SB117: Bill Text

2021 - 2022 LEGISLATURE

2021 Senate BILL 117

February 18, 2021 - Introduced by Senators Wanggaard, L. Taylor, Darling, Cowles, Feyen and Jacque, cosponsored by Representatives Brandtjen, Armstrong, Knodl, Moses, Spiros and Wichgers. Referred to Committee on Judiciary and Public Safety.

SB117,1,8 An Act to renumber 62.13 (3); to renumber and amend 62.13 (1), 62.50 (1h) and 62.50 (6); to amend 19.42 (7w) (c), 60.57 (2), 61.65 (3g) (d) 1. a., 62.13 (2) (a), 62.13 (6m) (intro.), 62.50 (21) and 62.51 (1) (a); to repeal and recreate 62.50 (1e); and to create 62.13 (1b), 62.13 (1m) (a) 2., 62.13 (1m) (d), 62.13 (1m) (e), 62.13 (3) (b), 62.13 (3) (c), 62.13 (3) (d), 62.13 (3m), 62.50 (1h) (b), 62.50 (1h) (f) 1., 62.50 (1h) (f) 3., 62.50 (5g), 62.50 (5m), 62.50 (6) (b), 62.50 (6) (c) and 62.50 (21m) of the statutes; relating to: boards of police and fire commissioners and protective services departments in populous cities.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes that affect the board of fire and police commissioners of a first class city (presently only Milwaukee), the board of police and fire commissioners of a second class city with a population of 200,000 or more (presently only Madison) (jointly referred to as affected PFC boards), and the protective services departments of first class cities and second class cities with a population of 200,000 or more (jointly, populous cities). The changes include altering the makeup of affected PFC boards, requiring certain training for affected PFC board members, establishing certain requirements related to hiring and oversight of chiefs of protective services departments in populous cities, creating an executive director or independent monitor position in populous cities, and altering the judicial review process for police and fire department disciplinary cases in a first class city.

Under current law, the board of fire and police commissioners of a first class city consists of seven or nine members selected by the mayor. Boards of police and fire commissioners of other cities, including a second class city, consist of five members selected by the mayor. Under this bill, a board of fire and police commissioners of a first class city consists of nine members selected by the mayor, and confirmed by the common council. The board of a police and fire commission of a second class city with a population of 200,000 or more consists of seven members selected by the mayor. Each of these boards must contain at least one member selected from a list provided by each of 1) the employee association that represents nonsupervisory law enforcement officers and 2) the employee association that represents fire fighters.

This bill provides a method for selecting members of affected PFC boards when the mayor fails to make an appointment to a vacant position. If the mayor fails to make an appointment within 120 days of the occurrence of a vacancy, the common council may make the appointment, except when the vacant position is one that must be filled from one of the lists described above. In this case, the association that provided the list may make the appointment without confirmation by the common council.

In a first class city, a three-member panel of the board of fire and police commissioners may conduct and decide a trial to evaluate a complaint against a member of the police or fire department. This bill specifies that when a three-member panel conducts such a trial, at least one member of the panel must have professional law enforcement experience if the accused is a police officer, and at least one such member must have professional fire fighting experience if the accused is a fire fighter.

The bill also requires each member of an affected PFC board to take a training class provided by the city in which it operates. The training class must cover the mission and role of the board, the procedures that apply to disciplinary hearings, the conduct policies of the police and fire departments, and use of force guidelines of the police department. A member may not participate in any action of the board until he or she completes the training class and any other training required by the city.

The bill also creates the office of executive director in a first class city and the office of independent monitor in a second class city with a population of 200,000 or more. Despite the different titles, these positions have the same duties and requirements. This person acts as the principal staff of an affected PFC 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 executive director or independent monitor is appointed by the mayor and confirmed by the common council and serves a four-year term, at the pleasure of the board.

This bill also specifies the following related to affected PFC boards:

1. When an affected PFC board appoints a protective services chief, the board must meet in closed session with representatives of the employee association whose members will serve under the proposed chief.

2. When an affected PFC board appoints a protective services chief, the board must hold at least two public meetings to hear comments from residents of the city and other interested persons.

3. When a member is appointed to an affected PFC board, the common council must hold two public hearings that include public comment periods with regard to the appointments.

4. If an affected PFC board accepts an additional application for chief of police after the application period for accepting these applications has closed, the board must reopen the application period for an additional seven days.

5. If the common council adopts a resolution by a two-thirds majority to conduct a performance review of a protective services chief, an affected PFC board must conduct the review and provide a written report to the common council.

6. A PFC board member may not continue in office after the expiration of his or her term, unless reappointed and, in a first class city, confirmed.

Currently, if a board of fire and police commissioners of a first class city discharges, suspends, or reduces in rank an officer or member of the police or fire department, the disciplined person may appeal that decision to a circuit court. This bill specifies the scope of review under which a court is to review an appeal of this sort. Under the bill, a court 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 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 to take additional testimony, depositions, and interrogatories, and to grant requests for additional discovery.

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:

SB117,1 Section 1. 19.42 (7w) (c) of the statutes is amended to read:

SB117,4,2 19.42 (7w) (c) An appointive office or position of a local governmental unit in which an individual serves for a specified term, including a member of a board created under s. 60.57, 61.65, 62.13, or 62.50, except a position limited to the exercise of ministerial action or a position filled by an independent contractor.

SB117,2 Section 2. 60.57 (2) of the statutes is amended to read:

SB117,4,5 60.57 (2) A board created under this section shall be organized in the same manner as boards of police and fire commissioners under s. 62.13 (1) (1m) (a) 1.

SB117,3 Section 3. 61.65 (3g) (d) 1. a. of the statutes is amended to read:

SB117,4,9 61.65 (3g) (d) 1. a. A board created under this section shall be organized in the same manner as boards of police and fire commissioners under s. 62.13 (1) (1m) (a) 1.

SB117,4 Section 4. 62.13 (1) of the statutes is renumbered 62.13 (1m) (a) 1. and amended to read:

SB117,4,14 62.13 (1m) (a) 1. Except as provided in subd. 2. and 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.

SB117,5,2 (b) 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 of a board under par. (a) for a term of 5 years. For a 2nd class city with a population of 200,000 or more in a year in which the terms of 2 members expire, the mayor may appoint a 2nd member of a board under par. (a) 2. in the same manner for a term of 5 years. Except as provided in par. (a) 2. a., if the mayor of a 2nd class city with a population of 200,000 or more fails to make an appointment within 120 days of a vacancy occurring, the common council may make the appointment. No appointment shall may be made which that will result in more than 3 members of the board belonging to the same political party. The common council of a 2nd class city with a population of 200,000 or more shall hold 2 public hearings that include public comment periods with regard to each appointment to the board.

SB117,5,3 (c) The A board shall keep a record of its proceedings.

SB117,5 Section 5. 62.13 (1b) of the statutes is created to read:

SB117,5,7 62.13 (1b) Definition. In this section, “board” means a board of police and fire commissioners under sub. (1m) (a) or a joint board of police and fire commissioners under sub. (2) (b) or (2m) (b).

SB117,6 Section 6. 62.13 (1m) (a) 2. of the statutes is created to read:

SB117,6,4 62.13 (1m) (a) 2. a. Each 2nd class city with a population of 200,000 or more shall have a board of police and fire commissioners consisting of 7 members, including at least one member selected from a list submitted by the employee association that represents nonsupervisory law enforcement officers and at least one member selected from a list submitted by the employee association that represents fire fighters. Lists of individuals submitted for selection under this subd. 2. a. shall contain 5 names. Individuals included in a list submitted under this subd. 2. a. by an employee association that represents nonsupervisory law enforcement officers or fire fighters shall have professional law enforcement experience or professional fire fighting experience, respectively, and shall be at least 5 years removed from service as a professional law enforcement officer or fire fighter, respectively. If the mayor fails to make an appointment that is required to be selected from a list under this subd. 2. a. within 120 days of a vacancy occurring, the association that provided the list may make the appointment. Notwithstanding par. (b), the initial term of the member selected from a list submitted by the employee association that represents nonsupervisory law enforcement officers shall be 2 years and the initial term of the member selected from a list submitted by the employee association that represents fire fighters shall be 5 years. The members selected from lists submitted by employee associations that represent nonsupervisory law enforcement officers and fire fighters shall comply with any residency requirements that apply to current members of the police or fire department, respectively, of the city.

SB117,6,7 b. A board member of a 2nd class city with a population of 200,000 or more may not continue in office after the expiration of his or her term, unless the member is reappointed to the board.

SB117,6,8 c. Five members constitute a quorum of a board under this subdivision.

SB117,7 Section 7. 62.13 (1m) (d) of the statutes is created to read:

SB117,6,12 62.13 (1m) (d) 1. The city shall provide a training class for members of the board. The city may provide this class directly or in another manner, including by contracting with another person. The training class shall cover all of the following:

SB117,6,13 a. The mission and role of the board.

SB117,6,17 b. The procedures that apply to disciplinary hearings under this section, including applicable rules of evidence and applicable provisions of any contract between the city and employee associations that represent nonsupervisory law enforcement officers or fire fighters.

SB117,6,18 c. The conduct policies of the police and fire departments.

SB117,6,19 d. Use of force guidelines of the police department.

SB117,6,24 2. Not later than the first day of the 7th month beginning after the mayor files the appointment of a member of the board with the secretary of the board, the member shall enroll in the training class under subd. 1. and, not later than the first day of the 13th month beginning after the mayor files the member's appointment with the secretary of the board, the member shall complete the class.

SB117,7,3 3. Notwithstanding sub. (5), no member may participate in any board action until he or she completes the training class under subd. 1. and any other training required by the city.

SB117,7,5 4. This paragraph applies only in a 2nd class city with a population of 200,000 or more.

SB117,8 Section 8. 62.13 (1m) (e) of the statutes is created to read:

SB117,7,8 62.13 (1m) (e) All employees of the board of a 2nd class city with a population of 200,000 or more shall be nonpartisan.

SB117,9 Section 9. 62.13 (2) (a) of the statutes is amended to read:

SB117,7,13 62.13 (2) (a) Except as provided under sub. (6m), subs. (1) (1m) to (6) 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.

SB117,10 Section 10. 62.13 (3) of the statutes is renumbered 62.13 (3) (a).

SB117,11 Section 11. 62.13 (3) (b) of the statutes is created to read:

SB117,7,18 62.13 (3) (b) Before appointing a chief of police, chief of the fire department, or chief of a combined protective services department under this subsection, the board of a 2nd class city with a population of 200,000 or more shall do all of the following:

SB117,7,21 1. Meet in closed session under s. 19.85 (1) (c) with representatives of the nonsupervisory employee association whose members will serve under the proposed chief.

SB117,7,23 2. Hold at least 2 public meetings to hear comments from residents of the city and other interested persons.

SB117,12 Section 12. 62.13 (3) (c) of the statutes is created to read:

SB117,8,4 62.13 (3) (c) If the board of a 2nd class city with a population of 200,000 or more accepts an additional application for chief of police after the application period for accepting these applications has closed, the board shall reopen the application period for an additional 7 days beginning on the date it accepted the late application.

SB117,13 Section 13. 62.13 (3) (d) of the statutes is created to read:

SB117,8,10 62.13 (3) (d) 1. If the common council adopts a resolution by a two-thirds vote of the members-elect, as defined in s. 59.001 (2m), to conduct a performance review of the chief of police, the chief of the fire department, or the chief of a combined protective services department, the board shall conduct the review and provide a written report to the common council.

SB117,8,13 2. At least once each year, the chief of police and the chief of the fire department, or the chief of a combined protective services department, shall meet with the members of the common council at a regular meeting of the council.

SB117,8,17 3. Upon request by the common council or any committee of the common council, the chair of the board, the vice chair of the board, or the independent monitor under sub. (3m) shall attend a meeting of the common council or a committee of the common council.

SB117,8,19 4. This paragraph applies only in a 2nd class city with a population of 200,000 or more.

SB117,14 Section 14. 62.13 (3m) of the statutes is created to read:

SB117,9,6 62.13 (3m) Independent monitor. (a) No later than the 2nd Monday in June occurring after the effective date of the paragraph .... [LRB inserts date], the 2nd Monday in June immediately preceding the expiration of the regular term of office of the independent monitor, or within 60 days of a vacancy in the position, the board shall submit to the mayor a list of 3 qualified candidates for the position of independent monitor. Before submitting the list of candidates to the mayor, the board shall publicly announce the proposed list and hold a public hearing that includes a public comment period with regard to the list. No later than 30 days after receiving the list, the mayor shall appoint an individual selected from the list as independent monitor. The individual appointed is subject to confirmation by the common council.

SB117,9,8 (b) The common council shall fix the salary or other compensation of the independent monitor.

SB117,9,14 (c) The initial regular term of office of the independent monitor is 4 years from the 2nd Monday in July occurring after the effective date of this paragraph .... [LRB inserts date]. Thereafter, the regular term of office is 4 years from the 2nd Monday in July following appointment of an independent monitor to a regular term under this subsection. An independent monitor appointed under this subsection may continue to hold office until a successor is appointed and confirmed.

SB117,9,16 (d) 1. An independent monitor may be removed by a majority vote of the board in open session.

SB117,9,18 2. Notwithstanding s. 17.12 (1) (c), an independent monitor may not be removed by the mayor.

SB117,9,19 (e) The independent monitor shall do all of the following:

SB117,9,21 1. Act as the principal staff of the board in exercising the board's functions and powers under this section.

SB117,9,24 2. Review situations or investigations when an individual is dissatisfied with the outcome of an investigation or situation involving the police, fire, or combined protective services department.

SB117,10,4 3. Evaluate the policies, practices, and patterns, including staff deployments, crime and fire prevention training, use of force, search, seizure, citizen interaction, and communication of the police and fire departments or the combined protective services department.

SB117,10,8 4. Issue reports to the public at least annually relating to the status and outcome of complaints that have been filed, the timeliness of complaint resolution, trends and patterns of concern pertaining to complaint investigations, the nature and frequency of complaints, and other performance indicators.

SB117,10,10 (f) If the independent monitor is an attorney, no attorney-client privilege exists between the independent monitor and the mayor or common council.

SB117,10,12 (g) This subsection applies only to a 2nd class city with a population of 200,000 or more.

SB117,15 Section 15. 62.13 (6m) (intro.) of the statutes is amended to read:

SB117,10,20 62.13 (6m) (intro.) If a city of less than 4,000 population has not by ordinance applied subs. (1) (1m) to (6) to the city, the city may not suspend, reduce, suspend and reduce, or remove any police chief, combined protective services 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:

SB117,16 Section 16. 62.50 (1e) of the statutes is repealed and recreated to read:

SB117,10,23 62.50 (1e) Definition. In this section, “board” means the board of fire and police commissioners of a 1st class city.

SB117,17 Section 17. 62.50 (1h) of the statutes is renumbered 62.50 (1h) (a) and amended to read:

SB117,11,4 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.

SB117,11,8 (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. All employees of the board shall be nonpartisan.

SB117,11,23 (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). 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 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.