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230.43 Annotation Back 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 Annotation This 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.
230.44 230.44 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 administrator. Appeal of a personnel decision under this subchapter made by the administrator or by an appointing authority under authority delegated by the administrator under s. 230.05 (2).
230.44(1)(b) (b) Decision made or delegated by director. Appeal of a personnel decision under s. 230.09 (2) (a) or (d) or 230.13 (1) made by the director or by an appointing authority under authority delegated by the director 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 procedure established under s. 230.04 (14), 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 administrator and the office 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), 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) (4)Hearing.
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 director made under s. 230.09 (2) (a) or (d), the appeal shall be heard by a commissioner or 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 director. 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 Annotation The discharge of a probationary employee is not appealable as part of the "hiring process" under s. 230.44 (1) (d). Board of Regents v. Wisconsin Pers. Comm. 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981).
230.44 Annotation The 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 Annotation While 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 Annotation The 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.
230.44 AnnotationThe time limit in sub. (3) may be waived. Stern v. WERC, 2006 WI App 193, 296 Wis. 2d 306, 722 N.W. 2d 594, 05-3144.
230.45 230.45 Powers and duties of commission and division of equal rights.
230.45(1)(1) The commission shall:
230.45(1)(a) (a) Conduct hearings on appeals under s. 230.44.
230.45(1)(am) (am) Designate a commissioner or 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)(d) (d) Hear appeals under s. 230.36 (4).
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-reference Cross-reference: See also PC, Wis. adm. code.
230.45 Annotation The power to investigate complaints and issue subpoenas is included within the meaning of "receive and process." 68 Atty. Gen. 403.
230.46 230.46 Duties of council on affirmative action. The council on affirmative action in the office shall serve in a direct advisory capacity to the director and as part of that relationship shall evaluate the progress of affirmative action programs throughout the civil service system, seek compliance with state and federal regulations and recommend improvements in the state's affirmative action efforts as an employer. In carrying out its responsibilities, the council may recommend legislation, consult with agency personnel and other interested persons, conduct hearings and take other appropriate action to promote affirmative action. The council shall report at least once per year to the governor and the legislature.
230.46 History History: 1977 c. 196; 1983 a. 27; 2003 a. 33.
230.48 230.48 State employees suggestion board.
230.48(1) (1) Duties. The state employees suggestion board shall do all of the following:
230.48(1)(a) (a) Formulate, establish and maintain a plan or plans to encourage and reward unusual and meritorious suggestions and accomplishments by state employees promoting efficiency and economy in the performance of any function of state government.
230.48(1)(b) (b) Appoint departmental or divisional committees to analyze and review suggestions and accomplishments of state employees submitted for consideration under the plan or plans established under par. (a), and make recommendations regarding the plan or plans to the state employees suggestion board.
230.48(1)(c) (c) Make and render awards to or for the benefit of state employees nominated to receive them in accordance with the plan or plans established under par. (a).
230.48(2) (2)Personnel, facilities and equipment. The office shall appoint, under the classified service, a secretary and such other employees as are necessary to carry out the duties of the state employees suggestion board, and shall provide such facilities and equipment as that board requires for the proper performance of its work. The state employees suggestion board may request and shall receive from any state department any assistance that it requires.
230.48(3) (3)Awards. The state employees suggestion board may determine the nature and extent of the awards to be made under this section which may include, but shall not be limited to, all of the following:
230.48(3)(a) (a) Certificates, medals or other insignia, in the form and awarded at the times that the state employees suggestion board determines.
230.48(3)(b) (b) Cash awards, in an amount equal to 10 percent of the average annual savings that result from the suggestion, with a minimum payment of $50 and a maximum payment of $10,000, and payable at the times that the state employees suggestion board determines.
230.48(4) (4)Rules. The state employees suggestion board may promulgate rules governing the operation of any plan or plans established under sub. (1) (a), the eligibility and qualifications of state employees participating under this section, the character and quality of suggestions and accomplishments submitted for consideration, the method of their submission and the procedure for their review, nominations for awards, and the kind, character and value of the awards, and any other rules as are necessary for the proper administration of this section or for the accomplishment of the purposes of this section.
230.48 History History: 1971 c. 270 s. 87; Stats. 1971 s. 16.34; 1977 c. 196 s. 61; Stats. 1977 s. 16.008; 1977 c. 418 s. 36; Stats. 1977 s. 16.006; 1981 c. 20; 1987 a. 142; 1989 a. 31 s. 99; Stats. 1989 s. 230.48; 2003 a. 33; 2011 a. 32.
subch. III of ch. 230 SUBCHAPTER III
EMPLOYEE PROTECTION
Subch. III of ch. 230 Cross-reference Cross-reference: See also ch. DWD 224, Wis. adm. code.
230.80 230.80 Definitions. In this subchapter:
230.80(1) (1) "Abuse of authority" means an arbitrary or capricious exercise of power.
230.80(1m) (1m) "Appointing authority" means the chief officer of any governmental unit unless another person is authorized to appoint subordinate staff by the constitution or any law.
230.80(2) (2) "Disciplinary action" means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following:
230.80(2)(a) (a) Dismissal, demotion, transfer, removal of any duty assigned to the employee's position, refusal to restore, suspension, reprimand, verbal or physical harassment or reduction in base pay.
230.80(2)(b) (b) Denial of education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other personnel action.
230.80(2)(c) (c) Reassignment.
230.80(2)(d) (d) Failure to increase base pay, except with respect to the determination of a discretionary performance award.
230.80(3) (3) "Employee" means any person employed by any governmental unit except:
230.80(3)(a) (a) A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13.
230.80(3)(b) (b) A person who is, or whose immediate supervisor is, assigned to an executive salary group or university senior executive salary group under s. 20.923.
230.80(4) (4) "Governmental unit" means any association, authority, board, commission, department, independent agency, institution, office, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor, and the courts. "Governmental unit" does not mean any political subdivision of the state or body within one or more political subdivisions that is created by law or by action of one or more political subdivisions.
Effective date note NOTE: Sub. (4) is shown as amended eff. 1-1-15 by 2013 Wis. Act 20. Prior to 1-1-15 it reads:
Effective date text (4) "Governmental unit" means any association, authority, board, commission, department, independent agency, institution, office, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor, and the courts, but excluding the Health Insurance Risk-Sharing Plan Authority. "Governmental unit" does not mean any political subdivision of the state or body within one or more political subdivisions that is created by law or by action of one or more political subdivisions.
230.80(5) (5) "Information" means information gained by the employee which the employee reasonably believes demonstrates:
230.80(5)(a) (a) A violation of any state or federal law, rule or regulation.
230.80(5)(b) (b) Mismanagement or abuse of authority in state or local government, a substantial waste of public funds or a danger to public health and safety.
230.80(6) (6) "Merit further investigation" means reasonably indicates the existence of a situation justifying inquiry.
230.80(7) (7) "Mismanagement" means a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function. "Mismanagement" does not mean the mere failure to act in accordance with a particular opinion regarding management techniques.
230.80(8) (8) "Retaliatory action" means a disciplinary action taken because of any of the following:
230.80(8)(a) (a) The employee lawfully disclosed information under s. 230.81 or filed a complaint under s. 230.85 (1).
230.80(8)(b) (b) The employee testified or assisted or will testify or assist in any action or proceeding relating to the lawful disclosure of information under s. 230.81 by another employee.
230.80(8)(c) (c) The appointing authority, agent of an appointing authority or supervisor believes the employee engaged in any activity described in par. (a) or (b).
230.80(9) (9) "Substantial waste of public funds" means an unnecessary expenditure of a substantial amount of money or a series of unnecessary expenditures of smaller amounts of money.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)