Crawford County v. Wisconsin Employment Relations Com'n

• Decision Date: 08 April 1993
• Docket Number: No. 92-0906,92-0906
• Parties: , 144 L.R.R.M. (BNA) 2580 CRAWFORD COUNTY, Petitioner-Respondent-Cross Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Co-Appellant-Cross Respondent, AFSCME Local 3108, Respondent-Appellant-Cross Respondent. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 836

501 N.W.2d 836

177 Wis.2d 66, 144 L.R.R.M. (BNA) 2580

CRAWFORD COUNTY, Petitioner-Respondent-Cross Appellant, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent-Co-Appellant-Cross Respondent, AFSCME Local 3108, Respondent-Appellant-Cross Respondent.

d

No. 92-0906.

Court of Appeals of Wisconsin.

Oral Argument April 8, 1993.

Opinion Released May 6, 1993.

Opinion Filed May 6, 1993.

Before EICH, C.J., and SUNDBY and FINE, JJ.

EICH, Chief Judge.

AFSCME Local 3108 and the Wisconsin Employment Relations Commission appeal, and Crawford County cross-appeals, from a judgment reversing a decision of the commission which declared the union's proposal to include the appointed deputies of the Crawford County Register of Deeds and Clerk of Circuit Court, and an administrative law clerk in the district attorney's office, under all terms and conditions of the union's collective bargaining agreement to be a mandatory subject of bargaining.

The county sought review in circuit court, arguing that the union's proposal impermissibly interfered with the statutory powers of the clerk and register to appoint and discharge their deputies. The circuit court affirmed in part and reversed in part, concluding that the proposal did infringe on the officials' power to appoint the deputies, but not on the power to discharge them.

We, of course, review the decision of the commission, not the circuit court. See Lewandowski v. State, 140 Wis.2d 405, 409, 411 N.W.2d 146, 148 (Ct.App.1987). Doing so, we hold that the proposal interferes with the authority of the register of deeds and the clerk of court to appoint and discharge their deputies, but that it does not similarly affect the district attorney's authority to hire an administrative law clerk. We therefore affirm in part and reverse in part.

The facts are not in dispute. In 1984, the newly-elected Crawford County District Attorney declined to reappoint the incumbent administrative law clerk in the office and instead hired someone from outside the bargaining unit. The following year the county board passed a resolution declaring that all clerks and deputies appointed by newly-elected officials from outside the bargaining unit would be required to waive any claim to further employment beyond the term of the official who appointed them. The resolution applied to the three positions at issue in this appeal.

In 1989, the union proposed to include "deputies including accreted deputies in all terms and conditions of the collective bargaining agreement." When a dispute arose as to whether the proposal was a mandatory subject of bargaining, the question was referred to the commission.

As indicated, the commission ruled that because the proposal related primarily to wages, hours and conditions of employment, it was a mandatory subject of bargaining. The commission also concluded that the proposal did not improperly infringe upon the statutory power of the clerk of court, register of deeds or district attorney to appoint and remove deputies. As we have also noted, the circuit court, on review, ruled that while the proposal did interfere with the power of the elected officials to appoint their deputies, their power to discharge them "at pleasure" (as opposed to "for cause") was bargainable. The union and the commission appeal from the former ruling and the county from the latter.

It is true that we normally will pay some deference to the commission's determination that a particular proposal is a mandatory subject of bargaining under the Municipal Employment Relations Act, sec. 111.70, Stats.--that is, that the proposal is "primarily related" to hours, wages or conditions of employment. Brown County v. WERC, 138 Wis.2d 254, 261-62, 405 N.W.2d 752, 755 (Ct.App.1987). Here, however, whether the proposal is bargainable turns on whether it abrogates or impermissibly interferes with the legal right of the three officials to appoint the designated subordinates. That is a question involving the interpretation of statutes outside the area of labor relations and the relationship of these sections to the applicable provisions of the Municipal Employment Relations Act. The issue is thus one of law "within the special competence of the courts rather than the Commission...." City of Brookfield v. WERC, 87 Wis.2d 819, 826-28, 275 N.W.2d 723, 726-27 (1979) (quoting Glendale Professional Policeman's Ass'n v. Glendale, 83 Wis.2d 90, 100-01, 264 N.W.2d 594, 600 (1978)). As a result, we do not defer to the commission's decision. Id., 87 Wis.2d at 827, 275 N.W.2d at 727.

Clerks of the circuit courts are empowered to appoint deputies by sec. 59.38(1), Stats., which provides:

Every clerk of the circuit court shall appoint one or more deputies and the appointments shall be approved by the majority of circuit judges for the county, but shall be revocable by the clerk at pleasure.... The deputies shall aid the clerk in the discharge of the clerk's duties. In the absence of the clerk from the office or from the court they may perform all the clerk's duties; or in case of a vacancy by resignation, death, removal or other cause the deputy appointed shall perform all such duties until the vacancy is filled.

Section 59.50, Stats. (1989-90), sets out similar authority for county registers of deeds:

Every register of deeds shall appoint one or more deputies, who shall hold their office during his [or her] pleasure.... Such deputy or deputies shall aid the register in the performance of his [or her] duties under his [or her] direction, and in case of vacancy or the register's absence or inability to perform the duties of ... office such deputy or deputies shall perform the duties of register until such vacancy is filled or during the continuance of such absence or inability. ¹

The district attorney's authority to employ an administrative law clerk is governed by the general authority to hire staff provided by sec. 978.05(8)(b), Stats.: "The district attorney shall ... [h]ire, employ and supervise his or her staff .... Nothing in this paragraph limits the authority of counties to regulate the hiring, employment and supervision of county employes."

The union, pointing to the general rule of Glendale, 83 Wis.2d at 103-04, 264 N.W.2d at 601, to the effect that collective bargaining under sec. 111.70, Stats., must, where possible, be harmonized with other statutory provisions, maintains that secs. 59.15(2)(d) and 59.15(4), Stats., limit the appointing authority of these officials. Section 59.15(2)(d) authorizes the county board to "contract for the services of employes, setting up the hours, wages, duties and terms of employment for periods not to exceed 2 years"; and sec. 59.15(4) states that "[i]n the event of conflict between this section and any other statute, this section to the extent of such conflict shall prevail." To the union, that settles the dispute: by those statutes the county has the power to hire and fire county employees--including the clerk's and register's deputies and the district attorney's law clerk--and that power overrides any appointing and discharging authority provided to those officers elsewhere in ch. 59 or in other sections of the statutes. And it refers us to Glendale as an affirmation of that position.

In Glendale, the issue was whether a provision in a collective bargaining agreement between the city and its police officers which tied promotions to seniority was illegal in light of the provisions of the general city charter law giving the police chief the power to promote subordinates (subject to approval by the board of police and fire commissioners). The supreme court was able to harmonize the contract provision and the chief's statutory powers by concluding that because the seniority provision applied only to situations where there was more than one qualified candidate for promotion, it did not require the chief to select an unqualified person who would be entitled to the position not by his or her qualifications, but only by seniority. Glendale, 83 Wis.2d at 106-07, 264 N.W.2d at 602-03. According to the court, "[a] requirement that the chief promote the most senior qualified applicant merely restricts the discretion that would otherwise exist." Id. at 102-03, 264 N.W.2d at 601.

We think the union's proposal in this case does much more. With respect to the register of deeds and clerk of courts, at least, we believe it does not merely restrict their authority to hire and fire deputies; as will be seen below, we believe the proposal effectively abrogates that authority. The district attorney's administrative law clerk, however, is in a different position and we consider it first.

Unlike the express statutory power of the clerk of court and register of deeds to appoint deputies, there is no special statute empowering the district attorney to appoint an administrative law clerk. As indicated, that position is filled by the district attorney under his or her general authority to "[h]ire, employ and supervise his or her staff." Section 978.05(8)(b), Stats. And, as we have also noted, that authority is expressly restricted by the provision that it in no way "limits the authority of counties to regulate the hiring, employment and supervision of county employes." We believe that provision, which appears in the statute authorizing the law clerk's hiring, controls; and insofar as the union's proposal would include the law clerk's position in the bargaining unit, it does not improperly limit the district attorney's statutory powers to hire deputies, assistants and other staff under sec. 978.03, Stats. ²

We turn to the effect of the union's proposal on the authority of the register of deeds and clerk of courts to appoint deputies.

In Milwaukee Police Ass'n v. City of Milwaukee, 113 Wis.2d 192, 335 N.W.2d 417 (Ct.App.1983), a case decided after Glendale, the Milwaukee police chief discharged two probationary officers--one who had been found to be physically unfit for the...