City of Madison v. DWD

• Decision Date: 01 July 2003
• Docket Number: No. 01-1910.,01-1910.
• Parties: CITY OF MADISON, Debra H. Amesqua and the Madison Board of Police and Fire Commissioners, Petitioners-Respondents-Petitioners, v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Equal Rights Division, Respondent-Appellant, Charles T. WAGNER, Respondent-Co-Appellant.
• Court: Wisconsin Supreme Court

262 Wis.2d 652

2003 WI 76

664 N.W.2d 584

CITY OF MADISON, Debra H. Amesqua and the Madison Board of Police and Fire Commissioners, Petitioners-Respondents-Petitioners, v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Equal Rights Division, Respondent-Appellant, Charles T. WAGNER, Respondent-Co-Appellant.

No. 01-1910.

Supreme Court of Wisconsin.

Oral argument February 12, 2003.

Decided July 1, 2003.

For the petitioners-respondents-petitioners there were briefs by Scott Herrick and Herrick, Kasdorf, Dymzarov, Twietmeyer & Zarov, LLP, Madison, and Steven C. Zach, Jennifer S. Mirus, and Boardman, Suhr, Curry & Field LLP, Madison, and oral argument by Scott N. Herrick and Steven C. Zach.

For the respondent-appellant the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the respondent-co-appellant there was a brief by Charles W. Giesen and Giesen Law Offices, S.C., Madison, and oral argument by Charles W. Giesen.

An amicus curiae brief was filed by Bruce F. Ehlke and Shneidman, Hawks & Ehlke, S.C., Madison, on behalf of Firefighters Local 311 and Joseph Conway, Jr.

An amicus curiae brief was filed by James R. Korom, Matthew A. Koch, and von Briesen & Roper, S.C., Milwaukee, on behalf of the Wisconsin Chiefs of Police Association.

¶ 1. DIANE S. SYKES, J.

The issue in this case is whether a firefighter who is terminated from city service after a "just cause" hearing before a police and fire commission (PFC) pursuant to Wis. Stat. § 62.13(5)(em) (1997-98)¹ may pursue a discrimination complaint regarding the termination before the Department of Workforce Development (DWD) under the Wisconsin Fair Employment Act (WFEA).

¶ 2. Disciplinary terminations of city firefighters are imposed and reviewed pursuant to the procedures established in Wis. Stat. § 62.13(5). The statutory procedure requires the PFC to determine whether any proposed disciplinary termination is supported by just cause, which includes a determination of whether the rule or order allegedly violated by the firefighter is reasonable and is being applied without discrimination. Wis. Stat. § 62.13(5)(em)2. and 6. Any termination sustained by the PFC under Wis. Stat. § 62.13(5)(em) and (f) is subject only to judicial review in circuit court pursuant to Wis. Stat. § 62.13(5)(i), or in certain circumstances by common law certiorari. Accordingly, any claim that a disciplinary termination is discriminatory under the WFEA must be raised before the PFC, the agency with exclusive statutory authority under Wis. Stat. § 62.13(5) to review disciplinary actions against firefighters. The DWD may not take jurisdiction over a WFEA complaint arising out of a decision of a PFC to terminate a firefighter.

I. FACTS AND PROCEDURAL HISTORY

¶ 3. Charles T. Wagner became a Madison firefighter in November of 1993. On January 13, 1997, Wagner was suspended with pay pending resolution of felony fraud charges filed against him in Dane County Circuit Court stemming from an incident in 1992 involving stolen merchandise. On November 10, 1997, Wagner entered an Alford plea and was convicted of misdemeanor theft.²

¶ 4. On August 10, 1998, Madison Fire Chief Debra Amesqua filed a statement of charges against Wagner with the City of Madison Police and Fire Commission, pursuant to Wis. Stat. § 62.13(5)(b), alleging 15 counts of misconduct. The statement of charges was later amended to allege eight counts of misconduct in violation of four rules of the Madison Fire Department in connection with the criminal theft and related conduct. The chief recommended that Wagner be terminated for this misconduct. ¶ 5. The PFC held an evidentiary hearing at which both parties submitted briefs, were represented by counsel, submitted exhibits, and examined and cross-examined witnesses. On August 18, 1999, pursuant to § 62.13(5)(e), the PFC discharged Wagner from his position with the City of Madison Fire Department.

¶ 6. On November 14, 1999, Wagner sought review of the PFC order in Dane County Circuit Court under § 62.13(5)(i). The Honorable Gerald C. Nichol dismissed the case as improperly commenced, and the court of appeals affirmed.

¶ 7. After the dismissal of his circuit court action seeking judicial review of the PFC's order, Wagner filed a discrimination complaint with DWD's Equal Rights Division claiming that his termination was discriminatory because of his conviction record in violation of the WFEA, Wis. Stat. §§ 111.321 and 111.335. He named the City of Madison, the PFC, and Chief Debra Amesqua as respondents. The named respondents sought dismissal of the complaint, asserting that the DWD lacked jurisdiction to review the PFC order. The DWD refused to dismiss the complaint.

¶ 8. The City, the PFC, and Chief Amesqua then sought a writ of prohibition against the DWD in circuit court. The Honorable Richard J. Calloway issued the writ, concluding that the DWD lacked jurisdiction over Wagner's complaint because of the exclusive nature of PFC proceedings under Wis. Stat. § 62.13(5). Wagner and the DWD appealed, and the court of appeals reversed. We granted review, and now reverse.

II. STANDARD OF REVIEW

[1, 2]

¶ 9. A writ of prohibition is an extraordinary remedy traditionally employed to restrain an inferior tribunal from exceeding its jurisdiction. State ex rel. Lynch v. County Ct., 82 Wis. 2d 454, 459, 262 N.W.2d 773 (1978). A writ of prohibition may issue to prevent an administrative agency from exceeding its statutory authority. State ex rel. DPI v. DILHR, 68 Wis. 2d 677, 686-87, 229 N.W.2d 591 (1975); State ex rel. St. Michael's Evangelical Lutheran Church v. DOA, 137 Wis. 2d 326, 335, 404 N.W.2d 114 (Ct. App. 1987).

[3, 4]

¶ 10. A circuit court's decision to issue a writ of prohibition is a discretionary determination that is reviewed for an erroneous exercise of that discretion. St. Michael's, 137 Wis. 2d at 330. A circuit court's exercise of discretion in the issuance of a writ of prohibition will be affirmed if "the court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion which a reasonable judge could reach." Id. However, any question of law that arises in reviewing whether the circuit court applied a proper legal standard is subject to de novo review. Id. at 330-31; see also State ex rel. DPI, 68 Wis. 2d at 686-87.

[5, 6]

¶ 11. This case presents a question of law regarding the interpretation and harmonization of two statutes, Wis. Stat. § 62.13(5) and the WFEA. In interpreting two statutes that are alleged to conflict, it is our duty to attempt to harmonize them in a way that will give effect to the legislature's intent in enacting both statutes. Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678 (1997)(citing City of Milwaukee v. Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995)). In this situation, "no special deference is due" to an administrative agency. Id. at 394 (citing Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 405-06, 291 N.W.2d 850 (1980)); see also City of Madison v. WERC, 2003 WI 52, ¶¶ 9-12, 261 Wis. 2d 423, 662 N.W.2d 318

.

III. ANALYSIS

A. Wis. Stat. § 62.13(5)

¶ 12. Wisconsin Statute § 62.13 requires municipalities with populations above 4,000 to maintain a police and fire commission with jurisdiction over the hiring, promotion, discipline, and discharge of members of the police and fire departments. Wis. Stat. § 62.13(1) and (2). The statute "shall be construed as an enactment of statewide concern for the purpose of providing a uniform regulation of police and fire departments." Wis. Stat. § 62.13(12).

¶ 13. Police and fire commissions were created and endowed with statutory responsibilities and prerogatives over 100 years ago, in 1897. Kraus v. City of Waukesha Police Fire Comm'n, 2003 WI 51, ¶ 29, 261 Wis. 2d 485, 662 N.W.2d 294. The present statute establishes a comprehensive system governing employment matters relating to municipal police officers and firefighters, and subjects the decisions of police and fire chiefs and PFCs to report, recommendation, and review requirements. Wis. Stat. § 62.13(4)(a), (c) and (5); City of Madison v. WERC, 2003 WI 52, ¶ 13, 261 Wis. 2d 423, 662 N.W.2d 318. At issue in this case is whether the DWD may take jurisdiction of a WFEA complaint in order to review an order of a PFC issued pursuant to Wis. Stat. § 62.13(5).

¶ 14. Wisconsin Statute § 62.13(5) governs disciplinary actions against police officers and firefighters, and provides that a police officer or firefighter may not be "suspended, reduced in rank, suspended and reduced in rank, or removed" unless the PFC "determines whether there is just cause, as described in this paragraph, to sustain the charges" of misconduct. Wis. Stat. § 62.13(5)(em). Charges of misconduct must be in writing and may be filed by "the chief, by a member of the board, by the board as a body, or by any aggrieved person." Wis. Stat. § 62.13(5)(b). A public hearing must then be held on the charges, at which the officer or firefighter may be represented by counsel and may compel the attendance of witnesses by subpoena. Wis. Stat. § 62.13(5)(d).

¶ 15. As we have noted, the PFC may not sustain the charges unless it determines that there is "just cause" to do so. Wis. Stat. § 62.13(5)(em). "Just cause" is determined by reference to seven factors:

In making its determination [of just cause], the board shall apply the following standards, to the extent applicable:

1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.

2. Whether the rule or order that the subordinate allegedly violated is reasonable.

3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.

4. Whether the effort described under subd. 3. was fair and objective.

5.

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