Larson v. City of Madison
| Decision Date | 25 September 1986 |
| Citation | 133 Wis.2d 478,395 N.W.2d 831 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Matter of Arbitration Proceedings Between: MICHAEL R. LARSON, Grievant-Appellant, v. CITY OF MADISON, Respondent. 85-1458. |
| Court | Wisconsin Court of Appeals |
Circuit Court, Dane County
Reversed
Appeal from an order of the circuit court for Dane county: Angela B. Bartell, Judge.
Before GARTZKE, P.J., DYKMAN, J., and EICH, J.
Michael R. Larson appeals from an order vacating an arbitration award. The arbitrator determined that Larson's employer, the City of Madison, violated a labor agreement when it terminated his employment as a police officer for failure to maintain his residence in Madison contrary to a city ordinance. The issue is whether the arbitrator exceeded his authority. We hold that he did not and therefore reverse.
The facts are not in dispute. Michael has been a Madison police officer since 1966 and has lived in the city at all times pertinent hereto, most recently (since February, 1981), in a mobile home. In 1979, he inherited his father's home in McFarland, a community located a few miles beyond the Madison city limits. He continued to reside in Madison, renting the McFarland home to Karen Turmelle, who had lived there and cared for Larson's father before he died.
In 1981, Michael and Karen were married. In order to accommodate her son, who was enrolled in the McFarland school system, Karen decided to remain at the McFarland house. Michael, recognizing the need to remain a city resident, continued to live at his Madison home. At about this time, Michael discussed his situation with a department investigator, who informed him of a possible problem with the city residency requirement. This concern was apparently transmitted to the Chief of Police, who, soon after, ordered an investigation into Michael's residency. It appears from the record that, based on (1) Michael's statements at a predetermination hearing, (2) an investigator's report stating that he had driven past Michael's Madison residence on two occasions and failed to see his automobile there, and (3) 'consult[ation] with staff of the City . . . Attorney's office,' the chief concluded that Michael had violated the residency requirement and fired him. The investigator's summary of his investigation appears in the city's file. In essence, it states that Michael's ties to Madison were inadequate to meet the residency requirement 'inasmuch as he had a wife who lived outside the City limits.'
Michael filed a grievance, and both he and the city stipulated that the sole issue for arbitration was whether the manner in which the department applied the employee residence requirement to Michael violated its labor contract with the police officers' union. The arbitrator answered the question in the affirmative and ordered that Michael be reinstated to his former position. On review, the circuit court reversed, concluding that the arbitrator exceeded his powers and ignored applicable law.
On appeal, we review the arbitrator's decision independently, without deference to the circuit court's decision. Our review is quite limited, however. Our function is not to weigh the merits of the grievance; we play only a supervisory role, 'the goal being merely to ensure that the parties receive[d] the arbitration that they bargained for.' Milw. Pro. Firefighters Local 215 v. Milwaukee, 78 Wis.2d 1, 22, 253 N.W.2d 481, 491 (1977). When parties provide for arbitration in their labor agreement, they bargain for the judgment of the arbitrator. We will not interfere with the arbitrator's decision for mere errors of law or fact, or because we might disagree with the result. Nicolet HS Dist. v. Nicolet Ed. Ass'n, 118 Wis.2d 707, 713, 348 N.W.2d 175, 178 (1984); Professional Police Ass'n v. Dane County, 106 Wis.2d 303, 308, 316 N.W.2d 656, 658 (1982). We will overturn the award if it represents a perverse misconstruction of the contract, positive misconduct or a manifest disregard of the law. Milwaukee Bd. Sch. Dirs. v. Milw. Teachers' Ed. Asso., 93 Wis.2d 415, 422, 287 N.W.2d 131, 135 (1980). The arbitrator's award is presumptively valid and will be disturbed only where its invalidity is established by clear and convincing evidence. Stradinger v. City of Whitewater, 89 Wis.2d 19, 37, 277 N.W.2d 827, 834 (1979). Finally, we note that the burden of proof in a municipal employee residency case rests with the municipality, not the employee. Choike v. City of Detroit, 290 N.W.2d 58, 60 (Mich. App.), app. den., 291 N.W.2d 358 (Mich. 1980).
Section 3.27 of the Madison General Ordinances requires that all city employees 'reside' in the City of Madison and provides for automatic termination of employment if an employee 'cease[s] to reside' in the city. Madison's labor contract with its police officers contains the following provisions:
ARTICLE XXIII, RESIDENCE REQUIREMENT
A. Employees shall comply with the residency requirement as set forth in City Ordinance Sec. 3.27. The interpretation of Sec. 3.27 shall be made by the City Attorney.
B. The Employer's application of City Ordinance Sec. 3.27 for members of the Association shall be the same as applied to all City employees. Any moderation to City Ordinance Sec. 3.27 shall be applied to employees represented by the Association.
The residency ordinance has been in effect for many years. In 1976, the mayor sent a memo to all city employees, stating that the city attorney had 'interpreted' the ordinance as follows:
[A] City employee must establish his/her domicile within the corporate limits of the City of Madison in order to be in compliance with the City's residency requirement. While the intention of the employee is a controlling factor, the City Attorney has set forth certain factual considerations which include but are not limited to the following:
1. Is the employee's primary domicile located within the City?
2. If an employee is married, does the spouse live in the City?
3. If an employee has children, do they live in the City? Do they attend school in the City?
4. Is the employee registered to vote in the City?
5. For income tax purposes, is Madison given as a place of residence?
6. Does the employee maintain a telephone in the City?
7. Does the employee sleep and eat in the City?
8. Are the employee's personal belongings located in the City?
9. Does the employee and family spend most of their time within the City?
These criteria are generally consistent with the standards used to determine residency in other contexts such as taxation, voting, marriage and divorce, and legal settlement. Legally, residence is the practical equivalent of 'domicile'; it is the place where a person resides 'with the present intent of making the place one's home.' Carlton v. State Department of Public Welfare, 271 Wis. 465, 468, 467, 74 N.W.2d 340, 342, 341 (1956). Abandonment of a residence is also, to a large degree, a matter of intent. Id. at 468, 74 N.W.2d at 342. Once established, a person's domicile is presumed to continue. Baker v. Department of Taxation, 246 Wis. 611, 617, 18 N.W.2d 331, 333 (1945). The presumption may be rebutted only by 'competent and clear, convincing and satisfactory evidence that he [or she] had in reality actually abandoned his [or her] domicile . . . and . . . had actually by permanent occupancy established a new domicile . . ..' Id. at 618, 18 N.W.2d at 334.
The arbitrator properly recognized that the location of immediate family is significant in determining residence. Eastman v. City of Madison, 117 Wis.2d 106, 119, 342 N.W.2d 764, 770 (Ct. App. 1983). He concluded, however, that Karen's residence in McFarland was not conclusive and that all other indicia of residence brought forth at the hearing pointed to compliance with the ordinance.
With the exception of the residence of his wife, every indicia of residence reflects that the Grievant was a resident of the City of Madison at the time his employment was terminated. The Grievant spent two-thirds of his time at his Madison home; he voted from there; he paid taxes from there; his telephone number was there; he entertained there; his wife visited him there; he kept his personal belongs [sic] there (except for sporting equipment used at the McFarland house) and he regarded the mobile home as his principal residence.
The record does not show that the Grievant maintained two domiciles. His wife had one domicile and he had another. Under the circumstances discussed above, this is not prohibited by Article XXIII. 1
The city argues, however, that because the chief's conclusion that Michael had abandoned his Madison residence was based on consultation with the city attorney, and because the labor contract stated that 'the interpretation of [the residence ordinance] shall be made by the City Attorney,' the chief's determination must be upheld 'unless it is contrary to the great weight and clear preponderance of the evidence.' The circuit court took a somewhat similar view, ruling that the city attorney's determination, that Michael had ceased to 'reside' in Madison, should be upheld if he had any rational basis for concluding as he did.
It is not the chief's determination, or his underlying 'consultation' with the city attorney that is the subject of the appeal, however. Nor is it the circuit court's opinion. We are reviewing the arbitrator's award, and we do so under the principles discussed above. The arbitrator stated that, given the language in the contract regarding the city attorney's 'interpretation' of the ordinance, he was not free to substitute his own interpretation for that of the city attorney and was limited to determining whether that interpretation was unreasonable, arbitrary or capricious. He then concluded that the city's action was arbitrary and lacked evidentiary support. 2...
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