230.44 Appeal procedures.
(1) Appealable actions and steps. Except as provided in par. (e), the following are actions appealable to the commission under s. 230.45 (1) (a):
(a) Decision made or delegated by director. Appeal of a personnel decision under this subchapter made by the director or by an appointing authority under authority delegated by the director under s. 230.05 (2).
(b) Decision made or delegated by administrator. Appeal of a personnel decision under s. 230.09 (2) (a) or (d) or 230.13 (1) made by the administrator or by an appointing authority under authority delegated by the administrator under s. 230.04 (1m).
(c) Demotion, layoff, suspension or discharge. If an employee has permanent status in class, or an employee 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, the employee may appeal a demotion, layoff, suspension, discharge or reduction in base pay to the commission as the final step in the state employee grievance process established under s. 230.445, if the appeal alleges that the decision was not based on just cause.
(d) Illegal action or abuse of discretion. A personnel action after certification which is related to the hiring process in the classified service and which is alleged to be illegal or an abuse of discretion may be appealed to the commission.
(dm) Noncompetitive appointment of certain disabled veterans. A personnel action under s. 230.275 by an appointing authority that is alleged to be illegal or an abuse of discretion. The director and the division may not be a party to any such appeal.
(e) Discretionary performance awards. This subsection does not apply to decisions of an appointing authority relating to discretionary performance awards under s. 230.12 (5) or under the discretionary merit award program established under s. 230.04 (19), including the evaluation methodology and results used to determine the award or the amount awarded.
(f) Corrections employee rights. A determination that a person was discharged from the unclassified service for just cause under s. 230.337.
(h) Decisions affecting Milwaukee County employees by the department of health services. A decision of the department of health services relating to a Milwaukee County employee under s. 49.825 (3) (b).
(i) Decisions affecting certain county employees by the department of children and families. A decision of the department of children and families relating to a county employee under s. 49.826 (3) (b).
(2) Form. All appeals filed under this section shall be in writing.
(3) Time limits. Any appeal filed under this section may not be heard unless the appeal is filed within 30 days after the effective date of the action, or within 30 days after the appellant is notified of the action, whichever is later.
(4) Hearing.
(a) A hearing under this section shall be open to the public unless the appellant requests that the hearing be closed.
(b) An employee shall attend a hearing under this subsection and testify when requested to do so by the commission. Any person not under the civil service who appears before the commission by order shall receive for his or her attendance the fees and mileage provided for witnesses in civil actions in courts of record under ch. 885, which shall be audited and paid by the state in the same manner as other expenses are audited and paid, upon the presentation of properly verified vouchers approved by the commission and charged to the proper appropriation for the commission. No witness subpoenaed at the insistence of a party other than the commission is entitled to compensation from the state for attendance or travel, unless the commission certifies that his or her testimony was relevant and material to the matter.
(bm) Upon request of an employee who files an appeal of the decision of the administrator made under s. 230.09 (2) (a) or (d), the appeal shall be heard by the commissioner or an attorney employed by the commission serving as arbitrator under rules promulgated for this purpose by the commission. In such an arbitration, the arbitrator shall orally render a decision at the conclusion of the hearing affirming, modifying, or rejecting the decision of the administrator. The decision of the arbitrator is final and is not subject to review by the commission. An arbitrator's decision may not be cited as precedent in any other proceeding before the commission or before any court. The arbitrator shall promptly file his or her decision with the commission. The decision of the arbitrator shall stand as the decision of the commission. The decision of the commission is subject to review under ss. 227.53 to 227.57 only on the ground that the decision was procured by corruption, fraud, or undue means or that the arbitrator or the commission exceeded the arbitrator's or the commission's power. The record of a proceeding under this paragraph shall be transcribed as provided in s. 227.44 (8).
(c) After conducting a hearing or arbitration on an appeal under this section, the commission or the arbitrator shall either affirm, modify or reject the action which is the subject of the appeal. If the commission or the arbitrator rejects or modifies the action, the commission may issue an enforceable order to remand the matter to the person taking the action for action in accordance with the decision. Any action brought against the person who is subject to the order for failure to comply with the order shall be brought and served within 60 days after the date of service of the decision of the commission or the arbitrator.
(d) The commission may not remove an incumbent or delay the appointment process as a remedy to a successful appeal under this section unless there is a showing of obstruction or falsification as enumerated in s. 230.43 (1).
(e) Any party in an action under this section may be present at a hearing in the action under this section, in person, by attorney or by any other agent.
(f) The commission shall issue a decision on an action under this section within 90 days after the hearing on the action is completed.
History: 1977 c. 196; 1979 c. 221; 1981 c. 140; 1983 a. 27; 1989 a. 31; 1991 a. 269; 1993 a. 16; 1995 a. 27; 1997 a. 307; 1999 a. 102; 2003 a. 33; 2009 a. 15, 28, 212; 2013 a. 123; 2015 a. 55, 150; 2017 a. 59.
The discharge of a probationary employee is not appealable as part of the “hiring process" under sub. (1) (d). Board of Regents v. Wisconsin Personnel Commission, 103 Wis. 2d 545, 309 N.W.2d 366 (Ct. App. 1981).
The commission had jurisdiction to hear the appeal of a career executive employee's reassignment to a job in a lower pay range who alleged that the reassignment was for disciplinary purposes and was unreasonable and an improper exercise of discretion. Basinas v. State, 104 Wis. 2d 539, 312 N.W.2d 483 (1981).
While this section's procedures may be available to persons other than affected employees, an action to have declared illegal an alleged intentional and systematic attempt to circumvent civil service laws for partisan political purposes was not barred due to a failure to meet the appeal time limits of this section. Association of Career Employees v. Klauser, 195 Wis. 2d 602, 536 N.W.2d 478 (Ct. App. 1995), 94-0632.
The plain meaning of “effective date of the action" in sub. (3) is the date on which the action takes effect. The action in this case was the extension of the employee's probation, and the extension took effect at the time his prior probationary period expired. Stern v. WERC, 2006 WI App 193, 296 Wis. 2d 306, 722 N.W. 2d 594, 05-3144.
The time limit in sub. (3) may be waived. Stern v. WERC, 2006 WI App 193, 296 Wis. 2d 306, 722 N.W. 2d 594, 05-3144.