Section 895.35. Expenses in actions against municipal and other officers.

 

(1)  Whenever in any city, town, village, school district, technical college district or county charges of any kind are filed or an action is brought against any officer thereof in the officer's official capacity, or to subject any such officer, whether or not the officer is being compensated on a salary basis, to a personal liability growing out of the performance of official duties, and such charges or such action is discontinued or dismissed or such matter is determined favorably to such officer, or such officer is reinstated, or in case such officer, without fault on the officer's part, is subjected to a personal liability as aforesaid, such city, town, village, school district, technical college district or county may pay all reasonable expenses which such officer necessarily expended by reason thereof. Such expenses may likewise be paid, even though decided adversely to such officer, where it appears from the certificate of the trial judge that the action involved the constitutionality of a statute, not theretofore construed, relating to the performance of the official duties of said officer.

(2)  

(a) In this subsection:

1. “Criminal proceeding" means an action or proceeding under chs. 967 to 979 .

2. “Protective services officer" means an emergency medical technician, as defined in s. 256.01 (5) , first responder, as defined in s. 256.01 (9) , a fire fighter, or a law enforcement or correctional officer.

(b)

1. Notwithstanding sub. (1) , the city, town, village, school district, technical college district, or county shall reimburse a protective services officer for reasonable attorney fees incurred by the officer in connection with a criminal proceeding arising from the officer's conduct in the performance of official duties unless, in relation to that conduct, any of the following applies:

a. The officer is convicted of a crime.

b. The officer's employment is terminated for cause.

c. The officer resigns for reasons other than retirement before the attorney fees are incurred.

d. The officer is demoted or reduced in rank.

e. The officer is suspended without pay for 10 or more working days.

2. If a collective bargaining agreement covering the protective services officer defines reasonable attorney fees for the purpose of subd. 1. , that definition shall apply.

1971 c. 154 ; 1993 a. 399 , 486 ; 2005 a. 73 ; 2007 a. 130 . A county has the option to refuse payment of its sheriff's criminal defense attorney's fees. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574 , 263 N.W.2d 218 (1978). This section allows a municipality or county to pay an officer's attorney fees if it so elects. If the municipality refuses payment, the officer has no cause of action against the municipality under this section, even if the municipality had a practice of reimbursing attorney fees and costs incurred and it failed to pay because of political concerns. Murray v. City of Milwaukee, 2002 WI App 62 , 252 Wis. 2d 613 , 642 N.W.2d 541 , 01-0106 . A city may reimburse a commissioner of the city redevelopment authority for legal expenses incurred by the commissioner when charges are filed against the commissioner in his or her official capacity seeking the commissioner's removal from office for cause and the charges are found by the common council to be unsupported. Such reimbursement is discretionary. The city redevelopment authority lacks statutory authority to authorize reimbursement for such legal expenses. 63 Atty. Gen. 421. A city council can, in limited circumstances, reimburse a council member for reasonable attorney fees incurred in defending an alleged violation of the open meeting law, but cannot reimburse the member for any forfeiture imposed. 66 Atty. Gen. 226. This section applies to criminal charges brought against a former officer for alleged fraudulent filing of expense vouchers. 71 Atty. Gen. 4 . Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating open meetings law. 77 Atty. Gen. 177 .