Date of enactment: April 6, 2023
2023 Assembly Bill 28 Date of publication*: April 7, 2023
2023 WISCONSIN ACT 4
AN ACT to renumber and amend 40.05 (2) (ar) and 40.73 (1) (am) 3.; to amend 40.02 (27), 40.02 (48) (b) 3., 40.02
(48) (c), 40.05 (1) (b) 1., 40.23 (3) (a) and 40.28 (1) (a) 2.; and to create 40.02 (17) (n), 40.02 (48) (am) 23., 40.02
(48) (b) 5., 40.05 (1) (a) 7., 40.05 (1) (b) 1a., 40.05 (2) (ap), 40.05 (2) (ar) 2., 40.23 (3) (c), 40.65 (4w), 40.73 (1) (am)
3. a. and b., 59.52 (8m) and 111.70 (4) (bn) of the statutes; relating to: classifying county jailers as protective occupa-
tion participants under the Wisconsin Retirement System and the treatment of county jailers under the Municipal
Employment Relations Act.
The people of the state of Wisconsin, represented in
senate and assembly, do enact as follows:
SECTION 1. 40.02 (17) (n) of the statutes is created to
read:
40.02 (17) (n) Notwithstanding par. (d), each partici-
pant who is a county jailer and who is classified as a pro-
tective occupation participant shall be granted creditable
service as a protective occupation participant for all cov-
ered service as a county jailer that was earned on or after
the effective date of this paragraph .... [LRB inserts date],
but may not be granted creditable service as a protective
occupation participant for any covered service as a
county jailer that was earned before the effective date of
this paragraph .... [LRB inserts date], unless that service
was earned while the participant was classified under
sub. (48) (a) and s. 40.06 (1) (d) as a protective occupa-
tion participant.
SECTION 2. 40.02 (27) of the statutes is amended to
read:
40.02 (27) “Employee required contribution” means
the contribution made by an employee under s. 40.05 (1)
(a) 1. to 4. and 7.
SECTION 3. 40.02 (48) (am) 23. of the statutes is cre-
ated to read:
40.02 (48) (am) 23. A county jailer.
SECTION 4. 40.02 (48) (b) 3. of the statutes is
amended to read:
40.02 (48) (b) 3. A “deputy sheriff” or a “county traf-
fic police officer” is any officer or employee of a sheriff’s
office or county traffic department, except one whose
principal duties are those of a telephone operator, clerk,
stenographer, machinist or mechanic and whose func-
tions do not clearly fall within the scope of active law
enforcement 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.
Deputy sheriff or county traffic police officer includes
does not include a county jailer, but does include any per-
son regularly employed and qualifying as a deputy sheriff
or county traffic police officer, even if temporarily
assigned to other duties.
SECTION 5. 40.02 (48) (b) 5. of the statutes is created
to read:
* Section 991.11, WISCONSIN STATUTES: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s
partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.” − 2 −2023 Wisconsin Act 4 2023 Assembly Bill 28
40.02 (48) (b) 5. A “county jailer” is an employee of
a county whose principal duties involve supervising,
controlling, or maintaining a jail or the persons confined
in a jail, as assigned by the sheriff under s. 59.27 (1),
regardless of whether the employee has been sworn
regarding his or her duties or whether the employee
serves on a full−time basis, provided the department
receives notification of the participant’s name as pro-
vided in s. 40.06 (1) (d) and (dm). Notwithstanding par.
(a), an employer may classify an employee who is a
county jailer as a protective occupation participant under
par. (am) 23. without making a determination that the
principal duties of the employee involve active law
enforcement or active fire suppression or prevention. A
determination under this subdivision may not be
appealed under s. 40.06 (1) (e) or (em). A county jailer
is not a protective occupation participant if he or she so
elects with the employer under s. 59.52 (8m) or 2023
Wisconsin Act .... (this act).
SECTION 6. 40.02 (48) (c) of the statutes is amended
to read:
40.02 (48) (c) In s. 40.65, “protective occupation par-
ticipant” means a participating employee who is a police
officer, fire fighter, an individual determined by a partici-
pating employer under par. (a) or (bm) to be a protective
occupation participant, county undersheriff, deputy sher-
iff, county jailer who is certified as a protective occupa-
tion participant, state probation and parole officer,
county traffic police officer, conservation warden, state
forest ranger, field conservation employee of the depart-
ment of natural resources who is subject to call for forest
fire control or warden duty, member of the state traffic
patrol, state motor vehicle inspector, University of Wis-
consin System full−time police officer, guard or any
other employee whose principal duties are supervision
and discipline of inmates at a state penal institution,
excise tax investigator employed by the department of
revenue, person employed under s. 60.553 (1), 61.66 (1),
or 62.13 (2e) (a), or special criminal investigation agent
employed by the department of justice.
SECTION 7. 40.05 (1) (a) 7. of the statutes is created
to read:
40.05 (1) (a) 7. For a county jailer covered under
subd. 3., the percentage of earnings equal to the total
actuarially required contribution rate, as approved by the
board under s. 40.03 (1) (e), for a participating employee
whose formula rate is determined under s. 40.23 (2m) (e)
3., less the contribution rate paid by the employer for a
county jailer under sub. (2) (a). Contributions under this
section for an employee who first becomes a participat-
ing employee as a county jailer in a county that did not
classify county jailers as protective occupation partici-
pants on the effective date of this subdivision .... [LRB
inserts date], and is certified as a protective occupation
participant on or after the effective date of this subdivi-
sion .... [LRB inserts date], shall be made by a reduction
in salary and, for tax purposes, shall be treated as
employer contributions under section 414 (h) (2) of the
Internal Revenue Code. Such a participating employee
may not elect to have contributions required by sub. (2)
(a) paid directly to the employee or make a cash or
deferred election with respect to the contributions.
Employees who are participating employees on the effec-
tive date of this subdivision .... [LRB inserts date], and
who are first certified as protective occupation partici-
pants in a county jailer position on or after the effective
date of this subdivision .... [LRB inserts date], in a county
that did not classify county jailers as protective occupa-
tion participants on the effective date of this subdivision
.... [LRB inserts date], shall make the contribution under
this section on a post−tax basis. For employees who are
employed as county jailers in a county that classified
county jailers as protective occupation participants on the
effective date of this subdivision .... [LRB inserts date],
the county may at a subsequent date determine to catego-
rize county jailers as general participating employees. In
such instance, a county jailer who is employed by the
county on the date the county determines to categorize
county jailers as general participating employees may
make a onetime irrevocable election to not be a protective
occupation participant. A county jailer in such a county
who opts to remain a protective occupation participant
shall make the contribution under this section on a post−
tax basis. A county jailer who is first hired as a county
jailer by such a county after the date the county deter-
mines to categorize county jailers as general participating
employees may make a onetime irrevocable election to
not become a protective occupation participant. A
county jailer who is first hired as a county jailer by such
a county after the date the county determines to catego-
rize county jailers as general participating employees and
who opts to become a protective occupation participant
shall make the contribution under this section on a pre−
tax basis.
SECTION 8. 40.05 (1) (b) 1. of the statutes is amended
to read:
40.05 (1) (b) 1. Except as otherwise provided in a col-
lective bargaining agreement entered into under subch.
IV or V of ch. 111 and except as provided in subd. 2., an
employer may not pay, on behalf of a participating
employee, any of the contributions required by par. (a).
The Except as provided in subd. 1a., the contributions
required by par. (a) shall be made by a reduction in salary
and, for tax purposes, shall be considered employer con-
tributions under section 414 (h) (2) of the Internal Rev-
enue Code. A participating employee may not elect to
have contributions required by par. (a) paid directly to the
employee or make a cash or deferred election with
respect to the contributions.
SECTION 9. 40.05 (1) (b) 1a. of the statutes is created
to read: − 3 − 2023 Wisconsin Act 4 2023 Assembly Bill 28
40.05 (1) (b) 1a. Contributions under par. (a) 7. that
are made by county jailers who are first certified as pro-
tective occupation participants on or after the effective
date of this subdivision .... [LRB inserts date], and who
are employed in a county that did not classify county jail-
ers as protective occupation participants on July 1, 2022,
shall be treated as employee contributions.
SECTION 10. 40.05 (2) (ap) of the statutes is created
to read:
40.05 (2) (ap) The contributions under par. (a) that
are required to be paid by a participating employer for a
county jailer whose formula rate is determined under s.
40.23 (2m) (e) 3. shall be a percentage of earnings equal
to one−half of the total actuarially required contribution
rate, as approved by the board under s. 40.03 (1) (e), for
an employee whose formula rate is determined under s.
40.23 (2m) (e) 1. This paragraph applies only to contri-
butions paid for a county jailer who becomes a protective
occupation participant on or after the effective date of this
paragraph .... [LRB inserts date], and is one of the follow-
ing:
1. Employed in a county that did not classify county
jailers as protective occupation participants on the effec-
tive date of this subdivision .... [LRB inserts date].
2. Employed in a county that classified county jailers
as protective occupation participants on the effective date
of this subdivision .... [LRB inserts date], and the county
subsequently determines to not classify county jailers as
protective occupation participants and instead classify
county jailers as general participating employees.
SECTION 11. 40.05 (2) (ar) of the statutes is renum-
bered 40.05 (2) (ar) 1. and amended to read:
40.05 (2) (ar) 1. Participating Except as provided in
subd. 2., participating employers of employees subject to
s. 40.65 shall contribute an additional percentage or per-
centages of those employees’ earnings based on the expe-
rience rates determined to be appropriate by the board
with the advice of the actuary.
SECTION 12. 40.05 (2) (ar) 2. of the statutes is created
to read:
40.05 (2) (ar) 2. County jailers who are first hired as
protective occupation participants on or after the effec-
tive date of this subdivision .... [LRB inserts date], in a
county that did not classify county jailers as protective
occupation participants on the effective date of this sub-
division .... [LRB inserts date], may make the contribu-
tion under subd. 1. on a pre−tax basis, in lieu of their
employers making the contribution. County jailers who
are first certified as protective occupation participants on
or after the effective date of this subdivision .... [LRB
inserts date], in a county that did not classify county jail-
ers as protective occupation participants on the effective
date of this subdivision .... [LRB inserts date], shall make
the contribution under subd. 1. on a post−tax basis, in lieu
of their employers making the contribution. For employ-
ees who are employed as county jailers in a county that
classified county jailers as protective occupation partici-
pants on the effective date of this subdivision .... [LRB
inserts date], the county may at a subsequent date deter-
mine to categorize county jailers as general participating
employees. In such instance, a county jailer who is
employed by the county on the date the county deter-
mines to categorize county jailers as general participating
employees may make a onetime irrevocable election to
not be a protective occupation participant. A county
jailer in such a county who opts to remain a protective
occupation participant shall make the contribution under
subd. 1. on a post−tax basis. A county jailer who is first
hired as a county jailer by such a county after the date the
county determines to categorize county jailers as general
participating employees may make a onetime irrevocable
election to not become a protective occupation partici-
pant. A county jailer who is first hired as a county jailer
by such a county after the date the county determines to
categorize county jailers as general participating
employees and who opts to become a protective occupa-
tion participant shall make the contribution under subd.
1. on a pre−tax basis.
SECTION 13. 40.23 (3) (a) of the statutes is amended
to read:
40.23 (3) (a) Except as provided in par. pars. (b) and
(c), the initial monthly amount of any retirement annuity
in the normal form shall not be less than the money pur-
chase annuity which can be provided by applying the sum
of the participant’s accumulated additional and required
contributions, including interest credited to the accumu-
lations, plus an amount from the employer accumulation
reserve equal to the participant’s accumulated required
contributions, less any accumulated contributions to pur-
chase other governmental service under s. 40.25 (7),
2001 stats., or s. 40.285 (2) (b) to fund the annuity in
accordance with the actuarial tables in effect on the annu-
ity effective date.
SECTION 14. 40.23 (3) (c) of the statutes is created to
read:
40.23 (3) (c) Under par. (a), for a county jailer
described in s. 40.02 (48) (am) 23., the amount to be paid
from the employer accumulation reserve is equal to the
employer required contributions, including interest, paid
for a county jailer under s. 40.05 (2) (a). This paragraph
applies only to a county jailer who becomes a protective
occupation participant on or after the effective date of this
paragraph .... [LRB inserts date], and is one of the follow-
ing:
1. Employed in a county that did not classify county
jailers as protective occupation participants on the effec-
tive date of this subdivision .... [LRB inserts date].
2. Employed in a county that classified county jailers
as protective occupation participants on the effective date
of this subdivision .... [LRB inserts date], and the county
subsequently determines to not classify county jailers as − 4 −2023 Wisconsin Act 4 2023 Assembly Bill 28
protective occupation participants and instead classify
county jailers as general participating employees.
SECTION 15. 40.28 (1) (a) 2. of the statutes is
amended to read:
40.28 (1) (a) 2. The amount equal to 200 percent of
employee required contribution accumulations reserved
for a variable annuity as of the date the annuity begins.
Except, for a county jailer described in s. 40.02 (48) (am)
23., the amount equal to the employee required contribu-
tions and the employer required contributions paid for a
county jailer under s. 40.05 (2) (a), including interest,
reserved for a variable annuity on the date the annuity
begins. The amount applicable for a county jailer applies
only to a county jailer who becomes a protective occupa-
tion participant on or after the effective date of this subdi-
vision .... [LRB inserts date], and who is either employed
in a county that did not classify county jailers as protec-
tive occupation participants on the effective date of this
subdivision .... [LRB inserts date], or employed in a
county that classified county jailers as protective occupa-
tion participants on the effective date of this subdivision
.... [LRB inserts date], and the county subsequently deter-
mines to not classify county jailers as protective occupa-
tion participants and instead classify county jailers as
general participating employees; and
SECTION 16. 40.65 (4w) of the statutes is created to
read:
40.65 (4w) A county jailer who becomes a protective
occupation participant on or after the effective date of this
subsection .... [LRB inserts date], is not entitled to a duty
disability benefit under this section for an injury or dis-
ease occurring before the effective date of this subsection
.... [LRB inserts date].
SECTION 17g. 40.73 (1) (am) 3. of the statutes is
renumbered 40.73 (1) (am) 3. (intro.) and amended to
read:
40.73 (1) (am) 3. (intro.) Twice the employee
required contributions, after first subtracting the accu-
mulations under subd. 2., including interest on the accu-
mulations. Except, for a county jailer described in s.
40.02 (48) (am) 23., the amount equal to the employee
required contributions and the employer required contri-
butions paid for a county jailer under s. 40.05 (2) (a), after
first subtracting the accumulations under subd. 2.,
including interest on the accumulations. The amount
applicable for a county jailer applies only to a county
jailer who becomes a protective occupation participant
on or after the effective date of this subdivision .... [LRB
inserts date], and who is one of the following:
SECTION 17r. 40.73 (1) (am) 3. a. and b. of the statutes
are created to read:
40.73 (1) (am) 3. a. Employed in a county that did not
classify county jailers as protective occupation partici-
pants on the effective date of this subd. 3. a. .... [LRB
inserts date].
b. Employed in a county that classified county jailers
as protective occupation participants on the effective date
of this subd. 3. b. .... [LRB inserts date], and the county
subsequently determines to not classify county jailers as
protective occupation participants and instead classify
county jailers as general participating employees.
SECTION 18. 59.52 (8m) of the statutes is created to
read:
59.52 (8m) EMPLOYMENT OF COUNTY JAILERS. (a)
The board of an employer that did not classify county jail-
ers as protective occupation participants on the effective
date of this paragraph .... [LRB inserts date], shall pro-
vide to an individual who is employed as a county jailer
the irrevocable option to elect not to be a protective occu-
pation participant under s. 40.02 (48) (b) 5. when hired
after the effective date of this paragraph .... [LRB inserts
date], as a county jailer for the employer. An individual
shall make an election under this paragraph within 60
days of being hired, in writing and on a form provided by
the board.
(b) The board of an employer that classified county
jailers as protective occupation participants on the effec-
tive date of this paragraph .... [LRB inserts date], and that
subsequent to that date determines to classify county jail-
ers as general participating employees shall provide to an
individual who is employed as a county jailer on the date
the board of the employer determines to classify county
jailers as general participating employees the irrevocable
option to not be a protective occupation participant under
s. 40.02 (48) (b) 5. Such a board shall provide notice to
county jailers of the board’s determination and a jailer’s
opportunity to remain a protective occupation participant
in writing, in a manner that the employer typically uses
to provide notices to employees, and shall post such a
notice where notices to employees are customarily
posted. An individual shall make an election under this
paragraph within 60 days after the determination by the
board of the employer to classify county jailers as general
participating employees, in writing and on a form pro-
vided by the board.
(c) The board of an employer that classified county
jailers as protective occupation participants on the effec-
tive date of this paragraph .... [LRB inserts date], and that
subsequent to that date determines to classify county jail-
ers as general participating employees shall provide to an
individual who is hired as a county jailer after the date the
board of the employer determines to classify county jail-
ers as general participating employees the irrevocable
option to elect to not become a protective occupation par-
ticipant under s. 40.02 (48) (b) 5. An individual shall
make an election under this paragraph within 60 days
after being hired, in writing and on a form provided by the
board.
SECTION 19. 111.70 (4) (bn) of the statutes is created
to read: − 5 − 2023 Wisconsin Act 4 2023 Assembly Bill 28
111.70 (4) (bn) Public safety employee determina-
tion regarding county jailers. 1. Except as provided
under subd. 2., a county jailer, as defined in s. 40.02 (48)
(b) 5., is a general municipal employee.
2. A county that treats a county jailer as a public
safety employee on the effective date of this subdivision
.... [LRB inserts date], shall continue to treat any person
it employs as a county jailer as a public safety employee
except that, if the county raises a question concerning the
appropriateness of including county jailers in a collective
bargaining unit that includes public safety employees, no
person it employs as a county jailer may be treated as a
public safety employee.
SECTION 20.0Nonstatutory provision.
(1) COUNTY JAILER OPT OUT FROM PROTECTIVE OCCU-
PATION PARTICIPANT STATUS UNDER WISCONSIN RETIRE-
MENT SYSTEM. No later than 60 days after the effective
date of this subsection, if an individual employed as a
county jailer on the effective date of this subsection who
is not a protective occupation participant on the effective
date of this subsection does not want to be a protective
occupation participant under the Wisconsin Retirement
System, the individual shall notify his or her employer in
writing on a form provided by the employer. An election
not to be a protective occupation participant is irrevoca-
ble.
SECTION 21.0Effective date.
(1) This act takes effect on the January 1 after publi-
cation.