2023 - 2024 LEGISLATURE

2023 Senate BILL 28

February 3, 2023 - Introduced by Senators Marklein, Ballweg, Feyen, Jacque, Jagler, James, L. Johnson, Smith and Spreitzer, cosponsored by Representatives Born, Allen, Armstrong, Behnke, Brooks, Callahan, C. Anderson, Dittrich, Donovan, Edming, Emerson, Green, Gustafson, Joers, Kitchens, Krug, Macco, Magnafici, Moses, Murphy, Mursau, Nedweski, Novak, O'Connor, Penterman, Petryk, Plumer, Ratcliff, Rodriguez, Rozar, Schraa, Shankland, Snyder, Sortwell, Spiros, Steffen, Subeck, Summerfield, Tranel, Tusler, VanderMeer, Wittke and Zimmerman. Referred to Committee on Judiciary and Public Safety.

SB28,1,8 An Act to renumber and amend 40.05 (2) (ar); to amend 40.02 (27), 40.02 (48) (b) 3., 40.02 (48) (c), 40.05 (1) (b) 1., 40.23 (3) (a), 40.28 (1) (a) 2. and 40.73 (1) (am) 3.; and to create 40.02 (17) (n), 40.02 (48) (am) 23., 40.02 (48) (b) 5., 40.05 (1) (a) 7., 40.05 (1) (b) 1a., 40.05 (2) (ap), 40.05 (2) (ar) 2., 40.23 (3) (c), 40.65 (4w), 59.52 (8m) and 111.70 (4) (bn) of the statutes; relating to: classifying county jailers as protective occupation participants under the Wisconsin Retirement System and the treatment of county jailers under the Municipal Employment Relations Act.

Analysis by the Legislative Reference Bureau

Under current law, participants under the Wisconsin Retirement System (WRS) whose principal duties involve active law enforcement or fire suppression or prevention and require frequent exposure to a high degree of danger or peril and a high degree of physical conditioning are classified as protective occupation participants. Current law classifies police officers, fire fighters, and various other individuals as protective occupation participants. Under the WRS, the normal retirement age of a protective occupation participant is lower than that of other participants and the percentage multiplier used to calculate retirement annuities is higher for protective occupation participants.

This bill classifies county jailers as protective occupation participants without a requirement that their principal duties involve active law enforcement or active fire suppression or prevention. The bill defines county jailers as persons employed by a county whose principal duties involve supervising, controlling, or maintaining a jail or persons confined in a jail, regardless of whether the jailers have been sworn regarding their duties or whether they serve on a full-time basis.

Under the bill, county jailers who become protective occupation participants on or after the bill's effective date and are employed by a county that did not classify county jailers as protective occupation participants on July 1, 2022, are required to pay all additional employer costs resulting from their classification as protective occupation participants, including the cost of the duty disability program. County jailers who were classified as protective occupation participants before the bill's effective date and county jailers hired on or after the bill's effective date in counties that did classify county jailers as protective occupation participants on July 1, 2022, are not required to pay the additional employer costs. The bill also allows a county jailer to elect at the time of hire not to become a protective occupation participant.

Finally, under the Municipal Employment Relations Act, public safety employees may collectively bargain over wages, hours, and conditions of employment, and general employees may bargain collectively over only an annual percentage wage increase that does not exceed the annual percentage increase in the consumer price index. Under MERA, public safety employees and general employees may not be in the same collective bargaining unit. The bill amends MERA so that a county that treats a county jailer as a public safety employee on the effective date of this bill shall continue to treat any person it employs as a county jailer as a public safety employee except that, if the county subsequently raises a question regarding the appropriateness of including county jailers in a collective bargaining unit containing public safety employees, no person the county employs as a county jailer may be treated as a public safety employee.

Because this bill relates to public employee retirement or pensions, it may be referred to the Joint Survey Committee on Retirement Systems for a report to be printed as an appendix to the bill.

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:

SB28,1 Section 1 . 40.02 (17) (n) of the statutes is created to read:

SB28,3,6 40.02 (17) (n) Notwithstanding par. (d), each participant who is a county jailer and who is classified as a protective occupation participant shall be granted creditable service as a protective occupation participant for all covered service as a county jailer that was earned on or after the effective date of this paragraph .... [LRB inserts date], but may not be granted creditable service as a protective occupation participant for any covered service as a county jailer that was earned before the effective date of this paragraph .... [LRB inserts date], unless that service was earned while the participant was classified under sub. (48) (a) and s. 40.06 (1) (d) as a protective occupation participant.

SB28,2 Section 2 . 40.02 (27) of the statutes is amended to read:

SB28,3,9 40.02 (27) “Employee required contribution" means the contribution made by an employee under s. 40.05 (1) (a) 1. to 4. and 7.

SB28,3 Section 3 . 40.02 (48) (am) 23. of the statutes is created to read:

SB28,3,11 40.02 (48) (am) 23. A county jailer.

SB28,4 Section 4 . 40.02 (48) (b) 3. of the statutes is amended to read:

SB28,3,22 40.02 (48) (b) 3. A “deputy sheriff" or a “county traffic police officer" is any officer or employee of a sheriff's office or county traffic department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Deputy sheriff or county traffic police officer includes does not include a county jailer, but does include any person regularly employed and qualifying as a deputy sheriff or county traffic police officer, even if temporarily assigned to other duties.

SB28,5 Section 5 . 40.02 (48) (b) 5. of the statutes is created to read:

SB28,4,9 40.02 (48) (b) 5. A “county jailer" is an employee of a county whose principal duties involve supervising, controlling, or maintaining a jail or the persons confined in a jail, as assigned by the sheriff under s. 59.27 (1), regardless of whether the employee has been sworn regarding his or her duties or whether the employee serves on a full-time basis. Notwithstanding par. (a), an employer may classify an employee who is a county jailer as a protective occupation participant under par. (am) 23. without making a determination that the principal duties of the employee involve active law enforcement or active fire suppression or prevention. A determination under this subdivision may not be appealed under s. 40.06 (1) (e) or (em). A county jailer is not a protective occupation participant if he or she so elects with the employer under s. 59.52 (8m) or 2023 Wisconsin Act .... (this act).

SB28,6 Section 6 . 40.02 (48) (c) of the statutes is amended to read: