Green Bay Prof'l Police Ass'n & Andrew Weiss v. City of Green Bay

Docket Number2021AP102
Decision Date27 April 2023
Citation407 Wis.2d 11,2023 WI 33,988 N.W.2d 664
Parties GREEN BAY PROFESSIONAL POLICE ASSOCIATION and Andrew Weiss, Plaintiffs-Appellants-Petitioners, v. CITY OF GREEN BAY, Defendant-Respondent.
CourtWisconsin Supreme Court

For the plaintiffs-appellants-petitioners, there were briefs filed by Jonathan Cermele and Cermele Law, S.C., Milwaukee. There was an oral argument by Jonathan Cermele.

For the defendant-respondent, there was a brief filed by William E. Fischer, Kyle J. Gulya, and von Briesen & Roper, S.C., Madison. There was an oral argument by William E. Fischer.

An amicus curiae brief was filed by Brendan P. Matthews and Cermele & Matthews, S.C., Milwaukee, for the Milwaukee Police Association.

An amicus curiae brief was filed by Andrew T. Phillips, Matthew J. Thome, and Attolles Law, S.C., Milwaukee, for the Wisconsin Chiefs of Police Association.

KAROFSKY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, DALLET, HAGEDORN, JJ., joined. ZIEGLER, C.J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed a concurring opinion.

JILL J. KAROFSKY, J.

¶1 The Green Bay Police Department (the Department) disciplined Andrew Weiss for violating several Department policies and demoted him from his position as a detective to a patrol officer. The demotion resulted in Weiss's loss of an $80 monthly stipend. Weiss1 challenged this disciplinary action in an arbitration proceeding. The arbitrator concluded that the Department had cause to take its chosen disciplinary action. Additionally, the arbitrator concluded that the Department's disciplinary procedures did not violate Weiss's constitutional due process rights.2 The circuit court3 confirmed the arbitration award, and the court of appeals affirmed.4 We afford a high level of deference to arbitration decisions because of the contractual nature of arbitration agreements. Given this deference, the arbitrator did not exceed his powers, and so we likewise affirm.

I. BACKGROUND

¶2 In the fall of 2017, Weiss, a detective for the Department, accessed sensitive information via the Green Bay Electronic Records Program (GERP) regarding two sexual assault cases that the Department was investigating. Weiss was not involved in either investigation. After obtaining the sensitive information, Weiss used a personal cellphone to provide information to a third party. After launching an internal investigation, the Department issued a formal complaint alleging that Weiss violated the following four Department policies: Media Relations (§ 322.4); Media Requests (§ 322.6(a)); Unauthorized Disclosure (§ 320.5.6(a)); and Conduct Unbecoming an Officer (§ 320.5.9(n)). The Department held an investigative interview with Weiss and gave Weiss the opportunity to address the allegations. Weiss admitted both accessing information on GERP and then using a personal cell phone to relay information to a friend.

¶3 The following month, the Department conducted a second interview with Weiss and provided him with an amended formal complaint alleging two additional violations of the Department policy regarding the use of personal communication devices (§§ 701.2 & 701.5(e)). At that interview, investigators asked Weiss to turn over his phone logs for the relevant time period. The investigators allowed Weiss time to discuss the request with his union and its attorney before meeting for a third time. At the third meeting, Weiss refused to provide the requested phone records and the investigators gave him a copy of the Department policy regarding cooperation with personnel complaint investigations (§ 1008.2).

¶4 One month later, the Department issued Weiss a final notice5 informing him that the Department was "considering a serious level of discipline." The notice listed four policy violations: Media Relations (§ 322.4); Media Requests (§ 322.6(a)); Unauthorized Disclosure (§ 320.5.6(a)); and Conduct Unbecoming an Officer (§ 320.5.9(n)). The notice referenced Weiss's admission that he accessed case information on GERP and then provided information to a friend. A final hearing was held that same day, and Weiss was allowed to address the allegations.

¶5 The following month the Department issued its disciplinary decision in which it determined that Weiss violated the following policies: Unauthorized Disclosure (§ 320.5.6(a)); Conduct Unbecoming an Officer (§ 320.5.9(n)); Use of Personal Communication Devices (§§ 701.2 & 701.5(e)); and Failure to Cooperate in an Investigation of Personnel Complaint (§ 1008.2). As a result of these violations, the Department demoted Weiss from his position as a detective to a position as a patrol officer, resulting in the loss of an $80 per month stipend associated with the detective assignment.

¶6 Weiss filed a grievance with the Green Bay Personnel Committee which was denied. Weiss then sought arbitration, arguing that the Department did not have cause to discipline him and that his due process rights under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed. 2d 494 (1985), were violated because he was ultimately disciplined for three policy violations that were not included in the Department's final notice—Use of Personal Communication Devices (§§ 701.2 & 701.5(e)) and Failure to Cooperate in an Investigation of Personnel Complaint (§ 1008.2). The arbitrator determined that the Department had cause, as required by the collective bargaining agreement, to discipline Weiss by removing him from his detective assignment. The arbitrator concluded that the discipline was warranted because Weiss had violated all referenced Department policies except for Conduct Unbecoming an Officer.6

¶7 The arbitrator also addressed Weiss's due process argument as follows:

The reliance Weiss puts in Loudermill is misplaced. In Loudermill, the court balanced competing interests specific to the discharge of a public employee. The weight accorded to Loudermill varies depending on the severity of the disciplinary action taken. Subsequent cases have confirmed that a neutral pre-termination adjudicator is not required where there is also a post-termination administrative procedure. Locurto v. Safir, 264 F.3d 154 (2nd Cir. 2001) ; Schacht v. Wisconsin Dept. of Corr., 175 F.3d 497 (7th Cir. 1999). In the present case, the arbitrator serves as the post-disciplinary administrative procedure and satisfies due process requirements under Loudermill, particularly given that the disciplinary action taken was short of discharge.

¶8 Weiss challenged the arbitration award in circuit court, arguing that the award manifestly disregarded the law with regards to the due process issue under Loudermill. The circuit court denied Weiss's request to vacate the award and granted the City of Green Bay's request to confirm the arbitration award. The court of appeals affirmed.

II. ANALYSIS

¶9 In determining whether an arbitration award is confirmed or vacated, we independently interpret and apply Wis. Stat. § 788.10(1) (2021-22).7 Racine Cnty. v. Int'l Ass'n of Machinists & Aerospace Workers Dist. 10, AFL-CIO, 2008 WI 70, ¶11, 310 Wis. 2d 508, 751 N.W.2d 312. The choice to arbitrate, at its core, is a contract between the parties intended to keep a dispute out of the court system. Borst v. Allstate Ins. Co., 2006 WI 70, ¶61, 291 Wis. 2d 361, 717 N.W.2d 42. As such, the court's role in reviewing an arbitrator's award is generally limited to ensuring that the parties received the arbitration process for which they bargained. Racine Cnty., 310 Wis. 2d 508, ¶11, 751 N.W.2d 312. In that light, Wis. Stat. § 788.10(1) sets out specific circumstances under which the court must vacate an arbitration award. As relevant here, courts must vacate an arbitration award if the "arbitrators exceed[ ] their powers." § 788.10(1)(d). Arbitrators exceed their powers when: (1) they demonstrate "perverse misconstruction" or "positive misconduct," (2) they manifestly disregard the law, (3) the award is illegal, or (4) the award violates a strong public policy. Racine Cnty., 310 Wis. 2d 508, ¶11, 751 N.W.2d 312.

¶10 We reverse an arbitration award as manifestly disregarding the law "when the arbitrator[ ] fail[s] to examine and apply the relevant law" because parties to arbitration have "a legitimate expectation that the governing law [will] be followed and applied properly."

Orlowski v. State Farm Mut. Auto. Ins. Co., 2012 WI 21, ¶¶37-38, 339 Wis. 2d 1, 810 N.W.2d 775. However, we will not reverse an arbitration award for "mere errors of judgment as to law or fact" on the part of the arbitrator. Joint Sch. Dist. No. 10, City of Jefferson v. Jefferson Ed. Ass'n, 78 Wis. 2d 94, 117, 253 N.W.2d 536 (1977).

¶11 Weiss primarily argues that the arbitrator exceeded his powers because the arbitrator manifestly disregarded the law when he determined that the Department provided adequate notice to Weiss under Loudermill.8 Weiss bases this claim on the fact that the Department's final notice did not list three of the Department policies for which he was ultimately disciplined, depriving Weiss of his opportunity to respond. Weiss contends that the failure to include those policies in the final notice violated the due process requirements set out in Loudermill.

¶12 Importantly, we need not decide whether Weiss was afforded all the process due to him. We need determine only whether the arbitrator exceeded his powers under Wis. Stat. § 788.10(1)(d) by manifestly disregarding the law. Although it may be difficult to define exactly what it means to "manifestly disregard the law," we know that this standard does not entitle arbitration participants to de novo court review of an arbitrator's interpretation of the law. See City of Oshkosh v. Oshkosh Pub. Libr. Clerical and Maint. Emp.: Union Loc. 796-A, 99 Wis. 2d 95, 104, 299 N.W.2d 210 (1980) ("Having agreed to be bound by the arbitrator's determination, the arbitrator has the ...

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