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
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
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
Grievance process for demotion, suspension, discharge, layoff, or reduction in base pay. 230.445(1)(a)
“Adverse employment decision" means a decision to demote, layoff, suspend without pay, discharge, or reduce the base pay of an employee.
“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.
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.
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.
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)
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.
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)
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.
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:
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.
Discovery shall be completed no later than 60 days after the appeal is filed.
The commission shall rule on all motions no later than 30 days before the date of the hearing.
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.
Continuances of the hearing may be granted only in extraordinary circumstances, as determined by the commission.
History: 2015 a. 150
; 2017 a. 364
Powers and duties of commission and division of equal rights. 230.45(1)(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)
Serve as final step arbiter in the state employee grievance procedure established under s. 230.04 (14)
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.
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.
The division of equal rights shall:
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.
Receive and process complaints of retaliatory disciplinary action under s. 230.85
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.
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.
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.
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.
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)
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)
See also ch. DWD 224
, Wis. adm. code.
The power to investigate complaints and issue subpoenas is included within the meaning of “receive and process." 68 Atty. Gen. 403.
Duties of council on affirmative action.
The council on affirmative action shall serve in a direct advisory capacity to the administrator 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.
State employees suggestion board. 230.48(1)(1)
The state employees suggestion board shall do all of the following:
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.
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.
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)
(2) Personnel, facilities and equipment.
The administrator 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.
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:
Certificates, medals or other insignia, in the form and awarded at the times that the state employees suggestion board determines.
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.
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.
History: 1971 c. 270
; Stats. 1971 s. 16.34; 1977 c. 196
; Stats. 1977 s. 16.008; 1977 c. 418
; Stats. 1977 s. 16.006; 1981 c. 20
; 1987 a. 142
; 1989 a. 31
; Stats. 1989 s. 230.48; 2003 a. 33
; 2011 a. 32
; 2015 a. 55
Subch. III of ch. 230 Cross-reference
See also ch. DWD 224
, Wis. adm. code.
In this subchapter:
“Abuse of authority" means an arbitrary or capricious exercise of power.
“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.
“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:
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.
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.
Failure to increase base pay, except with respect to the determination of a discretionary performance award.
“Employee" means any person employed by any governmental unit except:
A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13
A person who is, or whose immediate supervisor is, assigned to an executive salary group under s. 20.923
or a person who has, or whose immediate supervisor has, a position specified in s. 36.115 (3m) (ae)
“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.
“Information" means information gained by the employee which the employee reasonably believes demonstrates:
A violation of any state or federal law, rule or regulation.
Mismanagement or abuse of authority in state or local government, a substantial waste of public funds or a danger to public health and safety.
“Merit further investigation" means reasonably indicates the existence of a situation justifying inquiry.
“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.
“Retaliatory action" means a disciplinary action taken because of any of the following:
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.
The appointing authority, agent of an appointing authority or supervisor believes the employee engaged in any activity described in par. (a)
“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.
A “pattern of incompetent management actions" under sub. (7) requires more than a claim of a single act of incompetent management. A continuing course of conduct requires multiple actions to constitute a pattern. Hutson v. Wisconsin Personnel Commission, 2003 WI 97
, 263 Wis. 2d 612
, 665 N.W.2d 212
An opinion alone, as to the lawfulness or appropriateness of government activity is not “information" as that term is defined in sub. (5). Department of Justice v. DWD, 2015 WI 114
, 365 Wis. 2d 694
, 875 N.W.2d 545
The most reasonable interpretation of sub. (8) (c) is that it is aimed at situations when a supervisor retaliates on the basis of a mistake of fact, such as when a supervisor is told that an employee engaged in conduct that could constitute disclosure of information, but the employee had not in fact engaged in that conduct — not when the employee is not protected by ss. 230.80 to 230.89, but the employer believed the employee was protected by ss. 230.80 to 230.89. Department of Justice v. DWD, 2015 WI 114
, 365 Wis. 2d 694
, 875 N.W.2d 545
Employee disclosure. 230.81(1)(1)
An employee with knowledge of information the disclosure of which is not expressly prohibited by state or federal law, rule or regulation may disclose that information to any other person. However, to obtain protection under s. 230.83
, before disclosing that information to any person other than his or her attorney, collective bargaining representative or legislator, the employee shall do either of the following:
Disclose the information in writing to the employee's supervisor.