to grant requests for additional discovery.

The bill also requires that a first class city's city service commission, and a first class city fire and police commission, have a rule that requires the city to give the same number of veterans preference points, with regard to competitive examinations, to applicants who apply for a job, as they gave before March 1, 2017. A first class city fire and police commission is also required to adopt a similar rule.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB606,1 Section 1 . 62.13 (1) of the statutes is amended to read:

AB606,4,4 62.13 (1) Commissioners. Except as provided in subs. (2g), (2m), (2s), 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. At least one member of the board shall have either professional law enforcement experience or professional fire fighting experience. 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.

AB606,2 Section 2 . 62.13 (5) (em) (intro.) of the statutes is amended to read:

AB606,4,12 62.13 (5) (em) (intro.) 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 by a preponderance of the evidence 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:

AB606,3 Section 3 . 62.13 (5) (em) 1. of the statutes is amended to read:

AB606,4,16 62.13 (5) (em) 1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences, including the extent of possible disciplinary action, of the alleged conduct.

AB606,4 Section 4 . 62.13 (5) (em) 5. of the statutes is amended to read:

AB606,4,20 62.13 (5) (em) 5. Whether the chief discovered substantial clear and convincing evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.

AB606,5 Section 5 . 62.50 (1e) (intro.) of the statutes is amended to read:

AB606,4,23 62.50 (1e) Definition Definitions. (intro.) In this section, “ offense" means any felony or Class A or Class B misdemeanor violation of any of the following:

AB606,6 Section 6 . 62.50 (1e) (a) to (d) of the statutes are renumbered 62.50 (1e) (bm) 1. to 4.

AB606,7 Section 7. 62.50 (1e) (ae) of the statutes is created to read:

AB606,5,3 62.50 (1e) (ae) “Discipline” means any of the following disciplinary actions that may affect a member of the police force or fire department:

AB606,5,4 1. Suspension of 5 or more days.

AB606,5,5 2. Reduction in rank.

AB606,5,6 3. Demotion.

AB606,5,7 4. Discharge.

AB606,8 Section 8 . 62.50 (1e) (bm) (intro.) of the statutes is created to read:

AB606,5,10 62.50 (1e) (bm) (intro.) “Offense” means any felony or Class A or Class B misdemeanor violation of any of the following:

AB606,9 Section 9. 62.50 (1h) of the statutes is renumbered 62.50 (1h) (a) and amended to read:

AB606,6,2 62.50 (1h) (a) In all 1st class cities, however incorporated, there shall be a board of fire and police commissioners, consisting of either 7 or 9 citizens, not more than 3, if the board has 7 members, or 4, if the board has 9 members, of whom shall at any time belong to the same political party. In selecting members of the board who are affiliated with a political party, the mayor shall select candidates from lists of eligible individuals that are prepared by the chief officer of each of the 2 major political parties that received the largest number of votes for president in the most recently held presidential election. Each list must contain at least 5 names, but may not contain more than 20 names. Each chief officer shall update his or her list every 6 months. Political party affiliation requirements do not apply to members who have professional law enforcement or fire fighting experience, but such members may not have made a financial contribution to any candidate for local political office, any partisan candidate for state political office, or any candidate for federal political office, within 3 years of his or her appointment.

AB606,6,6 (c) The staff and members of the board shall receive the salary or other compensation for their services fixed by the common council. The salary shall be fixed at the same time and in the same manner as the salary of other city officials and employees.

AB606,6,15 (d) Except as otherwise provided in this subsection, a majority of the members-elect, as that term is used in s. 59.001 (2m), of the board shall constitute a quorum necessary for the transaction of business. A 3-member panel of the board may conduct, and decide by majority vote, a trial described under sub. (12) or may hear and decide, by majority vote, charges filed by an aggrieved person under sub. (19). For a trial of a member of the police force, at least one member of the panel shall have professional law enforcement experience, and for a trial of a member of the fire department, at least one member of the panel shall have professional fire fighting experience.

AB606,7,4 (e) It shall be the duty of the mayor of the city, on or before the 2nd Monday in July, to appoint 7, or 9, members of the board, designating the term of office of each, one to hold one year, 2 to hold 2 years, 2 to hold 3 years, one to hold 4 years if the board has 7 members, and 2 to hold 4 years if the board has 9 members, and one to hold 5 years if the board has 7 members, and 2 to hold 5 years if the board has 9 members, and until their respective successors shall be appointed and qualified. Thereafter the terms of office shall be 5 years from the 2nd Monday in July, and until a successor is appointed and qualified. The mayor may reduce the size of the board from 9 to 7 members by failing to appoint 2 successors for individuals whose terms expire at the same time. Every person appointed a member of the board shall be subject to confirmation by the common council and every appointed member shall, before entering upon the duties of the office take and subscribe the oath of office prescribed by article IV, section 28, of the constitution, and file the same duly certified by the officer administering it, with the clerk of the city.

AB606,7,16 (f) Not later than the first day of the 7th month beginning after a member appointed by the mayor is confirmed by the common council, the member shall enroll in a training class that is related to the mission of the board and, not later than the first day of the 13th month beginning after a member appointed by the mayor is confirmed by the common council, the member shall complete the class. The training class shall be conducted by the city. Appointments made prior to the time this subchapter first applies to a 1st class city shall not be subject to confirmation by the common council. No member may participate in a disciplinary appeal or trial until he or she completes the training class and any other training required by the city, except that a law enforcement officer or fire fighter who serves on the board is not subject to these training requirements if the individual is current on his or her law enforcement standards board training.

AB606,10 Section 10. 62.50 (1h) (b) of the statutes is created to read:

AB606,8,4 62.50 (1h) (b) At least one member of the board shall have professional law enforcement experience and at least one member of the board shall have professional fire fighting experience. With regard to the board members who must have professional law enforcement and professional firefighting experience, the mayor shall appoint those members from a list of 3 names submitted by the employee association that represents nonsupervisory law enforcement officers in the case of the law enforcement appointee, and the employee association that represents fire fighters in the case of the fire fighter appointee. The initial term of the professional law enforcement appointee shall be 2 years and the initial term of the professional fire fighter appointee shall be 5 years, notwithstanding the other requirements regarding length of terms in this subsection. All employees of the board shall be nonpartisan.

AB606,11 Section 11 . 62.50 (3) (d) and (e) of the statutes are created to read:

AB606,8,9 62.50 (3) (d) 1. The board may adopt rules to allow the use of a hearing examiner to assist the board with disciplinary hearings and appeals. At least 30 days before a proceeding for which the board would like to use a hearing examiner, the board and the individual being disciplined must agree on the hearing examiner.

AB606,8,18 2. If the parties are unable to agree on a hearing examiner, the parties shall select a hearing examiner from the list of reserve judges maintained by the director of state courts. If the parties are unable to agree on reserve judge, the parties shall alternate striking names from the list until either the parties agree on a reserve judge who remains on the list or only one reserve judge remains on the list, except that a hearing examiner chosen under this method may not serve if he or she served in an appointed position for the city or county in which the city is predominantly located within 10 years from the date of the proceeding over which the reserve judge is being selected to preside.

AB606,8,23 (e) The board shall adopt a rule that gives the same number of veterans preference points, with regard to examinations described in sub. (5), to applicants who apply for a position with the city on and after the first day of the 2nd month beginning after the effective date of this paragraph .... [LRB inserts date], as they gave before March 1, 2017.

AB606,12 Section 12 . 62.50 (5m) of the statutes is created to read: