Board of Regents of University of Wisconsin System v. Wisconsin Personnel Commission

• Decision Date: 21 May 1981
• Docket Number: 80-1684,Nos. 80-1411,s. 80-1411
• Citation: 103 Wis.2d 545,309 N.W.2d 366
• Parties: BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, State of Wisconsin, Petitioner-Respondent, v. WISCONSIN PERSONNEL COMMISSION, State of Wisconsin, and Steven Dropik, Appellants. Edwin YOUNG, President, University of Wisconsin System, Petitioner-Respondent and Cross-Respondent, v. PERSONNEL COMMISSION, Respondent and Cross-Appellant. Chester MILLER, Petitioner-Appellant and Cross-Respondent, v. PERSONNEL COMMISSION, Respondent and Cross-Appellant. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 366

309 N.W.2d 366

103 Wis.2d 545

BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, State of Wisconsin, Petitioner-Respondent, v. WISCONSIN PERSONNEL COMMISSION, State of Wisconsin, and Steven Dropik, Appellants.

Edwin YOUNG, President, University of Wisconsin System, Petitioner-Respondent and Cross-Respondent, v. PERSONNEL COMMISSION, Respondent and Cross-Appellant.

Chester MILLER, Petitioner-Appellant and Cross-Respondent, v. PERSONNEL COMMISSION, Respondent and Cross-Appellant.

Nos. 80-1411, 80-1684.

Court of Appeals of Wisconsin.

Oral Argument May 21, 1981.

Opinion Released June 25, 1981.

Opinion Filed June 25, 1981.

Review Denied. ^*

Richard V. Graylow, Madison (argued), for appellant Dropik; P. Scott Hassett of Lawton & Cates, Madison, on brief.

Daphne Webb, Madison (argued), for appellant Wisconsin Personnel Commission; Jacobs, Webb & Weiden, Madison, on brief.

Bruce K. Kaufmann, Madison (argued), for petitioner-appellant and cross- respondent Chester Miller; Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, on brief.

Milo G. Flaten, Madison, for respondent and cross-appellant, Personnel Commission.

Maureen McGlynn, Asst. Atty. Gen. (argued), for petitioner-respondent Bd. of Regents of the University of Wisconsin System, State of Wis.; Bronson C. La Follette, Atty. Gen., on brief.

Maureen McGlynn, Asst. Atty. Gen., for petitioner-respondent and cross-respondent Edwin Young, Pres., University of Wis. System.

Before DECKER, C. J., MOSER, P. J., and CANNON, J.

DECKER, Chief Judge.

These appeals present the question whether a probationary employe in the classified civil service of the state of Wisconsin may appeal his discharge to the Personnel Commission. We conclude that the Personnel Commission has no subject-matter jurisdiction of such appeals and affirm the circuit court.

The Board of Regents of the University of Wisconsin System (University) petitioned for review pursuant to ch. 227, Stats., of a decision and order of the Wisconsin Personnel Commission (Personnel Commission) rejecting the University's action terminating Stephen Dropik as a probationary trainee on the grounds that the termination was arbitrary and capricious.

Dropik's appointment as a power-plant equipment operator trainee was terminated during his training period for poor work performance. A trainee is "on a probationary period for the duration of the training program and may be separated during that period without the right of appeal, at the discretion of the appointing authority." Sec. 230.28(5), Stats.

Edwin Young, President, University of Wisconsin System (University), petitioned for a ch. 227, Stats., review of orders and decisions of the former Wisconsin Personnel Board (Personnel Board) and the present Personnel Commission determining that Chester Miller, a probationary custodial department employe of the University, had not resigned or quit his employment; that the University failed to terminate Miller; and that such failure was arbitrary and capricious.

The circuit court concluded that neither the Personnel Board nor the Personnel Commission had subject-matter jurisdiction to consider the appeals of Dropik and Miller. Reversal of the orders and decisions was adjudged by the circuit court and the proceedings were remanded to the Personnel Commission with directions to dismiss the appeals for lack of subject-matter jurisdiction. ¹

We confine our opinion to the question of subject-matter jurisdiction and the related issues presented by the parties.

THE DROPIK CASE

We reject Dropik's contention that subject-matter jurisdiction of the Personnel Commission cannot be reviewed pursuant to ch. 227, Stats., and can only be contested by certiorari. The fallacy in the contention is that although certiorari, common-law or Questions of law are reviewable, secs. 227.20(3) and (5), Stats., and jurisdiction is a reviewable question of law. ⁴

statutory, is an appropriate remedial vehicle for an attack on an administrative agency's jurisdiction, ² ordinarily where the legislature provides[103 Wis.2d 551] for a unified system of review the statutory system of review is the preferred method. ³

It is well established that questions of law, including the interpretation and application of a statute, are reviewable by this court ab initio. Sec. 227.20(5); Boynton Cab Co. v. DILHR, (96) Wis.2d (396), 291 N.W.2d 850 (1980); Wisconsin Bingo Supply & Equipment Co., Inc. v. Wisconsin Bingo Control Bd., 88 Wis.2d 293, 308, 276 N.W.2d 716, (723) (1979). Jaeger Baking Co. v. Kretzchmann, 96 Wis.2d 590, 594, 292 N.W.2d 622, 624 (1980).

Decisions of an administrative agency which deal with the scope of the agency's own power, as in this case, are not binding on this court. Wisconsin's Environmental Decade, Inc. v. Public Service Commission, 81 Wis.2d 344, 351, 260 N.W.2d 712, 716 (1978); Big Foot Country Club v. Department of Revenue, 70 Wis.2d 871, 875, 235 N.W.2d 696, 698 (1975).

Dropik also contends that the doctrine of res judicata precludes the University from challenging the subject-matter jurisdiction of the Personnel Commission. The contention is predicated upon a 1976 declaratory ruling of the Personnel Commission pursuant to sec. 227.06(1), Stats. The statute provides in part: "A declaratory ruling shall bind the agency and all parties to the proceeding on the statement of the facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions."

The Personnel Commission determined pursuant to its 1976 declaratory ruling that it had subject-matter jurisdiction to hear appeals of civil service probationers. A representative of the University was a party to the proceeding.

Wisconsin rejects the application of the doctrine of res judicata to the proceedings of an administrative agency. City of Fond du Lac v. DNR, 45 Wis.2d 620, 625, 173 N.W.2d 605, 608 (1970). Section 227.06(1), Stats., simply requires internal consistency within a proceeding by binding the agency within that proceeding to its declaratory ruling. Although consistency is a virtue of any adjudicatory body, jurisdictional finality is limited to the proceeding before it.

Even if the long-standing denial of res judicata effect to an administrative determination were to be overhauled and modernized, it would not be applicable to the circumstances of this case because Miller and Dropik were not parties to the declaratory ruling of the Personnel Board. Also, the issue is a question of law to which res judicata principles would be inapplicable.

Res judicata is also inapplicable because the declaratory ruling determined the jurisdiction and power of the administrative agency. Administrative agencies are tribunals of limited jurisdiction dependent upon a statutory grant of authority. Peterson v. Natural Resources Board, 94 Wis.2d 587, 592-93, 288 N.W.2d 845, 848 (1980); Village of Silver Lake v. Department of Revenue, 87 Wis.2d 463, 468, 275 N.W.2d 119, 122 (Ct.App.1978). Administrative determinations made without subject-matter jurisdiction are void and therefore subject to inquiry.

For the purpose of judicial review of the declaratory ruling, the reviewing court is not concluded by the agency's determination of its jurisdiction. See Wisconsin's Environmental Decade, supra; Big Foot Country Club, supra. For the purposes of another proceeding, as is the case The question is essentially one of statutory construction. "On appeal, the construction and interpretation of a statute adopted by an administrative agency is ordinarily entitled to great weight. However because this case involves an issue of first impression this court will not be bound by the agency's interpretation." Berns v. WERC, 94 Wis.2d 214, 221, 287 N.W.2d 829, 832 (Ct.App.1979), aff'd, 99 Wis.2d 252, 261, 299 N.W.2d 248, 253 (1980). We also note that the rule of deference to administrative construction of a statute is applicable only in the case of statutory ambiguity. City of Milwaukee v. Lindner, 98 Wis.2d 624, 633-34, 297 N.W.2d 828, 833 (1980). In this case we rely upon a clear, unambiguous, and controlling statute of plain meaning and easily capable of literal application.

here, an administrative agency cannot conclusively settle the question of its jurisdiction, thereby endowing itself with power other than that granted by statute.

Next, Dropik contends that the circuit court erred when it determined that the Personnel Commission had no subject-matter jurisdiction to hear appeals from discharged probationary state employes in the classified service.

As a probationary employe, Dropik was subject to dismissal by the appointing authority at any time during his six-month probationary period. Sec. 230.28(1) (a), Stats. An employe with permanent status in class may be dismissed only for "just cause." Sec. 230.34(1)(a). "If an employe has permanent status in class, the employe may appeal a ... discharge ... to the commission, if the appeal alleges that the decision was not based on just cause." Sec. 230.44(1) (c).

The 1977-79 collective bargaining agreement between AFSCME and the State, ⁵ approved by the legislature in ch. 97, Laws of 1977, implemented sec. 111.93(3) by according a hearing to a discharged probationary employe at the discretion of the Personnel Commission. ⁶ In sum, Dropik contends that although sec. 111.91(2)(b)1., Stats., prohibits the state from bargaining on policies, practices, and procedures of the civil service merit system with respect to probationary periods, sec. 111.91(3) permits bargaining and agreement with a union representing a certified unit to permit appeals of discharged probationary employes to an impartial hearing examiner, reviewable by the Personnel Commission pursuant to sec. 230.45(1)(f).

Dropik asserts that the approved collective bargaining agreement together with sec. 111.91(3), Stats., constitutes express, clear, and...