Nufer v. Village Bd. of Village of Palmyra, 77-064

• Decision Date: 06 November 1979
• Docket Number: No. 77-064,77-064
• Citation: 284 N.W.2d 649,92 Wis.2d 289
• Parties: Ronald NUFER, Appellant, v. VILLAGE BOARD OF VILLAGE OF PALMYRA, Respondents.
• Court: Wisconsin Supreme Court

Page 649

284 N.W.2d 649

92 Wis.2d 289

Ronald NUFER, Appellant, v. VILLAGE BOARD OF VILLAGE OF PALMYRA, Respondents.

No. 77-064.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 10, 1979.

Decided Nov. 6, 1979.

Christopher J. Rogers and Smith, Rogers & Smith, Fort Atkinson, submitted briefs for appellant.

David C. Williams and Dempsey & Harrison Law Office, Elkhorn, submitted brief for respondents.

CALLOW, Justice.

This is an appeal from a judgment affirming the decision of the Palmyra Village Board (Board) removing Ronald Nufer (Nufer) from his position as village police chief.

Nufer had been Chief of Police for ten and one-half years. By resolution dated October 18, 1976, the Fire and Police Committee of the Village of Palmyra referred charges against Nufer to the full seven-member Village Board for hearing. The full Board passed a resolution scheduling a formal hearing on the charges. ¹ Notice of the charges and date for hearing were sent to Nufer.

The following charges were preferred against Nufer.

"1. That Chief Nufer engaged in the business of selling eggs while on duty, in uniform, and with the police vehicle. That Chief Nufer stored eggs on a weekly basis in the Palmyra Police Department squad room from approximately the last half of 1973 through the year 1974. That in the same period of time Chief Nufer was observed delivering eggs while on duty, in uniform, and with the police vehicle on five occasions to the Donald McComb residence and on one occasion each to the Palmyra Junior High School and the Palmyra State Bank.

"2. That Chief Nufer on two occasions in the fall of 1972 engaged in grocery shopping at the People's Market in Jefferson while on duty, in uniform and with the police vehicle.

"3. That Chief Nufer failed to acquaint his officers with the Rules and Regulations adopted by the Village Board for the Police Department from the date of adoption of said rules on December 15, 1975 to the present. That Chief Nufer told Officer Balk to disregard the Rules and Regulations approximately one day after adoption and so told Officer McComb approximately one week after adoption. That said conduct violates Rule I, Section 9 and Rule IV, Section 2 of the Rules and Regulations.

"4. That Chief Nufer while on duty expended large amounts of time on matters other than police business in violation of Rule II, Sections 22 and 23 and Rule IV, Section 52, more specifically as follows:

"(a) from 1973 to the present at the Edge of Town Restaurant, the Leo Houk residence, the L and L Service Station and the Iva and Leona Jones residence.

"(b) in fall of 1975 at the home of Vicki Wilson

"(c) in February April of 1973 at the George Fuller residence

"5. That Chief Nufer from December 15, 1975 to the present has failed to keep an accurate record of the mileage as well as conditions of equipment of the police vehicle and has failed to enforce such requirements on his officers, as required by Rule III, Section 27 of the Police Rules and Regulations.

"6. That Chief Nufer has accepted free coffee and meals at greatly reduced prices at the Edge of Town Restaurant on a regular basis from 1973 to the present.

"7. That Chief Nufer has failed to properly and timely prosecute 65 five-day tickets and 51 parking tickets, thus resulting in loss of revenue to the Village. Copies of said tickets are annexed.

"8. In February of 1975 the Village President requested Chief Nufer to keep confidential their conversation regarding the reprimand of Officer Balk. On the following day details of that conversation were repeated at the Palmyra Standard Station.

"9. That Chief Nufer on two occasions in the fall of 1975 under the guise of his official duty drove his son to Palmyra High School football games to avoid payment of the admission fee.

"10. That on February 17, 1972 Chief Nufer engaged in reckless driving while transporting a patient to Fort Atkinson Memorial Hospital.

"11. That in spring of 1976, Chief Nufer addressed a Kiwanis Club meeting held at the Kettle Country Inn in Palmyra concerning the work of the Police Department without authority from the Village Board in violation of Rule IV, Section 24.

"12. That from December 15, 1975 to the present Chief Nufer has failed to check his officers at odd hours to determine if they were attending to duty, as required by Rule I, Section 6.

"13. That on March 19, 1967 Chief Nufer and Officer McComb were at the Messier home in Palmyra questioning Pike Messier concerning a hit and run accident. When members of the Messier family acted in a threatening manner toward Officer McComb, Chief Nufer suddenly left the premises, leaving Officer McComb in a position of extreme peril.

"14. That in September, 1975, Chief Nufer investigated an altercation between Officer Balk and Gerald Bies. That in the summer of 1975 Chief Nufer investigated an altercation between Officer McComb and Dennis Beaver. That both of these investigations were requested by the Village Board, but Chief Nufer did not in either case question his officers about their version of the incident. That in September, 1976, in the Palmyra Municipal Court Chief Nufer criticized the arrests by Officer Balk of several defendants under the loitering ordinance in the presence of the defendants, without first discussing the matter with Officer Balk. That said incidents undermined the authority of his officers.

"15. That on June 5, 1974 Chief Nufer attempted to enter the Edge of Town Restaurant with a sawed-off shotgun to arrest an unarmed juvenile but was prevented from doing so only by his inability to operate the gun release. That said incident indicates a lack of good judgment inasmuch as Chief Nufer was armed with a standard police revolver and the use of the shotgun would have injured other customers in the restaurant.

"16. That Chief Nufer has shown a lack of initiative, leadership and direction in the following respects:

"(a) in 1973 Chief Nufer refused to issue a citation upon the complaint of Betty Nelson that an individual had inflicted upon her injuries requiring 41 stitches despite the fact that Palmyra Police Department had received 72 similar complaints against him in the last three years.

"(b) that throughout his tenure as police chief he has failed to instruct his officers in matters of police procedure and substantive law."

The notice of charges, in addition to specifying the place, date, and time of the hearing, also informed Nufer as follows:

"You may be represented by counsel of your choice at said hearing, you may be present at said hearing, you or your attorney may confront and cross-examine witnesses against you, and you may present witnesses or other evidence on your behalf. At your request or that of your attorney, subpoenas will be issued by the Village Board on your behalf. If you or your attorney have further questions regarding said hearing you may contact the Village Attorney's Office."

Before the hearing Nufer commenced an action seeking declaratory relief in the circuit court for Jefferson County. Nufer requested the circuit court to declare the Board proceedings unconstitutional and "(t)o appoint an impartial and detached panel to hear and decide the charges against the plaintiff." Nufer also moved the court for an order restraining the Board from holding the planned hearing on December 13 and naming "a neutral and detached decision-making body, no member of which has engaged in the investigation of the charges or has in any way shown himself to be biased toward petitioner concerning said charges." Nufer filed affidavits executed by area residents supporting his claim that two Board members had made statements which indicated they had prejudged the case of removal filed against Nufer. Those Board members filed counter-affidavits denying that they had expressed prejudgment and contending that their statements related their intent to vote to bring charges, and not an intent to vote to remove Nufer.

The court denied Nufer's request for a temporary restraining order, stating it was "without power to designate a neutral and detached fact-finder other than the Village Board itself. The Village Board by statute and by village organization is constituted as the proper forum; there is no alternate." The court noted that Nufer would have the protection of judicial review and the opportunity to make a complete record, but stated "(t)here is no showing in the record at this time, however, that a fair and impartial hearing by unbiased Village Board members will not take place on December 17th."

The public hearing on the charges was held before the Village Board on December 17, 18, and 28, 1976. At the hearing, the attorney for the Board conducted a voir dire of the Village Board questioning each Board member concerning the member's ability to fairly and impartially consider the evidence and base deliberations on that evidence. Each Board member answered that he felt able to fairly and impartially hear all the evidence. Nufer's attorney did not conduct a voir dire of the Board.

The prosecution produced several witnesses whose testimony gave support to the charges against Nufer. Nufer presented witnesses whose testimony refuted the charges. Nufer also produced six witnesses who testified to statements made by three members of the Board indicating they were predisposed to discharge Nufer before the hearing began.

At the close of testimony, the prosecuting attorney addressed the testimony which suggested that three of the seven board members had prejudged the charges against Nufer. He stated: "I ask you all to examine yourselves, and if any of you feel that you should not sit in the decision making session of this board, then I think you should make it known."

After deliberating in closed session, the Board determined that charges 1, 2, 3, 4, 7, 8, 13, 15, 16, and part of 14 had been proven to be true. By a majority vote, the Board removed Nufer from office as Chief of Police,...