2023 Wisconsin Statutes & Annotations › Chapter 62 - Cities. › 62.50 - Police and fire departments in 1st class cities.

62.50
Police and fire departments in 1st class cities.
(1e)
Definition. In this section, “offense" means any felony or Class A or Class B misdemeanor violation of any of the following:
(a)
Chapters 940 and 941.
(b)
Section 942.08.
(c)
Section 942.09.
(d)
Chapters 943 to 948.
(1h)
Organization. In all 1st class cities, however incorporated, there shall be a board of fire and police commissioners, consisting of either 7 or 9 citizens, not more than 3, if the board has 7 members, or 4, if the board has 9 members, of whom shall at any time belong to the same political party. At least one member of the board shall be selected from a list submitted under sub. (1j) by the employee association that represents nonsupervisory law enforcement officers and at least one member shall be selected from a list submitted under sub. (1j) by the employee association that represents fire fighters. For an appointment that is required to be selected from a list under this subsection, the mayor shall make the appointment within 45 days after receiving a list under sub. (1j). The staff and members of the board shall receive the salary or other compensation for their services fixed by the common council. The salary shall be fixed at the same time and in the same manner as the salary of other city officials and employees. Except as otherwise provided in this subsection, a majority of the members-elect, as that term is used in s. 59.001 (2m), of the board shall constitute a quorum necessary for the transaction of business. A 3-member panel of the board may conduct, and decide by majority vote, a trial described under sub. (12) or may hear and decide, by majority vote, charges filed by an aggrieved person under sub. (19). It shall be the duty of the mayor of the city, on or before the 2nd Monday in July, to appoint 7, or 9, members of the board, designating the term of office of each, one to hold one year, 2 to hold 2 years, 2 to hold 3 years, one to hold 4 years if the board has 7 members, and 2 to hold 4 years if the board has 9 members, and one to hold 5 years if the board has 7 members, and 2 to hold 5 years if the board has 9 members, and until their respective successors shall be appointed and qualified. Thereafter the terms of office shall be 5 years from the 2nd Monday in July, and until a successor is appointed and qualified. The mayor may reduce the size of the board from 9 to 7 members by failing to appoint 2 successors for individuals whose terms expire at the same time. Every person appointed a member of the board shall be subject to confirmation by the common council and every appointed member shall, before entering upon the duties of the office take and subscribe the oath of office prescribed by article IV, section 28, of the constitution, and file the same duly certified by the officer administering it, with the clerk of the city. A member of the board may not continue in office after the expiration of his or her term unless the member is reappointed to the board and confirmed by the common council. Not later than the first day of the 7th month beginning after a member appointed by the mayor is confirmed by the common council, the member shall enroll in a training class that is related to the mission of the board and, not later than the first day of the 13th month beginning after a member appointed by the mayor is confirmed by the common council, the member shall complete the class. The training class shall be conducted by the city. Appointments made prior to the time this subchapter first applies to a 1st class city shall not be subject to confirmation by the common council.
(1j)
Selection of certain board members. Lists of individuals submitted under sub. (1h) by the employee association that represents nonsupervisory law enforcement officers and the employee association that represents fire fighters for selection shall each contain 3 names. Individuals included in a list under this subsection by an employee association that represents nonsupervisory law enforcement officers or fire fighters shall have professional law enforcement experience or professional fire fighting experience, respectively, and shall be at least 5 years removed from service as a professional law enforcement officer or fire fighter, respectively. Individuals included in a list under this subsection shall be residents of the 1st class city and may not be currently employed by the 1st class city. A list under this subsection shall be provided not more than 3 months after the occurrence of a vacancy in a position to be filled by selection from a list under this subsection.
(1m)
Policy review. The board shall conduct at least once each year a policy review of all aspects of the operations of the police and fire departments of the city and may advise the common council regarding any recommended policy changes. The board may inspect any property of the departments, including but not limited to books and records, required for a review under this section.
(2)
Control of appointments. No person may be appointed to any position either on the police force or in the fire department of the city, except with the approval of the board.
(3)
Regulation of the departments.
(a)
The chief of each department shall establish policies relating to the control and management of each department.
(am)
The common council may suspend or modify any policy established under par. (a) only upon a two-thirds vote of all of the members of the common council.
(b)
The board shall adopt rules to govern the selection and appointment of persons employed in the police and fire departments of the city. The rules shall be designed to secure the best service for the public in each department. The rules shall provide for ascertaining, as far as possible, physical qualifications, standing and experience of all applicants for positions, and may provide for the competitive examination of some or all applicants in such subjects as are deemed proper for the purpose of best determining the applicants' qualifications for the position sought. The rules may provide for the classification of positions in the service and for a special course of inquiry and examination for candidates for each class.
(c)
The rules of each department shall be available to the public at a cost not to exceed the actual copying costs.
(4)
Printing and distribution of regulations. The board shall cause the rules and regulations prepared and adopted under this section, and all changes therein, to be printed and distributed as the board deems necessary, and the expense thereof shall be certified by the board to the city comptroller and shall be paid by the city. The rules and regulations shall specify the date when they take effect, and thereafter all selections of persons for employment, appointment or promotion, either in the police force or the fire department of such cities except of the chief of police, the inspector of police, the chief engineer and the first assistant of the fire department, shall be made in accordance with such rules and regulations.
(5)
Examinations. The examinations which the rules and regulations provide for shall be public and free to all U.S. citizens with proper limitations as to age, health and, subject to ss. 111.321, 111.322 and 111.335, arrest and conviction record. The examinations shall be practical in their character and shall relate to those matters which fairly test the relative capacity of the candidates to discharge the duties of the positions in which they seek employment or to which they seek to be appointed and may include tests of manual skill and physical strength. The board shall control all examinations and may designate suitable persons, either in the official service of the city or not, to conduct such examinations and may change such examiners at any time, as seems best.
(6)
Appointment of chiefs. If a vacancy exists in the office of chief of police or in the office of chief engineer of the fire department, the board by a majority vote shall appoint proper persons to fill such offices respectively. When filling a vacancy in the office of chief of police or in the office of chief engineer of the fire department occurring after June 15, 1977, the board shall appoint the person to a term of office the number of years and commencement date of which shall be set by the city of the 1st class by ordinance and which may not exceed 10 years, or for the remainder of an unexpired term.
(7)
Assistant chiefs, inspectors and captains; vacancies.
(a)
If a vacancy exists in the office of assistant chief, the chief of police shall nominate and, with the approval of the board, shall appoint a person to a term of office coinciding with the term of the chief making the appointment, subject thereafter to reinstatement to a previously held position on the force in accordance with rules prescribed by the board. Removal of the assistant chief shall be pursuant to s. 17.12 (1) (c). The chief may summarily suspend the assistant chief whose removal is sought by the chief.
(b)
If a vacancy exists in the office of inspector of police or captain of police, the chief of police shall nominate and, with the approval of the board, shall appoint a person to the office subject to suspension and removal under this section.
(8)
First assistant engineer, vacancy. If a vacancy exists in the office of the first assistant engineer of the fire department, the chief engineer shall nominate and with the approval of the board shall appoint a suitable person to the office, subject to suspension and removal under this section.
(9)
Members of force, vacancies. All of the members of the force in either department named, at the time when the rules and regulations go into effect, shall continue to hold their respective positions at the pleasure of their respective chiefs, subject to trial under this section, and all persons subsequently appointed shall so hold. All vacancies in either department shall be filled and all new appointments shall be made by the respective chiefs with the approval of the board. Where vacancies in old offices or newly created offices can, with safety to the department, be filled by the promotion of officers or persons already in the service and who have proved their fitness for the promotion, the vacancies in newly created offices shall be so filled by promotion by the respective chiefs with the approval of the board.
(10)
Salaries; pensions. Provision may be made by the common council of a city by general ordinance that the salaries of the members of the force in the police and fire department of the city shall increase with the length of term of service. The salary and compensation of all members of the force in such departments shall be at all times subject to change by the common council, but the salary or compensation of the members of the force in the service of either department may not be decreased, except upon the previous recommendations of such change made in writing by the board to the common council. The common council may provide for an annual pension for life for such members of either service as are honorably discharged from same.
(10m)
Rest days. The council of every city of the 1st class, however organized, may provide for, and when such provision is made, the chief of the police department shall assign to each police officer in the service of the 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, 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 as will not impair the efficiency of the department.
(11)
Discharge or suspension. No member of the police force or fire department may be discharged or suspended for a term exceeding 30 days by the chief of either of the departments except for cause and after trial under this section.
(12)
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.
(13)
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).
(14)
Complaint. 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.
(15)
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.
(16)
Trial; adjournment. 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.
(17)
Decision, standard to apply.
(a)
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.
(b)
No police officer may be suspended, reduced in rank, suspended and reduced in rank, or discharged by the board under sub. (11), (13) or (19), or under par. (a), based on charges filed by the board, members of the board, an aggrieved person or the chief under sub. (11), (13) or (19), 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:
1.
Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.
2.
Whether the rule or order that the subordinate allegedly violated is reasonable.
3.
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.
4.
Whether the effort described under subd. 3. was fair and objective.
5.
Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.
6.
Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.
7.
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.
(18)
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) or (13) 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.
(19)
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.
(20)
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.
(Signed) ....
(21)
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.
(22)
Costs; reinstatement. 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.
(23)
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.
(24)
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.
(25)
Chief examiner. 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.
(26)
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.
(27)
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.
(28)
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.
(29)
Officers' rights. In case of a conflict with ch. 164, the provisions of ch. 164 supersede the provisions of this section.
History:  1977 c. 19, 20, 53, 151; 1977 c. 272 ss. 24 to 30, 92 to 95; 1979 c. 307, 351; 1979 c. 361 s. 113; 1981 c. 213, 380; 1981 c. 391 s. 211; 1983 a. 58, 179, 192, 219; 1989 a. 31; 1997 a. 237, 250; 1999 a. 9; 2001 a. 16; 2007 a. 114; 2009 a. 28; 2013 a. 20, 166; 2023 a. 12.
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 (1975).
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 (1975).
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 (1980).
Discharges based solely on coerced confessions were improper. Oddsen v. Board of Fire & Police Commissioners, 108 Wis. 2d 143, 321 N.W.2d 161 (1982).
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.
The 60-day period in sub. (17) refers to working days. Balcerzak v. Board of Fire & Police Commissioners, 2000 WI App 50, 233 Wis. 2d 644, 608 N.W.2d 382, 98-2889.
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, 99-2355.
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. State ex rel. Castaneda v. Welch, 2007 WI 103, 303 Wis. 2d 570, 735 N.W.2d 131, 04-3306.
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, 07-2433.
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, 10-2254.
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, 14-2821.
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 (1997).
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 (2017).
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 (2011).
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 (2016).