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LRB-6122/1
MIM:skw
2021 - 2022 LEGISLATURE
March 9, 2022 - Introduced by Senators Marklein, Ballweg, Bewley and Darling,
cosponsored by Representatives Born, Edming, Horlacher, James, Kitchens,
Krug, Milroy, Mursau, Novak, Oldenburg, Petryk, Plumer, J. Rodriguez,
Shankland, Sortwell, Steffen, Tranel, VanderMeer and Subeck. Referred
to Committee on Judiciary and Public Safety.
SB1036,1,8 1An Act to renumber and amend 40.05 (2) (ar); to amend 40.02 (27), 40.02 (48)
2(b) 3., 40.02 (48) (c), 40.05 (1) (b) 1., 40.23 (3) (a), 40.28 (1) (a) 2. and 40.73 (1)
3(am) 3.; and to create 40.02 (17) (n), 40.02 (48) (am) 23., 40.02 (48) (b) 5., 40.05
4(1) (a) 7., 40.05 (1) (b) 1a., 40.05 (2) (ap), 40.05 (2) (ar) 2., 40.23 (3) (c), 40.65 (4w),
559.52 (8m) and 111.70 (4) (bn) of the statutes; relating to: classifying county
6jailers as protective occupation participants under the Wisconsin Retirement
7System and the treatment of county jailers under the Municipal Employment
8Relations Act.
Analysis by the Legislative Reference Bureau
Under current law, participants under the Wisconsin Retirement System
(WRS) whose principal duties involve active law enforcement or fire suppression or
prevention and require frequent exposure to a high degree of danger or peril and a
high degree of physical conditioning are classified as protective occupation
participants. Current law classifies police officers, fire fighters, and various other
individuals as protective occupation participants. Under the WRS, the normal
retirement age of a protective occupation participant is lower than that of other
participants and the percentage multiplier used to calculate retirement annuities is
higher for protective occupation participants.

This bill classifies county jailers as protective occupation participants without
a requirement that their principal duties involve active law enforcement or active
fire suppression or prevention. The bill defines county jailers as persons employed
by a county whose principal duties involve supervising, controlling, or maintaining
a jail or persons confined in a jail, regardless of whether the jailers have been sworn
regarding their duties or whether they serve on a full-time basis.
Under the bill, county jailers who become protective occupation participants on
or after the bill's effective date and are employed by a county that did not classify
county jailers as protective occupation participants on July 1, 2020, are required to
pay all additional employer costs resulting from their classification as protective
occupation participants, including the cost of the duty disability program. County
jailers who were classified as protective occupation participants before the bill's
effective date and county jailers hired on or after the bill's effective date in counties
that did classify county jailers as protective occupation participants on July 1, 2020,
are not required to pay the additional employer costs. The bill also allows a county
jailer to elect at the time of hire not to become a protective occupation participant.
Finally, under the Municipal Employment Relations Act, public safety
employees may collectively bargain over wages, hours, and conditions of
employment, and general employees may bargain collectively over only an annual
percentage wage increase that does not exceed the annual percentage increase in the
consumer price index. Under MERA, public safety employees and general employees
may not be in the same collective bargaining unit. This bill amends MERA so that
a county that treats a county jailer as a public safety employee on the effective date
of this bill shall continue to treat any person it employs as a county jailer as a public
safety employee except that, if the county subsequently raises a question regarding
the appropriateness of including county jailers in a collective bargaining unit
containing public safety employees, no person the county employs as a county jailer
may be treated as a public safety employee.
Because this bill relates to public employee retirement or pensions, it may be
referred to the Joint Survey Committee on Retirement Systems for a report to be
printed as an appendix to the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB1036,1 1Section 1 . 40.02 (17) (n) of the statutes is created to read:
SB1036,3,62 40.02 (17) (n) Notwithstanding par. (d), each participant who is a county jailer
3and who is classified as a protective occupation participant shall be granted
4creditable service as a protective occupation participant for all covered service as a

1county jailer that was earned on or after the effective date of this paragraph .... [LRB
2inserts date], but may not be granted creditable service as a protective occupation
3participant for any covered service as a county jailer that was earned before the
4effective date of this paragraph .... [LRB inserts date], unless that service was earned
5while the participant was classified under sub. (48) (a) and s. 40.06 (1) (d) as a
6protective occupation participant.
SB1036,2 7Section 2. 40.02 (27) of the statutes is amended to read:
SB1036,3,98 40.02 (27) “Employee required contribution" means the contribution made by
9an employee under s. 40.05 (1) (a) 1. to 4. and 7.
SB1036,3 10Section 3 . 40.02 (48) (am) 23. of the statutes is created to read:
SB1036,3,1111 40.02 (48) (am) 23. A county jailer.
SB1036,4 12Section 4 . 40.02 (48) (b) 3. of the statutes is amended to read:
SB1036,3,2213 40.02 (48) (b) 3. A “deputy sheriff" or a “county traffic police officer" is any
14officer or employee of a sheriff's office or county traffic department, except one whose
15principal duties are those of a telephone operator, clerk, stenographer, machinist or
16mechanic and whose functions do not clearly fall within the scope of active law
17enforcement even though such an employee is subject to occasional call, or is
18occasionally called upon, to perform duties within the scope of active law
19enforcement. Deputy sheriff or county traffic police officer includes does not include
20a county jailer, but does include
any person regularly employed and qualifying as a
21deputy sheriff or county traffic police officer, even if temporarily assigned to other
22duties.
SB1036,5 23Section 5 . 40.02 (48) (b) 5. of the statutes is created to read:
SB1036,4,924 40.02 (48) (b) 5. A “county jailer" is an employee of a county whose principal
25duties involve supervising, controlling, or maintaining a jail or the persons confined

1in a jail, as assigned by the sheriff under s. 59.27 (1), regardless of whether the
2employee has been sworn regarding his or her duties or whether the employee serves
3on a full-time basis. Notwithstanding par. (a), an employer may classify an employee
4who is a county jailer as a protective occupation participant under par. (am) 23.
5without making a determination that the principal duties of the employee involve
6active law enforcement or active fire suppression or prevention. A determination
7under this subdivision may not be appealed under s. 40.06 (1) (e) or (em). A county
8jailer is not a protective occupation participant if he or she so elects with the employer
9under s. 59.52 (8m) or 2021 Wisconsin Act .... (this act).
SB1036,6 10Section 6 . 40.02 (48) (c) of the statutes is amended to read:
SB1036,4,2211 40.02 (48) (c) In s. 40.65, “protective occupation participant" means a
12participating employee who is a police officer, fire fighter, an individual determined
13by a participating employer under par. (a) or (bm) to be a protective occupation
14participant, county undersheriff, deputy sheriff, county jailer, state probation and
15parole officer, county traffic police officer, conservation warden, state forest ranger,
16field conservation employee of the department of natural resources who is subject to
17call for forest fire control or warden duty, member of the state traffic patrol, state
18motor vehicle inspector, University of Wisconsin System full-time police officer,
19guard or any other employee whose principal duties are supervision and discipline
20of inmates at a state penal institution, excise tax investigator employed by the
21department of revenue, person employed under s. 60.553 (1), 61.66 (1), or 62.13 (2e)
22(a), or special criminal investigation agent employed by the department of justice.
SB1036,7 23Section 7 . 40.05 (1) (a) 7. of the statutes is created to read:
SB1036,5,1724 40.05 (1) (a) 7. For a county jailer covered under subd. 3., the percentage of
25earnings equal to the total actuarially required contribution rate, as approved by the

1board under s. 40.03 (1) (e), for a participating employee whose formula rate is
2determined under s. 40.23 (2m) (e) 3., less the contribution rate paid by the employer
3for a county jailer under sub. (2) (a). Contributions under this section for an employee
4who first becomes a participating employee as a county jailer and is certified as a
5protective occupation participant on or after the effective date of this subdivision ....
6[LRB inserts date], and is employed by a county that did not classify county jailers
7as protective occupation participants on July 1, 2020, shall be made by a reduction
8in salary and, for tax purposes, shall be treated as employer contributions under
9section 414 (h) (2) of the Internal Revenue Code. A participating employee may not
10elect to have contributions required by sub. (2) (a) paid directly to the employee or
11make a cash or deferred election with respect to the contributions. Employees who
12are participating employees on the effective date of this subdivision .... [LRB inserts
13date], and who are first certified as protective occupation participants in a county
14jailer position on or after the effective date of this subdivision .... [LRB inserts date],
15and are employed in a county that did not classify county jailers as protective
16occupation participants on July 1, 2020, shall make the contribution under this
17section on an after-tax basis.
SB1036,8 18Section 8. 40.05 (1) (b) 1. of the statutes is amended to read:
SB1036,6,219 40.05 (1) (b) 1. Except as otherwise provided in a collective bargaining
20agreement entered into under subch. IV or V of ch. 111 and except as provided in
21subd. 2., an employer may not pay, on behalf of a participating employee, any of the
22contributions required by par. (a). The Except as provided in subd. 1a., the
23contributions required by par. (a) shall be made by a reduction in salary and, for tax
24purposes, shall be considered employer contributions under section 414 (h) (2) of the
25Internal Revenue Code. A participating employee may not elect to have

1contributions required by par. (a) paid directly to the employee or make a cash or
2deferred election with respect to the contributions.
SB1036,9 3Section 9. 40.05 (1) (b) 1a. of the statutes is created to read:
SB1036,6,84 40.05 (1) (b) 1a. Contributions under par. (a) 7. that are made by county jailers
5who are first certified as protective occupation participants on or after the effective
6date of this subdivision .... [LRB inserts date], and who are employed in a county that
7did not classify county jailers as protective occupation participants on July 1, 2020,
8shall be treated as employee contributions.
SB1036,10 9Section 10 . 40.05 (2) (ap) of the statutes is created to read:
SB1036,6,1810 40.05 (2) (ap) The contributions under par. (a) that are required to be paid by
11a participating employer for a county jailer whose formula rate is determined under
12s. 40.23 (2m) (e) 3. shall be a percentage of earnings equal to one-half of the total
13actuarially required contribution rate, as approved by the board under s. 40.03 (1)
14(e), for an employee whose formula rate is determined under s. 40.23 (2m) (e) 1. This
15paragraph applies only to contributions paid for a county jailer who becomes a
16protective occupation participant on or after the effective date of this paragraph ....
17[LRB inserts date], and is employed in a county that did not classify county jailers
18as protective occupation participants on July 1, 2020.
SB1036,11 19Section 11 . 40.05 (2) (ar) of the statutes is renumbered 40.05 (2) (ar) 1. and
20amended to read:
SB1036,6,2421 40.05 (2) (ar) 1. Participating Except as provided in subd. 2., participating
22employers of employees subject to s. 40.65 shall contribute an additional percentage
23or percentages of those employees' earnings based on the experience rates
24determined to be appropriate by the board with the advice of the actuary.
SB1036,12 25Section 12 . 40.05 (2) (ar) 2. of the statutes is created to read:
SB1036,7,10
140.05 (2) (ar) 2. County jailers who are first hired as protective occupation
2participants on or after the effective date of this subdivision .... [LRB inserts date],
3and are employed in a county that did not classify county jailers as protective
4occupation participants on July 1, 2020, may make the contribution under subd. 1.
5on a pre-tax basis, in lieu of their employers making the contribution. County jailers
6who are first certified as protective occupation participants on or after the effective
7date of this subdivision .... [LRB inserts date], and are employed in a county that did
8not classify county jailers as protective occupation participants on July 1, 2020, shall
9make the contribution under subd. 1. on a post-tax basis, in lieu of their employers
10making the contribution.
SB1036,13 11Section 13 . 40.23 (3) (a) of the statutes is amended to read:
SB1036,7,2012 40.23 (3) (a) Except as provided in par. pars. (b) and (c), the initial monthly
13amount of any retirement annuity in the normal form shall not be less than the
14money purchase annuity which can be provided by applying the sum of the
15participant's accumulated additional and required contributions, including interest
16credited to the accumulations, plus an amount from the employer accumulation
17reserve equal to the participant's accumulated required contributions, less any
18accumulated contributions to purchase other governmental service under s. 40.25
19(7), 2001 stats., or s. 40.285 (2) (b) to fund the annuity in accordance with the
20actuarial tables in effect on the annuity effective date.
SB1036,14 21Section 14 . 40.23 (3) (c) of the statutes is created to read:
SB1036,8,322 40.23 (3) (c) Under par. (a), for a county jailer described in s. 40.02 (48) (am)
2323., the amount to be paid from the employer accumulation reserve is equal to the
24employer required contributions, including interest, paid for a county jailer under
25s. 40.05 (2) (a). This paragraph applies only to a county jailer who becomes a

1protective occupation participant on or after the effective date of this paragraph ....
2[LRB inserts date], and is employed in a county that did not classify county jailers
3as protective occupation participants on July 1, 2020.
SB1036,15 4Section 15. 40.28 (1) (a) 2. of the statutes is amended to read:
SB1036,8,145 40.28 (1) (a) 2. The amount equal to 200 percent of employee required
6contribution accumulations reserved for a variable annuity as of the date the annuity
7begins. Except, for a county jailer described in s. 40.02 (48) (am) 23., the amount
8equal to the employee required contributions and the employer required
9contributions paid for a county jailer under s. 40.05 (2) (a), including interest,
10reserved for a variable annuity on the date the annuity begins. The amount
11applicable for a county jailer only applies to a county jailer who becomes a protective
12occupation participant on or after the effective date of this subdivision .... [LRB
13inserts date], and who is employed in a county that did not classify county jailers as
14protective occupation participants on July 1, 2020
; and
SB1036,16 15Section 16 . 40.65 (4w) of the statutes is created to read:
SB1036,8,1916 40.65 (4w) A county jailer who becomes a protective occupation participant on
17or after the effective date of this subsection .... [LRB inserts date], is not entitled to
18a duty disability benefit under this section for an injury or disease occurring before
19the effective date of this subsection .... [LRB inserts date].
SB1036,17 20Section 17. 40.73 (1) (am) 3. of the statutes is amended to read:
SB1036,9,521 40.73 (1) (am) 3. Twice the employee required contributions, after first
22subtracting the accumulations under subd. 2., including interest on the
23accumulations. Except, for a county jailer described in s. 40.02 (48) (am) 23., the
24amount equal to the employee required contributions and the employer required
25contributions paid for a county jailer under s. 40.05 (2) (a), after first subtracting the

1accumulations under subd. 2., including interest on the accumulations. The amount
2applicable for a county jailer only applies to a county jailer who becomes a protective
3occupation participant on or after the effective date of this subdivision .... [LRB
4inserts date], and who is employed in a county that did not classify county jailers as
5protective occupation participants on July 1, 2020.
SB1036,18 6Section 18 . 59.52 (8m) of the statutes is created to read:
SB1036,9,117 59.52 (8m) Employment of county jailers. The board shall provide to an
8individual who is employed as a county jailer an option to elect not to be a protective
9occupation participant under s. 40.02 (48) (b) at the time the individual is hired as
10a county jailer. An individual shall make an election under this subsection in writing
11on a form provided by the board.
SB1036,19 12Section 19 . 111.70 (4) (bn) of the statutes is created to read:
SB1036,9,1513 111.70 (4) (bn) Public safety employee determination regarding county jailers.
141. Except as provided under subd. 2., a county jailer, as defined in s. 40.02 (48) (b)
155., is a general municipal employee.
SB1036,9,2116 2. A county that treats a county jailer as a public safety employee on the
17effective date of this subdivision .... [LRB inserts date], shall continue to treat any
18person it employs as a county jailer as a public safety employee except that, if the
19county raises a question concerning the appropriateness of including county jailers
20in a collective bargaining unit that includes public safety employees, no person it
21employs as a county jailer may be treated as a public safety employee.
SB1036,20 22Section 20 . Nonstatutory provision.
SB1036,9,2523 (1) County jailer opt out from protective occupation participant status
24under Wisconsin Retirement System.
No later than 60 days after the effective date
25of this subsection, if an individual employed as a county jailer on the effective date

1of this subsection does not want to be a protective occupation participant under the
2Wisconsin Retirement System, the individual shall notify his or her employer in
3writing on a form provided by the employer. An election not to be a protective
4occupation participant is irrevocable.
SB1036,21 5Section 21 . Effective date.
SB1036,10,66 (1) This act takes effect on the January 1 after publication.
SB1036,10,77 (End)
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