Trial to be ordered.
Whenever complaint against any member of the force of either department is made to the chief thereof, the chief shall immediately communicate the same to the board of fire and police commissioners and a trial shall be ordered by the board under this section.
Notice of discharge or suspension; appeals.
The chief discharging or suspending for a period exceeding 5 days any member of the force shall give written notice of the discharge or suspension to the member and, at the same time that the notice is given, shall also give the member any exculpatory evidence in the chief's possession related to the discharge or suspension. The chief shall also immediately report the notice of the discharge or suspension to the secretary of the board of fire and police commissioners together with a complaint setting forth the reasons for the discharge or suspension and the name of the complainant if other than the chief. Within 10 days after the date of service of the notice of a discharge or suspension order the members so discharged or suspended may appeal from the order of discharge or suspension or discipline to the board of fire and police commissioners, by filing with the board a notice of appeal in the following or similar form:
To the honorable board of fire and police commissioners:
Please take notice that I appeal from the order or decision of the chief of the .... department, discharging (or suspending) me from service, which order of discharge (or suspension) was made on the .... day of ...., .... (year).
The board, after receiving the notice of appeal shall, within 5 days, serve the appellant with a copy of the complaint and a notice fixing the time and place of trial, which time of trial may not be less than 60 days nor more than 120 days after service of the notice and a copy of the complaint.
Notice of trial.
Notice of the time and place of the trial, together with a copy of the charges preferred shall be served upon the accused in the same manner that a summons is served in this state.
The board may grant the accused or the chief an adjournment of the trial or investigation of the charges, for cause, not to exceed 15 days. In the course of any trial or investigation under this section each member of the fire and police commission may administer oaths, secure by its subpoenas both the attendance of witnesses and the production of records relevant to the trial and investigation, and compel witnesses to answer and may punish for contempt in the same manner provided by law in trials before municipal judges for failure to answer or to produce records necessary for the trial. The trial shall be public and all witnesses shall be under oath. The accused shall have full opportunity to be heard in defense and shall be entitled to secure the attendance of all witnesses necessary for the defense at the expense of the city. The accused may appear in person and by attorney. The city in which the department is located may be represented by the city attorney. All evidence shall be taken by a stenographic reporter who first shall be sworn to perform the duties of a stenographic reporter in taking evidence in the matter fully and fairly to the best of his or her ability.
Within 3 days after hearing the matter the board, or a 3-member panel of the board, shall, by a majority vote of its members and subject to par. (b)
, determine whether by a preponderance of the evidence the charges are sustained. If the board or panel determines that the charges are sustained, the board shall at once determine whether the good of the service requires that the accused be permanently discharged or be suspended without pay for a period not exceeding 60 days or reduced in rank. If the charges are not sustained the accused shall be immediately reinstated in his or her former position, without prejudice. The decision and findings of the board, or panel, shall be in writing and shall be filed, together with a transcript of the evidence, with the secretary of the board.
No police officer may be suspended, reduced in rank, suspended and reduced in rank, or discharged by the board under sub. (11)
, or under par. (a)
, based on charges filed by the board, members of the board, an aggrieved person or the chief under sub. (11)
, or under par. (a)
, unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable:
Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
Whether the rule or order that the subordinate allegedly violated is reasonable.
Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.
Whether the effort described under subd. 3.
was fair and objective.
Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.
Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chief's department.
Salary during suspension.
No chief officer of either department or member of the fire department may be deprived of any salary or wages for the period of time suspended preceding an investigation or trial, unless the charge is sustained. No member of the police force may be suspended under sub. (11)
without pay or benefits until the matter that is the subject of the suspension is disposed of by the board or the time for appeal under sub. (13)
passes without an appeal being made.
Charges by aggrieved person.
In cases where duly verified charges are filed by any aggrieved person with the board of fire and police commissioners, setting forth sufficient cause for the removal of any member of either of the departments, including the chiefs or their assistants, the board or chief may suspend such member or officer pending disposition of such charges. The board shall cause notice of the filing of the charges with a copy to be served upon the accused and shall set a date for the trial and investigation of the charges, following the procedure under this section. The board, or a 3-member panel of the board, shall decide by a majority vote and subject to the just cause standard described in sub. (17) (b)
whether the charges are sustained. If sustained, the board shall immediately determine whether the good of the service requires that the accused be removed, suspended from office without pay for a period not exceeding 60 days or reduced in rank. If the charges are not sustained, the accused shall be immediately reinstated without prejudice. The secretary of the board shall make the decision public.
Circuit court review; notice.
Any officer or member of either department discharged, suspended or reduced, may, within 10 days after the decision and findings under this section are filed with the secretary of the board, bring an action in the circuit court of the county in which the city is located to review the order. Such action shall begin by the serving of a notice on the secretary of the board making such order and on the city attorney of such city, which notice may be in the following or similar form:
In Circuit Court, .... County.
To .... Board of Fire and Police Commissioners.
To .... City Attorney:
Please take notice that I hereby demand that the circuit court of .... County review the order made by the Board of Fire and Police Commissioners on the ... day of ... A.D. .... discharging, (or suspending) .... from the .... department.
Certification and return of record; hearing.
Upon the service of the demand under sub. (20)
, the board upon which the service is made shall within 5 days thereafter certify to the clerk of the circuit court of the county all charges, testimony, and everything relative to the trial and discharge, suspension or reduction in rank of the member. Upon the filing of the return with the clerk of court, actions for review shall be given preference. Upon application of the discharged member or the board, the court shall fix a date for the trial which shall be no later than 15 days after the date of the application except upon agreement between the board and the discharged or suspended member. The action shall be tried by the court without a jury and shall be tried upon the return made by the board. In determining the question of fact presented, the court shall be limited in the review thereof to the question: “Under the evidence is there just cause, as described in sub. (17) (b)
, to sustain the charges against the accused?" The court may require additional return to be made by the board, and may also require the board to take additional testimony and make return thereof.
No costs may be allowed in the action to either party and the clerks' fees shall be paid by the city in which the department is located. If the decision of the board is reversed, the discharged or suspended member shall forthwith be reinstated in his or her former position in the department and shall be entitled to pay the same as if not discharged or suspended. If the decision of the board is sustained, the order of discharge, suspension or reduction shall be final and conclusive in all cases.
Duties of chief.
The chief engineer of the fire department and the chief of police of a 1st class city, shall be the head of their respective departments. The chief of police shall preserve the public peace and enforce all laws and ordinances of the city. The chiefs shall be responsible for the efficiency and general good conduct of the department under their control. The board may review the efficiency and general good conduct of the departments. A chief shall act as an adviser to the board when the board reviews his or her department. The board may issue written directives to a chief based on a review of the chief's department. The chief receiving a directive shall implement the directive unless the directive is overruled in writing by the mayor. Each of the chiefs shall maintain and have custody of all property of their respective departments, including but not limited to, all books and records, which shall be available and subject to inspection by the board.
Signal service department.
All apparatus and all mechanical appliances requiring the use of telegraph or telephone wire or other wire for signaling purposes, with the consequent use of the public highways, together with such wire and all appurtenances to such apparatus and the constructional work therefor, may be placed under the management and control of a separate department. Such department shall be established and the compensation of the superintendent and all employees of such department shall be fixed by ordinance of the common council. The superintendent of the department shall be appointed by the board, and all other employees of the department shall be appointed in the same manner, and shall be subject to removal upon the same conditions as the members of the fire and police departments, and wherever applicable this section shall apply to such department the same as to the fire and police departments.
The board may appoint a chief examiner. The board shall prescribe the chief examiner's duties and compensation, which shall be paid by the city on the certificate of the board. Such examiner is subject to removal at any time by a majority of the board, and the board may change such duties and compensation at any time as it deems proper. The board may fix and alter compensation for any other examiners appointed by the board, and such compensation shall be paid by the city on certificate of the board.
Reservation of existing terms.
Nothing contained in this section may be construed to affect the term of office of any person who is a member of any police or fire commission in any city of the 1st class nor to affect the term of office of any member appointed to fill out the unexpired term of any person who is a member of such commission at the time this section first applies to such city.
Mayor to appoint additional members.
A mayor of a city of the 1st class, whether acting under a general or special charter, shall appoint a sufficient number of members for the police and fire commission of such city so that the commission shall conform with this section, and such additional members and their successors shall be appointed for a term of 5 years.
Engaging in political activity.
Subject to the requirements of ch. 164
, the common council of any 1st class city may enact an ordinance which regulates the political activities of its law enforcement officers, as defined in s. 165.85 (2) (c)
, including, but not limited to, providing for leaves of absence for members who are candidates for or who are elected to public office.
In case of a conflict with ch. 164
, the provisions of ch. 164
supersede the provisions of this section.
History: 1977 c. 19
; 1977 c. 272
; 1979 c. 307
; 1979 c. 361
; 1981 c. 213
; 1981 c. 391
; 1983 a. 58
; 1989 a. 31
; 1997 a. 237
; 1999 a. 9
; 2001 a. 16
; 2007 a. 114
; 2009 a. 28
; 2013 a. 20
Circuit court review of a decision of the Milwaukee Board of Fire and Police Commissioners by a writ of certiorari was proper. Edmonds v. Board of Fire & Police Commissioners, 66 Wis. 2d 337
, 224 N.W.2d 575
The finding of the City of Milwaukee Board of Fire and Police Commissioners was insufficient in failing to specify what particular wrongful acts the officers performed or why those acts constituted conduct unbecoming an officer under the circumstances, and in failing to make separate findings as to each officer, because in making its determination the board is required to state specific findings of fact and conclusions of law in the manner required of state agencies under this section. Heffernan
, 247 Wis. 77 (1945), is overruled. Edmonds v. Board of Fire & Police Commissioners, 66 Wis. 2d 337
, 224 N.W.2d 575
An arbitrator exceeded his power by directing that the grievant be transferred when the contract reserved transfer authority to the city and chief of police. City of Milwaukee v. Milwaukee Police Ass'n, 97 Wis. 2d 15
, 292 N.W.2d 841
Discharges based solely on coerced confessions were improper. Oddsen v. Board of Fire & Police Commissioners, 108 Wis. 2d 143
, 321 N.W.2d 161
A circuit court may sua sponte address constitutional issues not presented by the parties, but must allow the parties to develop a factual record pursuant to sub. (21). Slawinski v. Milwaukee Fire & Police Commission, 212 Wis. 2d 777
, 569 N.W.2d 740
(Ct. App. 1997), 96-1347
When multiple disciplinary charges and suspensions arise from a single transaction, the length of the suspension for purposes of sub. (13) must be measured by aggregating the suspensions. Parker v. Jones, 226 Wis. 2d 310
, 595 N.W.2d 92
(Ct. App. 1999), 98-3218
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 is no requirement for Miranda
-like warnings, which in their absence would require the suppression of all statements made in disciplinary proceedings. Herek v. Police & Fire Commission, 226 Wis. 2d 504
, 595 N.W.2d 113
(Ct. App. 1999), 98-1927
Sub. (9) only designates who must fill vacancies and new appointments in the department, not when the vacancies must be filled. It does not create a positive duty to fill vacancies as they occur. If the chief determines that vacancies can be filled by promotion with safety to the department, the chief must fill these positions by promotion, but the chief is not required to fill those positions at any certain time. Pasko v. City of Milwaukee, 2002 WI 33
, 252 Wis. 2d 1
, 643 N.W.2d 72
The board of fire and police commissioners has express and implied authority to promulgate a rule implementing sub. (19) pertaining to complaints by aggrieved persons against a member. Under sub. (3) (a), the board may prescribe rules for the authoritative direction or control of its members. While sub. (19) affects how complaints from members of the general public will be processed, it also deals with the discipline of members. Sub. (19) implicitly conveys some powers to the board because it leaves open some of the methods by which the board should operate. Milwaukee Regional Medical Center v. City of Wauwatosa, 2007 WI 101
, 304 Wis. 2d 53
, 735 N.W.2d 156
Police officers who are discharged have a right to a trial before the board that comports with due process. The legitimacy of a discharge is not “disposed of by the board" under sub. (18) until the board provides such a trial. Milwaukee Police Ass'n v. City of Milwaukee, 2008 WI App 119
, 313 Wis. 2d 253
, 757 N.W.2d 76
Subs. (11) to (19) require a just cause due process hearing only when a police officer or firefighter has been disciplined. There is nothing in the statute's language or context that suggests that this section applies to an officer placed on unpaid Family Medical Leave Act leave. Milwaukee Police Ass'n v. Flynn, 2011 WI App 112
, 335 Wis. 2d 495
, 801 N.W.2d 466
Correcting a mistake of law is neither specifically authorized nor specifically prohibited, but compliance with the specific standards imposed on the board by statute is certainly expected by the legislature. The board is a quasi-judicial body and was functioning as such when it held hearings into the alleged infractions of the rules and regulations of the Milwaukee Police Department in this case. The authority to reconsider a decision based on an error was implicit in the grant of authority to the board as a quasi-judicial body. Schoen v. Board of Fire & Police Commissioners, 2015 WI App 95
, 366 Wis. 2d 279
, 873 N.W.2d 232
A board does not have original rule-making authority under sub. (23). A board can suspend rules prescribed by the chiefs of the fire and police departments and can enact rules to replace suspended rules. 71 Atty. Gen. 60
A property interest in employment with the police department is recognized in sub. (11), but there is no property interest in a particular job assignment. Without a protected interest there can be no violation of procedural due process rights in the making of a job assignment. Gustafson v. Jones, 117 F.3d 1015
Discharge or suspension of a Milwaukee police officer has two distinct phases: 1) discharge or suspension by the chief, which must be for cause, as embodied in sub. (11); and 2) trial and appeal of discharge or suspension, as provided in subs. (14) to (17). The second phase occurs if requested by the discharged or suspended officer under sub. (13). An officer discharged for cause is guaranteed an opportunity to reclaim his or her property interest in employment on appeal after a trial. Sub. (18) provides that “salary or wages for the period of time ... preceding an investigation or trial" are owed only to suspended officers, not those discharged. Milwaukee Police Ass'n v. Flynn, 863 F.3d 636
A city rule that provided that the chief of police could discharge an appointee during a probationary period if the appointee proved unfit for the position could be harmonized with this section by interpreting the phrase “member of the police force" to exclude those individuals who had not satisfied the requirements of the rule. Milwaukee Police Ass'n v. Board of Fire & Police Commissioners, 787 F. Supp. 2d 888
This section directs that officers discharged by the chief but who await trial before the board of police and fire commissioners are not to receive pay during that period. Milwaukee Police Ass'n v. Flynn, 213 F. Supp. 3d 1113
Mayoral appointments in 1st class cities. 62.51(1)(a)
“Public office" means the following positions or their equivalent: city engineer; city purchasing agent; commissioner of building inspection, of city development, of health or of public works; director of administration, of budget and management, of community development agency, of employee relations, of office of telecommunications, or of safety; emergency management coordinator; employee benefits administrator; executive director of the commission on community relations; municipal port director; commissioner of assessments; director of liaison; city personnel director; executive director of the retirement board; executive director of the city board of election commissioners; city librarian; city labor negotiator; executive secretary of the board of fire and police commissioners; and supervisor of the central electronics board.
“Public official" means a person appointed to a public office under this section.
In any 1st class city, the mayor shall appoint, subject to confirmation of the common council, a person to serve in the unclassified service in each public office. A public official serves at the pleasure of the mayor until the end of the mayoral term of office during which the public official is appointed unless reappointed and reconfirmed or until a successor is appointed and confirmed, whichever is later. The mayor shall make appointments under this subsection within 90 days after taking office or within 90 days after a vacancy in the public office occurs, whichever is later. The common council shall vote on confirmation of any appointment under this subsection within 45 days after that appointment.
If a 1st class city authorizes the position of deputy for a public office, the public official in that office shall appoint a person to serve in the unclassified service as deputy. That deputy shall serve at the pleasure of the public official, but not longer than the public official's term of office unless reappointed.
This section does not affect the authority of a 1st class city to abolish, consolidate or create a public office or other position.
History: 1987 a. 289
; 1989 a. 31
; 1991 a. 156
; 1995 a. 247
; 1999 a. 150
; Stats. 1999 s. 62.51.
Real property used for school purposes; 1st class cities.
Beginning on July 14, 2015, the lessor of any lease entered into between a 1st class city and a school district operating under subch. I of ch. 119
and involving the use of city-owned real property for school purposes shall do the following:
Provide for the superintendent of schools, on behalf of the superintendent of schools opportunity schools and partnership program under s. 119.33
, to be an agent of the board of school directors in charge of the public schools under ch. 119
upon transfer under s. 119.33 (2) (c)
of the school using the land, buildings, and facilities to the superintendent of schools opportunity schools and partnership program under s. 119.33
Provide for the commissioner of the opportunity schools and partnership program under subch. II of ch. 119
to be an agent of the board of school directors in charge of the public schools under ch. 119
upon transfer under s. 119.9002 (3)
of the school using the land, buildings, and facilities to the opportunity schools and partnership program under subch. II of ch. 119
History: 2015 a. 55
Requirements for surety bonds of officers and employees in 1st class cities.
If an office or position in the service of a 1st class city involves fiduciary responsibility or the handling of money, the appointing officer may require the appointee to furnish a bond or other security to the officer and the city for the faithful performance of the appointee's duty. The amount of the bond or security shall be fixed by the appointing officer, with the approval of the mayor. Notice of the mayor's approval shall be given to the city clerk by the mayor. Each bond shall be approved by the city attorney as to form and execution and by the common council as to sufficiency of sureties. Any surety company, the bonds of which are accepted by the judge of any court of record in this state, or which is approved by the comptroller of the city, is sufficient security on the bond. The premium on a bond under this section, within the limits fixed by law, shall be paid out of the city treasury. The appointing officer shall immediately after the execution of the bond file the bond with the city clerk. The city clerk shall require compliance with the terms of this section requiring the filing of bonds with the city clerk by officers and employees. Bonds of city officers and employees under this section, duly witnessed and acknowledged, after being approved by the common council, shall be delivered to the city comptroller, who shall have them recorded in the office of the register of deeds. After the bonds are recorded, the bonds shall be returned to the city clerk, who shall keep them on file in the city clerk's office; except that after the recording of the bond of the city clerk by the city comptroller, that bond shall remain on file in the office of the city comptroller. Each bond filed by any surety company shall be accompanied by a duplicate of the bond. The duplicate shall be filed by the clerk with the city comptroller.
History: 1991 a. 316
; 1999 a. 150
; Stats. 1999 s. 62.55.
Uniform salaries in 1st class cities.
The common council of a 1st class city may at any regular or special meeting adopt a uniform and comprehensive salary or wage ordinance, or both, based on a classification of officers, employments and positions in the city service, whether previously so classified or not, if provision has been made in the budget of the current year for the total sum of money required for the payment of the salaries and wages and a tax levied to fund the wages and salaries. Wages under this section may be fixed by resolution. The common council may, at any time, determine a cost-of-living increment or deduction, to be paid in addition to wages or salaries under this section, based on a proper finding of the United States bureau of labor statistics. The common council may provide for overtime pay and compensatory time under s. 103.025
for employees who work in excess of 40 hours per week.
History: 1993 a. 144
; 1999 a. 150
; Stats. 1999 s. 62.57.
Police authority to alderpersons in 1st class cities repealed.
No common council in a 1st class city by ordinance may give alderpersons the powers of city police officers.
History: 1983 a. 210
; 1993 a. 184
; 1999 a. 150
; Stats. 1999 s. 62.59.
Health insurance; 1st class cities.
The common council of a 1st class city may, by ordinance or resolution, provide for, including the payment of premiums of, general hospital, surgical and group insurance for both active and retired city officers and city employees and their respective dependents in private companies, or may, by ordinance or resolution, elect to offer to all of its employees a health care coverage plan through a program offered by the group insurance board under ch. 40
. Municipalities which elect to participate under s. 40.51 (7)
are subject to the applicable sections of ch. 40
instead of this section. Contracts for insurance under this section may be entered into for active officers and employees separately from contracts for retired officers and employees. Appropriations may be made for the purpose of financing insurance under this section. Moneys accruing to a fund to finance insurance under this section, by investment or otherwise, may not be diverted for any other purpose than those for which the fund was set up or to defray management expenses of the fund or to partially pay premiums to reduce costs to the city or to persons covered by the insurance, or both.
History: 1985 a. 29
; 1999 a. 150
; Stats. 1999 s. 62.61.
Appropriation bonds for payment of employee retirement system liability in 1st class cities. 62.62(1)(1)
In this section:
“Appropriation bond" means a bond issued by a city to evidence its obligation to repay a certain amount of borrowed money that is payable from all of the following:
Moneys annually appropriated by law for debt service due with respect to such appropriation bond in that year.
Proceeds of the sale of such appropriation bonds.
Payments received for that purpose under agreements and ancillary arrangements described in s. 62.621
“Bond" means any bond, note, or other obligation of a city issued under this section.
“Common Council" means the common council of a city.
“Refunding bond" means an appropriation bond issued to fund or refund all or any part of one or more outstanding pension-related bonds.
Legislative finding and determination.
Recognizing that a city, by prepaying part or all of the city's unfunded prior service liability with respect to an employee retirement system of the city, may reduce its costs and better ensure the timely and full payment of retirement benefits to participants and their beneficiaries under the employee retirement system, the legislature finds and determines that it is in the public interest for the city to issue appropriation bonds to obtain proceeds to pay its unfunded prior service liability.
Authorization of appropriation bonds. 62.62(2)(a)
A common council shall have all powers necessary and convenient to carry out its duties, and to exercise its authority, under this section.
Subject to pars. (c)
, a common council may issue appropriation bonds under this section to pay all or any part of the city's unfunded prior service liability with respect to an employee retirement system of the city, or to fund or refund outstanding appropriation bonds issued under this section. A city may use proceeds of appropriation bonds to pay issuance or administrative expenses, to make deposits to reserve funds, to pay accrued or funded interest, to pay the costs of credit enhancement, to make payments under other agreements entered into under s. 62.621
, or to make deposits to stabilization funds established under s. 62.621
Other than refunding bonds issued under sub. (6)
, all bonds must be issued simultaneously.