Kraus v. WAUKESHA POLICE & FIRE COM'N

• Decision Date: 30 May 2003
• Docket Number: No. 01-1106.,01-1106.
• Citation: 261 Wis.2d 485,662 N.W.2d 294,2003 WI 51
• Parties: Steven E. KRAUS, Plaintiff-Appellant, v. CITY OF WAUKESHA POLICE AND FIRE COMMISSION, Defendant-Respondent.
• Court: Wisconsin Supreme Court

261 Wis.2d 485

2003 WI 51

662 N.W.2d 294

Steven E. KRAUS, Plaintiff-Appellant, v. CITY OF WAUKESHA POLICE AND FIRE COMMISSION, Defendant-Respondent.

No. 01-1106.

Supreme Court of Wisconsin.

Oral argument September 17, 2002.

Decided May 30, 2003.

For the plaintiff-appellant there were briefs by John F. Fuchs, Paul H. Beard, and Fuchs Snow DeStefanis, S.C., Milwaukee, and oral argument by John F. Fuchs.

For the defendant-respondent there was a brief by Vincent D. Moschella, assistant city attorney, and Curt R. Meitz, city attorney, and oral argument by Curt R. Meitz.

An amicus curiae brief was filed (in the court of appeals) by James R. Korom, Steven B. Rynecki, and von Briesen & Roper, S.C., Milwaukee, on behalf of the Wisconsin Chiefs of Police Association, with oral argument by James R. Korom.

An amicus curiae brief was filed by Scott Herrick and Herrick, Kasdorf, Dymzarov & Twietmeyer, Madison, on behalf of the Board of Police and Fire Commissioners of the City of Madison.

¶ 1. DAVID T. PROSSER, J.

This case is before the court on certification pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000).¹ The appellant, Steven E. Kraus (Kraus), seeks reversal of an order from the Circuit Court for Waukesha County affirming a decision by the City of Waukesha Police and Fire Commission to deny Kraus a hearing under Wis. Stat. § 62.13(5)(em), following his reduction in rank from police sergeant to patrol officer before he completed the one-year probationary period for his promotion.

¶ 2. The issue presented is whether a police officer who is promoted on a probationary basis, but who is thereafter returned to the officer's former rank for failing to successfully complete probation for nondisciplinary reasons, is entitled to a hearing under either Wis. Stat. § 62.13(5)(em) or some other provision of law. In addressing this issue, we must first answer the certified question whether police chiefs and police and fire commissions (PFCs) have the authority to promote officers on a probationary basis.

¶ 3. We hold that police chiefs and PFCs in Wisconsin are authorized to promote subordinates within a department on a probationary basis, provided that the period of probation is reasonable in duration. This power is inherent in the appointment authority granted to police chiefs and PFCs by Wis. Stat. § 62.13(4) and buttressed by PFC rule-making authority in Wis. Stat. § 62.13(6). If, during the probationary period following a promotion, a chief concludes that an officer's performance is inadequate or that some other lawful, nondisciplinary reason militates against the officer serving in the higher rank, the chief and PFC may return that officer to the officer's prior rank without a hearing under § 62.13(5)(em). We also conclude that an officer who is promoted on a probationary basis but returned during the probationary period to his or her prior rank for nondisciplinary reasons, does not possess a constitutionally protected property interest in the higher rank that would require an alternative type of due process hearing.

¶ 4. We therefore affirm the circuit court's decision that the Waukesha PFC proceeded under a correct theory of law when it denied Kraus a § 62.13(5)(em) hearing regarding his reappointment as a patrol officer.

I. BACKGROUND FACTS

¶ 5. Officer Steven E. Kraus joined the City of Waukesha Police Department as a police officer on June 4, 1990. On November 24, 1997, Waukesha Police Chief Leslie Sharrock filed a letter with the City of Waukesha Police and Fire Commission (the PFC) indicating his desire to promote Kraus to the position of sergeant, subject to Kraus successfully completing a one-year probationary period. The PFC thereafter approved Sharrock's recommendation during an open PFC meeting, with Officer Kraus in attendance. The PFC's motion expressly stated that Kraus's promotion, along with that of another officer who was concurrently being promoted to the rank of sergeant, would be subject to successful completion of a one-year probationary period.

¶ 6. About one week before the end of the probationary period, Chief Sharrock informed both Kraus and the PFC by letters that Kraus had failed to successfully complete probation. The Chief stated that Kraus would not become a regular-status police sergeant but instead be reappointed as a patrol officer, subject to the successful completion of a new six-month probationary period.² No specific reason was given for Kraus's failure to successfully complete probation, but the letter to Kraus indicated that he was not precluded from seeking promotion in the future.³ ¶ 7. On December 3, 1998, Kraus appeared before the PFC to request a "just cause" hearing under Wis. Stat. § 62.13(5)(em).⁴ He argued that no authority existed for the Chief and the PFC to promote Kraus on a probationary basis. At Kraus's request, the PFC and the Chief agreed to hold the matter in abeyance until a final decision in Antisdel v. Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, which was then pending on appeal.

¶ 8. On May 2, 2000, this court issued its decision in Antisdel, but we expressly declined to answer the specific question raised in Kraus's case. Id., ¶ 26. Twenty days later, Kraus renewed the argument that he was entitled to a Wis. Stat. § 62.13(5)(em) hearing regarding his reduction in rank. The PFC denied Kraus's request and granted the Chief's recommendation to return Kraus to patrol officer status. This conclusion was later memorialized in a written decision issued by the PFC. The PFC's July 6 written decision stated that a hearing was not required because Kraus's failure to satisfy probation was due to performance-based reasons, to which § 62.13(5) is inapplicable.

¶ 9. On June 1, 2000, before the PFC had issued its written decision, Kraus sought a writ of certiorari in the Circuit Court for Waukesha County, J. Mac Davis, Judge, asking the court to order the PFC to give him a due process hearing before returning him to the rank of patrol officer. The circuit court ruled that the PFC proceeded upon a correct theory of law when denying Kraus a § 62.13(5)(em) hearing. The court concurred in the PFC's reasoning and concluded that Kraus was merely a probationary sergeant and that no hearing was necessary because his reduction in rank was for nondisciplinary reasons. Kraus appealed and the court of appeals certified the appeal to this court. We accepted the certification.

II. STANDARD OF REVIEW

[1, 2]

¶ 10. When we review an application for a writ of certiorari, we review the agency's decision (here the PFC's decision), not the decision of the circuit court. See State v. Horn, 226 Wis. 2d 637, 652, 594 N.W.2d 772 (1999). The scope of review is generally limited to whether the agency (1) acted within its jurisdiction; (2) proceeded on a correct theory of law; (3) was arbitrary, oppressive, or unreasonable; or (4) might have reasonably made the order or finding that it made based on the evidence. Antisdel, 234 Wis. 2d 154, ¶ 13 (citing State ex rel. Hennekens v. City of River Falls Police & Fire Comm'n, 124 Wis. 2d 413, 419, 369 N.W.2d 670 (1985)). Because Kraus also appealed to the circuit court under Wis. Stat. § 62.13(5)(i), which calls for a de novo "just cause" determination by the court, we look solely to the first two factors in certiorari review—namely, whether the PFC had jurisdiction and whether it acted under a correct theory of law. As in Antisdel, the real issue is whether the PFC proceeded on a correct theory of law when it determined not to apply Wis. Stat. § 62.13(5). Antisdel, 234 Wis. 2d 154, ¶ 13. This is a question we review de novo. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 629, 579 N.W.2d 698 (1998).

III. ANALYSIS

¶ 11. In Wisconsin, newly hired police officers are almost always subject to a one-year probationary period. These probationary officers do not have a property interest in their new positions and are usually subject to discharge during the probationary period without a statement of reasons or a determination of just cause. Kaiser v. Bd. of Police & Fire Comm'rs, 104 Wis. 2d 498, 501, 503, 505-06, 311 N.W.2d 646 (1981).

¶ 12. In practice, police officers are often promoted on a probationary basis as well.⁵ However, in Antisdel, this court ruled that when a police officer is promoted subject to probation and then demoted during the probationary period based on disciplinary charges, the officer is entitled to a just cause hearing before the PFC under Wis. Stat. § 62.13(5)(em). Antisdel, 234 Wis. 2d 154, ¶ 25. We concluded that the disciplinary process established in Wis. Stat. § 62.13(5) provides no exception for an officer's probationary status and must be applied, even in the context of probation. Id., ¶ 2.

¶ 13. In the present case, Kraus claims that he, too, is entitled to a "just cause" hearing under Wis. Stat. § 62.13(5)(em) before being returned to his status as a patrol officer, even though his reduction in rank came during the probationary period for promotion. He contends that a § 62.13(5)(em) hearing must be provided before demoting any subordinate officer who has completed the initial probationary period as a new hiree. This protection is required, he argues, regardless of the reason for a subordinate's demotion. ¶ 14. This precise issue was deferred in Antisdel, when the court said, "We need not, and do not, decide whether we would reach the same decision if the plaintiff were reduced in rank from probationary sergeant to police officer because he failed to meet the level of performance demanded by his superiors or for some other nondisciplinary reason." Id., ¶ 26. We now address this issue.

A. Statutory Authority for Probationary Promotion

¶ 15. As a preliminary matter, we note the question certified to this court: "Does a police chief and a police and fire commission have authority to promote police officers within a department on a probationary basis and, if so,...