Chapter 40

40.02(48)(am)19. 19. A special agent employed by the department of revenue who is authorized to act under s. 73.031.

40.02(48)(am)20. 20. A special criminal investigation agent in the department of justice.

40.02(48)(am)21. 21. An assistant or deputy fire marshal.

40.02(48)(am)22. 22. A person employed under s. 60.553 (1), 61.66 (1), or 62.13 (2e) (a).

40.02(48)(am)23. 23. A county jailer.

40.02(48)(b) (b) Each determination of the status of a participant under this subsection shall include consideration, where applicable, of the following factors:

40.02(48)(b)1. 1. A “police officer” is any officer, including the chief, or employee of a police department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Police officer includes any person regularly employed and qualifying as a patrol officer or a person of equal or higher rank, even if temporarily assigned to other duties.

40.02(48)(b)2. 2. A “fire fighter” is any officer, including the chief, or employee of a fire department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active fire suppression or prevention even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active fire suppression or prevention. Fire fighter includes any person regularly employed and qualifying as a fire fighter, hose handler or a person of equal or higher rank, even if temporarily assigned to other duties.

40.02(48)(b)3. 3. A “deputy sheriff” or a “county traffic police officer” is any officer or employee of a sheriff’s office or county traffic department, except one whose principal duties are those of a telephone operator, clerk, stenographer, machinist or mechanic and whose functions do not clearly fall within the scope of active law enforcement even though such an employee is subject to occasional call, or is occasionally called upon, to perform duties within the scope of active law enforcement. Deputy sheriff or county traffic police officer does not include a county jailer, but does include any person regularly employed and qualifying as a deputy sheriff or county traffic police officer, even if temporarily assigned to other duties.

40.02(48)(b)4. 4. A “member of the state traffic patrol” includes one division administrator in the department of transportation who is counted under s. 230.08 (2) (e) 12. and whose duties include supervising the state traffic patrol, if the division administrator is certified by the law enforcement standards board under s. 165.85 (4) (a) 1. as being qualified to be a law enforcement officer.

40.02(48)(b)5. 5. A “county jailer” is an employee of a county whose principal duties involve supervising, controlling, or maintaining a jail or house of correction or the persons confined in a jail, as assigned by the sheriff under s. 59.27 (1), or the persons confined in a house of correction, as assigned by a county board of supervisors under s. 303.17, regardless of whether the employee has been sworn regarding his or her duties or whether the employee serves on a full-time basis, provided the department receives notification of the participant’s name as provided in s. 40.06 (1) (d) and (dm). Notwithstanding par. (a), an employer may classify an employee who is a county jailer as a protective occupation participant under par. (am) 23. without making a determination that the principal duties of the employee involve active law enforcement or active fire suppression or prevention. A determination under this subdivision may not be appealed under s. 40.06 (1) (e) or (em). A county jailer is not a protective occupation participant if he or she so elects with the employer under s. 59.52 (8m) or 2023 Wisconsin Act 4.

40.02(48)(bm) (bm) “Protective occupation participant” includes any participant who is an emergency medical services practitioner, as defined in s. 256.01 (5), if the participant’s employer classifies the participant as a protective occupation participant and the department receives notification of the participant’s name as provided in s. 40.06 (1) (d) and (dm). Notwithstanding par. (a), an employer may classify a participant who is an emergency medical services practitioner as a protective occupation participant without making a determination that the principal duties of the participant involve active law enforcement or active fire suppression or prevention. A determination under this paragraph may not be appealed under s. 40.06 (1) (e) or (em), but a determination under this paragraph regarding the classification of a state employee is subject to review under s. 40.06 (1) (dm). Notwithstanding sub. (17) (d), each participant who is classified as a protective occupation participant under this paragraph on or after January 1, 1991, shall be granted creditable service as a protective occupation participant for all covered service as an emergency medical services practitioner that was earned on or after the date on which the department receives notification of the participant’s name as provided in s. 40.06 (1) (d) and (dm), but may not be granted creditable service as a protective occupation participant for any covered service as an emergency medical services practitioner that was earned before that date.

40.02(48)(c) (c) In s. 40.65, “protective occupation participant” means a participating employee who is a police officer, fire fighter, an individual determined by a participating employer under par. (a) or (bm) to be a protective occupation participant, county undersheriff, deputy sheriff, county jailer who is certified as a protective occupation participant, state probation and parole officer, county traffic police officer, conservation warden, state forest ranger, field conservation employee of the department of natural resources who is subject to call for forest fire control or warden duty, member of the state traffic patrol, state motor vehicle inspector, University of Wisconsin System full-time police officer, guard or any other employee whose principal duties are supervision and discipline of inmates at a state penal institution, special agent employed by the department of revenue who is authorized to act under s. 73.031, person employed under s. 60.553 (1), 61.66 (1), or 62.13 (2e) (a), or special criminal investigation agent employed by the department of justice.

40.02(48m) (48m) “Qualified domestic relations order” means a judgment, decree or order issued by a court pursuant to a domestic relations law of any state or territory of the United States, that meets all of the following criteria:

40.02(48m)(a) (a) The name, date of birth, social security number and last-known mailing address of the participant and the alternate payee are specified.

40.02(48m)(b) (b) The Wisconsin retirement system is specified by name.

40.02(48m)(c) (c) The decree date is specified as the date to be used for valuing and dividing the participant’s account.

40.02(48m)(d) (d) The alternate payee share is specified as a single percentage, not to exceed 50 percent of the value of the participant’s account on the decree date, to be applied to all parts of the participant’s account.

40.02(48m)(e) (e) The determination of the alternate payee share does not require that benefits be paid to the alternate payee if those benefits are also required to be paid to another alternate payee under another judgment, decree, or order previously determined to be a qualified domestic relations order or to the internal revenue service under a lien placed on the participant’s account under section 64 of the Internal Revenue Code.

40.02(48m)(f) (f) The judgment, decree or order requires the participant to certify, in a form prescribed by the department, all of the participant’s active military service, as described in sub. (15) (a).

40.02(48m)(g) (g) The judgment, decree or order does not require payment of benefits exceeding in value those benefits to which the participant is entitled on the decree date.

40.02(48m)(h) (h) The judgment, decree or order does not assign any form of joint ownership of a participant’s account or benefits payable from the account.

40.02(48m)(i) (i) The judgment, decree or order does not require a division of the participant’s account in a manner contrary to s. 40.08 (1m).

40.02(48m)(j) (j) The judgment, decree or order requires the participant’s employer to submit to the department a report of all earnings, service and contributions of the participant as provided in s. 40.06 (7).

40.02(48m)(k) (k) The judgment, decree or order does not require the department to enforce or otherwise monitor the benefits assigned to the alternate payee under s. 40.08 (1m).

40.02(48r) (48r) “Required beginning date” means the later of April 1 of the calendar year following the calendar year in which a participant attains the age set under section 401 (a) (9) of the Internal Revenue Code or April 1 of the calendar year following the calendar year in which a participating employee retires.

40.02(49) (49) “Retired employee” means a former insured employee who is not a participating employee and who is retired on an immediate or disability annuity or who receives a lump sum payment under s. 40.25 (1) which would have been an immediate annuity if paid as an annuity or who is an eligible employee under sub. (25) (b) 6., 6e., or 6g.

40.02(50) (50) “Retirement annuity” means any annuity payable under s. 40.23, including the continuation of retirement annuities after the death of the participant.

40.02(51) (51) “Retirement system” means a pension, annuity, retirement or similar fund or system established by this state or by a political subdivision of this state.

40.02(52) (52) “Salary index” means the percentage increase in the average of the total wages, as determined under 42 USC 415 (b) (3) (A), between the year before the preceding year and the preceding year.

40.02(53) (53) “Secretary” means the secretary of the department.

40.02(54) (54) “State agency” means any office, department or independent agency in the executive, legislative and judicial branches of state government and includes the following:

40.02(54)(b) (b) The Wisconsin Housing and Economic Development Authority.

40.02(54)(c) (c) The Wisconsin Health and Educational Facilities Authority.

40.02(54)(e) (e) The community development finance authority created under ch. 233, 1985 stats., before July 1, 1988.

40.02(54)(f) (f) The nonprofit corporation with which the department of workforce development contracts under s. 47.03 (1m) (a), 1989 stats.

40.02(54)(h) (h) The University of Wisconsin Hospitals and Clinics Authority.

40.02(54)(i) (i) The Fox River Navigational System Authority.

40.02(54)(j) (j) The Wisconsin Aerospace Authority.

40.02(54)(m) (m) The Wisconsin Economic Development Corporation.

40.02(54m) (54m) “State annuitant” means a person receiving a retirement annuity, beneficiary annuity or a disability annuity from this state’s retirement system who at one time received a salary or wages from this state and who is a resident of this state.

40.02(54t) (54t) “State employee” means an employee of a state agency.

40.02(55) (55) “Teacher” means any employee engaged in the exercise of any educational function for compensation in the public schools, including charter schools as defined in s. 115.001 (1) that are instrumentalities of a school district, or the university in instructing or controlling pupils or students, or in administering, directing, organizing or supervising any educational activity, but does not include any employee determined to be an auxiliary instructional employee under s. 115.29 (3). “Teacher” includes the following:

40.02(55)(a) (a) Any person employed as a librarian by any school board in a library in any school under its jurisdiction, including a charter school as defined in s. 115.001 (1) that is an instrumentality of a school district, whose qualifications as a librarian are at least equal to the minimum librarian qualifications prescribed by the state superintendent of public instruction.

40.02(55)(b) (b) Any person employed as a full-time social center, community house, adult education or recreation director, instructor or other employee employed by the board of school directors of the city of Milwaukee, who possesses the qualifications required for employment as a teacher.

40.02(55g) (55g) “Technical college educational support personnel employee” means a person who is a technical college district employee, but who is not a teacher.

40.02(55m) (55m) “Timely appeal” means a written request for the review of a determination that is filed within 90 days after the determination is mailed to the person aggrieved by the determination.

40.02(56) (56) “Union service leave” means that period of absence from employment commencing on the date an employee commences a leave of absence for the purpose of serving in a position with a labor organization representing employees of the employee’s employer, and terminating on the date that leave of absence terminates or the date that service with that labor organization terminates, whichever first occurs.

40.02(57) (57) “University” means the University of Wisconsin System under ch. 36.

40.02(57m) (57m) “U.S. armed forces” means any of the following:

40.02(57m)(a) (a) The U.S. army, including the WACS.

40.02(57m)(b) (b) The U.S. navy, including the WAVES.

40.02(57m)(c) (c) The U.S. air force, including the WAFS.

40.02(57m)(d) (d) The U.S. marine corps, including the WMS.

40.02(57m)(e) (e) The U.S. coast guard, including the SPARS.

40.02(57m)(f) (f) The U.S. maritime service, including the merchant marine.

40.02(58) (58) “Variable annuity” means any annuity provided by the accumulations in the variable annuity division established under s. 40.04 (7) providing for the dollar amount of benefits or other contractual payments or values to vary so as to reflect differences which may arise between the total value of the annuity reserve for variable annuities and the reserve that would be required if the annuities were core annuities.

40.02 History History: 1981 c. 96, 187, 250, 274, 386; 1983 a. 9, 27; 1983 a. 81 s. 11; 1983 a. 83 s. 20; 1983 a. 106, 140; 1983 a. 141 ss. 1 to 3, 20; 1983 a. 191 ss. 1, 6; 1983 a. 192 s. 304; 1983 a. 255 s. 6; 1983 a. 275, 290, 368; 1983 a. 435 s. 7; 1985 a. 29, 225; 1985 a. 332 ss. 52, 251 (1); 1987 a. 27, 62, 83, 107, 309, 340, 356, 363, 372, 399; 1987 a. 403 ss. 43 to 45, 256; 1989 a. 13, 14, 31; 1989 a. 56 s. 259; 1989 a. 166, 182, 189, 218, 230, 240, 323, 327, 336, 355, 357, 359; 1991 a. 32, 39, 113, 152, 229, 269, 315; 1993 a. 16, 263, 383, 490, 491; 1995 a. 27, ss. 1946 to 1953, 9130 (4); 1995 a. 81, 88, 89, 216, 240, 302, 381, 417; 1997 a. 3, 27, 39, 69, 110, 162, 237, 238; 1999 a. 9, 11, 42, 63, 65, 83; 2001 a. 16, 38, 103, 104, 109; 2003 a. 33; 2005 a. 153, 335; 2007 a. 20, 131, 226; 2009 a. 15, 28; 2011 a. 7, 10, 32, 116, 229; 2013 a. 20 ss. 699 to 709c, 2365m, 9448; 2013 a. 168 s. 21; 2013 a. 214; 2015 a. 55, 187; 2017 a. 12, 59, 191; 2017 a. 207 s. 5; 2017 a. 366; 2021 a. 240 s. 30; 2021 a. 245; 2023 a. 4, 12, 73.

40.02 Annotation “Active military service” and “active service” as used in sub. (15) (c) do not include “active duty for training.” Morris v. Employee Trust Funds Board, 203 Wis. 2d 172, 554 N.W.2d 205 (Ct. App. 1996), 94-0857.

40.03 40.03 Powers and duties.

40.03(1) (1) Employee trust funds board. The board:

40.03(1)(a) (a) Shall authorize and terminate the payment of all annuities and death benefits, except disability annuities, in accordance with this chapter and may adjust the computation of the amount, as provided by this chapter, as necessary to prevent any inequity which might otherwise exist if a participant has a combination of full-time and part-time service, a change in annual earnings period during the high years of earnings or has previously received an annuity which was terminated.

40.03(1)(am) (am) Shall ensure that the Wisconsin retirement system complies with the Internal Revenue Code as a qualified plan for income tax purposes and shall ensure that each benefit plan is administered in a manner consistent with all Internal Revenue Code provisions that authorize and regulate the benefit plan.

40.03(1)(b) (b) Shall approve the tables to be used for computing benefits under the Wisconsin retirement system after certification of the tables in writing by the actuary.

40.03(1)(c) (c) Shall appoint the secretary of the department and may employ or select any medical, legal and other independent contractors as are required for the administration of the fund.

40.03(1)(d) (d) Shall select and retain an actuary or an actuarial firm, under one or more contractual agreements which shall run to the department for the purpose of performing all actuarial services which are necessary for the operation and control of each of the insurance and benefit programs under this chapter. Under this paragraph, the board shall:

40.03(1)(d)1. 1. Determine the requirements for and qualifications of the actuary or the actuarial firms so retained.

40.03(1)(d)2. 2. Determine the terms and conditions of each contractual agreement, and the time any contractual agreement shall be in force.

40.03(1)(d)3. 3. Determine the procedure for the selection of an actuary or an actuarial firm.

40.03(1)(d)4. 4. Direct the secretary to sign on behalf of the department any contractual agreement approved by the board.

40.03(1)(e) (e) Shall approve the contribution rates and actuarial assumptions determined by the actuary under sub. (5) (b) and (c).

40.03(1)(f) (f) May compel witnesses to attend meetings and to testify upon any necessary matter concerning the fund and authorize fees not in excess of the statutory provisions for witnesses.

40.03(1)(g) (g) May determine the length of creditable prior service from information available. Any determination shall be conclusive as to any period of service unless, within the time limits specified in s. 40.08 (10), the board reconsiders any case and changes the determination.

40.03(1)(h) (h) May accept any gift, grant, or bequest of any money or property of any kind, for the purposes designated by the grantor if the purpose is specified as providing cash benefits to some or all of the participants, insured employees, or annuitants of this fund or for reducing employer or employee costs; or, if no purposes are designated, then for the purpose of distribution to the several accounts and reserves of the Wisconsin Retirement System at the end of the year as if the money or property were investment earnings of the core annuity division.

40.03(1)(i) (i) May determine that some or all of the disability annuities and death benefits provided from the Wisconsin retirement system shall instead be provided through group insurance plans to be established by the group insurance board either as separate plans or as integral parts of the group life and income continuation insurance plans established under this chapter.

40.03(1)(j) (j) Shall accept timely appeals from determinations made by the department, other than appeals of determinations made by the department regarding disability annuities. The board shall review the relevant facts and may hold a hearing. Upon completion of its review and hearing, if any, the board shall make a determination which it shall certify to the participating employer or the appropriate state agency and to the appropriate employee, if any. The board’s determination of an employee’s status under s. 40.06 (1) (e) shall remain in effect until receipt by the department of notification indicating a different classification. A participant may appeal that determination as provided by s. 40.06 (1) (e).

40.03(1)(k) (k) May require any employer to distribute to its employees any materials which are determined to be necessary for the efficient administration of the fund.

40.03(1)(L) (L) May delegate powers and duties as deemed necessary or desirable.

40.03(1)(m) (m) Shall approve or reject all administrative rules proposed by the secretary under sub. (2) (i).

40.03(1)(n) (n) May allow any separate retirement system for employees of one or more employers to deliver or send funds representing assets of that system to the department. If the department accepts delivery or transmission, the department shall purchase shares of the core retirement investment trust or variable retirement investment trust or both with those funds, subject to rules under sub. (2) (q). Each retirement system shall pay as provided in s. 40.04 (2) for the costs of investing and administering any of its funds sent or delivered to the department.

40.03(1)(p) (p) May, upon the recommendation of the actuary, transfer in whole or in part the assets and reserves held in any account described in s. 40.04 (9) to a different account described in s. 40.04 (9), for the purpose of providing any group insurance benefit offered by the group insurance board.

40.03(2) (2) Secretary. The secretary:

40.03(2)(a) (a) Shall be in charge of the administration of the department and exercise, as head of the department, all powers and duties specified in ss. 15.04 and 15.05.

40.03(2)(b) (b) Shall employ and select administrative, clerical or other employees as required for the administration of this chapter and establish the internal organization of the department.

40.03(2)(c) (c) Shall process all applications for annuities and benefits and may initiate payment based on estimated amounts, when the applicant is determined to be eligible, subject to correction upon final determination of the amount of the annuity or benefit.

40.03(2)(cm) (cm) May implement any payment processing system to pay moneys owing to any person under benefit plans administered by the department, including payment by direct deposit, electronic benefit transfer cards or other prepaid cards, electronic funds transfer, and automated clearinghouse procedures.

40.03(2)(d) (d) May suspend an annuity pending final action by the board, or a disability annuity pending final action by the Wisconsin retirement board or the teachers retirement board, when, in the secretary’s judgment, the annuitant is not eligible to receive the annuity.

40.03(2)(e) (e) Shall submit to each employer and, upon request, to each individual participating in any of the benefit plans administered by the department the report required under s. 15.04 (1) (d) or a summary of the report. The report shall be in lieu of any reports required by ss. 15.07 (6) and 15.09 (7) or any other law and shall include financial and actuarial balance sheets which reflect changes in the asset, liability and reserve accounts and additional statistics which the secretary determines to be necessary or desirable for a full understanding of the status of the fund and the benefit plans.

40.03(2)(f) (f) May delegate to other departmental employees any power or duty of the secretary.