Amendment SSA1-SB117

LRBs0113/1

EVM:amn/emw/kjf

2021 - 2022 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 117

May 4, 2021 - Offered by Senator Wanggaard.

SB117-SSA1,1,9 An Act to renumber 62.13 (3); to renumber and amend 62.13 (1), 62.50 (1h) and 62.50 (6); to amend 19.42 (7w) (c), 60.57 (2), 61.65 (3g) (d) 1. a., 62.13 (2) (a), 62.13 (6m) (intro.), 62.50 (17) (a), 62.50 (19), 62.50 (21) and 62.51 (1) (a); to repeal and recreate 62.50 (1e); and to create 62.13 (1b), 62.13 (1m) (a) 2., 62.13 (1m) (d), 62.13 (1m) (e), 62.13 (3) (b), 62.13 (3) (c), 62.13 (3) (d), 62.13 (3m), 62.50 (1h) (b), 62.50 (1h) (d) 2. b., 62.50 (1h) (d) 2. c., 62.50 (1h) (f) 1., 62.50 (1h) (f) 3., 62.50 (1j), 62.50 (5g), 62.50 (5m), 62.50 (6) (b), 62.50 (6) (c) and 62.50 (21m) of the statutes; relating to: boards of police and fire commissioners and protective services departments in populous cities.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes that affect the board of fire and police commissioners of a first class city (presently only Milwaukee), the board of police and fire commissioners of a second class city with a population of 200,000 or more (presently only Madison) (jointly referred to as affected PFC boards), and the protective services departments of first class cities and second class cities with a population of 200,000 or more (jointly, populous cities). The changes include altering the makeup of affected PFC boards, requiring certain training for affected PFC board members, establishing certain requirements related to hiring and oversight of chiefs of protective services departments in populous cities, creating an executive director position in populous cities, and altering the judicial review process for police and fire department disciplinary cases in a first class city.

Under current law, the board of fire and police commissioners of a first class city consists of seven or nine members selected by the mayor. Boards of police and fire commissioners of other cities, including a second class city, consist of five members selected by the mayor. Under this bill, a board of fire and police commissioners of a first class city consists of nine members selected by the mayor, and confirmed by the common council. The board of a police and fire commission of a second class city with a population of 200,000 or more consists of seven members selected by the mayor. Each of these boards must contain at least one member selected from a list provided by each of 1) the employee association that represents nonsupervisory law enforcement officers and 2) the employee association that represents fire fighters. Also under this bill, if the mayor fails to make an appointment within 120 days of the occurrence of a vacancy, the common council may make the appointment.

In a first class city, a three-member panel of the board of fire and police commissioners may conduct and decide a trial to evaluate a complaint against a member of the police or fire department. This bill specifies that when a three-member panel conducts such a trial, except when no member with the requisite experience is available for the trial date, at least one member of the panel must have professional law enforcement experience if the accused is a police officer, and at least one such member must have professional fire fighting experience if the accused is a fire fighter.

The bill also requires each member of an affected PFC board to take a training class provided by the city in which it operates. The training class must cover the mission and role of the board, the procedures that apply to disciplinary hearings, the conduct policies of the police and fire departments, and use of force guidelines of the police department. A member may not participate in any action of the board until he or she completes the training class and any other training required by the city.

The bill also creates the office of executive director of the fire and police commission in a first class city and executive director of the police and fire commission in a second class city with a population of 200,000 or more. This person acts as the principal staff of an affected PFC board, reviews certain situations or investigations involving the police or fire department, evaluates police and fire department policies and practices, and issues periodic reports to the public relating to the status and outcome of complaints that have been filed. The executive director is appointed by the mayor and confirmed by the common council and serves a four-year term, at the pleasure of the board.

This bill also specifies the following related to affected PFC boards:

1. When an affected PFC board appoints a protective services chief, the board must meet with representatives of the employee association whose members will serve under the proposed chief.

2. When an affected PFC board appoints a protective services chief, the board must hold at least two public meetings to hear comments from residents of the city and other interested persons.

3. When a member is appointed to an affected PFC board, the common council must hold two public hearings that include public comment periods with regard to the appointments.

4. If an affected PFC board accepts an additional application for chief of police after the application period for accepting these applications has closed, the board must reopen the application period for an additional seven days.

5. If the common council adopts a resolution by a two-thirds majority to conduct a performance review of a protective services chief, an affected PFC board must conduct the review and provide a written report to the common council.

6. A PFC board member may not continue in office after the expiration of his or her term, unless reappointed and, in a first class city, confirmed. Also, a PFC board member may not continue in office if the common council rejects the member upon submission for confirmation by the mayor.

Currently, if a board of fire and police commissioners of a first class city discharges, suspends, or reduces in rank an officer or member of the police or fire department, the disciplined person may appeal that decision to a circuit court. Under current law, a circuit court's review of a disciplinary decision is, in general, a limited review of the record created before the board of fire and police commissioners.

This bill further specifies the procedure applicable to an appeal of a disciplinary decision. Under this bill, an appeal of a disciplinary decision consists of, in general, a review of the record created before the board of fire and police commissioners. A court may, however, in its discretion allow the submission of additional evidence. The court's review is limited to consideration of whether the board followed appropriate procedure and considered all evidence received and whether there is just cause to sustain the charges against the officer. The bill also specifies that if the court determines that the board failed to follow appropriate procedure or failed to consider all evidence received, the court must review the decision of the board without deference to the board's findings of fact. Otherwise, the court must, in general, adopt the board's findings of fact.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB117-SSA1,1 Section 1 . 19.42 (7w) (c) of the statutes is amended to read:

SB117-SSA1,4,2 19.42 (7w) (c) An appointive office or position of a local governmental unit in which an individual serves for a specified term, including a member of a board created under s. 60.57, 61.65, 62.13, or 62.50, except a position limited to the exercise of ministerial action or a position filled by an independent contractor.

SB117-SSA1,2 Section 2 . 60.57 (2) of the statutes is amended to read:

SB117-SSA1,4,5 60.57 (2) A board created under this section shall be organized in the same manner as boards of police and fire commissioners under s. 62.13 (1) (1m) (a) 1.

SB117-SSA1,3 Section 3 . 61.65 (3g) (d) 1. a. of the statutes is amended to read:

SB117-SSA1,4,9 61.65 (3g) (d) 1. a. A board created under this section shall be organized in the same manner as boards of police and fire commissioners under s. 62.13 (1) (1m) (a) 1.

SB117-SSA1,4 Section 4 . 62.13 (1) of the statutes is renumbered 62.13 (1m) (a) 1. and amended to read:

SB117-SSA1,4,14 62.13 (1m) (a) 1. Except as provided in subd. 2. and subs. (2g), (2m), (2s), and (8) (b), each city shall have a board of police and fire commissioners consisting of 5 citizens, 3 of whom shall constitute a quorum.

SB117-SSA1,5,3 (b) The mayor shall annually, between the last Monday of April and the first Monday of May, appoint in writing to be filed with the secretary of the board, one member of a board under par. (a) for a term of 5 years. For a 2nd class city with a population of 200,000 or more in a year in which the terms of 2 members expire, the mayor may appoint a 2nd member of a board under par. (a) 2. in the same manner for a term of 5 years. Except as provided in par. (a) 2. a., if the mayor of a 2nd class city with a population of 200,000 or more fails to make an appointment within 120 days of a vacancy occurring, the common council may make the appointment by a majority vote of the members of the common council in open session. No appointment shall may be made which that will result in more than 3 members of the board belonging to the same political party. The common council of a 2nd class city with a population of 200,000 or more shall hold 2 public hearings that include public comment periods with regard to each appointment to the board, including an appointment made by the common council under this paragraph.

SB117-SSA1,5,4 (c) The A board shall keep a record of its proceedings.

SB117-SSA1,5 Section 5 . 62.13 (1b) of the statutes is created to read:

SB117-SSA1,5,8 62.13 (1b) Definition. In this section, “board” means a board of police and fire commissioners under sub. (1m) (a) or a joint board of police and fire commissioners under sub. (2) (b) or (2m) (b).

SB117-SSA1,6 Section 6 . 62.13 (1m) (a) 2. of the statutes is created to read:

SB117-SSA1,6,7 62.13 (1m) (a) 2. a. Each 2nd class city with a population of 200,000 or more shall have a board of police and fire commissioners consisting of 7 members, including at least one member selected from a list submitted by the employee association that represents nonsupervisory law enforcement officers and at least one member selected from a list submitted by the employee association that represents fire fighters. Lists of individuals submitted for selection under this subd. 2. a. shall contain 5 names. Individuals included in a list submitted under this subd. 2. a. 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. If the mayor fails to make an appointment that is required to be selected from a list under this subd. 2 a. within 120 days of a vacancy occurring, the common council, within 60 days and after not fewer than 2 public hearings that include public comment periods with regard to the appointment, shall make the appointment. Notwithstanding par. (b), the initial term of the member selected from a list submitted by the employee association that represents nonsupervisory law enforcement officers shall be 2 years and the initial term of the member selected from a list submitted by the employee association that represents fire fighters shall be 5 years. The members selected from lists submitted by employee associations that represent nonsupervisory law enforcement officers and fire fighters shall comply with any residency requirements that apply to current members of the police or fire department, respectively, of the city.

SB117-SSA1,6,10 b. A board member of a 2nd class city with a population of 200,000 or more may not continue in office after the expiration of his or her term, unless the member is reappointed to the board.

SB117-SSA1,6,11 c. Five members constitute a quorum of a board under this subdivision.

SB117-SSA1,7 Section 7 . 62.13 (1m) (d) of the statutes is created to read:

SB117-SSA1,6,15 62.13 (1m) (d) 1. The city shall provide a training class for members of the board. The city may provide this class directly or in another manner, including by contracting with another person. The training class shall cover all of the following:

SB117-SSA1,6,16 a. The mission and role of the board.

SB117-SSA1,6,20 b. The procedures that apply to disciplinary hearings under this section, including applicable rules of evidence and applicable provisions of any contract between the city and employee associations that represent nonsupervisory law enforcement officers or fire fighters.

SB117-SSA1,6,21 c. The conduct policies of the police and fire departments.

SB117-SSA1,6,22 d. Use of force guidelines of the police department.

SB117-SSA1,7,2 2. Not later than the first day of the 7th month beginning after the mayor files the appointment of a member of the board with the secretary of the board, the member shall enroll in the training class under subd. 1. and, not later than the first day of the 13th month beginning after the mayor files the member's appointment with the secretary of the board, the member shall complete the class.

SB117-SSA1,7,5 3. Notwithstanding sub. (5), no member may participate in any board action until he or she completes the training class under subd. 1. and any other training required by the city.

SB117-SSA1,7,7 4. This paragraph applies only in a 2nd class city with a population of 200,000 or more.

SB117-SSA1,8 Section 8 . 62.13 (1m) (e) of the statutes is created to read:

SB117-SSA1,7,10 62.13 (1m) (e) All employees of the board of a 2nd class city with a population of 200,000 or more shall be nonpartisan.

SB117-SSA1,9 Section 9 . 62.13 (2) (a) of the statutes is amended to read:

SB117-SSA1,7,15 62.13 (2) (a) Except as provided under sub. (6m), subs. (1) (1m) to (6) shall not apply to cities of less than 4,000 population except by ordinance adopted by a majority of all the members of the council. A repealing ordinance may be adopted by a like vote.

SB117-SSA1,10 Section 10 . 62.13 (3) of the statutes is renumbered 62.13 (3) (a).

SB117-SSA1,11 Section 11 . 62.13 (3) (b) of the statutes is created to read:

SB117-SSA1,7,20 62.13 (3) (b) Before appointing a chief of police, chief of the fire department, or chief of a combined protective services department under this subsection, the board of a 2nd class city with a population of 200,000 or more shall do all of the following:

SB117-SSA1,7,22 1. Meet with representatives of the nonsupervisory employee association whose members will serve under the proposed chief.

SB117-SSA1,7,24 2. Hold at least 2 public meetings to hear comments from residents of the city and other interested persons.

SB117-SSA1,12 Section 12 . 62.13 (3) (c) of the statutes is created to read:

SB117-SSA1,8,4 62.13 (3) (c) If the board of a 2nd class city with a population of 200,000 or more accepts an additional application for chief of police after the application period for accepting these applications has closed, the board shall reopen the application period for an additional 7 days beginning on the date it accepted the late application.

SB117-SSA1,13 Section 13 . 62.13 (3) (d) of the statutes is created to read:

SB117-SSA1,8,10 62.13 (3) (d) 1. If the common council adopts a resolution by a two-thirds vote of the members-elect, as defined in s. 59.001 (2m), to conduct a performance review of the chief of police, the chief of the fire department, or the chief of a combined protective services department, the board shall conduct the review and provide a written report to the common council.

SB117-SSA1,8,13 2. At least once each year, the chief of police and the chief of the fire department, or the chief of a combined protective services department, shall meet with the members of the common council at a regular meeting of the council.

SB117-SSA1,8,17 3. Upon request by the common council or any committee of the common council, the chair of the board, the vice chair of the board, or the executive director under sub. (3m) shall attend a meeting of the common council or a committee of the common council.

SB117-SSA1,8,19 4. This paragraph applies only in a 2nd class city with a population of 200,000 or more.

SB117-SSA1,14 Section 14 . 62.13 (3m) of the statutes is created to read:

SB117-SSA1,9,5 62.13 (3m) Executive director. (a) No later than the 2nd Monday in June occurring after the effective date of the paragraph .... [LRB inserts date], the 2nd Monday in June immediately preceding the expiration of the regular term of office of the executive director, or within 60 days of a vacancy in the position, the board shall submit to the mayor a list of 3 qualified candidates for the position of executive director. Before submitting the list of candidates to the mayor, the board shall publicly announce the proposed list and hold a public hearing that includes a public comment period with regard to the list. No later than 30 days after receiving the list, the mayor shall appoint an individual selected from the list as executive director. The individual appointed is subject to confirmation by the common council.

SB117-SSA1,9,7 (b) The common council shall fix the salary or other compensation of the executive director.

SB117-SSA1,9,13 (c) The initial regular term of office of the executive director is 4 years from the 2nd Monday in July occurring after the effective date of this paragraph .... [LRB inserts date]. Thereafter, the regular term of office is 4 years from the 2nd Monday in July following appointment of an executive director to a regular term under this subsection. An executive director appointed under this subsection may continue to hold office until a successor is appointed and confirmed.

SB117-SSA1,9,15 (d) 1. An executive director may be removed by a majority vote of the board in open session.

SB117-SSA1,9,17 2. Notwithstanding s. 17.12 (1) (c), an executive director may not be removed by the mayor.

SB117-SSA1,9,18 (e) The executive director shall do all of the following:

SB117-SSA1,9,20 1. Act as the principal staff of the board in exercising the board's functions and powers under this section.

SB117-SSA1,9,23 2. Review situations or investigations when an individual is dissatisfied with the outcome of an investigation or situation involving the police, fire, or combined protective services department.

SB117-SSA1,9,25 3. Evaluate the policies, practices, and patterns, including staff deployments, crime and fire prevention training, use of force, search, seizure, citizen interaction, and communication of the police and fire departments or the combined protective services department.

SB117-SSA1,10,6 4. Issue reports to the public at least annually relating to the status and outcome of complaints that have been filed, the timeliness of complaint resolution, trends and patterns of concern pertaining to complaint investigations, the nature and frequency of complaints, and other performance indicators.

SB117-SSA1,10,8 (f) If the executive director is an attorney, no attorney-client privilege exists between the executive director and the mayor or common council.