Chapter 62

62.13 Annotation Because this section protects police officers against wrongful discipline or discharge, a police officer cannot state a cause of action by invoking the public policy exception to the employment-at-will doctrine. Larson v. City of Tomah, 193 Wis. 2d 225, 532 N.W.2d 726 (1995).

62.13 Annotation A collective bargaining agreement cannot provide for the right to seek arbitration of a discipline decision rather than to seek a hearing before the police and fire commission under this section. City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995).

62.13 Annotation Suppression of evidence is not required when a law enforcement officer obtains evidence outside of the officer’s jurisdiction. Any jurisdictional transgression violates the appropriate jurisdiction’s authority, not the defendant’s rights. State v. Mieritz, 193 Wis. 2d 571, 534 N.W.2d 632 (Ct. App. 1995).

62.13 Annotation Service of a notice of appeal under sub. (5) (i) is sufficient when served on the secretary of the police and fire commission. There is no requirement that the notice must first be filed with the court. Truttschel v. Martin, 208 Wis. 2d 361, 560 N.W.2d 315 (Ct. App. 1997), 96-2183.

62.13 Annotation Sub. (5) (i) deprives the court of appeals jurisdiction to review orders issued by a circuit court under sub. (5) (i). Younglove v. City of Oak Creek Fire & Police Commission, 218 Wis. 2d 133, 579 N.W.2d 294 (Ct. App. 1998), 97-1522.

62.13 Annotation It is unconstitutional to condition continued public employment upon a waiver of the privilege against self-incrimination. An employee may be required to answer questions in a disciplinary hearing when granted immunity from criminal prosecution. There is no immunity for uncoerced false statements made during a disciplinary investigation. There also is no requirement for Miranda, 384 U.S. 436 (1966)-like warnings, which in their absence would require the suppression of all statements made in the disciplinary proceedings. Herek v. Police & Fire Commission, 226 Wis. 2d 504, 595 N.W.2d 113 (Ct. App. 1999), 98-1927.

62.13 Annotation A police officer promoted to sergeant, subject to a one-year period of probation, could not be demoted without a just cause hearing under sub. (5) (em). An original appointment is on a probationary basis under s. 165.85 (4) (b). Once that period has passed, no promotion can be taken away without a hearing under sub. (5) (em). Antisdel v. City of Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, 97-3818.

62.13 Annotation The court properly determined whether salaries had been decreased under sub. (7) by comparing the police officer’s total cash receipts for each year at issue with the officer’s total cash receipts for the immediately preceding year. Gold v. City of Adams, 2002 WI App 45, 251 Wis. 2d 312, 641 N.W.2d 446, 01-1173.

62.13 Annotation The Department of Workforce Development has statutory authority to receive and investigate a firefighter’s employment discrimination claim under s. 111.321 that is tied directly to the charges sustained and disciplinary sanctions imposed by a police and fire commission under this section, to which claim preclusion is no bar. City of Madison v. DWD, 2002 WI App 199, 257 Wis. 2d 348, 651 N.W.2d 292, 01-1910.

62.13 Annotation There are two ways to appeal police and fire commission decisions: 1) under sub. (5) (i) when the court determines, on the evidence in the administrative record, if there is just cause to sustain the charges against the accused; and 2) by certiorari action, by which legal defects in the administrative record for which there is no statutory judicial review under sub. (5) (i) may be reviewed. An accused may file both and the trial court may address them in any order it deems prudent. State ex rel. Heil v. Green Bay Police & Fire Commission, 2002 WI App 228, 256 Wis. 2d 1008, 652 N.W.2d 118, 01-1781.

62.13 Annotation Having a common council liaison to the police and fire commission was not a reasonable local adaptation of the statute. The liaison effectively was a representative of one of the parties yet sat with the commission at hearings and, although nonvoting, participated in deliberations, tainting the appearance of commission independence and rendering the commission’s decision void. State ex rel. Heil v. Green Bay Police & Fire Commission, 2002 WI App 228, 256 Wis. 2d 1008, 652 N.W.2d 118, 01-1781.

62.13 Annotation Sub. (4) (a) and (c) grants police chiefs and police and fire commissions the authority to promote subordinates, subject to a reasonable probationary period. Sub. (5) (em) requires just cause to act only in disciplinary actions. A promoted officer who does not successfully complete the probationary period may be returned to a former rank without either a sub. (5) (em) or due process hearing, as the demotion is not discipline. Kraus v. City of Waukesha Police & Fire Commission, 2003 WI 51, 261 Wis. 2d 485, 662 N.W.2d 294, 01-1106.

62.13 Annotation Fire chiefs, police chiefs, and police and fire commissions are exclusively empowered to make, and are responsible for, appointment and promotion decisions in their respective departments. An arbitrator may not overrule decisions that are specifically entrusted to the chiefs and the commissions. Nothing in s. 111.70 requires such an interpretation of this section. City of Madison v. WERC, 2003 WI 52, 261 Wis. 2d 423, 662 N.W.2d 318, 99-0500.

62.13 Annotation A board of police and fire commissioners has authority under sub. (5) (g) to adopt a rule permitting a hearing examiner to conduct initial and evidentiary hearings and to make reports to the board on the examiner’s recommendations when the rule ensures that the ultimate decision-making authority remains with the board. Conway v. Board of Police & Fire Commissioners, 2003 WI 53, 262 Wis. 2d 1, 662 N.W.2d 335, 01-0784.

62.13 Annotation The police and fire commission has exclusive statutory authority under sub. (5) to review disciplinary actions against firefighters. Any claim that a disciplinary termination is discriminatory under ch. 111 must be raised before the commission. The Department of Workforce Development may not take jurisdiction over a ch. 111 complaint arising out of a decision of a commission to terminate a firefighter. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584, 01-1910.

62.13 Annotation Sub. (4) (a), providing appointments are to be made by promotion within the ranks when qualified insiders exist, neither specifies the promotion process nor restricts a chief’s discretion in any way, other than making a chief’s selection subject to departmental approval. If promotion from within the department cannot be “done with advantage,” the alternative appointment process involving “an eligible list” comes into play, but those provisions are not triggered when a chief has appointed a subordinate who can be promoted “with advantage.” Baures v. North Shore Fire Department, 2003 WI App 103, 264 Wis. 2d 815, 664 N.W.2d 113, 02-1936.

62.13 Annotation Sub. (5) (i) is not the exclusive remedy for a claim that the rules a subordinate is found to have violated are unconstitutionally vague and overbroad. Constitutional issues of vagueness or overbreadth may be considered under certiorari because they concern whether the police and fire commission board keeps within its jurisdiction and proceeds on a correct theory of the law. Gentilli v. Board of Police & Fire Commissioners, 2004 WI 60, 272 Wis. 2d 1, 680 N.W.2d 335, 02-3208.

62.13 Annotation A recruit who does not complete the initial probationary term of employment as a police officer is not entitled to avail himself or herself of the just cause protections afforded by sub. (5) (em). State ex rel. Massman v. City of Prescott, 2020 WI App 3, 390 Wis. 2d 378, 938 N.W.2d 602, 18-1621.

62.13 Annotation A citizenship requirement for peace officers is constitutional. 68 Atty. Gen. 61.

62.13 Annotation A mayor in a city with a police and fire commission does not have the authority to order a police chief to reinstate a discharged probationary police officer. 81 Atty. Gen. 1.

62.13 Annotation A firefighter’s dismissal violated due process. Schultz v. Baumgart, 738 F.2d 231 (1984).

62.13 Annotation Sub. (5) confers a property interest in employment protected by the 14th amendment to the U.S. Constitution on police officers and fire fighters. Dixon v. City of New Richmond, 334 F.3d 691 (2003).

62.13 Annotation There was no suspension under this section when the police chief carried out an agreement that a part-time officer, normally assigned work on an as-needed basis, would not be assigned shifts pending the completion of disciplinary proceedings against the officer in another jurisdiction where the officer was also employed as a police officer. Dixon v. City of New Richmond, 334 F.3d 691 (2003).

62.13 Annotation Police Accountability in Wisconsin. Flynn. 1974 WLR 1131.

62.133 62.133 Ambulance service. The common council may purchase, equip, operate and maintain ambulances and contract for ambulance service with one or more providers for conveyance of the sick or injured. The common council may determine and charge a reasonable fee for ambulance service provided under this section.

62.133 History History: 1991 a. 39.

62.135 62.135 Highway safety coordinator. In cities with a population of 150,000 and more, the mayor may appoint a city highway safety coordinator who shall be a member of the city agency or commission responsible for traffic accident analysis and traffic safety related matters. The commission or agency shall meet at least quarterly to review city traffic accident data and other traffic safety related matters.

62.135 History History: 1983 a. 291.

62.14 62.14 Board of public works.

62.14(1) (1) How constituted; terms. There shall be a department known as the “Board of Public Works” to consist of 3 commissioners. In cities of the 2nd class the commissioners shall be appointed by the mayor and confirmed by the council at their first regular meeting or as soon thereafter as may be. The members of the first board shall hold their offices, 1, 2 and 3 years, respectively, and thereafter for 3 years or until their successors are qualified. In all other cities the board shall consist of the city attorney, city comptroller and city engineer. The council, by a two-thirds vote, may determine that the board of public works shall consist of other public officers or persons and provide for the election or appointment of the members thereof, or it may, by a like vote, dispense with such board, in which case its duties and powers shall be exercised by the council or a committee thereof, or by such officer, officers or boards as the council designates. The words “board of public works” wherever used in this subchapter shall include such officer, officers, or boards as shall be designated to discharge its duties.

62.14(2) (2) Organization. The members of the board of public works shall, on the first Tuesday in May of each year, choose a president of the board from their number, and in cities of the first class a secretary; in other cities the city clerk shall be the secretary of the board.

62.14(3) (3) Compensation. The commissioners of public works in cities of the second class shall receive a salary, but in all other cities the salaries of the attorney, comptroller and engineer respectively shall be in full for their services as members of such board.

62.14(4) (4) Rules for, by council. The council may make such rules as the council deems proper, not contravening this subchapter, for the government of the board of public works and the manner in which the business of said board shall be conducted.

62.14(5) (5) Quorum; record; report. A majority of the board shall constitute a quorum for doing business. They shall keep a record of all their proceedings, which shall be open at all reasonable times to the inspection of any elector of such city, and shall make a report to the council on or before the first day of March in each year, and oftener if required.

62.14(6) (6) Duties and powers.

62.14(6)(a) (a) In general. It shall be the duty of the board, under the direction of the council, to superintend all public works and keep the streets, alleys, sewers and public works and places in repair.

62.14(6)(b) (b) Unusual use of streets. No building shall be moved through the streets without a written permit therefor granted by the board of public works, except in cities where the council shall, by ordinance authorize some other officer or officers to issue a permit therefor; said board shall determine the time and manner of using the streets for laying or changing water or gas pipes, or placing and maintaining electric light, telegraph and telephone poles therein; provided, that its decision in this regard may be reviewed by the council.

62.14(6)(c) (c) Restoring streets. In case any corporation or individual shall neglect to repair or restore to its former condition any street, alley or sidewalk excavated, altered or taken up, within the time and in the manner directed by the board, said board shall cause the same to be done at the expense of said corporation or individual. The expense thereof, when chargeable to a lot owner, shall be certified to the city clerk by the board, and if not paid shall be carried into the tax roll as a special tax against the lot.

62.14(7) (7) Records of city engineer. The city engineer shall keep on file in the engineer’s office, in the office of the city clerk, a record of all the engineer’s official acts and doings and also a copy of all plats of lots, blocks and sewers embraced within the city limits, all profiles of streets, alleys and sewers and of the grades thereof, and of all drafts and plans relating to bridges and harbors and of any buildings belonging to the city; and shall at the same place keep a record of the location of all bench marks and permanent corner stakes from which subsequent surveys shall be started; which said records and documents shall be the property of the city and open to the inspection of parties interested, and shall be delivered over by said engineer to the engineer’s successor or to the board of public works. Whenever requested, the engineer shall make a report of all doings of the engineer’s department to the board of public works.

62.14 History History: 1977 c. 151; 1991 a. 316.

62.15 62.15 Public works.

62.15(1) (1) Contracts; how let; exception for donated materials and labor. All public construction, the estimated cost of which exceeds $25,000, shall be let by contract to the lowest responsible bidder; all other public construction shall be let as the council may direct. If the estimated cost of any public construction exceeds $5,000 but is not greater than $25,000, the board of public works shall give a class 1 notice, under ch. 985, of the proposed construction before the contract for the construction is executed. This provision does not apply to public construction if the materials for such a project are donated or if the labor for such a project is provided by volunteers. The council may also by a vote of three-fourths of all the members-elect provide by ordinance that any class of public construction or any part thereof may be done directly by the city without submitting the same for bids.

62.15(1a) (1a) Escalator clauses. Contracts may include escalator clauses providing for additional charges for labor and materials if as a result of general inflation the rates and prices of the same to the contractor increase during performance of the contract. Such escalator provision shall be applicable to all bidders and shall not exceed 15 percent of the amount of the firm bid nor the amount of the increase paid by the contractor. Each bid on a contract that is to include an escalator provision shall be accompanied by a schedule enumerating the estimated rates and prices of items of labor and materials used in arriving at the bid. Only as to such items as are enumerated shall an increased charge be allowed the contractor.

62.15(1b) (1b) Exception as to public emergency. The provisions of sub. (1) and s. 281.41 are not mandatory for the repair and reconstruction of public facilities when damage or threatened damage thereto creates an emergency, as determined by resolution of the board of public works or board of public utility commissioners, in which the public health or welfare of the city is endangered. Whenever the city council determines by majority vote at a regular or special meeting that an emergency no longer exists, this subsection no longer applies.

62.15(1c) (1c) Increased quantity clauses. Contracts may include clauses providing for increasing the quantity of construction required in the original contract by an amount not to exceed 15 percent of the original contract price.

62.15(1d) (1d) Limitation on highway work performed by a county. Notwithstanding ss. 66.0131, 66.0301, and 83.035, a city having a population of 5,000 or more may not have a highway improvement project performed by a county workforce except as provided under s. 86.31 (2) (b).

62.15(1e) (1e) Donated improvement. Subsection (1) does not apply to the construction by a private person of an improvement that is donated to the city after the completion of construction.

62.15(2) (2) Plans; contract; bond. When the work is required or directed to be let to the lowest responsible bidder, the board of public works shall prepare plans and specifications for the same, containing a description of the work, the materials to be used and such other matters as will give an intelligent idea of the work required and file the same with the city clerk for the inspection of bidders, and shall also prepare a form of contract and bond with sureties required, and furnish a copy of the same to all persons desiring to bid on the work.

62.15(3) (3) Advertisement for bids. After the plans, specifications and form of contract have been prepared, the board of public works shall advertise for proposals for doing such work by publishing a class 2 notice, under ch. 985. No bid shall be received unless accompanied by a certified check or a bid bond equal to at least 5 percent but not more than 10 percent of the bid payable to the city as a guaranty that if the bid is accepted the bidder will execute and file the proper contract and bond within the time limited by the city. If the successful bidder so files the contract and bond, upon the execution of the contract by the city the check shall be returned. In case the successful bidder fails to file such contract and bond the amount of the check or bid bond shall be forfeited to the city as liquidated damages. The notice published shall inform bidders of this requirement.

62.15(4) (4) Sureties, justification. The sureties shall justify as to their responsibility and by their several affidavits show that they are worth in the aggregate at least the amount mentioned in the contract in property not by law exempt from execution. A certified check in amount equal to 5 percent of the bid, and a provision in the contract for the retention by the city of 20 percent of the estimates made from time to time may be accepted in place of sureties.

62.15(4m) (4m) Substantial compliance. If any certified check or bid bond is in substantial compliance with the minimum guaranty requirements of subs. (3) or (4), the letting authority may, in its discretion, accept such check or bid bond and allow such bidder 30 days to furnish such additional guaranty as may be required by said authority. Substantial compliance hereunder may be found if said check or bond is insufficient by not more than one-fourth of one percent of the bid.

62.15(5) (5) Rejection of bids; performance of work by city.

62.15(5)(a) (a) Unless the power has been expressly waived, the city may reject any bid. The board of public works may reject any bid, if, in its opinion, any combination has been entered into to prevent free competition.

62.15(5)(b) (b) If the council finds that any of the bids are fraudulent, collusive, excessive, or against the best interests of the city, it may, by resolution adopted by two-thirds of its members, reject any bids received and order the work done directly by the city under the supervision of the board of public works.

62.15(5)(c) (c) If a city performs any work under par. (b), it may secure all necessary materials to perform the work.

62.15(5)(d) (d) The city shall collect the cost of all work performed under par. (b) in the same manner as if done by any other person under contract with the city and may, subject to par. (e), defray such costs by special assessment.

62.15(5)(e) (e) If the city imposes a special assessment under par. (d), it may not assess against any property an amount that is greater than would have been assessed against the property had the lowest bid received under this section been accepted. The city shall bear any costs in excess of that bid.

62.15(6) (6) Incompetent bidders. Whenever any bidder shall be, in the judgment of said board, incompetent or otherwise unreliable for the performance of the work on which the bidder bids, the board shall report to the council a schedule of all the bids for such work, together with a recommendation to accept the bid of the lowest responsible bidder, with their reasons; and thereupon the council may direct said board either to let the work to such competent and reliable bidder or to readvertise the same; and the failure to let such contract to the lowest bidder in compliance with this provision shall not invalidate such contract or any special assessment made to pay the liability incurred thereunder.

62.15(7) (7) Patented material or process. Any public work, whether chargeable in whole or in part to the city, or to any lot or lots or parcels of land therein, may be done by the use of a patented article, materials or process, in whole or in part, or in combination with articles, materials, or processes not patented, when the city shall have obtained from the owner of the patented article, materials or process, before advertising for bids for such work, an agreement to furnish to any contractor, desiring to bid upon such work as a whole, the right to use the patented article, materials and processes in the construction of said work, and also to furnish to any contractor the patented article itself upon the payment of what the authorities of said city charged with the duty of letting a contract for such public work shall determine to be a reasonable price therefor, which price shall be publicly stated and furnished upon application to any contractor desiring to bid on said work.

62.15(8) (8) Alternative plans and specifications. Different plans and specifications for any public work may be prepared by the proper authorities requiring the use of different kinds of materials, whether patented or not, thereby bringing one kind of article, material or process in competition with one or more other kinds of articles, materials or processes designed to accomplish the same general purpose, and bids received for each such kind of article, material or process, and thereafter a contract let for one kind of article, material or process; provided, that before any contract is let all the bids received shall be opened, and considered before the kind of article or process to be used in such work shall be decided upon by the proper city authorities, and thereupon the proper city authorities shall first determine which kind of article, material or process shall be used in the work, and the contract shall be let to the lowest responsible bidder for the kind of article, material or process so selected for use in the proposed public work.

62.15(9) (9) Guaranty.

62.15(9)(a) (a) Any contract for doing public work may contain a provision requiring the contractor to keep the work done under the contract in good order or repair for not to exceed 5 years.

62.15(9)(b) (b) The inclusion in the contract of a provision described in par. (a) shall not invalidate any special assessment or certificate thereof or tax certificate based thereon.

62.15(10) (10) Estimates; deposit; default; completion. As the work progresses under any contract for the performance of which a surety bond has been furnished, s. 66.0901 (9) (b) shall apply. All contracts shall contain a provision authorizing such board, in case the work under any contract is defaulted or not completed within the time required, to take charge of or authorize the surety to take charge of the work and finish it at the expense of the contractor and the sureties, and to apply the amounts retained from estimates to the completion of the work. In no case shall the 5 percent deposit described in sub. (4) be returned to a successful bidder until the contract is performed; but it, together with the retained amounts, shall be used in whole or in part to complete the work. Any amount remaining from the deposit or from retained estimates after the completion of a contract shall be paid to the contractor.

62.15(11) (11) Street obstruction. All contractors doing any work which shall in any manner obstruct the streets or sidewalks shall put up and maintain barriers conforming to the standards for traffic control devices in the manual adopted by the department of transportation under s. 84.02 (4) (e) to prevent accidents, and be liable for all damages caused by failure so to do. All contracts shall contain a provision covering this liability, and also a provision making the contractor liable for all damages caused by the negligent digging up of streets, alleys or public grounds, or which may result from the contractor’s carelessness in the prosecution of such work.

62.15(12) (12) Contracts; how executed. All contracts shall be signed by the mayor and clerk, unless otherwise provided by resolution or ordinance, and approved as to form by the city attorney. No contract shall be executed on the part of the city until the comptroller shall have countersigned the same and made an endorsement thereon showing that sufficient funds are in the treasury to meet the expense thereof, or that provision has been made to pay the liability that will accrue thereunder.

62.15(14) (14) Report to council of nonbid contracts.

62.15(14)(a) (a) Whenever the council of any city shall have provided by ordinance that any class of public work or any part thereof may be done directly by the city without submitting the same for bids as provided in sub. (1), and the public work shall be done in accordance with the ordinance, the board of public works shall keep an accurate account of the cost of the public work, including the necessary overhead expense.

62.15(14)(b) (b) Upon the completion of the work described in par. (a), the board of public works shall make a complete report of the work to the council, stating in detail the items of cost and the total cost of doing the work. The city clerk shall publish the report as a part of the proceedings of the council.

62.15(14)(c) (c) Any member of the board of public works who fails to comply with the provisions of this subsection shall be liable to a forfeiture of $50 to be recovered as in the case of other penalties.

62.15 History History: 1975 c. 244, 390, 421; 1985 a. 183; 1987 a. 378; 1991 a. 316; 1995 a. 225, 227; 1999 a. 9; 1999 a. 150 s. 672; 2005 a. 202; 2009 a. 173, 177; 2011 a. 32, 246; 2017 a. 167.

62.15 Annotation When work has been performed for a municipality under a contract that is void or unenforceable, a cause of action for unjust enrichment can be maintained with damages limited to the actual cost to the plaintiff and not exceeding the unit cost of the original contract, any recovery being limited to the value of the actual benefit conferred. Blum v. City of Hillsboro, 49 Wis. 2d 667, 183 N.W.2d 47 (1971).

62.15 Annotation When a contract establishes a “unit price” for work done, with only an estimate of the total, excess work may be paid for without regard to the 15 percent limitation in sub. (1c). Gottschalk Bros. v. City of Wausau, 56 Wis. 2d 848, 203 N.W.2d 140 (1973).

62.15 Annotation A mayor may not veto council action or inaction on public works contracts. Sturzl Construction Co. v. City of Green Bay, 88 Wis. 2d 403, 276 N.W.2d 771 (1979).

62.15 Annotation A city cannot waive liquidated damages under sub. (3). Discussing the award, acceptance, and execution of public contracts. City of Merrill v. Wenzel Bros., 88 Wis. 2d 676, 277 N.W.2d 799 (1979).

62.15 Annotation The low bidder has no absolute right to the contract. The statute implies the exercise of discretion in letting the contract. An administrative rule will not be interpreted to prevent the exercise of that discretion. Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 531 N.W.2d 357 (Ct. App. 1995).

62.15 Annotation Acceptance of a late bid is not precluded by this section and is within a city’s discretionary powers. Power Systems Analysis, Inc. v. City of Bloomer, 197 Wis. 2d 817, 541 N.W.2d 214 (Ct. App. 1995), 95-0458.

62.15 Annotation Municipal competitive bidding statutes do not apply to projects undertaken by intergovernmental agreement or when the municipalities that will perform the work have made a determination under sub. (1) to do the work themselves with their own employees. OAG 5-09.

62.15 Annotation Municipal Corporations: Recovery for Value of Services Furnished Without Compliance with Statutory Bidding Requirements. Redmond. 55 MLR 397 (1972).

62.155 62.155 Acquisition of facilities without bids. A city may contract for the acquisition of any element of the following without submitting the contract for bids as required under s. 62.15 if the city invites developers to submit proposals to provide a completed project and evaluates proposals according to site, cost, design and the developers’ experience in other similar projects:

62.155(1) (1) A recycling or resource recovery facility.

62.155(2) (2) If the city contains an electronics and information technology manufacturing zone that is designated under s. 238.396 (1m):

62.155(2)(a) (a) Water and sewer systems.

62.155(2)(b) (b) Wastewater treatment facilities.

62.155 History History: 1983 a. 425; 2017 a. 58.

62.16 62.16 Street grades; service pipes.

62.16(1) (1) Grade.

62.16(1)(a) (a) Establishment; damage. The council shall have authority to establish the grade of all streets and alleys in the city, and to change and reestablish the same as it deems expedient. Whenever it changes or alters the permanently established grade of any street any person thereby sustaining damages to that person’s property on the affected street may have such damages set off against any special assessment levied against the person’s property for any public improvement made in conjunction with such grade change or may maintain an action to recover such damages.

62.16(1)(b) (b) Record. The grade of all streets shall be established and described, and the adoption of such grades and all alterations thereof shall be recorded by the city clerk. No street shall be worked until the grade thereof is established and recorded in the manner herein set forth.