Act 10 Hits Jail Employees

One day last October, Sgt. Louise Hackel of the Clark County Sheriff’s Department was summoned to deal with an emergency.

A distraught woman at the central Wisconsin county’s Community Services office was being involuntarily committed for mental health reasons. Hackel, one of four jail workers who arrived on the scene, said the woman was “actively resisting.”

When Hackel and her partner each grabbed an arm to lift the heavy-set woman from a chair, she “dropped dead-weight to the floor,” Hackel said, and both officers tumbled down with her. Hackel sustained a muscle injury that required chiropractic care.

Faced with a similar scenario today, Hackel might not respond the same way. That’s because she now has less protection in the event of an on-the-job disability than she did a few months ago.

Now, if possible, she would wait for someone else to assume the risk: “I would probably call on law enforcement officers in protective status.”

Hackel is one of about two dozen Clark County communications and corrections workers who were recently stripped of protective status, a state employment classification available to workers in high-risk professions.

In recent months, this change has occurred in at least 10 of Wisconsin’s 72 counties; efforts to do the same are under way in several more. More than 80 reclassified employees have filed appeals with the state, a process that could take more than a year.

The issue has arisen in the aftermath of 2011 Act 10, the controversial law passed by Gov. Scott Walker and the Republican-controlled Legislature that imposed sweeping changes on government employees. The act exempted public safety workers, elsewhere defined as those, minimally, with protective status. That has made this classification more coveted — and endangered.

Across the state, mini-Act 10 battles are being fought over which public employees qualify for protective status. For now, the focus has been on jail workers, but there is concern that this classification could be challenged for other public safety employees.

When their protective status classification is taken away, jailers lose most collective bargaining rights and may be required, like other public workers, to pay substantially more toward their pensions.

Clark County Jail Sgt. Joel Smith has calculated that, for him, this change amounts to a $3,500 annual kick in the wallet. “In addition,” he said, “our wages have been frozen and our insurance rates have increased dramatically.”

Protective status workers can retire earlier — at age 50 for partial benefits and age 54 for full benefits. Protective workers reclassified as general employees retain this ability, but new hires will face higher retirement ages — ranging from age 57 to 65 for full benefits depending on years of service.

The loss of protective status also ends workers’ eligibility for duty disability, a state program that provides a higher level of income reimbursement to disabled workers than does workers compensation. That’s a big deal to workers like Hackel — especially given a recent near-fatal attack on a jailer in Marathon County.

Andrew Phillips, a Mequon-based attorney whose firm does legal work for several dozen Wisconsin counties, has advised county officials around the state to revoke jail employees’ protective status, to save money and conform to the letter of the law.

“This usually comes up in the context of collective bargaining,” Phillips said. When it’s time to negotiate new contracts, Phillips and others contend that some jail employees have mostly lost their rights to bargain.

The reclassification has been vigorously opposed by county sheriffs and the Badger State Sheriffs’ Association. They say it is based on misinformation, undermines recruitment and morale, and ends up costing counties more than they save.

“They didn’t understand what they did,” said Clark County Sheriff Greg Herrick, referring to the closed-door decisions made in his county. “I’m sitting here along with many other sheriffs struggling with staffing issues created by blunders they made.”

Illusory savings?

The employment classification “protective occupation participant” is used by the state Department of Employee Trust Funds, which manages pension benefits for public workers. Most work for local governments like cities and counties that voluntarily participate in the program; about a quarter are state employees.

Less than 10 percent of the fund’s roughly 250,000 active participants are considered protective. It is up to each employer to classify its workers, based on guidance in state law and ETF interpretations.

The classification has even been the subject of collective bargaining — before Act 10 made it a litmus test for full bargaining rights. While Phillips said the law is clear that “protective status has been a prohibited subject of bargaining for 20 years,” jailers in some counties have traded it for other gains.

“Over the years a lot of county jailers bargained away their protective status,” said Dean Meyer, executive director of the Badger State Sheriffs’ Association.

In some counties, the lack of protective status is a sore spot with jail workers.

“They do not appreciate us here at all,” said Kim Lavasseur, a veteran correctional officer in Ashland County, where jail staffers have long had general status. “We’re just considered pieces of crap.” Lavasseur says that, as a jail worker, “I’ve risked my life. I’ve been kicked, hit and spit on.”

Currently, according to a review by the Wisconsin Center for Investigative Journalism, 23 counties have protective status for jail workers, and 48 don’t. (One county, Menominee, contracts with Shawano County for jail services; workers there have general status.) Among those who don’t are some larger counties, including Milwaukee and Racine.

Ten counties — Bayfield, Chippewa, Clark, Green Lake, Kewaunee, Marquette, Ozaukee, Polk, Price and Waushara — have gone from protective to general status within the past two years, since the passage of Act 10. Phillips and his firm were involved in most of these cases.

There is ongoing discussion about changing jail employees’ status in at least four other counties — Buffalo, Douglas, Dunn and Monroe. And it is expected to arise elsewhere as current contracts with jail employees come up for renewal. (Phillips confirmed that he has been engaged by other, unnamed counties “to have this discussion.”)

Meyer, whose association believes counties should be listening to sheriffs on the impacts of classification decisions, said local officials “are looking for cost-saving measures, which is the responsible thing to do.” But he thinks Phillips has been providing incomplete information, and that promised savings may prove illusory.

“There’s no doubt in most of our minds that the information this attorney is sharing is very slanted, if not incorrect,” Meyer said.

In Clark County, where 22 workers (including Hackel) lost protective status in mid-January, Sheriff Herrick said the change has eliminated collective bargaining agreements that allowed the county to avoid overtime expenditures.

“The savings that they thought they were going to have by taking the protective away is being eaten up by the overtime hours,” Herrick said, adding that the change has also hurt morale. “I have deputies who are applying elsewhere. There’s a lot of hard feelings.”

Wayne Hendrickson, chairman of the Clark County Board, the county’s highest ranking official, said revoking the workers’ protective status “was a necessary thing for us to meet our budget for 2013.” He shrugs off Herrick’s concern about overtime, saying the county is looking to reduce outlays in this area by hiring two new employees.

In Ozaukee County last year, the sheriff warned that changes in benefits, including the reclassification of jail employees, would lead to resignations. The county imposed the changes anyway and a total of seven workers, including five jail employees, left their jobs suddenly late last year.

Ozaukee County Undersheriff Jim Johnson said the department incurred more than $80,000 in overtime costs in just the first two months of this year. He “conservatively” predicts total additional overtime costs of $180,000 before the vacancies are filled and new workers trained.

In Lafayette County, Sheriff Scott Pedley calculated that the county would incur heavy costs if it had to hire and train new jail deputies to replace those who would leave. The county is not currently pursuing the change, which Phillips had recommended.

“The deputies have been able to preserve protective status, with my blessing,” Pedley said.

“It is Illegal”

Phillips, of the law firm Phillips Borowski, represents local governmental entities including school districts around the state. One of his listed specialties is helping these “transition from a union to non-union environment.”

In addition to his work for individual counties, Phillips serves as general counsel of the Wisconsin Counties Association, a lobby and support group for state counties. Phillips said his work on protective status with individual counties has “nothing to do with” his work for the association.

Counties association official Mike Blaska agreed, saying the group has no involvement in these battles. While it has opposed requiring that all jailers have protective status, it believes counties should make classification decisions based on statutory criteria.

In county after county, Phillips has argued against protective status for jail employees, saying they do not meet one of the tests set by ETF rules — that at least 51 percent of their duties consist of active law enforcement.

Jim Palmer, executive director of the Wisconsin Professional Police Association, a union representing law enforcement, accuses Phillips and his firm of distorting this standard by factoring only the time jailers spend on certain tasks, not how regularly they face certain risks.

“If you applied that same analysis to every police chief and sheriff in the state, none of them would qualify,” Palmer said. “Obviously, that’s an absurd result.”

Palmer suggests that firefighters and other law enforcement officers, like cops with desk jobs or even detectives, may find their claim to protective status similarly challenged. Phillips’ rationale, he said, “does clearly allow for a slippery slope.”

Sgt. Hackel, of Clark County, cited this as one reason she and others are challenging their loss of protective status.

“That’s part of our struggle here,” Hackel said. If the reclassification of jail workers is not successfully rebuffed, “There’s no guarantee that patrol staff will not be faced with this down the road.”

Phillips scoffs at this concern, saying firefighters are explicitly covered and any sheriff or desk cop would clearly meet the law’s test of being principally engaged in law enforcement.

Some of Phillips critics accuse him of suggesting that counties that continue to offer protective status to jail employees are breaking the law. It’s a charge he freely admits.

“It is illegal,” Phillips said of counties that grant this status to jailers who don’t meet the test. “Is anybody going to get arrested? No. There is no ETF police.”

In videotaped comments to Clark County officials last year, Phillips called the designation of jail employees as protective a “mistake” in need of correction. “Clark County as an employer has a duty under the law to properly designate,” he said.

County Board chairman Hendrickson, who was present for this session, said the county had a legal obligation to revoke the jail workers’ protective status.

“Apparently the (law) says if they don’t work 51 percent of their time on the road doing public safety work, then they shouldn’t be on protective,” Hendrickson said.

The Badger State Sheriffs’ Association recently wrote ETF asking whether there is, as some counties believe, “a prohibition in the law against finding that deputies or correctional officers who work in the jail are eligible” for protective status.

Matt Stohr, administrator of the ETF’s retirement division, replied that there is no such prohibition — provided that the jailers meet the necessary criteria.

Mike Huebsch, secretary of the state Department of Administration, fielded a similar inquiry from the sheriffs’ association. In a March 26 letter, he said his agency could “find no legislative directive whereby Act 10 requires a county to change, reclassify or remove its jailers” from protective status.

‘A high-risk job’

Critics of the reclassification, notably including county sheriffs, argue that jailers face risks and responsibilities similar to those of other law enforcement officers.

In fact, some of the jailers who have lost protective status remain sworn deputies with full powers to make arrests, do investigations and recommend charges.

In Dunn County, which is considering reclassifying about two dozen jail workers, Sheriff Dennis Smith said they often encounter people who are “kicking, fighting, spitting,” just like deputies on patrol. “They have a high-risk job,” Smith said. “Somebody gets fired up and all of a sudden the fight’s on.”

Hackel, who has worked in the Clark County jail for 15 years, agreed, saying “an increase in mental health and drug-related crimes” has made the job progressively more dangerous. And jail staff must often make arrests, as when people visiting others in jail are found to have outstanding warrants.

“It is unconscionable to me that county jailers do not have duty disability protection,” said Sheriff Pedley of Lafayette County.

On March 27, a 36-year-old Marathon County jail guard was left with life-threatening head injuries after being severely beaten by an incarcerated drug suspect. Another guard was also injured. Jailers in Marathon County have long lacked protective status, but the incident has been cited as an example of the dangers of the job.

Sheriff James Kowalczyk of Chippewa County, which stripped its jail workers of protective status at the start of this year, has a hard time expecting them to assume the same risks now that they no longer have duty disability coverage.

Although it hasn’t happened yet, and Kowalczyk doesn’t think it will, “They could put their hands behind their back and say, ‘This is above my job classification.’ ”

Bad for business?

Some of Phillips’ critics allege that he is pursuing a strategy to drum up business for himself and others at his firm.

“This is about the money that lines lawyers’ pockets,” charged Sheriff Pedley.

To date, according to the state Department of Employee Trust Funds, challenges have been filed by 84 employees from five counties: Bayfield, Chippewa, Clark, Marquette and Ozaukee. In each case, the counties are being represented by the law firm of Phillips Borowski.

And Palmer said the law firm has used the issue to build its client base: “The fact of the matter is that the Phillips firm has dramatically expanded its county representation through its ill-advised counsel on the protective status issue.”

But, according to Phillips, anyone who thinks that he is motivated by self-interest does not understand what his law firm does.

“We make money by collectively bargaining on behalf of our clients,” Phillips said. “The less people we bargain with, the less money we make.”

And so participating in a process that leads to fewer employees with collective bargaining power offers only short-term gains, not long-term stability.

Said Phillips, “It really isn’t in our best interest to do this.”

The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. This story was a produced in collaboration with Wisconsin Public Television.

All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.