230.85(3)(a)(a) After hearing, the commission shall make written findings and orders. If the commission finds the respondent engaged in or threatened a retaliatory action, it shall order the employe's appointing authority to insert a copy of the findings and orders into the employe's personnel file and, if the respondent is a natural person, order the respondent's appointing authority to insert such a copy into the respondent's personnel file. In addition, the commission may take any other appropriate action, including but not limited to the following:
230.85(3)(a)1.
1. Order reinstatement or restoration of the employe to his or her previous position with or without back pay.
230.85(3)(a)2.
2. Order transfer of the employe to an available position for which the employe is qualified within the same governmental unit.
230.85(3)(a)3.
3. Order expungement of adverse material relating to the retaliatory action or threat from the employe's personnel file.
230.85(3)(a)4.
4. Order payment of the employe's reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to participate in proceedings before the commission.
230.85(3)(a)5.
5. Recommend to the appointing authority of a respondent who is a natural person that disciplinary or other action be taken regarding the respondent, including but not limited to any of the following:
230.85(3)(a)5.a.
a. Placement of information describing the respondent's violation of
s. 230.83 in the respondent's personnel file.
230.85(3)(b)
(b) If, after hearing, the commission finds that the respondent did not engage in or threaten a retaliatory action it shall order the complaint dismissed. The commission shall order the employe's appointing authority to insert a copy of the findings and orders into the employe's personnel file and, if the respondent is a natural person, order the respondent's appointing authority to insert such a copy into the respondent's personnel file. If the commission finds by unanimous vote that the employe filed a frivolous complaint it may order payment of the respondent's reasonable actual attorney fees and actual costs. Payment may be assessed against either the employe or the employe's attorney, or assessed so that the employe and the employe's attorney each pay a portion. To find a complaint frivolous the commission must find that either
s. 814.025 (3) (a) or
(b) applies or that both
s. 814.025 (3) (a) and
(b) apply.
230.85(3)(c)
(c) Pending final determination by the commission of any complaint under this section, the commission may make interlocutory orders.
230.85(3)(d)
(d) Interim earnings or amounts earnable with reasonable diligence by the person subjected to the retaliatory action or threat shall reduce back pay otherwise allowable. Amounts received by the person subjected to the retaliatory action or threat as unemployment benefits or welfare payments do not reduce the back pay otherwise allowable, but shall be withheld from the person subjected to the retaliatory action or threat and immediately paid to the unemployment reserve fund or to the welfare agency making the payment.
230.85(4)
(4) The commission shall serve a certified copy of the findings and order on the respondent and, if the respondent is a natural person, upon the respondent's appointing authority.
230.85(5)(a)(a) If a respondent does not comply with any lawful order by the commission, for each such failure the respondent shall forfeit a sum of not less than $10 nor more than $100. Every day during which a respondent fails to comply with any order of the commission constitutes a separate violation of that order.
230.85(5)(b)
(b) As an alternative to
par. (a), the commission may enforce an order by a suit in equity.
230.85(6)(a)(a) If a disciplinary action occurs or is threatened within the time prescribed under
par. (b), that disciplinary action or threat is presumed to be a retaliatory action or threat thereof. The respondent may rebut that presumption by a preponderance of the evidence that the disciplinary action or threat was not a retaliatory action or threat thereof.
230.85(6)(b)
(b) Paragraph (a) applies to a disciplinary action under
s. 230.80 (2) (a) which occurs or is threatened within 2 years, or to a disciplinary action under
s. 230.80 (2) (b),
(c) or
(d) which occurs or is threatened within one year, after an employe discloses information under
s. 230.81 which merits further investigation or after the employe's appointing authority, agent of an appointing authority or supervisor learns of that disclosure, whichever is later.
230.85 History
History: 1983 a. 409;
1991 a. 39.
230.85 Annotation
Commission may not use "multiplier" in computing reasonable attorney fees under (3) (a) 4; only
SCR 20:1.5 factors are permissible. Board of Regents v. Personnel Comm. 147 W (2d) 406, 433 NW (2d) 273 (Ct. App. 1988).
230.86
230.86
Discipline based on surveillance. 230.86(1)
(1) No appointing authority may take any disciplinary action based in whole or in part on wiretapping, electronic surveillance or one-way mirrors unless that surveillance produces evidence that the employe against whom disciplinary action is taken has committed a crime or unless that surveillance is authorized by the appointing authority and is conducted in accordance with the rules promulgated under
s. 16.004 (12).
230.86(2)
(2) Subsection (1) does not apply to wiretapping, electronic surveillance or one-way mirrors used to monitor security or used for public safety purposes at a state institution.
230.86 History
History: 1989 a. 245;
1993 a. 496.
230.87
230.87
Judicial review. 230.87(1)(1) Findings and orders of the commission under this subchapter are subject to judicial review under
ch. 227. Upon that review, or in any enforcement action, the department of justice shall represent the commission unless a conflict of interest results from that representation. A court may order payment of a prevailing appellant employe's reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to appear before the court.
230.87(2)
(2) If the court finds that the appeal is frivolous, it shall award to the respondent reasonable attorney fees and costs. Payment may be assessed fully against the appellant, including a governmental unit, or the appellant's attorney or assessed so that the appellant and the appellant's attorney each pay a portion. To find an appeal frivolous, the court must find one or more of the following:
230.87(2)(a)
(a) The appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
230.87(2)(b)
(b) The appellant or appellant's attorney knew, or should have known, that the appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
230.87 History
History: 1983 a. 409;
1985 a. 135.
230.88
230.88
Payment of award, judgment or settlement; effect of order, arbitration award or commencement of court action. 230.88(1)(1)
Payment. Any award, judgment or settlement obtained by an employe under this subchapter shall be paid from the funds appropriated under
s. 20.865 (1) (a),
(g) and
(q).
230.88(2)(a)(a) A final order issued under
s. 230.85 or
230.87 which has not been appealed and for which the time of appeal has passed binds all parties who were subjected to the jurisdiction of the commission or the court and who received an opportunity to be heard. With respect to these parties, the decree is conclusive as to all issues of law and fact decided.
230.88(2)(b)
(b) No collective bargaining agreement supersedes the rights of an employe under this subchapter. However, nothing in this subchapter affects any right of an employe to pursue a grievance procedure under a collective bargaining agreement under
subch. V of ch. 111, and if the commission determines that a grievance arising under such a collective bargaining agreement involves the same parties and matters as a complaint under
s. 230.85, it shall order the arbitrator's final award on the merits conclusive as to the rights of the parties to the complaint, on those matters determined in the arbitration which were at issue and upon which the determination necessarily depended.
230.88(2)(c)
(c) No later than 10 days before the specified time of hearing under
s. 230.85 (2), an employe shall notify the commission orally or in writing if he or she has commenced or will commence an action in a court of record alleging matters prohibited under
s. 230.83 (1). If the employe does not substantially comply with this requirement, the commission may assess against the employe any costs attributable to the failure to notify. Failure to notify the commission does not affect a court's jurisdiction to proceed with the action. Upon commencement of such an action in a court of record, the commission has no jurisdiction to process a complaint filed under
s. 230.85 except to dismiss the complaint and, if appropriate, to assess costs under this paragraph.
230.88 History
History: 1983 a. 409.
230.89
230.89
Rule making and reporting. 230.89(1)
(1) The commission shall promulgate rules to carry out its responsibilities under this subchapter.
230.89(2)
(2) Every 2 years, the commission shall submit a report to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under
s. 13.172 (3), regarding complaints filed, hearings held and actions taken under this subchapter, including the dollar amount of any monetary settlement or final monetary award which has become binding on the parties.
230.89 History
History: 1983 a. 409;
1987 a. 186.
