Dane County v. McCartney

• Decision Date: 22 January 1992
• Docket Number: No. 91-1407,91-1407
• Parties: DANE COUNTY, Plaintiff-Respondent, v. Jerry D. McCARTNEY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 830

480 N.W.2d 830

166 Wis.2d 956

DANE COUNTY, Plaintiff-Respondent, v. Jerry D. McCARTNEY, Defendant-Appellant.

No. 91-1407.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 9, 1991.

Opinion Released Jan. 22, 1992.

Opinion Filed Jan. 22, 1992.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Michael R. Fox and Mary E. Kennelly of Fox & Fox, S.C. of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Lester A. Pines and Stephen E. Ehlke of Cullen, Weston, Pines & Bach of Madison.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Jerry McCartney appeals a judgment in favor of Dane County holding that sec. 46.23(3)(d), Stats., does not guarantee McCartney continued employment with the Dane County Department of Human Services with the same seniority, status and benefits, and dismissing McCartney's counterclaim against the county alleging due process violations. McCartney argues that sec. 46.23(3)(d) unconditionally guarantees his continued employment with the same seniority, status and benefits as he previously enjoyed, as a protection during the social services department's reorganization. He also contends that his termination and subsequent demotion in violation of sec. 46.23(3)(d) and the removal of his administrative duties while he was required to undergo retraining violated his due process rights. We disagree and affirm the judgment.

McCartney was director of the Dane County Department of Social Services. The county executive informed McCartney by letter dated April 11, 1989, that he was not satisfied with McCartney's performance, the quality and quantity of information McCartney personally had regarding the department and the amount of time McCartney spent at the office and work-related activities. As a result, the county executive relieved McCartney of his administrative Effective July 1, 1989, the county reorganized the social services department and the community support and health services department into the human services department, pursuant to ch. 46, Stats. As a result of the reorganization, the director of the social services department position was abolished effective December 1, 1989. On July 14, 1989, the county informed McCartney about the reorganization, opportunities for reemployment and other civil service rights. McCartney interviewed for numerous positions with the human services department but was not hired. On November 3, 1989, the director of the human services department provided McCartney with formal notification that his position as director of the social services department would be eliminated effective December 1, 1989, due to the reorganization. McCartney was unemployed from December 1, 1989, until April 30, 1990, when he accepted the position of human services program specialist. However, this position had a lower salary range than the director of social services department position.

duties so that McCartney could undergo six months of retraining. The retraining consisted of McCartney's working along with employees in each area and office of the social services department to become familiar with the actual jobs performed. The purpose was to enable McCartney to better plan for and supervise the social services department.

On January 3, 1990, the county filed a declaratory judgment action, naming McCartney as a defendant, requesting a declaration of rights and obligations under sec. 46.23(3)(d), Stats. McCartney brought a counterclaim alleging that the county violated his due process rights. The county moved for summary judgment on the basis that sec. 46.23(3)(d) did not unconditionally guarantee McCartney continued employment with the same status, seniority or benefits. The trial court granted summary judgment in favor of the county. It also granted the county's motion to dismiss McCartney's counterclaim for failure to state a claim upon which relief could be granted.

SECTION 46.23(3)(d), STATS.

We first address whether sec. 46.23(3)(d), Stats., unconditionally guarantees McCartney continued employment with the same seniority, status and benefits as he held in his director of social services position. We review a summary judgment de novo. Grosskopf Oil v. Winter, 156 Wis.2d 575, 581, 457 N.W.2d 514, 517 (Ct.App.1990). This court has set forth the methodology for reviewing a summary judgment many times, and it need not be repeated here. See Grams v. Boss, 97 Wis.2d 332, 338, 294 N.W.2d 473, 476 (1980). The material facts are undisputed, and this issue involves the construction and application of sec. 46.23(3)(d). The construction and application of a statute to undisputed facts is a question of law that we also review de novo. Gonzalez v. Teskey, 160 Wis.2d 1, 7-8, 465 N.W.2d 525, 528 (Ct.App.1990).

Section 46.23(3)(d), Stats., provides:

Employe Protections. All persons employed by a county or by the state, whose functions are assumed by a county department of human services shall continue as employes of the county department of human services without loss in seniority, status or benefits, subject to the merit or civil service system. (Emphasis added).

Whether sec. 46.23(3)(d) unconditionally guarantees McCartney continued employment with the same seniority, status or benefits depends upon the interpretation of the phrase "subject to the merit or civil service system."

When interpreting a statute, we first look to the statutory language, and, if the statute's meaning is clear, we will not look outside the statute. McMullen v. LIRC, 148 Wis.2d 270, 274, 434 N.W.2d 830, 832 (Ct.App.1988). Only if the statute is ambiguous are we permitted to look beyond the statutory language. In re J.S.P., 158 Wis.2d 100, 107, 461 N.W.2d 794, 797 (Ct.App.1990). A statute is ambiguous only if it is capable of two or more reasonable interpretations. See State ex rel. Newspapers, Inc. v. Showers, 135 Wis.2d The county argues that the "subject to" phrase modifies the right to continued employment. In other words, it claims that McCartney's continued employment during reorganization is conditioned upon the civil service rules. The county contends that McCartney had the right to continued employment unless the civil service rules provided otherwise.

77, 87, 398 N.W.2d 154, 159 (1987). Here, two constructions of sec. 46.23(3)(d) have been postulated.

McCartney argues that the county's interpretation renders the term "shall" superfluous. He contends that the "subject to" clause does not modify the right to continued employment, but, rather, merely clarifies that employees of the human services department continue to be governed by the civil service rules, whether those rules were previously in effect or newly created by the human services department. McCartney interprets sec. 46.23(3)(d), Stats., to provide unconditional, guaranteed and absolute continued employment without loss in seniority, status or benefits during a reorganization. We conclude that McCartney's interpretation is unreasonable.

McCartney attempts to bolster his interpretation by arguing that the legislative history and prior interpretations of sec. 46.23(3)(d), Stats., are consistent with his construction. First, we are not permitted to look beyond the statutory language to the legislative history to give meaning to an unambiguous statute. See McMullen, 148 Wis.2d at 274, 434 N.W.2d at 832. Second, the interpretation of sec. 46.23(3)(d), Stats., by the Dane County assistant corporation counsel is irrelevant, not authoritative and not persuasive because it did not discuss the impact of the "subject to" clause. McCartney relies on a letter from Attorney General Bronson C. LaFollette, dated May 21, 1982. However, in that letter, the attorney general also did not address the meaning of the "subject to" clause, and he held that the employee could be laid off when such layoff was more than one year after the ch. 46 reorganization. To argue, as McCartney asserts, that the attorney general's decision forbids the layoff of an employee within one year of the reorganization, without addressing the meaning of the "subject to" clause, lacks merit.

Finally, McCartney contends that Yonash v. County of Jefferson, Decision and Order of the Department of Health and Social Services (Nov. 9, 1979), supports his construction of sec. 46.23(3)(d), Stats. In Yonash, the director of the social services department was laid off when his department was merged with another to create the human services department. The hearing examiner concluded that the director was laid off in accordance with the applicable merit system rules and, because the director was offered simultaneous employment without any deductions in salary, sec. 46.23(9), Stats., ¹ was complied with. That decision did not reach the issue here, namely, whether a layoff and subsequent demotion (lower paying job) are contrary to the protections afforded in sec. 46.23(3)(d). Thus, we disagree that Yonash supports McCartney's construction of the statute.

Section 46.23(3)(d), Stats., states that persons shall continue as employees, subject to the civil service rules. The effect of McCartney's interpretation would mean that the county could never lay off employees during a reorganization when the very purpose of the reorganization is to enable the county to provide a comprehensive range of human services to all citizens in a more streamlined and efficient manner. See sec. 46.23(1), Stats. It is also unreasonable to construe the statute in a manner that allows employees to be laid off pursuant to the civil service rules at any time except during reorganization. Furthermore, there would be no reasonable cutoff for the guaranteed employment. Under such an interpretation there is no way to determine whether employees' rights to continued employment protect them for one month, six months, one year or ten years. Finally, the word "shall" is not rendered superfluous by the county's...