City of Madison v. DEPT. OF WORKFORCE DEV.

• Decision Date: 25 July 2002
• Docket Number: No. 01-1910.,01-1910.
• Citation: 651 N.W.2d 292,257 Wis.2d 348,2002 WI App 199
• Parties: CITY OF MADISON, Debra H. Amesqua and the Madison Board of Police and Fire Commissioners, Petitioners-Respondents, v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Equal Rights Division, Respondent-Appellant, Charles T. WAGNER, Respondent-Co-Appellant.
• Court: Wisconsin Court of Appeals

257 Wis.2d 348

2002 WI App 199

651 N.W.2d 292

CITY OF MADISON, Debra H. Amesqua and the Madison Board of Police and Fire Commissioners, Petitioners-Respondents,¹ v. STATE of Wisconsin DEPARTMENT OF WORKFORCE DEVELOPMENT, Equal Rights Division, Respondent-Appellant, Charles T. WAGNER, Respondent-Co-Appellant.

No. 01-1910.

Court of Appeals of Wisconsin.

Submitted on briefs January 11, 2002.

Decided July 25, 2002.

On behalf of the respondent-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and David C. Rice, assistant attorney general.

On behalf of the respondent-co-appellant, the cause was submitted on the briefs of Charles W. Giesen of Giesen Law Offices, S.C. of Madison.

On behalf of the petitioners-respondents, the cause was submitted on the briefs of Steven C. Zach of Boardman, Suhr, Curry & Field LLP of Madison.

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

Brief of amicus curiae was filed by Claire Silverman of League of Wisconsin Municipalities of Madison on behalf of League of Wisconsin Municipalities.

Before Vergeront, P.J., Roggensack and Deininger, JJ.

¶ 1. ROGGENSACK, J.

The City of Madison's Police and Fire Commission (PFC) ordered the discharge from service of city firefighter Charles Wagner after it sustained charges that Wagner violated several fire department rules. Following his discharge, Wagner filed a complaint with the Department of Workforce Development (DWD) alleging that he was unlawfully terminated based on his arrest and conviction record, in violation of the Wisconsin Fair Employment Act (WFEA). The City of Madison, the PFC and the City's fire chief jointly petitioned the circuit court for a writ of prohibition, seeking to terminate DWD's investigation of Wagner's WFEA complaint. The circuit court granted the writ, concluding that matters involving the discharge of city firefighters are to be determined exclusively under WIS. STAT. § 62.13(5) (1999-2000)² and that claim preclusion also barred the proceedings before DWD. We unanimously conclude that as to the City and the fire chief, DWD has statutory authority to receive and investigate Wagner's WFEA complaint, to which claim preclusion is no bar. As to the PFC, two members of the court would not decide whether DWD has authority over the PFC at this point in the litigation, while I would conclude that DWD has no statutory authority over the PFC for actions it took. Therefore, this court reverses the order of the circuit court as to all parties.

BACKGROUND

¶ 2. Wagner began working for the City as a firefighter in 1993. In January 1997, a criminal complaint was filed against him alleging theft and fraud in connection with merchandise that was alleged to have been stolen in 1992. The acting chief of the Madison Fire Department, Fred Kinney, suspended Wagner with pay pending resolution of the criminal charges. In November 1997, Wagner was convicted of one count of misdemeanor theft pursuant to an Alford³ plea.

¶ 3. Fire Chief Debra Amesqua then filed a statement of charges with the PFC that alleged eight counts of department rule violations, some of which related to Wagner's admitted theft. Amesqua recommended that the PFC terminate Wagner's employment. The PFC held an evidentiary hearing at which Wagner was represented by counsel, and it determined, pursuant to WIS. STAT. § 62.13(5)(em), that there was just cause to sustain the charges as alleged in Counts 1, 2 and 8.⁴ The PFC dismissed the remaining counts. As a penalty for committing the rule violation of conducting himself so as to bring disrepute on the department (Count 8), the PFC ordered Wagner's discharge from service. As a "separate and distinct" penalty for violating department rules against theft and dishonesty (Counts 1 and 2), the PFC also ordered discharge from service. The City then terminated Wagner's employment.

¶ 4. Wagner appealed to the circuit court.⁵ The circuit court dismissed the action because Wagner had not properly commenced it, and we affirmed the dismissal.⁶ After the circuit court dismissed Wagner's statutory appeal, he filed a discrimination complaint with DWD, naming the City of Madison, Amesqua—in her official capacity as fire chief—and the PFC as respondents. Wagner alleged that his suspension and discharge from service were unlawful because they were based on his arrest and conviction record, in violation of WIS. STAT. §§ 111.321 and 111.335.

¶ 5. The respondents asserted that DWD lacked jurisdiction over Wagner's complaint and that claim preclusion or issue preclusion barred his WFEA claim. DWD disagreed, stating that it intended to investigate Wagner's complaint and that the respondents could raise the other "jurisdictional issues" later.

¶ 6. In response, the City, Amesqua and the PFC petitioned the circuit court for a writ of prohibition to terminate DWD's investigation. The parties provided the circuit court with stipulated facts and exhibits, and the circuit court granted the writ. It concluded that matters involving the discharge of city firefighters are to be determined exclusively under the procedures set forth in WIS. STAT. § 62.13(5) and that claim preclusion barred the proceedings before DWD because Wagner could have litigated his discrimination claim before the PFC.⁷ DWD and Wagner appeal.

DISCUSSION

Standard of Review.

[1-4]

¶ 7. Our analysis of the circuit court's decision to issue the writ entails questions of statutory interpretation affecting DWD's authority to proceed, which are questions of law that we review de novo. See State ex rel. DPI v. DILHR, 68 Wis. 2d 677, 680-84, 229 N.W.2d 591, 593-95 (1975); State ex rel. St. Michael's Evangelical Lutheran Church v. DOA, 137 Wis. 2d 326, 335, 404 N.W.2d 114, 118 (Ct. App. 1987). However, whether a circuit court should issue a writ of prohibition is a discretionary decision. St. Michael's, 137 Wis. 2d at 330, 404 N.W.2d at 116. We will sustain the discretionary decision to issue a writ unless the circuit court based it on an error of fact or law. See State ex rel. Wis. Employers Ins. Co. v. Ins. Comm'r, 122 Wis. 2d 668, 670, 363 N.W.2d 585, 586 (Ct. App. 1985). Whether governmental immunity applies is a question of law. See Kimps v. Hill, 200 Wis. 2d 1, 8, 546 N.W.2d 151, 155 (1996). Writ of Prohibition.

[5-7]

¶ 8. A writ of prohibition is an extraordinary remedy available to courts as part of their supervisory jurisdiction over inferior tribunals. State ex rel. Lynch v. County Court, 82 Wis. 2d 454, 459, 262 N.W.2d 773, 775 (1978). A circuit court may exercise its supervisory authority over a state agency to prevent the agency from exceeding its statutory authority. See State ex rel. DPI, 68 Wis. 2d at 687, 229 N.W.2d at 597; St. Michael's, 137 Wis. 2d at 335, 404 N.W.2d at 118. A writ of prohibition will issue "[o]nly where the duty of the court below is plain, and where there is a clear refusal to meet that duty or a clear intent to disregard it." State ex rel. Lynch, 82 Wis. 2d at 459, 262 N.W.2d at 775.

[8, 9]

¶ 9. In addition to establishing error by the inferior tribunal, the petitioning party has the burden of showing (1) that ordinary remedies, by appeal or otherwise, are inadequate, and (2) that grave or extraordinary hardship will result if the writ does not issue. Id. at 460, 262 N.W.2d at 776. In some cases, however, the inadequacy of ordinary remedies and the gravity of the harm will be "inherent in the situation." State ex rel. DPI, 68 Wis. 2d at 687, 229 N.W.2d at 597 (concluding under a prior version of WFEA that DILHR had no authority to proceed upon a sex-discrimination complaint filed by an employee of a state agency and that the circuit court's failure to issue a writ of prohibition in such circumstances was an erroneous exercise of discretion due to the harm inherent in the situation). Statutory Interpretation.

[10, 11]

¶ 10. We begin our examination of the writ issued by the circuit court by interpreting WIS. STAT. § 62.13(5) and WFEA statutes that are claimed to be in conflict. Where two statutes relate to the same factual occurrences and can reasonably be read to conflict with one another, we are required to construe the statutes together and, to the greatest extent possible, harmonize them to achieve the results intended by the legislature. See Gordie Boucher Lincoln-Mercury Madison, Inc. v. City of Madison Plan Comm'n, 178 Wis. 2d 74, 89-90, 503 N.W.2d 265, 270 (Ct. App. 1993); Cornell Univ. v. Rusk County, 166 Wis. 2d 811, 819-20, 481 N.W.2d 485, 489 (Ct. App. 1992). In harmonizing conflicting statutes, we will attempt to reach a construction that gives effect to the purpose of each statute and to avoid constructions that lead to absurd results. See Peters v. Menard, Inc., 224 Wis. 2d 174, 189, 589 N.W.2d 395, 403 (1999); Byers v. LIRC, 208 Wis. 2d 388, 395, 561 N.W.2d 678, 681 (1997).

¶ 11. Wagner has made a claim under WFEA, which generally prohibits termination from employment because of an employee's conviction record. WIS. STAT. §§ 111.321 and 111.335. Wagner was terminated, at least in part, due to his conviction record. However, termination of employment for a criminal conviction is not unlawful if the circumstances of the conviction are substantially related to the circumstances of the employment. Section 111.335(1)(c)1. Therefore, we must decide if DWD can investigate and decide whether the circumstances of Wagner's theft conviction are substantially related to the circumstances of his job as a firefighter, or if the just cause determination made by the PFC pursuant to WIS. STAT. § 62.13(5) precludes further investigation of Wagner's WFEA claim.

1. WIS. STAT. § 62.13(5) overview.

[12]

¶ 12. WISCONSIN STAT. § 62.13(5) sets forth the procedures and standards that a PFC⁸ is to apply in disciplinary actions against city police officers and firefighters.⁹ The purpose of §...