Kuter v. State Personnel Com'n

• Decision Date: 20 May 1987
• Citation: 140 Wis.2d 860,409 N.W.2d 670
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. DAVID M. KUTER, Petitioner-Respondent, v. STATE PERSONNEL COMMISSION, Respondent-Appellant. 86-1950.
• Court: Wisconsin Court of Appeals

Page 670

409 N.W.2d 670

140 Wis.2d 860

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

DAVID M. KUTER, Petitioner-Respondent, v.STATE PERSONNEL COMMISSION, Respondent-Appellant.

86-1950.

Court of Appeals of Wisconsin.

May 20, 1987.

Circuit Court, Fond du Lac County

Reversed

Appeal from a judgment of the circuit court for Fond du Lac county: Steven W. Weinke, Judge.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

SCOTT, Chief Judge.

The State Personnel Commission(commission) appeals a circuit court judgment reversing an order of the commission.In an order dated July 15, 1985, the commission had affirmed a hearing examiner's order stating that the layoff of David M. Kuter(Kuter), an employee of the Department of Industry, Labor and Human Relations(DILHR), was for just cause under sec. 230.44(1)(c), Stats., and Wis. Adm. Code § ER-Pers 22.06(2).

The trial court concluded that Kuter's layoff was arbitrary and capricious because a letter from the Administrator of Job Services, Robert Polston(Polston), which stated that Kuter could remain in his position in the Fond du Lac office for as long as he chose and satisfactorily performed his duties could have been used to exempt Kuter from the layoffs but was not.We conclude that the record supports the commission's conclusion that: (1) the Polston letter was meant to provide Kuter with only limited job security in his Fond du Lac position and not to immunize him from future DILHR layoffs, and (2) his layoff was for just cause, and therefore we reverse.

The basic facts are undisputed.Kuter was an employee of DILHR for nearly 42 years, working in its Job Service office in Fond du Lac.Prior to 1979, Kuter was classified as a Job Service Supervisor 4 (JSS 4), with duties that included supervision of the Special Applicant Services (SAS) and Employment Assistance Units.

In 1979, the District Director, Al Tollefson(Tollefson), proposed a reorganization of the Fond du Lac office which would have resulted in: (1) the SAS reporting to him instead of Kuter, and (2) Kuter's being moved to a different position with a different title.Kuter objected to changes in his position and title and appealed to a legislator, his department secretary and division administrator.In response to these appeals, an agreement was reached whereby Kuter would retain his classification and job description but Tollefson could reassign the supervisory responsibilities.This agreement was reflected in a letter dated December 12, 1979(the Polston letter), ¹ in which Polston agreed that the organizational structure would not be changed but that Tollefson could determine direct supervisory and reporting responsibilities of the SAS.During this time, all JSS 4 positions, including that held by Kuter, were reallocated at a higher JSS 5 level.

In 1981, federal funding for DILHR's Work Incentive program and Employment Service program was reduced, necessitating a statewide reorganization of Job Service and subsequent layoff of a large number of Job Service personnel.

Changes from this statewide reorganization and subsequent layoffs impacted directly upon Kuter.He was notified on April 2, 1982 of a pending layoff from his JSS 5 position, effective April 18, 1982.His former JSS 5 position having been abolished through the reorganization of the district, Kuter exercised his bumping rights on April 5, 1982 and moved into the reorganized JSS 4 position, a reclassification of the same position he had been in for the previous two years.Once in the JSS 4 position, he retained the higher JSS 5 pay and benefits; however, he did not receive a subsequent cumulative pay adjustment on May 1, 1982 as a result of the budget repair bill because his salary exceeded the maximum of the pay range for a JSS 4 position.

On November 11, 1982, based upon recall rights, Kuter interviewed for a JSS 5 position in the Madison Central Operations office.Kuter states that he elected not to pursue the position because of his reliance on the Polston letter, which he believed provided him with job security in his JSS 4 position.Kuter then remained in his JSS 4 position until his retirement in June 1983.Kuter appealed to the commission to receive the budget repair bill across-the-board 3% increase which he was denied from October 3, 1982 through June 24, 1983 and to retain his JSS 5 title.

At a contested case hearing, the examiner took testimony as to the intent of the letter.Kuter actively sought such testimony.The commission issued a decision which found that: (1) the DILHR reorganization which resulted in Kuter's layoff, as well as the layoffs of 200 other employees, was part of the statewide reorganization of Job Service occasioned by loss of federal funding; (2) the Polston letter was limited to a particular reorganization in 1979 and had been designed to avoid Kuter's layoff at that time but was not intended to protect Kuter from departmental layoffs or economic cutbacks beyond that time period; and (3) Kuter's layoff was for just cause.

The trial court, in reversing the commission's order, rejected the commission's interpretation of the Polston letter, stating that 'the terms of that letter has a common and ordinary meaning which does not support the opposing view of limited intent.'²

In reviewing the commission's findings, the trial court was bound by the substantial evidence test; i.e., whether there is credible and substantial evidence in the record to support the findings made by the commission.Sec. 227.57(6), Stats.;Yunker v. LIRC, 115 Wis.2d 525, 529, 341 N.W.2d 703, 705(Ct. App.1983).Likewise, this court's role is to review the record for credible and substantial evidence which supports the commission's determination, rather than weigh opposing evidence....