230.40(6)(6) The director shall administer this section. 230.40 AnnotationState employees covered by the Hatch Act cannot be discharged for partisan political participation while on leaves of absence under subs. (2) and (4). 63 Atty. Gen. 217.
230.40 AnnotationDiscussion of restrictions on political activities of state employees under federal and state law. 67 Atty. Gen. 315.
230.40 AnnotationClassified state employees whose positions are federally funded, in whole or in part, and who are not covered by a collective bargaining agreement, are entitled to leaves of absence in order to run for partisan political office and cannot be compelled to resign. Leaves of absence for such employees are governed generally by terms of applicable collective bargaining agreements. 73 Atty. Gen. 131. 230.40 AnnotationThe meaning of “declares an intention to run for office” in sub. (2) is discussed. 81 Atty. Gen. 135. 230.41230.41 Invalid appointments. Any person employed or appointed contrary to this subchapter, or to the rules established thereunder, shall be paid by the appointing authority so employing or appointing, or attempting to employ or appoint that person, the compensation agreed upon for any service performed under such appointment or employment, or attempted appointment or employment, or in case no compensation is agreed upon, the actual value of such services and any expenses incurred in connection therewith, and shall have a cause of action against such appointing authority, for such sum and for the costs of the action. No appointing authority shall be reimbursed by the state for any sums so paid or recovered in any such action. 230.41 HistoryHistory: 1971 c. 270 s. 80; Stats. 1971 s. 16.36; 1977 c. 196 s. 61; Stats. 1977 s. 230.41; 1991 a. 316. 230.43230.43 Misdemeanors; how punished. 230.43(1)(1) Hiring process; obstruction or falsifications. Any person who, alone or in cooperation with one or more persons, does any of the following is, for each offense, guilty of a misdemeanor: 230.43(1)(am)(am) Willfully defeats, deceives or obstructs any person in respect of the rights of application or registration under this subchapter or any rules prescribed pursuant thereto. 230.43(1)(b)(b) Willfully or corruptly, falsely marks, grades, estimates, or reports upon an application or resume, or proper standing of any person evaluated, registered, or certified, pursuant to this subchapter, or aids in so doing. 230.43(1)(c)(c) Willfully or corruptly makes any false representations concerning the same, or concerning an applicant. 230.43(1)(d)(d) Willfully or corruptly furnishes any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any persons so evaluated, registered, or certified, being appointed, employed, or promoted. 230.43(1)(e)(e) Personates any other person, or permits or aids in any manner any other person to personate him or her in connection with any registration, application, or request to be evaluated or registered. 230.43(2)(2) Prohibited appointments. Whoever, after a rule has been duly established and published, makes an appointment to office or selects a person for employment, contrary to such rule, or willfully refuses or neglects otherwise to comply with, or to conform to, this subchapter, or violates any of such provisions, shall be guilty of a misdemeanor. If any person is convicted under this subsection, any public office which such person may hold shall by force of such conviction be rendered vacant, and such person shall be incapable of holding public office for a period of 5 years from the date of such conviction. 230.43(3)(3) Penalty. Misdemeanors under this section are punishable by a fine of not less than $50 nor more than $1,000, or by imprisonment for not more than one year in the county jail or both. 230.43(4)(4) Rights of employee. If an employee has been removed, demoted or reclassified, from or in any position or employment in contravention or violation of this subchapter, and has been restored to such position or employment by order of the commission or any court upon review, the employee shall be entitled to compensation therefor from the date of such unlawful removal, demotion or reclassification at the rate to which he or she would have been entitled by law but for such unlawful removal, demotion or reclassification. Interim earnings or amounts earnable with reasonable diligence by the employee shall operate to reduce back pay otherwise allowable. Amounts received by the employee as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the employee and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making such payment. The employee shall be entitled to an order of mandamus to enforce the payment or other provisions of such order. 230.43(5)(5) Taxpayers’ suits. The right of any taxpayer to bring any action to restrain the payment of compensation to any person appointed to or holding any office or place of employment in violation of this subchapter shall not be limited or denied by reason of the fact that the office or place of employment has been classified as, or determined to be, not subject to a competitive hiring process; however, any judgment or injunction in any such action shall be prospective only, and shall not affect payments already made or due to such persons by the proper disbursing officers, in accordance with the rules of the administrator in force at the time of such payments. 230.43 AnnotationBack pay under sub. (4) is not an available remedy in reinstatement cases. Seep v. Personnel Commission, 140 Wis. 2d 32, 409 N.W.2d 142 (Ct. App. 1987). 230.43 AnnotationThis section does not confer any special right of action. The statute ensures that actions brought to enjoin the compensation of improperly appointed officials are not limited to classified employees. Association of Career Employees v. Klauser, 195 Wis. 2d 602, 536 N.W.2d 478 (Ct. App. 1995), 94-0632. 230.44230.44 Appeal procedures. 230.44(1)(1) Appealable actions and steps. Except as provided in par. (e), the following are actions appealable to the commission under s. 230.45 (1) (a): 230.44(1)(a)(a) Decision made or delegated by director. Appeal of a personnel decision under this subchapter made by the director or by an appointing authority under authority delegated by the director under s. 230.05 (2). 230.44(1)(b)(b) Decision made or delegated by administrator. Appeal of a personnel decision under s. 230.09 (2) (a) or (d) or 230.13 (1) made by the administrator or by an appointing authority under authority delegated by the administrator under s. 230.04 (1m). 230.44(1)(c)(c) Demotion, layoff, suspension or discharge. If an employee has permanent status in class, or an employee has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more, the employee may appeal a demotion, layoff, suspension, discharge or reduction in base pay to the commission as the final step in the state employee grievance process established under s. 230.445, if the appeal alleges that the decision was not based on just cause. 230.44(1)(d)(d) Illegal action or abuse of discretion. A personnel action after certification which is related to the hiring process in the classified service and which is alleged to be illegal or an abuse of discretion may be appealed to the commission. 230.44(1)(dm)(dm) Noncompetitive appointment of certain disabled veterans. A personnel action under s. 230.275 by an appointing authority that is alleged to be illegal or an abuse of discretion. The director and the division may not be a party to any such appeal. 230.44(1)(e)(e) Discretionary performance awards. This subsection does not apply to decisions of an appointing authority relating to discretionary performance awards under s. 230.12 (5) or under the discretionary merit award program established under s. 230.04 (19), including the evaluation methodology and results used to determine the award or the amount awarded. 230.44(1)(f)(f) Corrections employee rights. A determination that a person was discharged from the unclassified service for just cause under s. 230.337. 230.44(1)(h)(h) Decisions affecting Milwaukee County employees by the department of health services. A decision of the department of health services relating to a Milwaukee County employee under s. 49.825 (3) (b). 230.44(1)(i)(i) Decisions affecting certain county employees by the department of children and families. A decision of the department of children and families relating to a county employee under s. 49.826 (3) (b). 230.44(2)(2) Form. All appeals filed under this section shall be in writing. 230.44(3)(3) Time limits. Any appeal filed under this section may not be heard unless the appeal is filed within 30 days after the effective date of the action, or within 30 days after the appellant is notified of the action, whichever is later. 230.44(4)(a)(a) A hearing under this section shall be open to the public unless the appellant requests that the hearing be closed. 230.44(4)(b)(b) An employee shall attend a hearing under this subsection and testify when requested to do so by the commission. Any person not under the civil service who appears before the commission by order shall receive for his or her attendance the fees and mileage provided for witnesses in civil actions in courts of record under ch. 885, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the commission and charged to the proper appropriation for the commission. No witness subpoenaed at the insistence of a party other than the commission is entitled to compensation from the state for attendance or travel, unless the commission certifies that his or her testimony was relevant and material to the matter. 230.44(4)(bm)(bm) Upon request of an employee who files an appeal of the decision of the administrator made under s. 230.09 (2) (a) or (d), the appeal shall be heard by the commissioner or an attorney employed by the commission serving as arbitrator under rules promulgated for this purpose by the commission. In such an arbitration, the arbitrator shall orally render a decision at the conclusion of the hearing affirming, modifying, or rejecting the decision of the administrator. The decision of the arbitrator is final and is not subject to review by the commission. An arbitrator’s decision may not be cited as precedent in any other proceeding before the commission or before any court. The arbitrator shall promptly file his or her decision with the commission. The decision of the arbitrator shall stand as the decision of the commission. The decision of the commission is subject to review under ss. 227.53 to 227.57 only on the ground that the decision was procured by corruption, fraud, or undue means or that the arbitrator or the commission exceeded the arbitrator’s or the commission’s power. The record of a proceeding under this paragraph shall be transcribed as provided in s. 227.44 (8). 230.44(4)(c)(c) After conducting a hearing or arbitration on an appeal under this section, the commission or the arbitrator shall either affirm, modify or reject the action which is the subject of the appeal. If the commission or the arbitrator rejects or modifies the action, the commission may issue an enforceable order to remand the matter to the person taking the action for action in accordance with the decision. Any action brought against the person who is subject to the order for failure to comply with the order shall be brought and served within 60 days after the date of service of the decision of the commission or the arbitrator. 230.44(4)(d)(d) The commission may not remove an incumbent or delay the appointment process as a remedy to a successful appeal under this section unless there is a showing of obstruction or falsification as enumerated in s. 230.43 (1). 230.44(4)(e)(e) Any party in an action under this section may be present at a hearing in the action under this section, in person, by attorney or by any other agent. 230.44(4)(f)(f) The commission shall issue a decision on an action under this section within 90 days after the hearing on the action is completed. 230.44 AnnotationThe discharge of a probationary employee is not appealable as part of the “hiring process” under sub. (1) (d). Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981). 230.44 AnnotationThe commission had jurisdiction to hear the appeal of a career executive employee’s reassignment to a job in a lower pay range who alleged that the reassignment was for disciplinary purposes and was unreasonable and an improper exercise of discretion. Basinas v. State, 104 Wis. 2d 539, 312 N.W.2d 483 (1981). 230.44 AnnotationWhile this section’s procedures may be available to persons other than affected employees, an action to have declared illegal an alleged intentional and systematic attempt to circumvent civil service laws for partisan political purposes was not barred due to a failure to meet the appeal time limits of this section. Association of Career Employees v. Klauser, 195 Wis. 2d 602, 536 N.W.2d 478 (Ct. App. 1995), 94-0632. 230.44 AnnotationThe plain meaning of “effective date of the action” in sub. (3) is the date on which the action takes effect. The action in this case was the extension of the employee’s probation, and the extension took effect at the time his prior probationary period expired. Stern v. WERC, 2006 WI App 193, 296 Wis. 2d 306, 722 N.W. 2d 594, 05-3144. 230.445230.445 Grievance process for demotion, suspension, discharge, layoff, or reduction in base pay. 230.445(1)(a)(a) “Adverse employment decision” means a decision to demote, layoff, suspend without pay, discharge, or reduce the base pay of an employee. 230.445(1)(b)(b) “Employee” means an employee who has obtained permanent status in class or an employee who has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more. 230.445(2)(2) An employee may file a complaint under this section concerning the application of a law, rule, or policy to an adverse employment decision against the employee. If an employee does not file a complaint or an appeal by an applicable deadline under sub. (3), the employee waives his or her right to appeal the adverse employment decision under this subchapter. 230.445(3)(a)1.1. To commence the grievance process for an adverse employment action, an employee shall file a complaint with the employee’s appointing authority challenging the adverse employment decision against the employee no later than 14 days after the employee becomes aware of, or should have become aware of, the decision that is the subject of the complaint. 230.445(3)(a)2.2. An appointing authority, or his or her designee, who receives a timely complaint under subd. 1. shall conduct any investigation he or she considers necessary, meet with the employee in person, and issue a decision, in writing, not later than 14 days after the date of which the appointing authority, or his or her designee, received the employee’s complaint. If the appointing authority does not issue a written decision within 15 days after receiving the employee’s complaint, the employee may appeal to the administrator under par. (b). 230.445(3)(b)1.1. If an appointing authority does not find in favor of the employee under par. (a), the employee may appeal the appointing authority’s decision by filing a complaint with the administrator. The employee may not file a complaint under this subdivision later than 14 days after the date of the appointing authority’s decision. 230.445(3)(b)2.2. If the administrator receives a timely complaint under subd. 1., the administrator shall review the complaint and the appointing authority’s written decision, and shall issue a decision, in writing, no later than 30 days after the date the employee filed a complaint with the administrator. If the administrator does not issue a written decision within 31 days after receiving the employee’s complaint, the employee may appeal to the commission under par. (c). 230.445(3)(c)1.1. An employee or an appointing authority may appeal a decision issued by the administrator under par. (b) by filing an appeal with the commission. The employee or appointing authority may not file an appeal with the commission under this paragraph later than 14 days after receiving the administrator’s decision. Within 10 days of receiving an appeal, the commission shall determine whether all procedural requirements were completed properly and in a timely manner. If a procedural requirement was not met by the employee or if the appointing authority’s appeal under this paragraph was not made in a timely manner, the commission shall dismiss the appeal. If all of the procedural requirements were met, the commission shall hear the appeal under s. 230.44 (4), except that the commission shall issue a decision on the appeal no later than 120 days after the date the appeal is filed with the commission. 230.445(3)(c)2.2. To ensure that the commission issues its decision no later than 120 days after an appeal is filed under this paragraph, all of the following apply to a hearing before the commission for an appeal under this paragraph: 230.445(3)(c)2.a.a. The parties shall participate in a pre-hearing conference no later than 20 days after the filing of the appeal. The commission shall set the date of the hearing at the pre-hearing conference. 230.445(3)(c)2.b.b. Discovery shall be completed no later than 60 days after the appeal is filed. 230.445(3)(c)2.c.c. The commission shall rule on all motions no later than 30 days before the date of the hearing. 230.445(3)(c)2.d.d. The commission may only grant an extension to a deadline provided in this subdivision for extraordinary circumstances. The commission may not grant an extension beyond the 120-day limit for issuing its decision. 230.445(3)(c)2.e.e. Continuances of the hearing may be granted only in extraordinary circumstances, as determined by the commission. 230.445 HistoryHistory: 2015 a. 150; 2017 a. 364 s. 49. 230.45230.45 Powers and duties of commission and division of equal rights. 230.45(1)(am)(am) Serve as an arbitrator, or designate an attorney employed by the commission to serve as an arbitrator, in arbitrations under s. 230.44 (4) (bm). 230.45(1)(c)(c) Serve as final step arbiter in the state employee grievance procedure established under s. 230.04 (14). 230.45(1)(h)(h) Keep minutes of its own proceedings and other official actions. All such records shall, subject to reasonable rules, be open to public inspection. Records of the director or the administrator which are confidential shall be kept confidential by the commission. 230.45(1)(i)(i) Adopt rules necessary to carry out this section. Notice of the contents of such rules and amendments thereto shall be given promptly to the director, the administrator and appointing authorities affected thereby. 230.45(1e)(1e) The division of equal rights shall: 230.45(1e)(a)(a) Receive and process complaints of discrimination of state employees under s. 111.375. In the course of investigating or otherwise processing such a complaint, the division of equal rights may require that an interview with any state employee, except a management or supervisory employee who is a party to or immediately involved in the subject matter of the complaint, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the division of equal rights to give the appointing authority reasonable notice prior to the interview. 230.45(1e)(b)(b) Receive and process complaints of retaliatory disciplinary action under s. 230.85. 230.45(1e)(c)(c) Keep minutes of its own proceedings and other official actions relating to this chapter. All such records shall, subject to reasonable rules, be open to public inspection. Records of the director or the administrator which are confidential shall be kept confidential by the division of equal rights. 230.45(1e)(d)(d) Adopt rules necessary to carry out this section. Notice of the contents of such rules and amendments thereto shall be given promptly to the director, the administrator, and appointing authorities affected thereby. 230.45(1m)(1m) The commission shall waive the investigation and determination of probable cause of any complaint that is filed by a complainant under sub. (1) or s. 103.10 (12) (b) at the complainant’s request. If the commission waives the investigation and probable cause determination, the commission shall proceed with a hearing on the complaint. The commission’s waiver of an investigation and probable cause determination does not affect the commission’s right to attempt to resolve the complaint by conference, conciliation or persuasion. 230.45(2)(2) Subsection (1) (c) does not apply to an employee who, using the agency grievance procedure, grieves his or her dissatisfaction with the evaluation methodology and results used to determine any discretionary performance award or the amount of such an award. Any such employee grievance shall be settled on the basis of the appointing authority’s decision. 230.45(3)(3) The commission shall promulgate rules establishing a schedule of filing fees to be paid by any person who files an appeal under sub. (1) (c) or s. 230.44 (1) (a) or (b) with the commission on or after the effective date of the rules promulgated under this subsection. Fees paid under this subsection shall be credited to the appropriation account under s. 20.425 (1) (i). 230.45 Cross-referenceCross-reference: See also ch. DWD 224, Wis. adm. code. 230.45 AnnotationThe power to investigate complaints and issue subpoenas is included within the meaning of “receive and process.” 68 Atty. Gen. 403.
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Ch. 230, State Personnel
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