second annual vb&r public officials conference · • rules for how employees must be paid come...

Second Annual vB&R Public Officials Conference

Program

6:00 Welcome

6:05Public Records - Kyle Gulya

6:15Open Meetings - Chrissy Hamiel

6:25Collective Bargaining Update - Kyle Gulya

6:35Wage and Hour Issues - Chrissy Hamiel

6:45Break

6:50Construction/Bidding Issues - Andy Phillips

7:00Conflicts of Interest - Jim Macy

7:10Top WI Cases Impacting Public Entities - Ryan Heiden

7:20Legal Developments / Pending State Legislation - Jim Korom, Hector de la Mora, Chris Koehnke, Andy Phillips

7:30 Open Discussion

presented by:

Kyle Gulya

Public Records

• It’s the Content, not the Format.

• Retention rules apply.

• War Stories. From Sarah Palin to Hillary Clinton. Many other examples throughout the country at the local government level, typically furthering the high costs of fallout from a political or an employment dispute.

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Personal Accounts, Personal Devices and Social Media


• What do Wisconsin Courts have to say about it?

– Personal email communications. Schill v. Wisconsin Rapids School District, 2010 WI 86.

– The public has a right to know who is attempting to influence government. The John K. MacIver Institute for Public Policy Inc. v. Erpenbach, 2014 WI App 9.

– Social Websites. Informal Attorney General Opinion from Attorney General J.B. Van Hollen to Gail A. Peckler-Dziki (Dec. 23, 2009)

• Is the content of a government official’s social website called “Making Salem Better” a public record?

• May a public official maintain a private website with access provided only to certain individuals?

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• Personal Devices. A recent California decision provides substantial information about how courts may approach requests for records contained within personal devices.City of San Jose v. Smith, (March 2, 2017).

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On May 10, 2016, the Wisconsin Court of Appeals issued its decision in New Richmond News v. City of New Richmond and provided some direction to law enforcement agencies for responding to public records requests for law enforcement accident reports and incident reports that contain “personal information” and “highly restricted personal information” from department of motor vehicle records.

• Uniform Traffic Accident Reports.

• Incident Reports.

• Importance of the Source Information Verified Using DMV Records.

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DPPA

• So, what constitutes a motor vehicle record? This issue was not addressed by the court of appeals in the New Richmond Case. Law Enforcement Agencies should tread carefully on this issue and strictly interpret the DPPA when analyzing whether the personal information and highly restricted personal information found, for example, on a driver’s license is a motor vehicle record and not subject to release unless an exception applies.

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DPPA

• Open Records and Information about Sexual Assault Victims and Law Enforcement Investigation Strategies. Democratic Party of Wisconsin v. Wisconsin Dept. of Justice, 2016 WI 100

– The law prior to Democratic Party of Wisconsin v. Wisconsin Dept. of Justice.

– Law Enforcement Strategies.

– Victims Interests.

– Redaction and the “Meaningless” Standard.

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presented by:

Chrissy Hamiel

Open Meetings

OML in a Nutshell• Wis. Stat. §§ 19.81 to 19.98

• Public Policy: “In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.”

• The OML requires that all meetings of governmental bodies:– be preceded by public notice; and

– be held in a place that is open and reasonably accessible to all members of the public;

• Exception: Very limited situations in which a closed session is specifically authorized.

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Closed Session• Only the board may exercise the right to convene into

executive session.

• Statutory provisions permit specific and limited discussion in closed session. Section 19.85(1), Wis. Stat. identifies several exemptions

• However, not all parts of the meeting may not be closed if only a portion is subject to the Wis. Stat. § 19.85 exemption.– State ex rel. Citizens for Responsible Development v. City of

Milton, 2007 WI App 114, 731 N.W.2d 640.

• Application of exemptions to the Open Meetings Law must be narrow and only applicable to that portion of the meeting which can be closed under the exemptions.

Staff Meetings and OML• Krueger v. Appleton Area Sch. Dist. Bd. of Educ. – Appeal No.

2015AP231 (WI Ct. of Appeals 06/2016)

– Oral Arguments made to the Supreme Court (02/15/2017) – Decision Pending

– Issue: What constitutes a “governmental body” created by “rule or order” subject to the open meetings law?

– Issue: What is “governmental business” subject to the open meetings law?

– To date, the circuit court and Court of Appeals have held for the District.

– The Court held that the committee meetings were not school board meetings, nor directed by the Board or Superintendent by “rule or order.” The Wisconsin Supreme Court will decide this case, this term.

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Potential Implications of Krueger

• No logical stopping point for meetings of administration open to the public.

• Any number of meetings between district administrators may fall within the gamut of the Open Meetings Law.

• Imagine the meetings which may constitute a meeting of a governmental body if the Supreme Court finds the review committee was subject to the Open Meetings statute.

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Danger of Walking Quorums• Walking Quorum - A series of a series of gatherings or communications

among separate groups of members of a governmental body, each less than quorum size, who agree, tacitly or explicitly, to act uniformly in sufficient number to reach a quorum meetings

– The critical element of a walking quorum is an agreement to act uniformly.

– If there is no tacit or express agreement, exchanges among separate groups of members may take place without violating the Open Meetings law.

– The danger is that walking quorums produce a predetermined outcome and may render publicly-held meetings a mere formality. State ex rel. Lynch v. Conta, 71 Wis. 2d 622, 239 N.W. 2d 313 (1976)

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Core Principles to Remember

• The law favors openness.

• Keep closed sessions narrowly tailored and focused.

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presented by:

Kyle Gulya

Collective Bargaining Update:

Does Anyone Care?

Introduction

• Act 10 decimated collective bargaining for general employees as it was previously conducted in Wisconsin.

• Public safety and transit employees bargain as usual.

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Know the Status of Your Employees

• General Employees – All non-public safety and non-transit.

– Organized by a labor organization.

– Unorganized.

• Public Safety employees – police, fire, deputies.

– Most units are organized.

• Transit employees.

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Annual Recertification Elections for General Employees

• Non-school and non-state employees – no later than May 1st (election typically conducted in April).

• School district and state employees – no later than December 1st

(election typically conducted in November).

• Union files request form and fee to WERC by September 15th for state and school district general employees and January 30th for non-school and non-state general employees.

• Union must receive at least 51% of the votes of all of the general employees in the bargaining unit.

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Now That You Won the Election, What Can You Bargain?

(Short answer: Not much)

• Act 10 permits bargaining only over total base wages. All other subjects are off limits.

• The base wage negotiated is subject to the relevant Consumer Price Index (CPI):

– If the CPI increase is positive, an employer may impose a decrease of any magnitude in total base wage or an increase in total base wage up to the allowable CPI cap.

– If the CPI increase is zero or negative, the employer cannot increase or decrease total base wages; rather it must “freeze” them at existing levels.

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Now That You Won the Election, What Can You Bargain? (continued)

(Short answer: Not much)

• Current relevant CPI caps for contracts starting:

– January 1, 2017: 0.68%

– July 1, 2017: 1.26%

• There is no dispute resolution procedure; employers may implement their last offer.

• Employers can provide any wage increase/decrease for unorganized employees.

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Public Safety Employees Bargaining –Mostly Status Quo

• Public safety employees escaped major changes to their collective bargaining rights under Act 10 with one major exception:

• Public safety employees can only bargain over the employee contribution to health insurance – nothing else. The parties are prohibited from bargaining over health insurance deductibles, co-pays, benefits, plan design, HSA contributions, “opt out” stipends, etc.

• Since Act 10 passed in 2011, voluntary settlements have been the norm. There have been only 23 arbitration awards, split about 50-50 between employer and unions. (See http://www.vonbriesen.com/legal-news for summary of each interest arbitration case.)

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Transit Employees – Status Quo

• Transit employees retained all of their previous collective bargaining rights.

• Few organized bargaining units.

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Trends• Wage increases have recently been around 2.0%.

• Almost all employers require employees to contribute their own share of retirement (WRS) and at least 12% toward health insurance.

• Act 10 has provided public employers a rare opportunity to review and revise costly benefits and inefficient practices.

• Many unions have decided not to seek recertification given the extremely limited bargaining opportunities. Unions have found it difficult to justify dues when the best outcome it can achieve in bargaining is limited to the increase in the CPI.

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Trends• Employers still must offer competitive wages and benefits to

attract and retain quality employees.

• Some employers have filed declaratory ruling petitions with the WERC to challenge permissive subjects of bargaining found in public safety and transit contracts.

• Employers have restored management rights to control, direct, evaluate and discipline employees.

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presented by:

Chrissy Hamiel

Wage and Hour Issues

Pay – The Bottom Line

• Rules for how employees must be paid come from Federal and State Law

• Federal Law: Fair Labor Standards Act (FLSA)

• Federal law changes as to which employees must be paid overtime and minimum wage are now in limbo…

Primer - “White Collar” Exemptions

• Most commonly used by public employers: Executive, Administrative, Professional

• Title is not enough; a job must meet three tests for the job holder to be exempt from overtime and minimum wage =

Salary Basis + Salary Level + Job Duties

New “Overtime Rule”

• Changed salary level in place for more than a decade

• Most significant change more than doubled minimum annual salary level to $47,476 (with automatic 3-year update/escalator)

Overtime Rule Challenge

• Regulations were to be effective December 1, 2016

• November 22, 2016 preliminary Injunction issued by Texas Federal Court blocking implementation countrywide

• DOL appealed injunction to Fifth Circuit

• New deadline for briefing on appeal is June 30

What’s In Limbo?

Salary Level

The Duties Tests Have Not Changed

• All exempt positions must meet the duties test (and the old salary level and salary basis tests)

• What to keep doing regardless of limbo:

– Ensure job descriptions meet duties tests

– Ensure jobs as actually performed meet duties tests

This Is An Opportunity

• Audit your job classifications

• Review and update old job descriptions

• Make changes that need to be made in classifications

Want More?

• Visit: www.vonbriesen.com/school and download your FREE copy of the School District FLSA Playbook

• Visit: http://www.vonbriesen.com/legal-news/3506/flsa-playbook-the-trick-play, which supplements the Playbook with tips and tricks

• Coming soon! The Playbook for Counties and Municipalities!

presented by:

Andy Phillips

Construction/Bidding Issues

What Do You Need To Know?

• If you are a city, village, town or county official, you know that bidding laws apply to you. Simply put, public construction projects where the estimated cost is greater than $25,000 must be let by bid to the “lowest responsible bidder.”

• So are RFP standards and requirements important?

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Sometimes The Lowest Isn’t the Best…

From the movie Armageddon:

“You know we’re sitting on four million pounds of fuel, one nuclear weapon and a thing that has 270,000 moving parts built by the lowest bidder. Makes you feel good, doesn’t it?”

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What About School Districts?

• Under current law, school districts are subject to the following competitive bidding requirements:

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Assembly Bill 307

• School districts get to join their public agency colleagues in the wonderful world of competitive bidding!

• Bidding threshold increased to $75,000 for all projects other than road projects.

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Project Delivery and Public Bidding

• A traditional Design/Bid/Build model fits well with competitive bidding

– Architectural and engineering services are excluded from the bidding requirements (as professional services)

– Contractors evaluated on common set of plans

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Project Delivery and Public Bidding (continued)

• Construction Manager At-Risk Fits (Sort Of)

– Typical CM providing professional services is not subject to competitive bidding

– When CM converts to At-Risk, issues arise under bidding laws

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Bidding and CM At-Risk

• Phase I – Design

– Architect

– CM

– Owner

• What gets bid??

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• Phase II – Construction

– Architect

– CM

– Owner

• What gets bid??

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• The Hybrid CM At-Risk Bid Structure

– Phase I (design) CM cost is fixed

– Phase II (contractor) CM cost is bid based upon percentage of GMP

• All subcontracts having an anticipated value of greater than $25,000 are bid according to statute

– Owner controls the bid process

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Project Delivery and Public Bidding (continued)

• A Design/Build Model does not work under competitive bidding laws

– A “turnkey” project that avoids bidding runs afoul of the bidding requirements.

– A “turnkey” project that is competitively bid could work, but all of the advantages of the Design/Build delivery method are lost.

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presented by:

Jim Macy

Conflicts of Interest

“It takes 20 years to build a reputation and

five minutes to ruin it.” — Warren Buffett

Three Main Areas Regarding Conflict Issues

1. Statutory Section 19.59 – Code of Ethics

2. Statutory Section 946.13 – Conflict in Contracting

3. Common Law – Compatibility of Offices

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Statutory Section 19.59 –Code of Ethics

• Use of Office for Financial Gain or Substantial Value

• Solicit or Receive Anything of Value

• Take Action Substantially Affecting Official/Immediate Family

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Statutory Section 946.13 –Conflict in Contracting

• Contracting in your Private Capacity

• Contracting in your Public Capacity

• Exception: $15,000 Aggregate Threshold

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Common Law –Compatibility of Offices

• Not in the Statutes – Developed by Case Law

– Master/Servant Theory – Cannot be Both at Same Time

• School Board Member and Teacher

• City Council Member and DPW Director

• Current Elected Official – Considering Employment

• Current Employee – Running for Office

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Not Statutory / Not Common Law

• Does it pass the Smell Test?

• Would you be embarrassed to hear it on the radio?

• What would your mother say?

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presented by:

Ryan Heiden

Top Wisconsin CasesImpacting Public Entities

City of Monona – WERC Dec. No. 36748 (11/2016) – Health Insurance Plan Design

• Takeaway:

Bargaining over health insurance issues with public safety units under Wis. Stat. Section 111.70(4)(mc) is limited to employee premium contributions. Complete discretion over all issues related to “plan design” provides the employer with considerable bargaining power.

Beck v. City of Fond du Lac Police & Fire Commission, Case No. 2016 CV 423

(Fond du Lac Cir. Ct., 02/2017)

• Takeaway:

With the exception of oral and written reprimands, discipline of police officers and fire fighters is subject to statutory procedures and hearing before the Police and Fire Commission. A last chance agreement that eliminates the involvement of the Police and Fire Commission is unenforceable. However, it is possible to narrow the scope of the PFC review by mutual agreement of the parties.

Moraine Park Technical College –WERC Dec. No. 35461-B (01/2016)

• Takeaway:

After Act 10, bargaining units other than police and fire are limited to bargaining over base wages and the total potential increase is capped by statute. It is not a prohibited practice to give non-union employees a wage increase above the statutory cap for union employees since any increase over the statutory cap is discretionary.

Clark County –WERC Dec. No. 35793-B (08/2016)

• Takeaway:

While it is a prohibited practice to terminate an employee for protected concerted activity, you may still discipline an employee for workplace misconduct even if that misconduct occurred at or about the same time as other protect concerted activity.

Krueger v. Appleton Area School District –Appeal No. 2015 AP 231 (WI Ct. of Appeals 06/2016) –

Oral Arguments made to the Supreme Court (02/15/2017) – Decision Pending.

• Takeaway:High-ranking officials may create “committees” that could be subject to the Open Meetings Law. A close eye should be kept on the outcome of this case, as the outcome could substantially alter what type of traditionally operational “committees” could fit the definition of a “governmental body” under the law and, therefore, what meetings must be noticed.

Local 311, IAFF v. City of Sun Prairie, A/P M-14-026, Arbitrator Richard McLaughlin,

02/17/15 and 01/19/17

• Takeaway:

Just because someone loses licensure that is required for his or her job, that does not equate to just cause being established for purposes of termination. Rather employers must thoroughly conduct a just cause analysis before terminating an employee with such protections.

Townsend v. Neenah Joint School District, Wis. Court of Appeals, 2015 AP 2240,

08/03/16

• Takeaway:

Post-Act 10, governmental entities may unilaterally eliminate retirement benefits included in previous CBAs for general municipal employees, provided that the elimination of such retirement benefits only affects employees who have not yet retired and, therefore, are not vested in prior retirement benefits contained in previous CBAs. In fact, bargaining of the elimination of retiree benefits is illegal. Further, it is clear evergreen clauses contained in CBAs entered into pre-Act 10 are not effective for purposes of applying to employees retiring under subsequent CBAs.

Little Chute Area School District v. Wis. Education Assn. Council, Wis. Court of Appeals,

2015 AP 2033, 01/18/17

• Takeaway:

Simple contract language principles apply and govern when analyzing whether retiree benefits vested – and for what period of time – pursuant to the terms of pre-Act 10 CBAs.

presented by:

Jim Korom, Hector de la Mora, Chris Koehnke and Andy Phillips

Legal Developments /Pending State Legislation

DOJ General Investigative Guidelines forOfficer-Involved Death Investigation

• Released on Monday, May 22, 2017

• Sets forth the process DCI will follow when serving as the lead agency in the investigation.

• Mechanics of the investigative process generally well done, if a bit bureaucratic.

• All investigative agencies should review and revise their own policies in light of these new guidelines.

Pros

• Limits investigations solely to whether death is the result of criminal conduct.

• Creates supportive environment for the accused officer (access to family, clergy, counsellors, legal counsel, time to reflect, etc.).

• Controls release of information, with input from employing agency and prosecutor (especially access to video or audio recordings).

Cons

• If DCI is not the lead agency, their “guidelines” will become the new “floor” for others.

• Internal investigations into possible rule violations could be delayed, and perhaps undermined, by the OID investigation.

• The “walk through” informal interview immediately after the incident is voluntary, which could lead to the loss of critical information, evidence and witnesses.

• There are several gray areas related to use of internal department reports, who can be present during the interview of the officer, and whether an investigator is “too close” to the involved officer to be eligible to serve.

• The officer’s legal counsel can manipulate the process to get access to evidence, and then refuse to provide a statement.

School Referendum Reforms

• SB 191/AB 282 – Limits on when operating referenda and debt issuance referenda may be called

• SB 192/AB 279 – Fund 46 match program

• SB 193/AB 285 – General aid penalty for exceeding revenue limits and allowing for rescission of previous revenue limit increases

School Referendum Reforms (continued)

• SB 194/AB 269 – Require referenda to be scheduled on general election dates

• SB 195/AB 268 – Eliminate referenda to exceed revenue limits on a permanent basis

• SB 187/AB 274 – Disclosure of debt issuance referendum costs.

State Budget

• Joint Finance retained certain “policy” items related to school districts:

– Termination of revenue limit exemption for performance contracts

– Certification of Act 10 compliance

Land Use Legislation

• LRB 2630/P1

– Allow for compensation procedure in partial takings cases

– Codify zoning variance standards

– Codify CUP standards

Body Cameras on Law Enforcement Officers

This legislation will probably come up for a hearing in late summer or early fall. A bill number will be assigned to it in both Senate and Assembly by end of May.

Creates requirements for law enforcement agencies that use body cameras on law enforcement officers.

Agency Policies must be created regarding:

• Use, maintenance and storage of body cameras and datarecorded by the body cameras;

• Any limitations the law enforcement agency imposes on which law enforcement officers may wear a body camera;

Body Cameras on Law Enforcement Officers (continued)

• Any limitations the law enforcement agency imposes on situations, persons, or encounters that may be recorded by a body camera.

Agency Training

• All officers wearing body camera must be trained on the use, maintenance, storage and release of data.


Retention of Body Camera Data:

• Must be retained for a minimum of 120 days after recording and can then be destroyed unless a case or complaint is pending involving:

– death, injury or alleged injury

– custodial arrest

– search during a temporary questioning allowed by Wis. Stats.§968.25


• If data has evidentiary value in a prosecution, a preservation order must be entered within first 120 days specifying duration

• Data used in any civil, criminal or administrative proceeding may only be destroyed upon final disposition.

Body Camera Data is considered confidential and not subject to public records inspection/copying unless a case or complaint is pending.


If Body Camera Data is disclosable but was recorded under circumstances where a victim, witness, an innocent owner of the location of the recording or authorized representative thereof may have a reasonable expectation of privacy written permission is required for the Data’s release. If permission is not given within 14 days after being sought by the agency, the public records request can be denied until permission is received.


Expanding Manner of Giving Notice of Special Meetings in Cities

This legislation is currently working its way through both houses as 2017 Senate Bill 94 and 2017 Assembly Bill 145.

• Under current law, the Mayor of a city may call a special meeting of the common council by written notice delivered personally to each member or left at the member’s usual abode at least 6 hours before the meeting.

• This Bill allows the mayor to call a special meeting by notifying members in a manner likely to give each member notice of the meeting provided the notice is accomplished at least 6 hours before the meeting.

Personal Delivery Devices

Personal Delivery Devices (PDD) is:

• an electronically powered device that is intended primarily to transport property on sidewalks;

• weights less than 80 pounds;

• is capable of a maximum speed of 10 miles per hour or less; and

• is capable of operating with and without active control or monitoring by an individual described as an operator.

Personal Delivery Devices (continued)

• Senate Bill 148 has passed the Senate and is pending in the Assembly

• Authorizes the operation of personal delivery devices (PDDs) on sidewalks and crosswalks unless the governmental jurisdiction prohibits such operation.

• PDD operators must ensure that a PDD operates in compliance with the rules of the road regulating the conduct of pedestrians.

• PDD’s must be equipped with a plate or marker that identifies the name and contact information of the PDD operator.

• If a PDD is operated during hours of darkness, it must have a white visible light in front and a red reflector in the rear.

Personal Delivery Devices (continued)

second annual vb&r public officials conference · • rules for how employees must be paid come...

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