978.12 Salaries and benefits of district attorney and state employees in office of district attorney.

(1) Salaries.

(a) District attorneys.

1. The annual salary of each district attorney shall be reviewed and established in the same manner as provided for positions in the classified service under s. 230.12 (3), except that no district attorney may receive a salary that is greater than the salary established for the office of attorney general under s. 20.923 (2). Except as provided in subd. 2., the salary of each district attorney shall be established at the rate that is in effect for his or her office on the 2nd Tuesday of July preceding the commencement of his or her term of office. The compensation plan shall include separate salary rates for district attorneys in the following categories based on the population of the prosecutorial units in which they serve, as determined under s. 16.96 on October 10 of the year prior to commencement of their terms of office:

a. Prosecutorial units having a population of more than 750,000.

b. Prosecutorial units having a population of more than 250,000 but not more than 750,000.

c. Prosecutorial units having a population of more than 100,000 but not more than 250,000.

d. Prosecutorial units having a population of more than 75,000 but not more than 100,000.

e. Prosecutorial units having a population of more than 50,000 but not more than 75,000.

f. Prosecutorial units having a population of more than 35,000 but not more than 50,000.

g. Prosecutorial units having a population of more than 20,000 but not more than 35,000.

h. Prosecutorial units having a population of not more than 20,000.

2. If an individual is appointed to fill a vacancy in the office of district attorney, the appointee shall be compensated for the residue of the unexpired term at the same rate that applied to the individual who vacates the office filled by the appointee on the date the vacancy occurs.

(b) Deputy district attorneys. Deputy district attorneys shall be employed outside the classified service. The state shall establish and adjust the salaries of deputy district attorneys in accordance with s. 230.12 (10) and the state compensation plan.

(c) Assistant district attorneys. Assistant district attorneys shall be employed outside the classified service. For purposes of salary administration, the administrator of the division of personnel management in the department of administration shall establish one or more classifications for assistant district attorneys in accordance with the classification or classifications allocated to assistant attorneys general. Except as provided in ss. 111.93 (3) (b) and 230.12 (10), the salaries of assistant district attorneys shall be established and adjusted in accordance with the state compensation plan for assistant attorneys general whose positions are allocated to the classification or classifications established by the administrator of the division of personnel management in the department of administration.

(2) State seniority. A county employee who is transferred to state employment under 1989 Wisconsin Act 31 shall have his or her seniority with the state computed by treating the employee's total service with any county in the position of district attorney, deputy district attorney or assistant district attorney as state service.

(3) Sick leave. A county employee who is transferred to state employment under 1989 Wisconsin Act 31 shall have his or her sick leave accrued with the state computed by treating the employee's unused balance of sick leave accrued with the county by which the employee was most recently employed in the position or positions of district attorney, deputy district attorney or assistant district attorney as sick leave accrued in state service, but not to exceed the amount of sick leave the employee would have accrued in state service for the same period, if the employee is able to provide adequate documentation in accounting for sick leave used during the accrual period with the county. If there is a formal plan of sick leave in county service but no adequate documentation in accounting, the employee shall have his or her sick leave accrued with the state computed on the basis of the employee's total service times one-half the rate for accrual of sick leave in state service. Sick leave which transfers under this subsection is not subject to a right of conversion, under s. 40.05 (4) or otherwise, upon death or termination of creditable service for payment of health insurance benefits on behalf of the employee or the employee's dependents.

(4) Annual leave. Annual leave for the district attorney is governed by s. 230.35 (1r). Annual leave for other state employees of the office of district attorney shall be accrued at the rate provided in s. 230.35 using the employee's state service computed under sub. (2). Annual leave shall be earned on a calendar year basis prorated from the effective date of the employee's transfer for the balance of the calendar year.

(5) Retirement.

(a) Definition. In this subsection, “required employer contribution rate" means the total amount paid to the Wisconsin retirement fund for similar participants, including actuarially determined current costs, any prior service amortization costs and any amount of employee contributions presently paid by the employer. These required employer contribution rates are subject to annual redetermination by the actuaries of the respective retirement systems; however, the contribution rates for elected public officials and other employees shall be determined separately when the calculations are actuarially available from the Wisconsin retirement system and adopted by the employee trust funds board and other respective retirement systems.

(b) Employees generally. District attorneys and state employees of the office of district attorney shall be included within the provisions of the Wisconsin retirement system under ch. 40 as a participating employee of that office, except that the district attorney and state employees of the office of district attorney in a county having a population of 750,000 or more have the option provided under s. 978.12 (5) (c), 1997 stats.

(c) District attorney employees in counties having a population of 750,000 or more. The district attorney and state employees of the office of district attorney in a county having a population of 750,000 or more shall have the option of continuing as participants in the retirement system established under chapter 201, laws of 1937, as follows:

1. The salaries authorized under this section for the district attorney and the state employees of the office of district attorney shall be paid by the secretary of administration to the county treasurer pursuant to a voucher submitted by the district attorney to the department of administration. The county treasurer shall pay the amounts directly to the district attorney and state employees of the office of district attorney and the amounts paid shall be subject to the retirement system established under chapter 201, laws of 1937.

2. The state shall pay to the county treasurer in the manner specified in subd. 1. on behalf of the district attorney and state employees of the office of the district attorney the required employer contribution rate as provided under ch. 40 or the required employer contribution rate under chapter 201, laws of 1937, whichever rate is less. The county shall pay any portion of the required employer contribution rate not covered by the state payment. For future retirement benefits, the district attorney and state employees of the office of district attorney shall be given the same consideration as other elected county officials and county employees under the county's retirement system.

3. The option under this paragraph to remain under a county program shall be exercised in writing, on forms provided by the department of administration, not later than March 1, 1990, and the action shall apply retrospectively to January 1, 1990.

4. If the district attorney or a state employee of the office of district attorney does not elect to continue as a participant in the retirement system established under chapter 201, laws of 1937, he or she may not receive retirement benefits under that system during his or her employment with the state.

(6) Other fringe benefits.

(a)

1. District attorneys and state employees of the office of district attorney shall be included within all insurance benefit plans under ch. 40, except as authorized in this paragraph. Alternatively, the state shall provide insurance benefit plans for district attorneys and state employees in the office of district attorney in the manner provided in this paragraph.

2. A district attorney or other employee of the office of district attorney who was employed in that office as a county employee on December 31, 1989, and who received any form of fringe benefits other than a retirement, deferred compensation or employee-funded reimbursement account plan as a county employee, as defined by that county pursuant to the county's personnel policies, or pursuant to a collective bargaining agreement in effect on January 1, 1990, or the most recent collective bargaining agreement covering represented employees who are not covered by such an agreement, may elect to continue to be covered under all such fringe benefit plans provided by the county after becoming a state employee. In a county having a population of 750,000 or more, the fringe benefit plans shall include health insurance benefits fully paid by the county for each retired employee who, on or after December 31, 1989, attains at least 15 years of service in the office of district attorney of that county, whether or not the service is as a county employee, for the duration of the employee's life. An employee may make an election under this subdivision no later than January 31, 1990, except that an employee who serves as an assistant district attorney in a county having a population of 750,000 or more may make an election under this subdivision no later than March 1, 1990. An election under this subdivision shall be for the duration of the employee's employment in the office of district attorney for the same county by which the employee was employed or until the employee terminates the election under subd. 4., at the same cost to the county as the county incurs for a similarly situated county employee.

3. Subject to par. (b), if the employer's cost for fringe benefits described in subd. 2. for any employee described in subd. 2. is less than or equal to the cost for comparable coverage under ch. 40, if any, the state shall reimburse the county for that cost. Subject to par. (b), if the employer's cost for such fringe benefits for any such employee is greater than the cost for comparable coverage under ch. 40, the state shall reimburse the county for the cost of comparable coverage under ch. 40 and the county shall pay the remainder of the cost. The cost of comparable coverage under ch. 40 shall equal the average cost of comparable coverage under ch. 40 for employees in the office of the state public defender, as contained in budget determinations approved by the joint committee on finance or the legislature under the biennial budget act for the period during which the costs are incurred.

4. An employee who makes the election under subd. 2. may terminate that election, and shall then be included within all insurance benefit plans under ch. 40, except that the department of employee trust funds may require prior written notice, not exceeding one year's duration, of an employee's intent to be included under any insurance benefit plan under ch. 40.

(b) Beginning in the 1999-2000 fiscal year and ending in the 2003-04 fiscal year, the state shall in each fiscal year reduce its reimbursement of the employer's cost for fringe benefits under par. (a) by $80,000.

History: 1989 a. 31, 117, 336; 1991 a. 32, 39; 1993 a. 294; 1999 a. 9, 85; 2003 a. 33 ss. 2798, 2800, 9160; 2007 a. 78, 224; 2011 a. 10, 238; 2013 a. 20; 2015 a. 55; 2017 a. 207 s. 5.

Continuing legal education fees and bar dues, mileage reimbursements, beeper pay, and cash payment for unused “casual days" were “fringe benefits" under sub. (6). Brown County Attys. Ass'n v. Brown County, 169 Wis. 2d 737, 487 N.W.2d 312 (Ct. App. 1992).

District attorneys are not “public officer[s]" within the meaning of the term in article IV, section 26 of the Wisconsin Constitution, and the legislature may increase or diminish salaries of district attorneys during terms of office. 79 Atty. Gen. 149.

An assistant district attorney on furlough pursuant to executive order is entitled to representation and indemnification if he or she is carrying out duties within the scope of his or her employment. OAG 9-09.