The League's League-EL
February 2, 2022
Coming soon – Model Waiver and Release Form for Recruiting Law Enforcement Agencies
League attorneys have worked with a group of Wisconsin municipal attorneys to prepare a model Waiver and Release form that will assist law enforcement agencies in meeting one of the requirements of 2021 Wis. Act 82. Act 82 requires, among other things, that recruiting law enforcement agencies interviewing candidates for a law enforcement position, who are or have been employed by another law enforcement agency, tribal law enforcement agency, jail, juvenile detention facility, or government agency, to obtain a written waiver from those candidates explicitly authorizing disclosure of their current and past employment files to the interviewing law enforcement agency and releasing those current and/or former employer(s) and the interviewing agency from any liability related to the disclosure of those files (more detail on Act 82 is available in the January issue of The Municipality in an article by von Briesen attorneys Ryan Heiden and Audrey Merkel available here. (PDF)

This Waiver and Release is undergoing final review and will be released shortly.

Absentee Ballot Drop Boxes NOT Prohibited for February Elections (But Stay Tuned)!
The use of absentee ballot drop boxes is not prohibited for the February primary election, but stay tuned! The Wisconsin Supreme Court recently granted an emergency petition to bypass the court of appeals and decide a case challenging certain guidance issued by the Wisconsin Election Commission (WEC) on March 31, 2020, and August 19, 2020, pertaining to whether drop-boxes for the collection of absentee ballots are permitted, whether electors are required to mail or deliver their absentee ballots, and other matters. Due to the proximity of the election and to avoid confusion, the Supreme Court left intact the Wisconsin Court of Appeals’ order staying, for the February election, a circuit court decision prohibiting the use of drop boxes to collect absentee ballots.   

Recent Cases of Interest

Municipalities Cannot Seek Certiorari Review of BOR
The Wisconsin Supreme Court held that Wis. Stat. § 70.47(13) does not allow a municipality to seek certiorari review of a Board of Review (BOR) decision. State of Wisconsin ex. Rel City of Waukesha v. City of Waukesha Bd. Of Review, 2021 WI 89. In concluding that § 70.47(13) only authorizes taxpayers to seek certiorari review of a BOR decision, the Court examined the language of § 70.47 as a whole as well as other statutes explicitly granting municipalities certiorari review. Section 70.47’s lack of explicit authority for the municipality to seek certiorari review and the fact that the appeal deadline for seeking certiorari review is conditioned on when the taxpayer receives notice of the board’s decision weighed heavily in the Court’s decision. A copy of the decision is available here.

The League participated as amicus, contending that the language of § 70.47(13) does not prohibit a municipality from seeking certiorari review and that such a conclusion insulates BOR errors favoring property owners from court review and protects individual taxpayers at the expense of all other taxpayers. 

Return to City Employment May Affect Eligible Retirement Age in Milwaukee
In Miller v. City of Milwaukee, 2022 WI App 3, the Wisconsin Court of Appeals held that participants in the Milwaukee Employees’ Retirement System who leave employment and then subsequently return to city employment are eligible to receive their retirement benefits at the minimum retirement age attributed to the subsequent employment position. The case involved two former police officers who retired from the police department before they reached the minimum retirement age of fifty-seven. Following their retirement, the officers each returned to city employment with different agencies and were later notified that they would begin receiving their retirement benefits at age sixty. The officers claimed that, despite returning to city employment, they had a vested right in the minimum service retirement age applicable to police officers. However, based on Milwaukee’s applicable ordinances, the Court of Appeals disagreed and held the officers were not entitled to receive their retirement benefits until age sixty due to their re-employment under classification as general city employees. 

This newsletter will be posted to the League's Legal News page.