The chiefs shall appoint subordinates subject to approval by the board. Such appointments shall be made by promotion when this can be done with advantage, otherwise from an eligible list provided by examination and approval by the board and kept on file with the clerk.
Any person who, on June 23, 1943 has served and acted as a full-time city police patrolman, patrolwoman or police officer performing the services by virtue of regular assignment therefor under the orders and supervision of the chief of police of said city, and receiving his or her salary on the regular official payroll of said police department for a continuous period of more than 10 years, although not regularly appointed from an eligible list, is deemed to have been regularly appointed, as of the time of the commencement of his or her service.
For the choosing of such list the board shall adopt, and may repeal or modify, rules calculated to secure the best service in the departments. These rules shall provide for examination of physical and educational qualifications and experience, and may provide such competitive examinations as the board shall determine, and for the classification of positions with special examination for each class. The board shall print and distribute the rules and all changes in them, at city expense.
The examination shall be free for all U.S. citizens over 18 and under 55 years of age, with proper limitations as to health and, subject to ss. 111.321
, and 111.335
, arrest and conviction record. The examination, including minimum training and experience requirements, shall be job-related in compliance with appropriate validation standards and shall be subject to the approval of the board and may include tests of manual skill and physical strength. All relevant experience, whether paid or unpaid, shall satisfy experience requirements. The board shall control examinations and may designate and change examiners, who may or may not be otherwise in the official service of the city, and whose compensation shall be fixed by the board and paid by the city. Veterans and their spouses shall be given preference points in accordance with s. 63.08 (1) (fm)
The council of any city of the 2nd, 3rd or 4th class may provide that members of the police force shall be of both sexes. The fire and police commission shall select each police officer from an eligible list.
(5) Disciplinary actions against subordinates. 62.13(5)(a)(a)
A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate.
Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate.
A subordinate may be suspended for just cause, as described in par. (em)
, by the chief or the board as a penalty. The chief shall file a report of such suspension with the commission immediately upon issuing the suspension. No hearing on such suspension shall be held unless requested by the suspended subordinate. If the subordinate suspended by the chief requests a hearing before the board, the chief shall be required to file charges with the board upon which such suspension was based.
Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885
If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require.
No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e)
, based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b)
, 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.
Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.
Further rules for the administration of this subsection may be made by the board.
No person shall be deprived of compensation while suspended pending disposition of charges.
Any person suspended, reduced, suspended and reduced, or removed by the board may appeal from the order of the board to the circuit court by serving written notice of the appeal on the secretary of the board within 10 days after the order is filed. Within 5 days after receiving written notice of the appeal, the board shall certify to the clerk of the circuit court the record of the proceedings, including all documents, testimony and minutes. The action shall then be at issue and shall have precedence over any other cause of a different nature pending in the court, which shall always be open to the trial thereof. The court shall upon application of the accused or of the board fix a date of trial, which shall not be later than 15 days after such application except by agreement. The trial shall be by the court and upon the return of the board, except that the court may require further return or the taking and return of further evidence by the board. The question to be determined by the court shall be: Upon the evidence is there just cause, as described under par. (em)
, to sustain the charges against the accused? No costs shall be allowed either party and the clerk's fees shall be paid by the city. If the order of the board is reversed, the accused shall be forthwith reinstated and entitled to pay as though in continuous service. If the order of the board is sustained it shall be final and conclusive.
The provisions of pars. (a)
shall apply to disciplinary actions against the chiefs where applicable. In addition thereto, the board may suspend a chief pending disposition of charges filed by the board or by the mayor of the city.
When it becomes necessary, because of need for economy, lack of work or funds, or for other just causes, to reduce the number of subordinates, the emergency, special, temporary, part-time, or provisional subordinates, if any, shall be dismissed first, and thereafter subordinates shall be dismissed in the order of the shortest length of service in the department, provided that, in cities where a record of service rating has been established prior to January 1, 1933, for the said subordinates, the emergency, special, temporary, part-time provisional subordinates, if any, shall be dismissed first, and thereafter subordinates shall be dismissed in the order of the least efficient as shown by the said service rating.
When it becomes necessary for such reasons to reduce the number of subordinates in the higher positions or offices, or to abolish any higher positions or offices in the department, the subordinate or subordinates affected thereby shall be placed in a position or office in the department less responsible according to the subordinate's efficiency and length of service in the department.
The name of a subordinate dismissed for any just cause set forth in this section shall be left on an eligible reemployment list for a period of 2 years after the date of dismissal, except that if the dismissal was for disciplinary reasons the subordinate may not be left on an eligible reemployment list. If any vacancy occurs, or if the number of subordinates is increased, in the department, the vacancy or new positions shall be filled by persons on the eligible reemployment list in the inverse order of the dismissal of the persons on the list.
The board of fire and police commissioners shall have the further power:
To organize and supervise the fire and police, or combined protective services, departments and to prescribe rules and regulations for their control and management.
To contract for and purchase all necessary apparatus and supplies for the use of the departments under their supervision, exclusive of the erection and control of the police station, fire station, and combined protective services station buildings.
To audit all bills, claims and expenses of the fire, police, and combined protective services departments before the same are paid by the city treasurer.
The provisions of this subsection shall apply only if adopted by the electors. Whenever not less than 70 days prior to a regular city election a petition therefor, conforming to the requirements of s. 8.40
and signed by electors equal in number to not less than 20 percent of the total vote cast in the city for governor at the last general election, shall be filed with the clerk as provided in s. 8.37
, the clerk shall give notice in the manner of notice of the regular city election of a referendum on the adoption of this subsection. Such referendum election shall be held with the regular city election, and the ballots shall conform with the provisions of ss. 5.64 (2)
, and the question shall be “Shall s. 62.13 (6)
of the statutes be adopted?"
If a city of less than 4,000 population has not by ordinance applied subs. (1)
to the city, the city may not suspend, reduce, suspend and reduce, or remove any police chief, combined protective services chief, or other law enforcement officer who is not probationary, and for whom there is no valid and enforceable contract of employment or collective bargaining agreement which provides for a fair review prior to that suspension, reduction, suspension and reduction or removal, unless the city does one of the following:
Establishes a committee of not less than 3 members, none of whom may be an elected or appointed official of the city or be employed by the city. The committee shall act under sub. (5)
in place of the board of police and fire commissioners. The city council may provide for some payment to each member for the member's cost of serving on the committee at a rate established by the city council.
Appoint a person who is not an elected or appointed official of the city and who is not employed by the city. The person shall act under sub. (5)
in place of the board. The city council may provide for some payment to that person for serving under this paragraph at a rate established by the city council.
The salaries of chiefs and subordinates shall be fixed by the council. Unless the council otherwise provides, in cities of the 4th class rewards for the apprehension of criminals may be retained by the person entitled thereto. Such salaries when so fixed may be increased but not decreased by the council without a previous recommendation of the board. The council may provide that the salaries shall increase with length of service.
The council of every city of the fourth class shall provide for, and the chief of the police or fire department, or the chief of the combined protective services department, shall assign to, each subordinate police officer, or each subordinate designated as primarily a police officer under sub. (2e) (b)
, in the service of such city one full rest day of 24 consecutive hours during each 192 hours, except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, the fire chief, or the chief of the combined protective services department, demands that such day of rest not be given at such time. Arrangements shall be made so that each full rest day may be had at such time or times as will not impair the efficiency of the department.
The council of every city of the second or third class shall provide for, and the chief of the police or fire department, or the chief of the combined protective services department, shall assign to, each subordinate police officer, or each subordinate designated as primarily a police officer under sub. (2e) (b)
, in the service of such city 2 full rest days of 24 consecutive hours each during each 192 hours, except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, the fire chief, or the chief of the combined protective services department, demands that any such day of rest not be given at such time. Arrangements shall be made so that each full rest day may be had at such time or times as will not impair the efficiency of the department. This section shall not apply to villages to which s. 61.65
(7n) Hours of labor.
Except when a labor agreement under subch. IV of ch. 111
that governs hours of employment exists, the council of every 2nd, 3rd or 4th class city shall provide for a working day of not more than 8 hours in each 24 except in cases of positive necessity by some sudden and serious emergency, which, in the judgment of the chief of police, the fire chief, or the chief of the combined protective services department, demands that such workday shall be extended beyond the 8-hour period at such time; and, when such emergency ceases to exist, all overtime given during such emergency shall be placed to the credit of such subordinate police officer, or each subordinate designated as primarily a police officer under sub. (2e) (b)
, and compensatory time under s. 103.025
The council may provide by ordinance for either a paid or a volunteer fire department and for the management and equipment of either insofar as not otherwise provided for by law. In the case where a combination of paid and volunteer fire department is provided for, such city shall be reimbursed by the department of transportation, not to exceed $500 for any fire calls on a state trunk highway or on any highway that is a part of the national system of interstate highways and is maintained by the department of transportation if the city submits written proof that the city has made a reasonable effort to collect the cost from the insurer of the person to whom the fire call was provided or from the person to whom the fire call was provided, except that the city may attempt to collect the cost from the person only if the city is unsuccessful in its efforts to collect from the person's insurer or if the person has no insurer. If the city collects the cost from an insurer or such person after the department reimburses the city, the city shall return the amount collected to the department.
A city may enter into a contract for fire protective services with a village, a town, or another city. A city that contracts for fire protective services shall pay the full cost of services provided. A city that contracts for all of its fire protective services under this paragraph and for all of its police protective services under sub. (2g)
is not required to have a board of police and fire commissioners. A city that contracts for all of its fire protective services under this paragraph, but not for all of its police protective services under sub. (2g)
, shall have a board of police and fire commissioners under this section, but the board may address only issues related to the police department.
(10m) Rules governing leaving city.
Subject to approval of the common council the fire chief, police chief, or the chief of the combined protective services department, may establish rules requiring subordinate fire fighters, or each subordinate designated as primarily a fire fighter under sub. (2e) (b)
, to obtain permission before leaving the city.
(11) Fire fighters, rest day.
The common council of every 4th class city, having a population of 5,000 or more and a fire department, or a combined protective services department, shall provide for, and the chief of the fire department, police department, or combined protective services department shall assign to each full paid subordinate member of the fire department or subordinate designated as primarily a fire fighter under sub. (2e) (b)
, a period of 24 consecutive hours off duty during each 72 hours, except in cases of positive necessity by some sudden and serious fire, accident or other peril, which, in the judgment of the chief engineer or other officer in charge demands that the day of rest not be given at that time. The provisions of this section shall not apply to cities having a 2-platoon or double shift system. The provisions of this subsection apply to a person designated as primarily a fire fighter who is employed by a police department, as described in sub. (2e)
The common council, or other governing body of every city of the first, second and third class, whether organized under a general or special charter, having a paid fire department, shall provide for, and the governing power of the fire department shall divide the full paid fire fighting force in the fire department into 2 or more bodies or platoons. Each platoon shall work, or be on duty, alternately an equal number of hours or as nearly so as the governing power of the fire department of each such city decides, but no member of said platoon shall be on duty for a longer continuous period of time than the governing power of the fire department designates, except in cases of positive necessity by some sudden and serious fire, accident, or other peril, which in the judgment of the chief engineer or other officer in charge demands.
The hours of duty of each member of the fire fighting force of the fire department in every city of the first class shall be limited to 72 hours in any one week. If any such department shall be on a platoon system of hours of duty, 12 hours may be added to one of 2 successive weeks and such period of time deducted from the previous or succeeding week, as the case may be.
History: 1971 c. 41
; 1971 c. 213
; 1975 c. 94
, 91 (5)
; 1975 c. 199
; 1977 c. 20
; 1977 c. 29
s. 1654 (8) (c)
; 1977 c. 151
; 1981 c. 171
; 1981 c. 390
; 1981 c. 391
; 1985 a. 135
s. 83 (3)
, (5); 1985 a. 166
; 1987 a. 27
; 1989 a. 31
; 1991 a. 32
; 1993 a. 16
; 1995 a. 225
; 1999 a. 182
; 2003 a. 205
; 2005 a. 40
; 2009 a. 173
; 2011 a. 32
; 2013 a. 20
; 2015 a. 150
A written charge of conduct unbecoming an officer filed by the chief was sufficiently specific when the officer did not object at the hearing. That one member of the board prejudged the case was immaterial when the decision was unanimous. State ex rel. Richey v. Neenah Police & Fire Commission, 48 Wis. 2d 575
, 180 N.W.2d 743
An amnesty agreement by a city not to prosecute a firefighter for striking, made as part of the settlement of the strike, does not bar a complaint by a citizen alleging a violation because of the strike. Durkin v. Madison Board of Police & Fire Commissioners, 48 Wis. 2d 112
, 180 N.W.2d 1
In 2nd and 3rd class cities, monthly compensation for purposes of computing a pension does not include employer contributions to the pension fund and health and life insurance. These items cannot be included by a collective bargaining agreement. State ex rel. Manitowoc v. Police Pension Board, 56 Wis. 2d 602
, 203 N.W.2d 74
Standby time required of municipal police officers by the issuance of a “yellow alert" under which officers were required to leave their names, phone numbers, and locations with the station house and were forbidden to leave the city without permission, did not constitute work or overtime under sub. (7n), since the officers were not confined at the police station and, although restricted in some senses, were basically free to spend the standby time for their own purposes. Theune v. Sheboygan, 67 Wis. 2d 33
, 226 N.W.2d 396
Legislatively created agencies or boards such as city police and fire commissions have the capacity to sue or be sued if that authority is necessary to carry out an express power or to perform an express duty, or if the action arises out of the performance of statutory powers or obligations. Racine Fire and Police Commission v. Stanfield, 70 Wis. 2d 395
, 234 N.W.2d 307
Review of determinations of fire and police commissions may be had only by writ of certiorari or by the appeal procedure provided by the legislature since the procedure under sub. (5) (i) is exclusive and conclusive. A party failing to commence certiorari proceeding within 6 months of a decision is guilty of laches. State ex rel. Enk v. Mentkowski, 76 Wis. 2d 565
, 252 N.W.2d 28
A labor contract under s. 111.70 may limit the scope of the police chief's discretion under sub. (4) (a). Glendale Professional Policemen's Association v. Glendale, 83 Wis. 2d 90
, 264 N.W.2d 594
By imposing an arbitrary and capricious penalty, a board exceeded its jurisdiction. State ex rel. Smits v. City of De Pere, 104 Wis. 2d 26
, 310 N.W.2d 607
A probationary officer had neither a constitutional nor a statutory right to a statement of specifications and a hearing on a city's decision not to retain him. Kaiser v. Wauwatosa Board of Police & Fire Commissioners, 104 Wis. 2d 498
, 311 N.W.2d 646
Service under sub. (5) (i) must be personal. Gibson v. Racine Police & Fire Commission, 123 Wis. 2d 150
, 366 N.W.2d 144
(Ct. App. 1985).
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
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).
Suppression of evidence is not required when a law enforcement officer obtains evidence outside of his or her 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).
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
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, 219 Wis. 2d 133
, 579 N.W.2d 294
(Ct. App. 1998), 97-1522
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
-like warnings, which in their absence would require the suppression of all statements made in the disciplinary proceedings. Herek v. Police & Fire Commission of Menomonee Falls, 226 Wis. 2d 504
, 595 N.W.2d 113
(Ct. App. 1999), 98-1927
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 and Fire Commission, 2000 WI 35
, 234 Wis. 2d 154
, 609 N.W.2d 464
The court properly determined whether salaries had been decreased under sub. (7) by comparing the plaintiff police officer's total cash receipts for each year at issue with his 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
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
There are two ways to appeal PFC decisions: 1) under sub. (5) (i) where 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 and Fire Commission, 2002 WI App 228
, 256 Wis. 2d 1008
, 652 N.W.2d 118
Having a common council liaison to the PFC was not a reasonable local adaptation of the statute. The liaison effectively was a representative of one of the parties yet sat with the PFC at hearings and, although nonvoting, participated in deliberations, tainting the appearance of PFC independence and rendering the PFC's decision void. State ex rel. Heil v. Green Bay Police and Fire Commission, 2002 WI App 228
, 256 Wis. 2d 1008
, 652 N.W.2d 118
Sub. (4) (a) and (c) grant police chiefs and PFCs 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, 2003 WI 51
, 261 Wis. 2d 485
, 662 N.W.2d 294
Fire chiefs, police chiefs, and PFCs 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 PFC. 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
A PFC 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 PFC on the examiner's recommendations when the rule ensures that the ultimate decision-making authority remains with the PFC. Conway v. Board of the Police and Fire Commissioners of the City of Madison, 2003 WI 53
, 262 Wis. 2d 1
, 662 N.W.2d 335
The PFC has exclusive statutory authority under s. 62.13 (5) to review disciplinary actions against firefighters. Any claim that a disciplinary termination is discriminatory under ch. 111 must be raised before the PFC. DWD may not take jurisdiction over a ch. 111 complaint arising out of a decision of a PFC to terminate a firefighter. City of Madison v. DWD, 2003 WI 76
, 262 Wis. 2d 652
, 664 N.W.2d 584
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
Sub. (5) (i) is not the exclusive remedy for a claim that the rules a subordinate was found to have violated were unconstitutionally vague and overbroad. Constitutional issues of vagueness or overbreadth may be considered under certiorari because they concern whether the PFC board kept within its jurisdiction and proceeded on a correct theory of the law. Gentilli v. Board of the Police and Fire Commissioners of the City of Madison, 2004 WI 60
, 272 Wis. 2d 1
, 680 N.W.2d 335
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
A citizenship requirement for peace officers is constitutional. 68 Atty. Gen. 61.
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
A firefighter's dismissal violated due process. Schulz v. Baumgart, 738 F.2d 231
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
There was no suspension under this section when 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 he was also employed as a police officer. Dixon v. City of New Richmond, 334 F.3d 691
Police accountability in Wisconsin. 1974 WLR 1131.
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.
History: 1991 a. 39