By: Brian Sikma
A fight is underway between counties looking to be fiscally prudent and abide by the law, and a confusing status quo that has led some county sheriffs, and the unions representing sheriff’s department employees, to dispute the meaning of a state law definition that has been tested and verified by judicial review.
At the heart of the controversy is how jailers and correctional officers are classified for the purpose of pension contributions and some benefits. Landmark collective bargaining reforms passed in 2011 carefully exempted police and firefighters, referred to by the technical classification of protective occupation participants, or protective status, from the reforms. But even prior to Act 10, local governments could achieve some economy with a proper classification of jail workers.
Under state law, protective status jobs are carefully defined and awarded additional benefits based on the specific risk-nature of their jobs as outlined in statute and case law. Additional benefits, including higher employer contributions to the state Employee Trust Fund and earlier retirement eligibility, accrue to those with the classification.
For law enforcement agencies, such as county sheriffs, proper classification of employees, as either protective status or general status, is important for two reasons. First, as some strongly argue, local governments have a fiduciary responsibility to properly classify employees so was to manage taxpayer money most effectively. Second, while other government agencies and offices are typically comprised entirely of general status employees, law enforcement agencies mix both protective and general status occupations.
Counties Must Sort it Out
Sorting out who should be protective status and general states in a law enforcement agency comes down to reviewing state law and judicial precedent.
Because state law does not explicitly clarify whether a jailor or correctional officer is or is not protective status, a patchwork status quo has developed across Wisconsin. Other support roles in law enforcement agencies, as well as other active law enforcement occupations, are specifically delineated as protective or general status in state law. But because county jailors and corrections officers are not specifically designated one way or the other, the determination of their status is left to counties who must use a test specified in state law, and explained in court decisions.
Protective Status versus General Status by County
The price of misclassifying jailors can be pretty hefty, thanks to the need for higher government employer pension contributions to the state Employee Trust Fund. A county that misclassifies its jailors as protective status when in reality they are not can start saving hundreds of thousands each year by changing the designation.
Presently, according to a study by the Wisconsin Center for Investigative Journalism, of the 72 counties in Wisconsin, 23 counties classify their county jailors, which are under the control of the county sheriff, as protective status. An overwhelming majority of counties, 48, classify their jailors as general status. One county, Menomonee County, does not have a jail. A source familiar with the ongoing legal debate involving jailors also independently confirmed this with Media Trackers.
Jailor classification has become controversial because counties that do classify their jailors as protective status often have sheriffs who believe in the costly status quo, irrespective of what state law might suggest. County officials looking to more closely follow the law, and achieve a savings, have felt strong opposition at times from a sheriff. The Badger State Sheriffs’ Association and some individual sheriffs have been fighting hard to maintain the status quo for those jailors currently regarded as protective status.
Sheriffs Fight Legal Definition
Under the guise of promoting cooperation between sheriffs and counties, which are responsible for the classifying of county employees, the BSSA has launched a personal attack on those who champion a more accurate – and legal – classification scheme. In an April 10th letter to the Wisconsin County’s Association, David Kaminski, president of the Sheriffs’ Association and the Rusk County Sheriff, wrote:
Because a Sheriffs [sic] authority involves the need to ensure the safe & [sic] secure operation of the County Jail, the BSSA has always believed that the employment status and work responsibilities of all Wisconsin Jail [sic] employees should be collectively determined by each individual County Sheriff “in cooperation” with their respective County Boards. Cooperation and collaboration is the key to effective management.
Kaminski solicited letters from the state Department of Administration and the state Department of Employee Trust Funds allegedly verifying his point that neither “the law” nor Act 10 require counties to designate jailors as protective status.
Kaminski was appointed Rusk County Sheriff by Democratic Governor Jim Doyle in 2004.
Matt Stohr of the Department of Employee Trust Funds responded to Kaminski’s request saying that while the law does not require jailors to be classified as general status, the law is clear in providing a test employers must use in making the classification. “It is the WRS [Wisconsin Retirement System] employer’s responsibility to determine if the employee performs duties that meet these requirements and to report the appropriate employment category to ETF,” wrote Stohr.
Secretary Mike Huebsch of the Department of Administration wrote to Kaminski that while Act 10 did not require classification changes, the law regarding how employees should be classified remains in effect. “In response to all of these issues, ETFB has developed a consistent set of criteria to determine how employees should be categorized. These criteria have been tested and reviewed in Wisconsin State Courts.”
Threshold Determined by Statute and Test
That test is a fairly simple one. According to Wisconsin Statute 40.02(48), a law enforcement official qualifies for protective status if all of the following conditions are met:
“Protective occupation participant” means any participant whose principal duties are determined by the participating employer, or, subject to s. 40.06 (1) (dm), by the department head in the case of a state employee, to involve active law enforcement or active fire suppression or prevention, provided the duties require frequent exposure to a high degree of danger or peril and also require a high degree of physical conditioning.
Under that law, counties must determine that jailors are involved in “active law enforcement,” to the extent that there is a “high degree of danger or peril” and requiring “a high degree of physical conditioning” if they are to receive protective status benefits. According to the Wisconsin Appeals Court in Mattila v. Employee Trust Funds Board, a 2001 case, in order to be involved in active law enforcement an officer must spend more than half of his or her time actually do just that. Jail duty does not count as active law enforcement, and if an officer spends even a slight majority of his or her time working as a jailor, under state law they are not considered eligible for protective status.
In some rural areas, sheriff deputies may rotate in and out of jail duty, spending only a fraction of their time working in the jail. But for officers who spend a majority of their time working in the jail, their duties do not fall under the statutorily required threshold of “active law enforcement.”
None of this means that deputies assigned to jail duty cannot be used in occasional active law enforcement. State law says that a person may be classified as general status, “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.”
Legislature Could Add Clarification
An ultimate resolution to this dispute would be for lawmakers to clarify that jailors are not protective status unless they spend more than 50% of their time engaged in active law enforcement. This is the approach currently sanctioned by judicial precedent and found in Department of Employee Trust Funds’ rules. Such a legislative disposition would not only reinforce existing law and precedent, but could remove the clouds of confusion ginned up by opponents of the proper classification of jailors.