1997 Chapter 62

62.50(13) (13) Discharge or suspension; appeal. The chief discharging or suspending for a period exceeding 5 days any member of the force shall give written notice of the discharge or suspension to the member and immediately report the same to the secretary of the board of fire and police commissioners together with a complaint setting forth the reasons for the discharge or suspension and the name of the complainant if other than the chief. Within 10 days after the date of service of the notice of a discharge or suspension order the members so discharged or suspended may appeal from the order of discharge or suspension or discipline to the board of fire and police commissioners, by filing with the board a notice of appeal in the following or similar form:

To the honorable board of fire and police commissioners:

Please take notice that I appeal from the order or decision of the chief of the .... department, discharging (or suspending) me from service, which order of discharge (or suspension) was made on the .... day of ...., .... (year).

62.50(14) (14) Complaint. The board, after receiving the notice of appeal shall, within 5 days, serve the appellant with a copy of the complaint and a notice fixing the time and place of trial, which time of trial may not be less than 5 days nor more than 15 days after service of the notice and a copy of the complaint.

62.50(15) (15) Notice of trial. Notice of the time and place of the trial, together with a copy of the charges preferred shall be served upon the accused in the same manner that a summons is served in this state.

62.50(16) (16) Trial; adjournment. The accused and the chief shall have the right to an adjournment of the trial or investigation of the charges, not to exceed 15 days. In the course of any trial or investigation under this section each member of the fire and police commission may administer oaths, secure by its subpoenas both the attendance of witnesses and the production of records relevant to the trial and investigation, and compel witnesses to answer and may punish for contempt in the same manner provided by law in trials before municipal judges for failure to answer or to produce records necessary for the trial. The trial shall be public and all witnesses shall be under oath. The accused shall have full opportunity to be heard in defense and shall be entitled to secure the attendance of all witnesses necessary for the defense at the expense of the city. The accused may appear in person and by attorney. The city in which the department is located may be represented by the city attorney. All evidence shall be taken by a stenographic reporter who first shall be sworn to perform the duties of a stenographic reporter in taking evidence in the matter fully and fairly to the best of his or her ability.

62.50(17) (17) Decision, standard to apply.

62.50(17)(a) (a) Within 3 days after hearing the matter the board shall, by a majority vote of its members and subject to par. (b), determine whether by a preponderance of the evidence the charges are sustained. If the board determines that the charges are sustained, the board shall at once determine whether the good of the service requires that the accused be permanently discharged or be suspended without pay for a period not exceeding 60 days or reduced in rank. If the charges are not sustained the accused shall be immediately reinstated in his or her former position, without prejudice. The decision and findings of the board shall be in writing and shall be filed, together with a transcript of the evidence, with the secretary of the board.

62.50(17)(b) (b) No police officer may be suspended, reduced in rank, suspended and reduced in rank, or discharged by the board under sub. (11), (13) or (19), or under par. (a), based on charges filed by the board, members of the board, an aggrieved person or the chief under sub. (11), (13) or (19), or under par. (a), 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:

62.50(17)(b)1. 1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.

62.50(17)(b)2. 2. Whether the rule or order that the subordinate allegedly violated is reasonable.

62.50(17)(b)3. 3. 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.

62.50(17)(b)4. 4. Whether the effort described under subd. 3. was fair and objective.

62.50(17)(b)5. 5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.

62.50(17)(b)6. 6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.

62.50(17)(b)7. 7. 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.

62.50(18) (18) Salary during suspension. No chief officer of either department or member of the fire department may be deprived of any salary or wages for the period of time suspended preceding an investigation or trial, unless the charge is sustained. No member of the police force may be suspended or discharged under sub. (11) or (13) without pay or benefits until the matter that is the subject of the suspension or discharge is disposed of by the board or the time for appeal under sub. (13) passes without an appeal being made.

62.50(19) (19) Charges by aggrieved person. In cases where duly verified charges are filed by any aggrieved person with the board of fire and police commissioners, setting forth sufficient cause for the removal of any member of either of the departments, including the chiefs or their assistants, the board or chief may suspend such member or officer pending disposition of such charges. The board shall cause notice of the filing of the charges with a copy to be served upon the accused and shall set a date for the trial and investigation of the charges, following the procedure under this section. The board shall decide by a majority vote and subject to the just cause standard described in sub. (17) (b) whether the charges are sustained. If sustained, the board shall immediately determine whether the good of the service requires that the accused be removed, suspended from office without pay for a period not exceeding 60 days or reduced in rank. If the charges are not sustained, the accused shall be immediately reinstated without prejudice. The secretary of the board shall make the decision public.

62.50(20) (20) Circuit court review; notice. Any officer or member of either department discharged, suspended or reduced, may, within 10 days after the decision and findings under this section are filed with the secretary of the board, bring an action in the circuit court of the county in which the city is located to review the order. Such action shall begin by the serving of a notice on the secretary of the board making such order and on the city attorney of such city, which notice may be in the following or similar form:

In Circuit Court, .... County.

To .... Board of Fire and Police Commissioners.

To .... City Attorney:

Please take notice that I hereby demand that the circuit court of .... County review the order made by the Board of Fire and Police Commissioners on the ... day of ... A.D. .... discharging, (or suspending) .... from the .... department.

(Signed) ....

62.50(21) (21) Certification and return of record; hearing. Upon the service of the demand under sub. (20), the board upon which the service is made shall within 5 days thereafter certify to the clerk of the circuit court of the county all charges, testimony, and everything relative to the trial and discharge, suspension or reduction in rank of the member. Upon the filing of the return with the clerk of court, actions for review shall be given preference. Upon application of the discharged member or the board, the court shall fix a date for the trial which shall be no later than 15 days after the date of the application except upon agreement between the board and the discharged or suspended member. The action shall be tried by the court without a jury and shall be tried upon the return made by the board. In determining the question of fact presented, the court shall be limited in the review thereof to the question: "Under the evidence is there just cause, as described in sub. (17) (b), to sustain the charges against the accused?" The court may require additional return to be made by the board, and may also require the board to take additional testimony and make return thereof.

62.50(22) (22) Costs; reinstatement. No costs may be allowed in the action to either party and the clerks' fees shall be paid by the city in which the department is located. If the decision of the board is reversed, the discharged or suspended member shall forthwith be reinstated in his or her former position in the department and shall be entitled to pay the same as if not discharged or suspended. If the decision of the board is sustained, the order of discharge, suspension or reduction shall be final and conclusive in all cases.

62.50(23) (23) Duties of chief. The chief engineer of the fire department and the chief of police of a 1st class city, shall be the head of their respective departments. The chief of police shall preserve the public peace and enforce all laws and ordinances of the city. The chiefs shall be responsible for the efficiency and general good conduct of the department under their control. The board may review the efficiency and general good conduct of the departments. A chief shall act as an adviser to the board when the board reviews his or her department. The board may issue written directives to a chief based on a review of the chief's department. The chief receiving a directive shall implement the directive unless the directive is overruled in writing by the mayor. Each of the chiefs shall maintain and have custody of all property of their respective departments, including but not limited to, all books and records, which shall be available and subject to inspection by the board.

62.50(24) (24) Signal service department. All apparatus and all mechanical appliances requiring the use of telegraph or telephone wire or other wire for signaling purposes, with the consequent use of the public highways, together with such wire and all appurtenances to such apparatus and the constructional work therefor, may be placed under the management and control of a separate department. Such department shall be established and the compensation of the superintendent and all employes of such department shall be fixed by ordinance of the common council. The superintendent of the department shall be appointed by the board, and all other employes of the department shall be appointed in the same manner, and shall be subject to removal upon the same conditions as the members of the fire and police departments, and wherever applicable this section shall apply to such department the same as to the fire and police departments.

62.50(25) (25) Chief examiner. The board may appoint a chief examiner. The board shall prescribe the chief examiner's duties and compensation, which shall be paid by the city on the certificate of the board. Such examiner is subject to removal at any time by a majority of the board, and the board may change such duties and compensation at any time as it deems proper. The board may fix and alter compensation for any other examiners appointed by the board, and such compensation shall be paid by the city on certificate of the board.

62.50(26) (26) Reservation of existing terms. Nothing contained in this section may be construed to affect the term of office of any person who is a member of any police or fire commission in any city of the 1st class nor to affect the term of office of any member appointed to fill out the unexpired term of any person who is a member of such commission at the time this section first applies to such city.

62.50(27) (27) Mayor to appoint additional members. A mayor of a city of the 1st class, whether acting under a general or special charter, shall appoint a sufficient number of members for the police and fire commission of such city so that the commission shall conform with this section, and such additional members and their successors shall be appointed for a term of 5 years.

62.50(28) (28) Engaging in political activity. Subject to the requirements of ch. 164, the common council of any 1st class city may enact an ordinance which regulates the political activities of its law enforcement officers, as defined in s. 165.85 (2) (c), including, but not limited to, providing for leaves of absence for members who are candidates for or who are elected to public office.

62.50(29) (29) Officers' rights. In case of a conflict with ch. 164, the provisions of ch. 164 supersede the provisions of this section.

62.50 History History: 1977 c. 19, 20, 53, 151; 1977 c. 272 ss. 24 to 30, 92 to 95; 1979 c. 307, 351; 1979 c. 361 s. 113; 1981 c. 213, 380; 1981 c. 391 s. 211; 1983 a. 58, 179, 192, 219; 1989 a. 31; 1997 a. 237, 250.

62.50 Annotation An arbitrator exceeded his power by directing that the grievant be transferred where the contract reserved transfer authority to the city and chief of police. Milwaukee v. Milwaukee Police Asso. 97 W (2d) 15, 292 NW (2d) 841 (1980).

62.50 Annotation Discharges based solely on coerced confessions were improper. Oddsen v. Board of Fire & Police Com'rs. 108 W (2d) 143, 321 NW (2d) 161 (1982).

62.50 Annotation A circuit court may sua sponte address constitutional issues not presented by the parties, but must allow the parties to develop a factual record pursuant to sub. (21). Slawinski v. Milwaukee Fire & Police Commission, 212 W (2d) 777, 569 NW (2d) 740 (Ct. App. 1997).

62.50 Annotation A board does not have original rule-making authority under sub. (23). A board can suspend rules prescribed by the chiefs of the fire and police departments and can enact rules to replace suspended rules. 71 Atty. Gen. 60.

62.50 Annotation A property interest in employment with the police department is recognized in sub. (11), but there is no property interest in a particular job assignment. Without a protected interest there can be no violation of procedural due process rights in the making of a job assignment. Gustafson v. Jones, 117 F 3d 1015 (1997).