Section 230.34. Demotion, suspension, discharge and layoff.

 

(1)  

(a) An employee with 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 may be removed, suspended without pay, discharged, reduced in base pay, or demoted only for just cause. It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee for work performance or personal conduct that is inadequate, unsuitable, or inferior, as determined by the appointing authority, but only after imposing progressive discipline that complies with the administrator's standards under s. 230.04 (13m) . It is just cause to remove, suspend without pay, discharge, reduce the base pay of, or demote an employee without imposing progressive discipline for any of the following conduct:

1. While on duty, harassing a person.

2. While on duty, intentionally inflicting physical harm on another person.

3. While on duty, being intoxicated or under the influence of a controlled substance, as defined in s. 961.01 (4) , or a controlled substance analog, as defined in s. 961.01 (4m) .

4. While on duty, being in possession of a controlled substance, as defined in s. 961.01 (4) , or a controlled substance analog, as defined in s. 961.01 (4m) , without a prescription.

5. Falsifying records of the agency.

6. Theft of agency property or services with intent to deprive an agency of the property or services permanently, theft of currency of any value, felonious conduct connected with the employee's employment with the agency, or intentional or negligent conduct by an employee that causes substantial damage to agency property.

7. A conviction of an employee of a crime or other offense subject to civil forfeiture, while on or off duty, if the conviction makes it impossible for the employee to perform the duties that the employee performs for the agency.

8. Misuse or abuse of agency property, including the intentional use of the agency's equipment to download, view, solicit, seek, display, or distribute pornographic material.

9. A serious violation of the code of ethics established by the director under s. 19.45 (11) (a) , as determined by the director.

(am) If an employee fails to report for work as scheduled or to contact his or her supervisor, the appointing authority may discipline the employee. If an employee fails to report for work as scheduled, or to contact his or her supervisor for a minimum of 3 working days during a calendar year, the appointing authority shall consider the employee's position abandoned and may discipline the employee or treat the employee as having resigned his or her position. If the appointing authority decides to treat the position abandonment as a resignation, the appointing authority shall notify the employee in writing that the employee is being treated as having effectively resigned as of the end of the last day worked.

(ar) Paragraphs (a) and (am) apply to all employees with permanent status in class in the classified service and all employees who have served with the state as an assistant district attorney or an assistant state public defender for a continuous period of 12 months or more.

(ax)

1. Notwithstanding pars. (a) , (am) , and (ar) , during a state of emergency declared by the governor under s. 323.10 , an appointing authority may discharge any employee who does any of the following:

a. Fails to report to work as scheduled for any 3 working days during the state of emergency and the employee's absences from work are not approved leaves of absence.

b. Participates in a strike, work stoppage, sit-down, stay-in, slowdown, or other concerted activities to interrupt the operations or services of state government, including specifically participation in purported mass resignations or sick calls.

2. Engaging in any action under subd. 1. constitutes just cause for discharge.

3. Before discharging an employee, the appointing authority shall provide the employee notice of the action and shall furnish to the employee in writing the reasons for the action. The appointing authority shall provide the employee an opportunity to respond to the reasons for the discharge.

(b) No suspension without pay shall be effective for more than 30 days. The appointing authority shall, at the time of any action under this section, furnish to the employee in writing the reasons for the action.

(c) The administrator shall establish guidelines for uniform application of this authority among the various agencies.

(2)  Employees with permanent status in class in permanent, sessional and seasonal positions in the classified service and employees serving a probationary period in such positions after promotion or transfer may be laid off because of a reduction in force due to a stoppage or lack of work or funds or owing to material changes in duties or organization.

(a) An appointing authority shall determine the order of layoff of such employees primarily based on job performance, and thereafter, in accordance with the rules of the director, on disciplinary records, seniority, and ability.

(b) The director shall promulgate rules governing layoffs and appeals therefrom and alternative procedures in lieu of layoff to include voluntary and involuntary demotion, as well as the subsequent employee eligibility for reinstatement.

(2m)  Employees in positions funded by nonstate funds made available contingent on special employee eligibility requirements such as length of prior unemployment, specific occupational disadvantages or need for remedial work experience, shall be exempt from inclusion with the employees whose positions are in classes considered for layoff under sub. (2) . In the case of reduction in force in such nonstate funded positions, layoffs and layoff procedures established pursuant to the rules of the director may be limited to employees whose positions are dependent upon specific funding contingencies.

(3)  The appointing authority shall confer with the director relative to a proposed layoff a reasonable time before the effective date thereof in order to assure compliance with the rules.

(4)  Resignations shall be regulated by the rules of the administrator.

1971 c. 270 ss. 61 , 76 ; Stats. 1971 s. 16.28; 1975 c. 189 , 200 ; 1977 c. 196 ss. 56 , 130 (3) , (5); 1977 c. 273 ; Stats. 1977 s. 230.34; 1979 c. 221 ; 1981 c. 140 ; 1983 a. 27 s. 2200 (15) ; 1989 a. 31 ; 1999 a. 102 ; 2003 a. 33 ; 2011 a. 10 , 32 ; 2013 a. 20 ss. 2365m , 9448 ; 2013 a. 123 , 166 ; 2015 a. 55 , 150 , 195 . Cross-reference: See also chs. ER-MRS 17 and 22 , Wis. adm. code. On an appeal from a discharge, the appointing officer has the burden of persuasion that the discharge was for a just cause. The facts must be established to a reasonable certainty by the greater weight or clear preponderance of the evidence. Reinke v. Personnel Board, 53 Wis. 2d 123 , 191 N.W.2d 833 (1971). In deciding the issue of cause for termination, it is necessary to determine the specific requirements of the individual governmental position. Safransky v. Personnel Board, 62 Wis. 2d 464 , 215 N.W.2d 379 (1974). The trial court erroneously applied evidentiary standards required in discharge cases to the review of a layoff case. Weaver v. Wisconsin Personnel Board, 71 Wis. 2d 46 , 237 N.W.2d 183 (1976). Public employment is a property right for those given tenure by operation of civil service regulations or laws. Vorwald v. School District of River Falls, 167 Wis. 2d 549 , 482 N.W.2d 93 (1992). An investment board employee hired in the classified service whose position was changed to unclassified by subsequent legislative action had a property interest in the position entitling him to continued civil service protections after the reclassification. Bahr v. State Investment Bd. 186 Wis. 2d 379 , 521 N.W.2d 152 (Ct. App. 1994). Sub. (1) provides a permanent civil service employee with a property interest in employment requiring the appointing authority to provide notice to the employee prior to any disciplinary action. The employee is entitled to a hearing to address the employer's reasons for any disciplinary action. An employer at a hearing cannot introduce evidence of subsequent misconduct without adequate notice and hearing. Board of Regents of the University of Wisconsin System, v. Wisconsin Personnel Commission, 2002 WI 79 , 254 Wis. 2d 148 , 646 N.W.2d 759 , 01-1899 .