Reinke v. Personnel Bd.

• Decision Date: 02 December 1971
• Docket Number: No. 217,217
• Citation: 53 Wis.2d 123,191 N.W.2d 833
• Parties: Jane REINKE, Appellant, v. The PERSONNEL BOARD, State of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 833

191 N.W.2d 833

53 Wis.2d 123

Jane REINKE, Appellant, v. The PERSONNEL BOARD, State of Wisconsin, Respondent.

No. 217.

Supreme Court of Wisconsin.

Dec. 2, 1971.

Appellant was employed as a youth counselor at the Wisconsin School for Girls at Oregon, Wisconsin, from 1966 until January 6, 1969, when she was discharged for allegedly slapping one of the inmates. September 18, 1969, a hearing was conducted before the State Personnel Board (hereinafter Board). The Board, in its findings of fact, concluded that the incident occurred and concluded that the discharge was for just cause. October 22, 1970, the circuit court for Dane county affirmed the decision of the Personnel Board. The appeal is from the judgment of the circuit court.

Lawton & Cates, Madison, for appellant.

Robert W. Warren, Atty. Gen., Robert J. Vergeront, Asst. Atty. Gen., Madison, for respondent.

CONNOR T. HANSEN, Justice.

It is the opinion of this court that the judgment must be reversed and the cause remanded to the Personnel Board. Therefore, it is necessary to review the record in considerable detail.

January 1, 1969, appellant was on duty as a counselor in cottage 5 of the Oregon School for Girls. The normal bedtime at the school is 10 p.m., at which time it is the duty of the counselors to shut the door to each bedroom. On the night in question, the bedtime hour was extended to after midnight because it was New Year's Eve. The alleged slapping took place shortly after midnight, while appellant was closing the bedroom doors on the second floor of the cottage. A number of girls had congregated in the hallway and as appellant approached the group, Linda, one of the inmates, asked her if she could kiss her goodnight. A kiss was defined within the institution as a touching of foreheads, and appellant consented to this. Thereafter, Linda and Emilia, another inmate, began to engage in symbolic gestures, placing their knees together and embracing their right hands. Appellant was asked if she knew what the latter gesture meant. Emilia told her it was symbolic of sexual intercourse. Appellant began to walk away but was followed by Emilia. She then reached out with her hand which came in contact with Emilia's cheek and said, 'Barely five minutes into the New Year's and we have to talk so filthy.' The girls then went to their rooms and appellant closed the doors. Appellant's testimony was corroborated by Joyce, an inmate who allegedly was present during the entire incident. She testified that after Emilia had mentioned 'sexual intercourse,' appellant tapped her on the side of the face. The witness was of the opinion that Emilia did not get slapped.

Emilia testified that she and Linda had rubbed knees together but they had not embraced hands. She denied saying the words 'sexual intercourse,' contending that the words had been uttered by someone else. She testified that appellant slapped her, pushed her into her room and slammed the door. Her testimony was corroborated by Linda, who stated that she had heard the slap. Emilia also testified that she later observed marks on the side of her face where she allegedly had been hit. She attempted to report the incident the following day but was informed by another inmate that Rex Duter, superintendent of the school, was unavailable. January 2nd, she again attempted to see Duter but neither he nor Richard Meyer, assistant superintendent, were available. She was referred to Mr. Griffin. Later that same afternoon, the appellant came to her room and allegedly apologized for striking her. She stated that she did not discuss the incident with any of her girl friends. However, there was testimony that Emilia told the girls she observed marks on her face from the alleged slapping and that the girls had talked her into reporting the incident. She further testified that when the incident was later discussed at a conference with supervisory personnel, that appellant stated she did not feel that appellant's gesture was a slap.

Lee Hartley, a welfare administrator, testified that on January 2nd, at the community meeting (a regular morning meeting of all the girls), the question came up as to what would happen if a counselor hit a girl. However, no discussion was had on the subject at it was immediately dropped. Later in the day, several of the girls mentioned that something had happened and then Emilia and Linda asked to see Meyer. Meyer was out of town so the girls were referred to Griffin. Hartley briefly talked to appellant and asked her what had happened. As he recalled, appellant told him that she had struck a girl. The next morning at the community meeting, the question of a counselor striking a girl again was brought up. Once again the subject was dropped without discussion. Immediately thereafter, a conference was held between Hartley, Meyer and appellant. At this conference, Emilia and Linda were interviewed outside the presence of one another. Each girl related to them what had happened on the night of the incident. Both girls stated that appellant had struck Emilia and pushed her into her room. Appellant stated that her story was essentially the same as that of the two girls; however, after the meeting, and outside the presence of Meyer, appellant told Hartley that she had not slapped Emilia; rather, that she had simply touched her.

Meyer testified that he first heard of the incident on the morning of January 3rd from Griffin. He testified as to the meeting between himself, Hartley and appellant, at which the two girls were individually interviewed. Emilia and Linda explained what had happened, stating that appellant had slapped Emilia, pushed her into her room and shut the door. Meyer repeated the story, and to his recollection he used the word struck, slapped or hit. In response, appellant admitted what Emilia and Linda said was essentially correct. Meyer testified that at no time during the conversation did appellant ever tell him that she merely touched the girl. Meyer further testified that later the same day, he summoned appellant to his office where she again admitted slapping Emilia. He then handed her a supervisor's report of the incident which he had drafted. Appellant admitted the report was accurate but refused to sign it because she said, 'this was all happening too fast.' He then asked appellant to resign.

Linda testified that appellant admitted hitting Emilia, but that it wasn't hard and she would not consider it a hit 'or something like that.'

Duter testified that he first learned of the incident on January 6th from Griffin although he had been at the school on January 2nd. He then talked to Meyer, who told him of the two interviews he had with appellant and that on neither occasion had she denied striking the girl. Duter then sent a letter to appellant informing her that she was discharged. Approximately two weeks later, Duter received a phone call from appellant, explaining what had happened. She denied she had struck Emilia, stating that she simply put her hand on Emilia's cheek. She asked that Duter check with Hartley and Meyer about the incident. He did this and was told the same thing as before; that appellant did not deny striking the girl and they were unable to find any justification for her conduct. Duter further testified that the basis for appellant's discharge was the alleged slapping incident, and that touching a girl is encouraged at the school and would not be sufficient cause for discharge. However, striking a girl would never be acceptable.

Appellant testified that on the afternoon of January 2nd, she overheard some girls talking about the incident with Emilia and Linda. She followed Emilia to her room and asked her what was wrong. Emilia replied, 'You slapped me.' Appellant denied slapping her and stated she was sorry if Emilia felt that she had slapped her. Appellant testified that at no time did she apologize to Emilia for slapping her. The next morning, at the community meeting, there was discussion over the fact that one of the inmates had, on the previous day, been sent to Taycheedah for striking another inmate. The girls were upset over this event. During this discussion, one of the inmates asked, 'What about (appellant) striking or hitting Emilia?' The subject was immediately dropped. In the conference with Meyer and Hartley that followed, appellant testified she corrected discrepancies in the explanations of the incident given by Emilia and Linda. She further testified that she never admitted slapping Emilia; she was never asked to explain her side of the story; and she told Meyer she had simply 'touched' Emilia on the cheek. That afternoon, appellant appeared in Meyer's office. Meyer stated he had decided to let her resign; otherwise she would be fired. She was asked to sign a document but declined from doing so. She testified that she did not admit the truth of the facts contained in this report, which allegedly was not the same document as the supervisor's report introduced in evidence. Meyer gave her until the following Monday to sign the report. Appellant discussed the matter with Duter for the first time on the telephone, approximately two weeks later.

ISSUES.

We consider the following issues to be dispositive of this appeal:

(1) Did the Board err in placing the burden of proof on appellant?

(2) Did the Board err in applying an improper standard in evaluating the evidence?

(3) Are the findings of the Board supported by substantial evidence?

Sections 16.24, 227.08, 227.10(1), and 227.13, Stats., ¹ prescribe the basis for discharge of a civil service employee and procedure for administrative adjudications in respect thereto.

BURDEN OF PROOF.

During the hearing, the chairman of the board stated that the burden of proof is always on the appellant; that the state has the burden of going forward, but that the state does not have the burden of proof. Appellant contends that this was error, the effect of which was to place the burden...