November/December 2021 Issue

Also in this issue: Financing Opportunities for Local Governments under the Infrastructure Investment and Jobs Act     |     Anita Gallucci Wins Distinguished "Friend of Public Power Award"     |     Milwaukee Wins Tax Exemption Challenge When Plaintiff Files Claim Too Soon

New Law Governs Police Officer Hiring and Record Retention

Steve Zach | 12.08.21

On November 9, 2021, Wisconsin Act 82 took effect which creates new requirements for police departments in their hiring practices for police officers and for the records they must keep when an officer separates from department employment. Act 82 also establishes new standards for the Law Enforcement Standards Board to consider with respect to decertification of any police officer.

Hiring Practices

The new law requires the following:

• A police department which is engaged in a hiring process for a new officer must require each candidate that it interviews for that position, and who is or has been employed by another police department, to execute a written waiver that explicitly authorizes those other departments to disclose the applicant’s employment files to the hiring department. 
• The waiver must also contain language that releases the hiring department and each department that employs or has employed the applicant from any liability related to the use and disclosure of the applicant’s employment files. 
• Any applicant who refuses to execute the waiver cannot be considered for employment by the hiring department or be considered for certification by the Law Enforcement Standards Board.
• The hiring department must, at least 30 days prior to making its hiring decision, submit the waiver to each department that has employed the applicant. 
• A department that receives a waiver must make the requested employment files available to the hiring department not more than 21 days after receiving the waiver. 
• The hiring department may also conduct an official oral interview of individuals from departments that employed the applicant. 
• A department which is provided with such a waiver must disclose the applicant’s employment files by either providing copies to the hiring department or allowing that department the opportunity to review the files at the hiring department’s offices. 

Under these provisions, a department is only required to obtain waivers from any applicant it intends to interview for the position. Therefore, if the department is engaged in a screening process prior to interviewing, it need not obtain waivers of those applicants it screens out prior to the interview process. As a practical matter, it is more efficient to have each applicant sign a waiver and require it to be submitted along with the rest of the application documents submitted to the hiring department.

These new requirements do not require a hiring department to conduct a background check of each interviewed applicant’s employment files from other agencies. Rather, the new law requires only that the hiring department submit the waiver to each department that employed the applicant at least 30 days prior to the hiring decision. It is significant that the statutory language identifies the applicant for whom this must be done in the singular. That implies that a hiring department need only submit the waiver with respect to the applicant who emerges as the leading candidate for the position subject to a background check, which must be done at least 30 days prior to the hiring decision. Because of this time frame, and the potential that other aspects of the background check may be completed prior to 30 days of a conditional offer of employment, departments may wish to submit the waivers to one or more applicants under consideration so that its hiring decision is not held up until the 30 days have expired.

Finally, the new statute provides immunity from liability to those departments for complying with these requirements.

Record Detention

The new law provides a new, broad definition of the ​“employment file” that is required to be maintained by a police department and disclosed pursuant to a waiver presented to it by any other department which is interviewing a current or separated officer from the police department. This file includes all files relating to a person’s employment, including performance reviews, files related to job performance, internal affairs investigative files, administrative files, previous personnel applications, personnel-related claims, disciplinary actions, and all substantiated complaints and commendations. It does not include pay or benefit information, similar administrative data or information that does not relate to performance or conduct, or medical files unless the medical file relates to mental competency issues bearing on the person’s suitability for a law enforcement, tribal law enforcement, jail, or juvenile detention officer position.

The potential impact of this definition of ​“employment file” is to require that all investigative materials, and any separation agreements entered into between an officer and a department and one of its officers, be disclosed to any department subsequently seeking to hire that officer. The intent of this new definition is to prohibit a department from not disclosing such records on the basis that they are not technically part of the officer’s personnel file, either because the officer resigned prior to the beginning or completion of an investigation or negotiated into a separation agreement a non-disclosure provision. 

As a practical matter, many departments utilized broad waivers in their hiring practices that required previous employing departments to disclose many, if not all, of the documents contained in the new definition of ​“employment file,” either through document disclosure or background interview. In addition, separation agreements generally are considered subject to disclosure under Wisconsin’s Open Records Law, notwithstanding the presence of a non-disclosure provision; however this new definition removes all doubt. Interestingly, however, the new law specifies that its mandate does not extend to separation agreements or personnel documents that contained non-disclosure provisions prior to November 9, 2021, which suggests an on-going practice in some departments of honoring such provisions notwithstanding the existence of a broad waiver covering such documents or a broad application of the Open Records Law.

Law Enforcement Standards Board

The new law also now requires the Law Enforcement Standards Board to decertify, among other reasons, any officer who:

• Fails to comply with the waiver provisions;
• Resigns in lieu of termination or is terminated for just cause unless the Board determines decertification for these reasons is not warranted; or 
• Is convicted of a felony or domestic abuse and requires an officer to notify the Board within 30 days of the conviction.

Conclusion

The goal of this new law is to provide transparency in the hiring process of police officers and to eliminate any practices which shield employing departments from learning about the disciplinary history of applicants. One potential impact of this new legislation is that there may be circumstances in which an officer faced with potential discipline will be more inclined to challenge disciplinary charges under Wis. Stat. § 62.13(5)(em) rather than voluntarily resigning, because under the latter option the officer will not be able to avoid the disclosure of the underlying issues by entering into a separation agreement and seeking employment elsewhere.