230.43 Misdemeanors; how punished. (1) HIRING PROCESS; OBSTRUCTION OR FALSIFICATIONS. Any person who, alone or in cooperation with one or more persons, does any of the following is, for each offense, guilty of a misdemeanor: (am) Willfully defeats, deceives or obstructs any person in respect of the rights of application or registration under this subchapter or any rules prescribed pursuant thereto. (b) Willfully or corruptly, falsely marks, grades, estimates, or reports upon an application or resume, or proper standing of any person evaluated, registered, or certified, pursuant to this subchapter, or aids in so doing. (c) Willfully or corruptly makes any false representations concerning the same, or concerning an applicant. (d) Willfully or corruptly furnishes any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any persons so evaluated, registered, or certified, being appointed, employed, or promoted. (e) Personates any other person, or permits or aids in any manner any other person to personate him or her in connection with any registration, application, or request to be evaluated or registered. (2) PROHIBITED APPOINTMENTS. Whoever, after a rule has been duly established and published, makes an appointment to office or selects a person for employment, contrary to such rule, or willfully refuses or neglects otherwise to comply with, or to conform to, this subchapter, or violates any of such provisions, shall be guilty of a misdemeanor. If any person is convicted under this subsection, any public office which such person may hold shall by force of such conviction be rendered vacant, and such person shall be incapable of holding public office for a period of 5 years from the date of such conviction.
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(3) PENALTY. Misdemeanors under this section are punishable by a fine of not less than $50 nor more than $1,000, or by imprisonment for not more than one year in the county jail or both. (4) RIGHTS OF EMPLOYEE. If an employee has been removed, demoted or reclassified, from or in any position or employment in contravention or violation of this subchapter, and has been restored to such position or employment by order of the commission or any court upon review, the employee shall be entitled to compensation therefor from the date of such unlawful removal, demotion or reclassification at the rate to which he or she would have been entitled by law but for such unlawful removal, demotion or reclassification. Interim earnings or amounts earnable with reasonable diligence by the employee shall operate to reduce back pay otherwise allowable. Amounts received by the employee as unemployment benefits or welfare payments shall not reduce the back pay otherwise allowable, but shall be withheld from the employee and immediately paid to the unemployment reserve fund or, in the case of a welfare payment, to the welfare agency making such payment. The employee shall be entitled to an order of mandamus to enforce the payment or other provisions of such order. (5) TAXPAYERS’ SUITS. The right of any taxpayer to bring any action to restrain the payment of compensation to any person appointed to or holding any office or place of employment in violation of this subchapter shall not be limited or denied by reason of the fact that the office or place of employment has been classified as, or determined to be, not subject to a competitive hiring process; however, any judgment or injunction in any such action shall be prospective only, and shall not affect payments already made or due to such persons by the proper disbursing officers, in accordance with the rules of the administrator in force at the time of such payments. History: 1971 c. 270 ss. 64, 75, 84 to 86; Stats. 1971 s. 16.38; 1977 c. 196 ss. 64, 130 (5); 1977 c. 273; Stats. 1977 s. 230.43; 1979 c. 221; 1981 c. 140; 1983 a. 27 s. 2200 (15); 2003 a. 33; 2015 a. 55, 150. Back pay under sub. (4) is not an available remedy in reinstatement cases. Seep v. Personnel Commission, 140 Wis. 2d 32, 409 N.W.2d 142 (Ct. App. 1987). This section does not confer any special right of action. The statute ensures that actions brought to enjoin the compensation of improperly appointed officials are not limited to classified employees. Association of Career Employees v. Klauser, 195 Wis. 2d 602, 536 N.W.2d 478 (Ct. App. 1995), 94-0632.
230.44
Appeal procedures. (1) APPEALABLE ACTIONS Except as provided in par. (e), the following are actions appealable to the commission under s. 230.45 (1) (a): (a) Decision made or delegated by director. Appeal of a personnel decision under this subchapter made by the director or by an appointing authority under authority delegated by the director under s. 230.05 (2). (b) Decision made or delegated by administrator. Appeal of a personnel decision under s. 230.09 (2) (a) or (d) or 230.13 (1) made by the administrator or by an appointing authority under authority delegated by the administrator under s. 230.04 (1m). (c) Demotion, layoff, suspension or discharge. If an employee has permanent status in class, or an employee has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more, the employee may appeal a demotion, layoff, suspension, discharge or reduction in base pay to the commission as the final step in the state employee grievance process established under s. 230.445, if the appeal alleges that the decision was not based on just cause. (d) Illegal action or abuse of discretion. A personnel action after certification which is related to the hiring process in the classified service and which is alleged to be illegal or an abuse of discretion may be appealed to the commission. (dm) Noncompetitive appointment of certain disabled veterans. A personnel action under s. 230.275 by an appointing auAND STEPS.
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thority that is alleged to be illegal or an abuse of discretion. The director and the division may not be a party to any such appeal. (e) Discretionary performance awards. This subsection does not apply to decisions of an appointing authority relating to discretionary performance awards under s. 230.12 (5) or under the discretionary merit award program established under s. 230.04 (19), including the evaluation methodology and results used to determine the award or the amount awarded. (f) Corrections employee rights. A determination that a person was discharged from the unclassified service for just cause under s. 230.337. (h) Decisions affecting Milwaukee County employees by the department of health services. A decision of the department of health services relating to a Milwaukee County employee under s. 49.825 (3) (b). (i) Decisions affecting certain county employees by the department of children and families. A decision of the department of children and families relating to a county employee under s. 49.826 (3) (b). (2) FORM. All appeals filed under this section shall be in writing. (3) TIME LIMITS. Any appeal filed under this section may not be heard unless the appeal is filed within 30 days after the effective date of the action, or within 30 days after the appellant is notified of the action, whichever is later. (4) HEARING. (a) A hearing under this section shall be open to the public unless the appellant requests that the hearing be closed. (b) An employee shall attend a hearing under this subsection and testify when requested to do so by the commission. Any person not under the civil service who appears before the commission by order shall receive for his or her attendance the fees and mileage provided for witnesses in civil actions in courts of record under ch. 885, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the commission and charged to the proper appropriation for the commission. No witness subpoenaed at the insistence of a party other than the commission is entitled to compensation from the state for attendance or travel, unless the commission certifies that his or her testimony was relevant and material to the matter. (bm) Upon request of an employee who files an appeal of the decision of the administrator made under s. 230.09 (2) (a) or (d), the appeal shall be heard by the commissioner or an attorney employed by the commission serving as arbitrator under rules promulgated for this purpose by the commission. In such an arbitration, the arbitrator shall orally render a decision at the conclusion of the hearing affirming, modifying, or rejecting the decision of the administrator. The decision of the arbitrator is final and is not subject to review by the commission. An arbitrator’s decision may not be cited as precedent in any other proceeding before the commission or before any court. The arbitrator shall promptly file his or her decision with the commission. The decision of the arbitrator shall stand as the decision of the commission. The decision of the commission is subject to review under ss. 227.53 to 227.57 only on the ground that the decision was procured by corruption, fraud, or undue means or that the arbitrator or the commission exceeded the arbitrator’s or the commission’s power. The record of a proceeding under this paragraph shall be transcribed as provided in s. 227.44 (8). (c) After conducting a hearing or arbitration on an appeal under this section, the commission or the arbitrator shall either affirm, modify or reject the action which is the subject of the appeal. If the commission or the arbitrator rejects or modifies the action, the commission may issue an enforceable order to remand
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the matter to the person taking the action for action in accordance with the decision. Any action brought against the person who is subject to the order for failure to comply with the order shall be brought and served within 60 days after the date of service of the decision of the commission or the arbitrator. (d) The commission may not remove an incumbent or delay the appointment process as a remedy to a successful appeal under this section unless there is a showing of obstruction or falsification as enumerated in s. 230.43 (1). (e) Any party in an action under this section may be present at a hearing in the action under this section, in person, by attorney or by any other agent. (f) The commission shall issue a decision on an action under this section within 90 days after the hearing on the action is completed. History: 1977 c. 196; 1979 c. 221; 1981 c. 140; 1983 a. 27; 1989 a. 31; 1991 a. 269; 1993 a. 16; 1995 a. 27; 1997 a. 307; 1999 a. 102; 2003 a. 33; 2009 a. 15, 28, 212; 2013 a. 123; 2015 a. 55, 150; 2017 a. 59. The discharge of a probationary employee is not appealable as part of the “hiring process” under sub. (1) (d). Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981). The commission had jurisdiction to hear the appeal of a career executive employee’s reassignment to a job in a lower pay range who alleged that the reassignment was for disciplinary purposes and was unreasonable and an improper exercise of discretion. Basinas v. State, 104 Wis. 2d 539, 312 N.W.2d 483 (1981). While this section’s procedures may be available to persons other than affected employees, an action to have declared illegal an alleged intentional and systematic attempt to circumvent civil service laws for partisan political purposes was not barred due to a failure to meet the appeal time limits of this section. Association of Career Employees v. Klauser, 195 Wis. 2d 602, 536 N.W.2d 478 (Ct. App. 1995), 94-0632. The plain meaning of “effective date of the action” in sub. (3) is the date on which the action takes effect. The action in this case was the extension of the employee’s probation, and the extension took effect at the time his prior probationary period expired. Stern v. WERC, 2006 WI App 193, 296 Wis. 2d 306, 722 N.W. 2d 594, 053144. The time limit in sub. (3) may be waived. Stern v. WERC, 2006 WI App 193, 296 Wis. 2d 306, 722 N.W. 2d 594, 05-3144.
230.445 Grievance process for demotion, suspension, discharge, layoff, or reduction in base pay. (1) In this section: (a) “Adverse employment decision” means a decision to demote, layoff, suspend without pay, discharge, or reduce the base pay of an employee. (b) “Employee” means an employee who has obtained permanent status in class or an employee who has served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more. (2) An employee may file a complaint under this section concerning the application of a law, rule, or policy to an adverse employment decision against the employee. If an employee does not file a complaint or an appeal by an applicable deadline under sub. (3), the employee waives his or her right to appeal the adverse employment decision under this subchapter. (3) (a) 1. To commence the grievance process for an adverse employment action, an employee shall file a complaint with the employee’s appointing authority challenging the adverse employment decision against the employee no later than 14 days after the employee becomes aware of, or should have become aware of, the decision that is the subject of the complaint. 2. An appointing authority, or his or her designee, who receives a timely complaint under subd. 1. shall conduct any investigation he or she considers necessary, meet with the employee in person, and issue a decision, in writing, not later than 14 days after the date of which the appointing authority, or his or her designee, received the employee’s complaint. If the appointing authority does not issue a written decision within 15 days after receiving the employee’s complaint, the employee may appeal to the administrator under par. (b). (b) 1. If an appointing authority does not find in favor of the
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employee under par. (a), the employee may appeal the appointing authority’s decision by filing a complaint with the administrator. The employee may not file a complaint under this subdivision later than 14 days after the date of the appointing authority’s decision. 2. If the administrator receives a timely complaint under subd. 1., the administrator shall review the complaint and the appointing authority’s written decision, and shall issue a decision, in writing, no later than 30 days after the date the employee filed a complaint with the administrator. If the administrator does not issue a written decision within 31 days after receiving the employee’s complaint, the employee may appeal to the commission under par. (c). (c) 1. An employee or an appointing authority may appeal a decision issued by the administrator under par. (b) by filing an appeal with the commission. The employee or appointing authority may not file an appeal with the commission under this paragraph later than 14 days after receiving the administrator’s decision. Within 10 days of receiving an appeal, the commission shall determine whether all procedural requirements were completed properly and in a timely manner. If a procedural requirement was not met by the employee or if the appointing authority’s appeal under this paragraph was not made in a timely manner, the commission shall dismiss the appeal. If all of the procedural requirements were met, the commission shall hear the appeal under s. 230.44 (4), except that the commission shall issue a decision on the appeal no later than 120 days after the date the appeal is filed with the commission. 2. To ensure that the commission issues its decision no later than 120 days after an appeal is filed under this paragraph, all of the following apply to a hearing before the commission for an appeal under this paragraph: a. The parties shall participate in a pre-hearing conference no later than 20 days after the filing of the appeal. The commission shall set the date of the hearing at the pre-hearing conference. b. Discovery shall be completed no later than 60 days after the appeal is filed. c. The commission shall rule on all motions no later than 30 days before the date of the hearing. d. The commission may only grant an extension to a deadline provided in this subdivision for extraordinary circumstances. The commission may not grant an extension beyond the 120-day limit for issuing its decision. e. Continuances of the hearing may be granted only in extraordinary circumstances, as determined by the commission. History: 2015 a. 150; 2017 a. 364 s. 49.
230.45 Powers and duties of commission and division of equal rights. (1) The commission shall: (a) Conduct hearings on appeals under s. 230.44. (am) Serve as an arbitrator, or designate an attorney employed by the commission to serve as an arbitrator, in arbitrations under s. 230.44 (4) (bm). (c) Serve as final step arbiter in the state employee grievance procedure established under s. 230.04 (14). (d) Hear appeals under ss. 230.36 (4) and 321.68 (4). (h) Keep minutes of its own proceedings and other official actions. All such records shall, subject to reasonable rules, be open to public inspection. Records of the director or the administrator which are confidential shall be kept confidential by the commission. (i) Adopt rules necessary to carry out this section. Notice of the contents of such rules and amendments thereto shall be given
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promptly to the director, the administrator and appointing authorities affected thereby. (1e) The division of equal rights shall: (a) Receive and process complaints of discrimination of state employees under s. 111.375. In the course of investigating or otherwise processing such a complaint, the division of equal rights may require that an interview with any state employee, except a management or supervisory employee who is a party to or immediately involved in the subject matter of the complaint, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the division of equal rights to give the appointing authority reasonable notice prior to the interview. (b) Receive and process complaints of retaliatory disciplinary action under s. 230.85. (c) Keep minutes of its own proceedings and other official actions relating to this chapter. All such records shall, subject to reasonable rules, be open to public inspection. Records of the director or the administrator which are confidential shall be kept confidential by the division of equal rights. (d) Adopt rules necessary to carry out this section. Notice of the contents of such rules and amendments thereto shall be given promptly to the director, the administrator, and appointing authorities affected thereby. (1m) The commission shall waive the investigation and determination of probable cause of any complaint that is filed by a complainant under sub. (1) or s. 103.10 (12) (b) at the complainant’s request. If the commission waives the investigation and probable cause determination, the commission shall proceed with a hearing on the complaint. The commission’s waiver of an investigation and probable cause determination does not affect the commission’s right to attempt to resolve the complaint by conference, conciliation or persuasion. (2) Subsection (1) (c) does not apply to an employee who, using the agency grievance procedure, grieves his or her dissatisfaction with the evaluation methodology and results used to determine any discretionary performance award or the amount of such an award. Any such employee grievance shall be settled on the basis of the appointing authority’s decision. (3) The commission shall promulgate rules establishing a schedule of filing fees to be paid by any person who files an appeal under sub. (1) (c) or s. 230.44 (1) (a) or (b) with the commission on or after the effective date of the rules promulgated under this subsection. Fees paid under this subsection shall be credited to the appropriation account under s. 20.425 (1) (i).
The council shall report at least once per year to the governor and the legislature.
History: 1977 c. 196; 1979 c. 221; 1981 c. 334 s. 25 (2); 1981 c. 360; 1983 a. 27, 398, 409; 1987 a. 140, 331; 1987 a. 403 s. 256; 1989 a. 56 s. 259; 1991 a. 39; 1993 a. 16; 1995 a. 27; 1997 a. 131, 216; 1999 a. 176; 2001 a. 26, 38; 2003 a. 33; 2005 a. 25; 2009 a. 212; 2017 a. 59, 274. Cross-reference: See also ch. DWD 224, Wis. adm. code. The power to investigate complaints and issue subpoenas is included within the meaning of “receive and process.” 68 Atty. Gen. 403.
History: 1971 c. 270 s. 87; Stats. 1971 s. 16.34; 1977 c. 196 s. 61; Stats. 1977 s. 16.008; 1977 c. 418 s. 36; Stats. 1977 s. 16.006; 1981 c. 20; 1987 a. 142; 1989 a. 31 s. 99; Stats. 1989 s. 230.48; 2003 a. 33; 2011 a. 32; 2015 a. 55.
230.46 Duties of council on affirmative action. The council on affirmative action shall serve in a direct advisory capacity to the administrator and as part of that relationship shall evaluate the progress of affirmative action programs throughout the civil service system, seek compliance with state and federal regulations and recommend improvements in the state’s affirmative action efforts as an employer. In carrying out its responsibilities, the council may recommend legislation, consult with agency personnel and other interested persons, conduct hearings and take other appropriate action to promote affirmative action.
History: 1977 c. 196; 1983 a. 27; 2003 a. 33; 2015 a. 55.
230.48 State employees suggestion board. (1) DUTIES. The state employees suggestion board shall do all of the following: (a) Formulate, establish and maintain a plan or plans to encourage and reward unusual and meritorious suggestions and accomplishments by state employees promoting efficiency and economy in the performance of any function of state government. (b) Appoint departmental or divisional committees to analyze and review suggestions and accomplishments of state employees submitted for consideration under the plan or plans established under par. (a), and make recommendations regarding the plan or plans to the state employees suggestion board. (c) Make and render awards to or for the benefit of state employees nominated to receive them in accordance with the plan or plans established under par. (a). (2) PERSONNEL, FACILITIES AND EQUIPMENT. The administrator shall appoint, under the classified service, a secretary and such other employees as are necessary to carry out the duties of the state employees suggestion board, and shall provide such facilities and equipment as that board requires for the proper performance of its work. The state employees suggestion board may request and shall receive from any state department any assistance that it requires. (3) AWARDS. The state employees suggestion board may determine the nature and extent of the awards to be made under this section which may include, but shall not be limited to, all of the following: (a) Certificates, medals or other insignia, in the form and awarded at the times that the state employees suggestion board determines. (b) Cash awards, in an amount equal to 10 percent of the average annual savings that result from the suggestion, with a minimum payment of $50 and a maximum payment of $10,000, and payable at the times that the state employees suggestion board determines. (4) RULES. The state employees suggestion board may promulgate rules governing the operation of any plan or plans established under sub. (1) (a), the eligibility and qualifications of state employees participating under this section, the character and quality of suggestions and accomplishments submitted for consideration, the method of their submission and the procedure for their review, nominations for awards, and the kind, character and value of the awards, and any other rules as are necessary for the proper administration of this section or for the accomplishment of the purposes of this section.
SUBCHAPTER III EMPLOYEE PROTECTION Cross-reference: See also ch. DWD 224, Wis. adm. code.
230.80 Definitions. In this subchapter: (1) “Abuse of authority” means an arbitrary or capricious exercise of power. (1m) “Appointing authority” means the chief officer of any governmental unit unless another person is authorized to appoint subordinate staff by the constitution or any law. (2) “Disciplinary action” means any action taken with respect
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to an employee which has the effect, in whole or in part, of a penalty, including but not limited to any of the following: (a) Dismissal, demotion, transfer, removal of any duty assigned to the employee’s position, refusal to restore, suspension, reprimand, verbal or physical harassment or reduction in base pay. (b) Denial of education or training, if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation or other personnel action. (c) Reassignment. (d) Failure to increase base pay, except with respect to the determination of a discretionary performance award. (3) “Employee” means any person employed by any governmental unit except: (a) A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13. (b) A person who is, or whose immediate supervisor is, assigned to an executive salary group under s. 20.923 or a person who has, or whose immediate supervisor has, a position specified in s. 36.115 (3m) (ae) to (f). (4) “Governmental unit” means any association, authority, board, commission, department, independent agency, institution, office, society, or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor, and the courts. “Governmental unit” does not mean any political subdivision of the state or body within one or more political subdivisions that is created by law or by action of one or more political subdivisions. (5) “Information” means information gained by the employee which the employee reasonably believes demonstrates: (a) A violation of any state or federal law, rule or regulation. (b) Mismanagement or abuse of authority in state or local government, a substantial waste of public funds or a danger to public health and safety. (6) “Merit further investigation” means reasonably indicates the existence of a situation justifying inquiry. (7) “Mismanagement” means a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function. “Mismanagement” does not mean the mere failure to act in accordance with a particular opinion regarding management techniques. (8) “Retaliatory action” means a disciplinary action taken because of any of the following: (a) The employee lawfully disclosed information under s. 230.81 or filed a complaint under s. 230.85 (1). (b) The employee testified or assisted or will testify or assist in any action or proceeding relating to the lawful disclosure of information under s. 230.81 by another employee. (c) The appointing authority, agent of an appointing authority or supervisor believes the employee engaged in any activity described in par. (a) or (b). (9) “Substantial waste of public funds” means an unnecessary expenditure of a substantial amount of money or a series of unnecessary expenditures of smaller amounts of money. History: 1983 a. 409; 1995 a. 27, 326; 1997 a. 237; 2005 a. 74; 2013 a. 20; 2015 a. 55. A “pattern of incompetent management actions” under sub. (7) requires more than a claim of a single act of incompetent management. A continuing course of conduct requires multiple actions to constitute a pattern. Hutson v. Wisconsin Personnel Commission, 2003 WI 97, 263 Wis. 2d 612, 665 N.W.2d 212, 01-2959. An opinion alone, as to the lawfulness or appropriateness of government activity is not “information” as that term is defined in sub. (5). Department of Justice v. DWD, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545, 13-1488. The most reasonable interpretation of sub. (8) (c) is that it is aimed at situations when a supervisor retaliates on the basis of a mistake of fact, such as when a super-
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visor is told that an employee engaged in conduct that could constitute disclosure of information, but the employee had not in fact engaged in that conduct — not when the employee is not protected by ss. 230.80 to 230.89, but the employer believed the employee was protected by ss. 230.80 to 230.89. Department of Justice v. DWD, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545, 13-1488.
230.81 Employee disclosure. (1) An employee with knowledge of information the disclosure of which is not expressly prohibited by state or federal law, rule or regulation may disclose that information to any other person. However, to obtain protection under s. 230.83, before disclosing that information to any person other than his or her attorney, collective bargaining representative or legislator, the employee shall do either of the following: (a) Disclose the information in writing to the employee’s supervisor. (b) After asking the division of equal rights which governmental unit is appropriate to receive the information, disclose the information in writing only to the governmental unit that the division of equal rights determines is appropriate. The division of equal rights may not designate the department of justice, the courts, the legislature or a service agency under subch. IV of ch. 13 as an appropriate governmental unit to receive information. Each appropriate governmental unit shall designate an employee to receive information under this section. (2) Nothing in this section prohibits an employee from disclosing information to an appropriate law enforcement agency, a state or federal district attorney in whose jurisdiction the crime is alleged to have occurred, a state or federal grand jury or a judge in a proceeding commenced under s. 968.26, or disclosing information pursuant to any subpoena issued by any person authorized to issue subpoenas under s. 885.01. Any such disclosure of information is a lawful disclosure under this section and is protected under s. 230.83. (3) Any disclosure of information by an employee to his or her attorney, collective bargaining representative or legislator or to a legislative committee or legislative service agency is a lawful disclosure under this section and is protected under s. 230.83. History: 1983 a. 409; 2003 a. 33. Cross-reference: See also ch. DWD 224, Wis. adm. code. Under sub. (1), the disclosure of information does not cover employee statements that merely voice opinions or offer criticism. This section extends protection only to the disclosure of information gained by the employee that the employee reasonably believes demonstrates one of the enumerated inappropriate activities contained in the definition of “information” in s. 230.80 (5). An employee’s opinion regarding the lawfulness or appropriateness of an employer action fulfilled the second of these factors, but not the first. Department of Justice v. DWD, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545, 13-1488. To “disclose” information under this section, the recipient must have been previously unaware of the information at the time of the communication. Department of Justice v. DWD, 2015 WI 114, 365 Wis. 2d 694, 875 N.W.2d 545, 13-1488. The Department of Workforce Development, Equal Rights Division’s (ERD) interpretation of “supervisor” as used in sub. (1) (a) was reasonable. ERD has long interpreted supervisor to mean any person within an employee’s supervisory chain of command. ERD’s interpretation reasonably means a supervisor is any person with actual authority to take employment action or to effectively recommend such action. Under ERD’s interpretation of the term “supervisor” and the phrase “an employee’s supervisor,” it could be that a particular employee has more than one “chain of command.” Bethards v. DWD, 2017 WI App 37, 376 Wis. 2d 347, 899 N.W.2d 364, 160409. The court declined to adopt the categorical rule that a human resources, or like, supervisor will never be within an employee’s supervisory chain of command, even when that employee works in a different division within an organizational structure. The determination of whether a particular recipient of a disclosure is an employee’s supervisor is a mixed question of law and fact. The factual findings will determine both how the employee’s supervisory authority is structured and which individuals have actual authority to take employment action or effectively recommend such action, or otherwise have authority to direct an employee’s job performance. Bethards v. DWD, 2017 WI App 37, 376 Wis. 2d 347, 899 N.W.2d 364, 16-0409. Don’t Whistle While You Work: Wisconsin’s Vanishing Protections for Public Employee Whistleblowers. Triggs. 2019 WLR 129.
230.82 Processing of information. (1) A governmental unit to which an employee discloses information under s. 230.81 (1) shall process it as provided in this section. Within 30 days of receiving the information, the governmental unit shall either initially determine if it merits further investigation or refer the infor-
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mation to a governmental unit better able to initially determine if it merits further investigation. A governmental unit which initially determines information to merit further investigation shall, within 30 days of that determination, either commence a full investigation into the truth of the information or refer the information to a governmental unit better able to conduct such an investigation, which shall commence it within 30 days of referral. A governmental unit may disclose or refer information to an appropriate law enforcement agency or district or federal attorney as part of an investigation or in lieu of referral to another governmental unit, if the law enforcement agency or district or federal attorney is best able to conduct the investigation. Any full investigation commenced shall be completed within a reasonable time. (2) A governmental unit which initially determines that information merits further investigation, or which after a full investigation finds information to be true, shall so inform the employee and his or her appointing authority in writing. A governmental unit which initially determines information not to merit further investigation, refers the information to another governmental unit or after a full investigation finds information to be untrue shall so inform the employee in writing. (3) A governmental unit which investigates or otherwise processes information disclosed under s. 230.81 may require that an interview with any employee described in s. 230.80 (3), except a management or supervisory employee immediately involved in the subject matter of the information disclosed, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the governmental unit to give the appointing authority reasonable notice prior to the interview. (4) A governmental unit shall keep the identity of the employee confidential until the governmental unit determines the information merits further investigation. If a governmental unit conducts a full investigation, it shall keep the identity of the employee confidential if it is reasonably possible to do so. History: 1983 a. 409.
230.83 Retaliatory action prohibited. (1) No appointing authority, agent of an appointing authority or supervisor may initiate or administer, or threaten to initiate or administer, any retaliatory action against an employee. (2) This section does not apply to an employee who discloses information if the employee knows or anticipates that the disclosure is likely to result in the receipt of anything of value for the employee or for the employee’s immediate family, unless the employee discloses information in pursuit of any award offered by any governmental unit for information to improve government administration or operation. (3) Nothing in this section restricts the right of an employer to take appropriate disciplinary action against an employee who knowingly makes an untrue statement or discloses information the disclosure of which is expressly prohibited by state or federal law, rule or regulation. History: 1983 a. 409. Cross-reference: See also ch. DWD 224, Wis. adm. code.
230.85 Enforcement. (1) An employee who believes that a supervisor or appointing authority has initiated or administered, or threatened to initiate or administer, a retaliatory action against that employee in violation of s. 230.83 may file a written complaint with the division of equal rights, specifying the nature of the retaliatory action or threat thereof and requesting relief, within 60 days after the retaliatory action allegedly occurred or
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was threatened or after the employee learned of the retaliatory action or threat thereof, whichever occurs last. (2) The division of equal rights shall receive and, except as provided in s. 230.45 (1m), investigate any complaint under sub. (1). In the course of investigating or otherwise processing such a complaint, the division of equal rights may require that an interview with any employee described in s. 230.80 (3), except a management or supervisory employee who is a party to or is immediately involved in the subject matter of the complaint, be conducted outside the presence of the appointing authority or any representative or agent thereof unless the employee voluntarily requests that presence. An appointing authority shall permit an employee to be interviewed without loss of pay and to have an employee representative present at the interview. An appointing authority of an employee to be interviewed may require the division of equal rights to give the appointing authority reasonable notice prior to the interview. If the division of equal rights finds probable cause to believe that a retaliatory action has occurred or was threatened, it may endeavor to remedy the problem through conference, conciliation or persuasion. If that endeavor is not successful, the division of equal rights shall issue and serve a written notice of hearing, specifying the nature of the retaliatory action which has occurred or was threatened, and requiring the person named, in this section called the “respondent”, to answer the complaint at a hearing. The notice shall specify the place of hearing and a time of hearing not less than 30 days after service of the complaint upon the respondent nor less than 10 days after service of the notice of hearing. If, however, the division of equal rights determines that an emergency exists with respect to a complaint, the notice of hearing may specify a time of hearing within 30 days after service of the complaint upon the respondent, but not less than 10 days after service of the notice of hearing. The testimony at the hearing shall be recorded or taken down by a reporter appointed by the division of equal rights. (3) (a) After hearing, the division of equal rights shall make written findings and orders. If the division of equal rights finds that the respondent engaged in or threatened a retaliatory action, it shall order the employee’s appointing authority to insert a copy of the findings and orders into the employee’s personnel file and, if the respondent is a natural person, order the respondent’s appointing authority to insert such a copy into the respondent’s personnel file. In addition, the division of equal rights may take any other appropriate action, including but not limited to the following: 1. Order reinstatement or restoration of the employee to his or her previous position with or without back pay. 2. Order transfer of the employee to an available position for which the employee is qualified within the same governmental unit. 3. Order expungement of adverse material relating to the retaliatory action or threat from the employee’s personnel file. 4. Order payment of the employee’s reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to participate in proceedings before the division of equal rights. 5. Recommend to the appointing authority of a respondent who is a natural person that disciplinary or other action be taken regarding the respondent, including but not limited to any of the following: a. Placement of information describing the respondent’s violation of s. 230.83 in the respondent’s personnel file. b. Issuance of a letter reprimanding the respondent. c. Suspension. d. Termination.
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(b) If, after hearing, the division of equal rights finds that the respondent did not engage in or threaten a retaliatory action it shall order the complaint dismissed. The division of equal rights shall order the employee’s appointing authority to insert a copy of the findings and orders into the employee’s personnel file and, if the respondent is a natural person, order the respondent’s appointing authority to insert such a copy into the respondent’s personnel file. If the division of equal rights finds that the employee filed a frivolous complaint it may order payment of the respondent’s reasonable actual attorney fees and actual costs. Payment may be assessed against either the employee or the employee’s attorney, or assessed so that the employee and the employee’s attorney each pay a portion. To find a complaint frivolous the division of equal rights must find that s. 802.05 (2) or 895.044 has been violated. (c) Pending final determination by the division of equal rights of any complaint under this section, the division of equal rights may make interlocutory orders. (d) Interim earnings or amounts earnable with reasonable diligence by the person subjected to the retaliatory action or threat shall reduce back pay otherwise allowable. Amounts received by the person subjected to the retaliatory action or threat as unemployment benefits or welfare payments do not reduce the back pay otherwise allowable, but shall be withheld from the person subjected to the retaliatory action or threat and immediately paid to the unemployment reserve fund or to the welfare agency making the payment. (4) The division of equal rights shall serve a certified copy of the findings and order on the respondent and, if the respondent is a natural person, upon the respondent’s appointing authority. (5) (a) If a respondent does not comply with any lawful order by the division of equal rights, for each such failure the respondent shall forfeit a sum of not less than $10 nor more than $100. Every day during which a respondent fails to comply with any order of the division of equal rights constitutes a separate violation of that order. (b) As an alternative to par. (a), the division of equal rights may enforce an order by a suit in equity. (6) (a) If a disciplinary action occurs or is threatened within the time prescribed under par. (b), that disciplinary action or threat is presumed to be a retaliatory action or threat thereof. The respondent may rebut that presumption by a preponderance of the evidence that the disciplinary action or threat was not a retaliatory action or threat thereof. (b) Paragraph (a) applies to a disciplinary action under s. 230.80 (2) (a) which occurs or is threatened within 2 years, or to a disciplinary action under s. 230.80 (2) (b), (c) or (d) which occurs or is threatened within one year, after an employee discloses information under s. 230.81 which merits further investigation or after the employee’s appointing authority, agent of an appointing authority or supervisor learns of that disclosure, whichever is later. History: 1983 a. 409; 1991 a. 39; 2003 a. 33; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2011 a. 2; 2017 a. 59. Cross-reference: See also ch. DWD 224, Wis. adm. code. The commission may not use a “multiplier” in computing reasonable attorney fees under sub. (3) (a) 4.; only SCR 20:1.5 factors are permissible. Board of Regents v. Personnel Commission, 147 Wis. 2d 406, 433 N.W.2d 273 (Ct. App. 1988).
230.86 Discipline based on surveillance. (1) No appointing authority may take any disciplinary action based in whole or in part on wiretapping, electronic surveillance or oneway mirrors unless that surveillance produces evidence that the employee against whom disciplinary action is taken has committed a crime or unless that surveillance is authorized by the appointing authority and is conducted in accordance with the rules promulgated under s. 16.004 (12).
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(2) Subsection (1) does not apply to wiretapping, electronic surveillance or one-way mirrors used to monitor security or used for public safety purposes at a state institution. History: 1989 a. 245; 1993 a. 496. Cross-reference: See also ch. DWD 224, Wis. adm. code.
230.87 Judicial review. (1) Findings and orders of the division of equal rights under this subchapter are subject to judicial review under ch. 227. Upon that review, or in any enforcement action, the department of justice shall represent the division of equal rights unless a conflict of interest results from that representation. A court may order payment of a prevailing appellant employee’s reasonable attorney fees by a governmental unit respondent, or by a governmental unit employing a respondent who is a natural person if that governmental unit received notice and an opportunity to appear before the court. (2) If the court finds that the appeal is frivolous, it shall award to the respondent reasonable attorney fees and costs. Payment may be assessed fully against the appellant, including a governmental unit, or the appellant’s attorney or assessed so that the appellant and the appellant’s attorney each pay a portion. To find an appeal frivolous, the court must find one or more of the following: (a) The appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another. (b) The appellant or appellant’s attorney knew, or should have known, that the appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law. History: 1983 a. 409; 1985 a. 135; 2003 a. 33. Cross-reference: See also ch. DWD 224, Wis. adm. code.
230.88 Payment of award, judgment or settlement; effect of order, arbitration award or commencement of court action. (1) PAYMENT. Any award, judgment or settlement obtained by an employee under this subchapter shall be paid from the funds appropriated under s. 20.865 (1) (a), (g) and (q). (2) EFFECT. (a) A final order issued under s. 230.85 or 230.87 which has not been appealed and for which the time of appeal has passed binds all parties who were subjected to the jurisdiction of the division of equal rights or the court and who received an opportunity to be heard. With respect to these parties, the decree is conclusive as to all issues of law and fact decided. (b) No collective bargaining agreement supersedes the rights of an employee under this subchapter. However, nothing in this subchapter affects any right of an employee to pursue a grievance procedure under a collective bargaining agreement under subch. V of ch. 111, and if the division of equal rights determines that a grievance arising under such a collective bargaining agreement involves the same parties and matters as a complaint under s. 230.85, it shall order the arbitrator’s final award on the merits conclusive as to the rights of the parties to the complaint, on those matters determined in the arbitration which were at issue and upon which the determination necessarily depended. (c) No later than 10 days before the specified time of hearing under s. 230.85 (2), an employee shall notify the division of equal rights orally or in writing if he or she has commenced or will commence an action in a court of record alleging matters prohibited under s. 230.83 (1). If the employee does not substantially comply with this requirement, the division of equal rights may assess against the employee any costs attributable to the failure to notify. Failure to notify the division of equal rights does not affect a court’s jurisdiction to proceed with the action. Upon commencement of such an action in a court of record, the division of equal rights has no jurisdiction to process a complaint filed under
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s. 230.85 except to dismiss the complaint and, if appropriate, to assess costs under this paragraph. History: 1983 a. 409; 2003 a. 33; 2009 a. 28; 2011 a. 10. The commission lost its subject matter jurisdiction over the appellant’s whistleblower complaint once an action was filed in the federal district court that included allegations of state whistleblower violations. The state did not waive the jurisdictional issue by informing the commission that it had no objection to holding the commission proceeding in abeyance while the claims were pursued in federal court. The legislature expressly withdrew the power of the commission to adjudicate whistleblower claims once an action alleging those claims is filed in a court of record. Albrechtsen v. DWD, 2005 WI App 241, 288 Wis. 2d 144, 708 N.W.2d 1, 04-2130.
230.89 Rule making and reporting. (1) The division of equal rights shall promulgate rules to carry out its responsibilities under this subchapter. (2) Every 2 years, the division of equal rights shall submit a report to the chief clerk of each house of the legislature, for distribution to the appropriate standing committees under s. 13.172 (3), regarding complaints filed, hearings held and actions taken under this subchapter, including the dollar amount of any monetary settlement or final monetary award which has become binding on the parties. History: 1983 a. 409; 1987 a. 186; 2003 a. 33. Cross-reference: See also ch. DWD 224, Wis. adm. code.
SUBCHAPTER IV EMPLOYEE FREEDOM OF SPEECH PROTECTION 230.90 Government employer retaliation prohibited. (1) In this section: (a) “Disciplinary action” means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty. (b) “Employee” means any person employed by any governmental unit except: 1. A person employed by the office of the governor, the courts, the legislature or a service agency under subch. IV of ch. 13. 2. A person who is, or whose immediate supervisor is, assigned to an executive salary group under s. 20.923 or a person who has, or whose immediate supervisor has, a position specified in s. 36.115 (3m) (ae) to (f). (c) “Governmental unit” means any association, authority, board, commission, department, independent agency, institution, office, society or other body in state government created or authorized to be created by the constitution or any law, including the legislature, the office of the governor and the courts. “Governmental unit” does not mean the University of Wisconsin Hospitals and Clinics Authority or any political subdivision of the state or body within one or more political subdivisions which is created by law or by action of one or more political subdivisions. (d) “Information” means information gained by the employee which the employee reasonably believes demonstrates: 1. A violation of any state or federal law, rule or regulation.
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2. Mismanagement or abuse of authority in state government, a substantial waste of public funds or a danger to public health and safety. (2) An employee may bring an action in circuit court against his or her employer or employer’s agent, including this state, if the employer or employer’s agent retaliates, by engaging in a disciplinary action, against the employee because the employee exercised his or her rights under the first amendment to the U.S. constitution or article I, section 3, of the Wisconsin constitution by lawfully disclosing information or because the employer or employer’s agent believes the employee so exercised his or her rights. The employee shall bring the action within 2 years after the action allegedly occurred or after the employee learned of the action, whichever occurs last. No employee may bring an action against the division of personnel management in the department of administration as an employer’s agent. (3) If, following the close of all evidence in an action under this section, a court or jury finds that retaliation was the primary factor in an employer’s or employer’s agent’s decision to engage in a disciplinary action, the court or jury may not consider any evidence offered by the employer or employer’s agent that the employer or employer’s agent would have engaged in the disciplinary action even if the employee had not disclosed, or the employer or employer’s agent had not believed the employee disclosed, the information. (4) If the court or jury finds that the employer or employer’s agent retaliated against the employee, the court shall take any appropriate action, including but not limited to the following: (a) Order placement of the employee in his or her previous position with or without back pay. (b) Order transfer of the employee to an available position for which the employee is qualified within the same governmental unit. (c) Order expungement of adverse material relating to the retaliatory action or threat from the employee’s personnel file. (cm) Order the employer to pay compensatory damages. (d) Order the employer to pay the employee’s reasonable attorney fees. (e) Order the employer or employer’s agent to insert a copy of the court order into the employee’s personnel file. (f) Recommend to the employer that disciplinary or other action be taken regarding the employer’s agent, including but not limited to any of the following: 1. Placement of information describing the agent’s action in his or her personnel file. 2. Issuance of a letter reprimanding the agent. 3. Suspension. 4. Termination. History: 1983 a. 409; 1985 a. 135; 1995 a. 27; 1997 a. 237; 2003 a. 33 ss. 2726, 9160; 2005 a. 74; 2005 a. 155 ss. 13, 60; Stats. 2005 s. 230.90; 2013 a. 20; 2015 a. 55. The scope of an employee’s protection under s. 895.65 is narrower than the protection afforded by the 1st amendment. Kmetz v. State Historical Society, 304 F. Supp 2d 1108 (2004).
May 22, 2026, are designated by NOTES. (Published 5-22-26)