2023 - 2024 LEGISLATURE
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2023 SENATE BILL 28
February 3, 2023 - Introduced by Senators MARKLEIN, BALLWEG, FEYEN, JACQUE,
JAGLER, JAMES, L. JOHNSON, SMITH and SPREITZER, cosponsored by
Representatives BORN, ALLEN, ARMSTRONG, BEHNKE, BROOKS, CALLAHAN, C.
ANDERSON, DITTRICH, DONOVAN, EDMING, EMERSON, GREEN, GUSTAFSON, JOERS,
KITCHENS, KRUG, MACCO, MAGNAFICI, MOSES, MURPHY, MURSAU, NEDWESKI,
NOVAK, O'CONNOR, PENTERMAN, PETRYK, PLUMER, RATCLIFF, RODRIGUEZ, ROZAR,
SCHRAA, SHANKLAND, SNYDER, SORTWELL, SPIROS, STEFFEN, SUBECK,
SUMMERFIELD, TRANEL, TUSLER, VANDERMEER, WITTKE and ZIMMERMAN.
Referred to Committee on Judiciary and Public Safety.
1 AN 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),
5 59.52 (8m) and 111.70 (4) (bn) of the statutes; relating to: classifying county
6 jailers as protective occupation participants under the Wisconsin Retirement
7 System and the treatment of county jailers under the Municipal Employment
8 Relations 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.
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SENATE BILL 28
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, 2022, 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, 2022,
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. The 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:
1 SECTION 1. 40.02 (17) (n) of the statutes is created to read:
2 40.02 (17) (n) Notwithstanding par. (d), each participant who is a county jailer
3 and who is classified as a protective occupation participant shall be granted
4 creditable service as a protective occupation participant for all covered service as a
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SENATE BILL 28 SECTION 1
1 county jailer that was earned on or after the effective date of this paragraph .... [LRB
2 inserts date], but may not be granted creditable service as a protective occupation
3 participant for any covered service as a county jailer that was earned before the
4 effective date of this paragraph .... [LRB inserts date], unless that service was earned
5 while the participant was classified under sub. (48) (a) and s. 40.06 (1) (d) as a
6 protective occupation participant.
7 SECTION 2. 40.02 (27) of the statutes is amended to read:
8 40.02 (27) “Employee required contribution" means the contribution made by
9 an employee under s. 40.05 (1) (a) 1. to 4. and 7.
10 SECTION 3. 40.02 (48) (am) 23. of the statutes is created to read:
11 40.02 (48) (am) 23. A county jailer.
12 SECTION 4. 40.02 (48) (b) 3. of the statutes is amended to read:
13 40.02 (48) (b) 3. A “deputy sheriff" or a “county traffic police officer" is any
14 officer or employee of a sheriff's office or county traffic department, except one whose
15 principal duties are those of a telephone operator, clerk, stenographer, machinist or
16 mechanic and whose functions do not clearly fall within the scope of active law
17 enforcement even though such an employee is subject to occasional call, or is
18 occasionally called upon, to perform duties within the scope of active law
19 enforcement. Deputy sheriff or county traffic police officer includes does not include
20 a county jailer, but does include any person regularly employed and qualifying as a
21 deputy sheriff or county traffic police officer, even if temporarily assigned to other
22 duties.
23 SECTION 5. 40.02 (48) (b) 5. of the statutes is created to read:
24 40.02 (48) (b) 5. A “county jailer" is an employee of a county whose principal
25 duties involve supervising, controlling, or maintaining a jail or the persons confined
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SENATE BILL 28 SECTION 5
1 in a jail, as assigned by the sheriff under s. 59.27 (1), regardless of whether the
2 employee has been sworn regarding his or her duties or whether the employee serves
3 on a full-time basis. Notwithstanding par. (a), an employer may classify an employee
4 who is a county jailer as a protective occupation participant under par. (am) 23.
5 without making a determination that the principal duties of the employee involve
6 active law enforcement or active fire suppression or prevention. A determination
7 under this subdivision may not be appealed under s. 40.06 (1) (e) or (em). A county
8 jailer is not a protective occupation participant if he or she so elects with the employer
9 under s. 59.52 (8m) or 2023 Wisconsin Act .... (this act).
10 SECTION 6. 40.02 (48) (c) of the statutes is amended to read:
11 40.02 (48) (c) In s. 40.65, “protective occupation participant" means a
12 participating employee who is a police officer, fire fighter, an individual determined
13 by a participating employer under par. (a) or (bm) to be a protective occupation
14 participant, county undersheriff, deputy sheriff, county jailer, state probation and
15 parole officer, county traffic police officer, conservation warden, state forest ranger,
16 field conservation employee of the department of natural resources who is subject to
17 call for forest fire control or warden duty, member of the state traffic patrol, state
18 motor vehicle inspector, University of Wisconsin System full-time police officer,
19 guard or any other employee whose principal duties are supervision and discipline
20 of inmates at a state penal institution, excise tax investigator employed by the
21 department 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.
23 SECTION 7. 40.05 (1) (a) 7. of the statutes is created to read:
24 40.05 (1) (a) 7. For a county jailer covered under subd. 3., the percentage of
25 earnings equal to the total actuarially required contribution rate, as approved by the
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SENATE BILL 28 SECTION 7
1 board under s. 40.03 (1) (e), for a participating employee whose formula rate is
2 determined under s. 40.23 (2m) (e) 3., less the contribution rate paid by the employer
3 for a county jailer under sub. (2) (a). Contributions under this section for an employee
4 who first becomes a participating employee as a county jailer and is certified as a
5 protective 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
7 as protective occupation participants on July 1, 2022, shall be made by a reduction
8 in salary and, for tax purposes, shall be treated as employer contributions under
9 section 414 (h) (2) of the Internal Revenue Code. A participating employee may not
10 elect to have contributions required by sub. (2) (a) paid directly to the employee or
11 make a cash or deferred election with respect to the contributions. Employees who
12 are participating employees on the effective date of this subdivision .... [LRB inserts
13 date], and who are first certified as protective occupation participants in a county
14 jailer position on or after the effective date of this subdivision .... [LRB inserts date],
15 and are employed in a county that did not classify county jailers as protective
16 occupation participants on July 1, 2022, shall make the contribution under this
17 section on an after-tax basis.
18 SECTION 8. 40.05 (1) (b) 1. of the statutes is amended to read:
19 40.05 (1) (b) 1. Except as otherwise provided in a collective bargaining
20 agreement entered into under subch. IV or V of ch. 111 and except as provided in
21 subd. 2., an employer may not pay, on behalf of a participating employee, any of the
22 contributions required by par. (a). The Except as provided in subd. 1a., the
23 contributions required by par. (a) shall be made by a reduction in salary and, for tax
24 purposes, shall be considered employer contributions under section 414 (h) (2) of the
25 Internal Revenue Code. A participating employee may not elect to have
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SENATE BILL 28 SECTION 8
1 contributions required by par. (a) paid directly to the employee or make a cash or
2 deferred election with respect to the contributions.
3 SECTION 9. 40.05 (1) (b) 1a. of the statutes is created to read:
4 40.05 (1) (b) 1a. Contributions under par. (a) 7. that are made by county jailers
5 who are first certified as protective occupation participants on or after the effective
6 date of this subdivision .... [LRB inserts date], and who are employed in a county that
7 did not classify county jailers as protective occupation participants on July 1, 2022,
8 shall be treated as employee contributions.
9 SECTION 10. 40.05 (2) (ap) of the statutes is created to read:
10 40.05 (2) (ap) The contributions under par. (a) that are required to be paid by
11 a participating employer for a county jailer whose formula rate is determined under
12 s. 40.23 (2m) (e) 3. shall be a percentage of earnings equal to one-half of the total
13 actuarially 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
15 paragraph applies only to contributions paid for a county jailer who becomes a
16 protective 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
18 as protective occupation participants on July 1, 2022.
19 SECTION 11. 40.05 (2) (ar) of the statutes is renumbered 40.05 (2) (ar) 1. and
20 amended to read:
21 40.05 (2) (ar) 1. Participating Except as provided in subd. 2., participating
22 employers of employees subject to s. 40.65 shall contribute an additional percentage
23 or percentages of those employees' earnings based on the experience rates
24 determined to be appropriate by the board with the advice of the actuary.
25 SECTION 12. 40.05 (2) (ar) 2. of the statutes is created to read:
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SENATE BILL 28 SECTION 12
1 40.05 (2) (ar) 2. County jailers who are first hired as protective occupation
2 participants on or after the effective date of this subdivision .... [LRB inserts date],
3 and are employed in a county that did not classify county jailers as protective
4 occupation participants on July 1, 2022, may make the contribution under subd. 1.
5 on a pre-tax basis, in lieu of their employers making the contribution. County jailers
6 who are first certified as protective occupation participants on or after the effective
7 date of this subdivision .... [LRB inserts date], and are employed in a county that did
8 not classify county jailers as protective occupation participants on July 1, 2022, shall
9 make the contribution under subd. 1. on a post-tax basis, in lieu of their employers
10 making the contribution.
11 SECTION 13. 40.23 (3) (a) of the statutes is amended to read:
12 40.23 (3) (a) Except as provided in par. pars. (b) and (c), the initial monthly
13 amount of any retirement annuity in the normal form shall not be less than the
14 money purchase annuity which can be provided by applying the sum of the
15 participant's accumulated additional and required contributions, including interest
16 credited to the accumulations, plus an amount from the employer accumulation
17 reserve equal to the participant's accumulated required contributions, less any
18 accumulated 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
20 actuarial tables in effect on the annuity effective date.
21 SECTION 14. 40.23 (3) (c) of the statutes is created to read:
22 40.23 (3) (c) Under par. (a), for a county jailer described in s. 40.02 (48) (am)
23 23., the amount to be paid from the employer accumulation reserve is equal to the
24 employer required contributions, including interest, paid for a county jailer under
25 s. 40.05 (2) (a). This paragraph applies only to a county jailer who becomes a
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SENATE BILL 28 SECTION 14
1 protective 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
3 as protective occupation participants on July 1, 2022.
4 SECTION 15. 40.28 (1) (a) 2. of the statutes is amended to read:
5 40.28 (1) (a) 2. The amount equal to 200 percent of employee required
6 contribution accumulations reserved for a variable annuity as of the date the annuity
7 begins. Except, for a county jailer described in s. 40.02 (48) (am) 23., the amount
8 equal to the employee required contributions and the employer required
9 contributions paid for a county jailer under s. 40.05 (2) (a), including interest,
10 reserved for a variable annuity on