Karow v. Milwaukee County Civil Service Commission

• Decision Date: 07 March 1978
• Docket Number: No. 75-839,75-839
• Citation: 263 N.W.2d 214,82 Wis.2d 565
• Parties: Peter J. KAROW, Petitioner-Respondent, v. MILWAUKEE COUNTY CIVIL SERVICE COMMISSION and Michael S. Wolke, sheriff, Milwaukee County, Appellants.
• Court: Wisconsin Supreme Court

Page 214

263 N.W.2d 214

82 Wis.2d 565

Peter J. KAROW, Petitioner-Respondent, v. MILWAUKEE COUNTY CIVIL SERVICE COMMISSION and Michael S Wolke, sheriff, Milwaukee County, Appellants.

No. 75-839.

Supreme Court of Wisconsin.

Submitted on Briefs Jan. 5, 1978.

Decided March 7, 1978.

Robert P. Russell, Corp. Counsel, and Patrick J. Foster, Asst. Corp. Counsel, Madison, for appellants.

Peter J. Karow and Gimbel, Gimbel & Reilly, Milwaukee, for petitioner-respondent.

ABRAHAMSON, Justice.

The issue is whether the statutory time period within which a disciplinary hearing on charges against a county civil service employee is to be set is mandatory or directory.

Peter Karow held a classified service position, deputy sheriff, in Milwaukee County for nine and a half years. On February 11, 1976, Milwaukee County Sheriff Michael Wolke filed a complaint against Karow with the Milwaukee County Civil Service Commission pursuant to sec. 63.10(1), Stats. ¹ On the date the charges were filed, Karow was suspended without pay.

A hearing before the Civil Service Commission on the charges was scheduled for March 1, 1976. The assistant corporation counsel assigned to represent the County at the hearing became ill, and a substitution of counsel was made. On February 26, 1976, the new assistant corporation counsel requested that the Commission postpone the hearing because he had not had time to prepare the case. Karow's attorney objected to any delay, noting that Karow was suspended without pay pending the hearing and that certain key witnesses had arranged to be present at the March 1 hearing. Despite Karow's objections, the hearing was postponed until March 29, 1976.

On March 11, 1976, Karow petitioned the circuit court for a writ of mandamus directing the Sheriff and Commission to dismiss the charges against him and to reinstate him. ² Karow asserted that sec 63.10(2), Stats., requires the Commission to hold the hearing within three weeks of the date charges were filed against him. Because it had not done so, Karow claimed a right to reinstatement.

Sec. 63.10(2), Stats., provides:

"The commission shall appoint a time and place for the hearing of said charges, the time to be within 3 weeks after the filing of the same, and notify the person possessing the appointing power and the accused of the time and place of such hearing. At the termination of the hearing the commission shall determine whether or not the charge is well founded and shall take such action by way of suspension, demotion, discharge or reinstatement, as it may deem requisite and proper under the circumstances and as its rules may provide. The decision of the commission shall be final. Neither the person possessing the appointing power nor the accused shall have the right to be represented by counsel at said hearing, but the commission may in its discretion permit the accused to be represented by counsel and may request the presence of an assistant district attorney to act with the commission in an advisory capacity."

The trial court issued an alternative writ of mandamus March 15, 1976. A return to the writ was made and a hearing was held March 19, 1976. On March 29, 1976, the writ issued, ordering that the charges against Karow be dismissed without prejudice, that he be reinstated to his position as Deputy Sheriff I in the Milwaukee County Sheriff's Department, and that he receive all benefits attendant to said position retroactive from that date to February 11, 1976. It is from this order that appeal is taken. We affirm the order of the trial court.

The Milwaukee County Civil Service Commission regards the three-week time limit on holding the hearing as merely directory. Pursuant to its rule-making power under sec. 63.02(1), Stats., ³ the Commission has promulgated a rule which provides that a hearing will be held within three weeks after filing of the charges, "unless further time be granted by the commission for cause shown, either upon the application of the complainant, the employee or his attorney before the expiration of said three weeks." Rule VII, Section 3, Civil Service Rules, County of Milwaukee. ⁴

The County correctly argues that "the construction and interpretation of a statute adopted by the administrative agency charged with the duty of applying the law is entitled to great weight." Cook v. Industrial Comm'n, 31 Wis.2d 232, 240, 241 N.W.2d 827, 831 (1966). See also State ex rel. Dela Hunt v. Ward, 26 Wis.2d 345, 350, 132 N.W.2d 523 (1965). Nevertheless we have repeatedly said that the construction of a statute is a question of law, and this court is not bound by the interpretation given the statute by an administrative agency. Milwaukee Co. v. ILHR Dept., 80 Wis.2d 445, 455, 259 N.W.2d 118 (1977). An administrative interpretation is not conclusive, and indeed it cannot stand if "it is plainly erroneous or inconsistent" with legislative intent. State ex rel. Irany v. Milwaukee County C. S. Comm'n, 18 Wis.2d 132, 136, 118 N.W.2d 137, 139 (1962). ⁵

The relevant statutory language provides that the Commission "shall appoint a time and place for the hearing of said charges, the time to be within 3 weeks after filing of the same . . . ." The general rule is that the word "shall" is presumed mandatory when it appears in a statute. Scanlon v. Menasha, 16 Wis.2d 437, 443, 114 N.W.2d 791 (1962). The legislature used the words "shall" and "may" in sec. 63.10(2), Stats. Sec. 63.10(2) provides: The Commission shall set a time and place for hearing; it shall determine whether the charge is well founded; it shall take such action as it deems requisite; the Commission's decision shall be final; and no party shall have the right to be represented by counsel. The Commission may permit the accused to have counsel and may request an assistant district attorney to advise the Commission. When the words "shall" and "may" are used in the same section of a statute, one can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings. Armes v. Kenosha County, 81 Wis.2d 309, 260 N.W.2d 515 (1977); Scanlon, supra 16 Wis.2d at 443, 114 N.W.2d 791; 2 A Sands, Sutherland Statutory Construction, sec. 57.11 (1973).

However, the word "shall" can be construed as directory if necessary to carry out the legislature's clear intent. Wauwatosa v. Milwaukee County, 22 Wis.2d 184, 191, 125 N.W.2d 386 (1963). Statutes setting time limits on various activities have often been held to be directory despite the use of the mandatory "shall," where such a construction is intended by the legislature. ⁶ This court has stated that "a statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation." State v. Industrial Comm'n, 233 Wis. 461, 466, 289 N.W. 769, 771 (1940).

Sec. 63.10(2), Stats., does not explicitly prohibit the holding of a hearing beyond the three-week period. Nor does it provide a penalty for not holding a hearing within the time limit stated. The legislature's failure to state the consequences of noncompliance with the established time limit lends support for construing the statute as directory. State v. Industrial Comm'n, supra, 233 Wis. at 466, 289 N.W. 769.

However, the omission of a prohibition or a penalty is only one factor to be considered in the analysis of whether the legislature intended the provision to be mandatory or directory. Sands, supra at sec. 57.07. Other factors to be considered are the consequences resulting from one construction or the other, the nature of the statute, "the evil to be remedied, and the general object sought to be accomplished" by the legislature. Worachek v. Stephenson Town School Dist., 270 Wis. 116, 120, 70 N.W.2d 657, 659 (1955). See also State ex rel. Werlein v. Elamore, 33 Wis.2d 288, 293, 147 N.W.2d 252 (1967); Muskego-Norway C. S. J. S. D. No. 9 v. WERB, 32 Wis.2d 478, 145 N.W.2d 680 (1966).

We have said that a time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury. Appleton v. Outagamie County, 197 Wis. 4, 9, 220 N.W. 393 (1928). ⁷ But where the failure to act within the statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory. In State v. Rosen, 72 Wis.2d 200, 240 N.W.2d 168 (1976), we held that the statutory time limit for holding a hearing on the forfeiture of a car under the Uniform Controlled Substances Act was mandatory; the car owner's legitimate interest in having use of the car is jeopardized unless there is strict compliance with the statutory procedure for the time of the hearing. Construing the time provision as mandatory did not impede the legislature's objective of protecting the public from drug traffic.

To construe sec. 63.10(2), Stats., we must ascertain the consequences of holding that the time period is directory, and we must determine whether these consequences comport with the legislative purposes.

As a result of the charges and suspension Karow is not working and is not being paid. Any delay in...