Schoen v. Bd. of Fire & Police Comm'rs of Milwaukee

• Decision Date: 24 November 2015
• Docket Number: No. 2014AP2821.,2014AP2821.
• Citation: 366 Wis.2d 279,873 N.W.2d 232
• Parties: Richard SCHOEN, Petitioner–Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Respondent–Respondent.
• Court: Wisconsin Court of Appeals

366 Wis.2d 279

873 N.W.2d 232

Richard SCHOEN, Petitioner–Appellant,

v.BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Respondent–Respondent.

No. 2014AP2821.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 3, 2015.

Opinion Filed Nov. 24, 2015.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Jonathan Cermele and Brendan P. Matthews of Cermele & Matthews, S.C. of Milwaukee, for Appellant.

On behalf of the respondent-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney by Maurita Houren, assistant city attorney of Milwaukee, for Respondent.

Before KESSLER and BRENNAN, JJ., and DANIEL L. LAROCQUE, Reserve Judge.

KESSLER, J.

¶ 1 Richard Schoen appeals an order of the circuit court affirming the Board of Fire and Police Commissioners' (the Board) decision to discharge Schoen. The Board first found that Schoen acted with excessive force, in violation of Milwaukee Police Department Rules and Procedures.¹ In determining the penalty, the board, by an oral decision, initially announced a 60–day suspension for the violation. The Board reconsidered that decision prior to issuing its written decision, which ultimately imposed discharge as the penalty. The circuit court, in Schoen's certiorari petition and appeal,² upheld the Board's decision to discharge Schoen. Schoen appeals.

¶ 2 The sole issue here is whether the Board acted within its authority when, based on the Board's conclusion that its earlier disciplinary decision was based on a mistake of law, it changed its oral decision to suspend Schoen and discharged him instead. Schoen argues that the Board had no authority to reconsider its decision, regardless of the reason. We disagree and affirm.

BACKGROUND

¶ 3 On May 1, 2012, Milwaukee Police Chief Edward Flynn discharged Schoen for use of excessive force. The discharge stemmed from an incident on September 22, 2011, after Schoen arrested J.T. Schoen stopped J.T.'s car and ultimately arrested J.T. for disorderly conduct. A squad car camera showed that upon arrival at the District Seven police station, Schoen removed J.T., who was handcuffed, from the backseat of the squad car by grabbing her shirt near her abdomen. Schoen punched J.T.'s head multiple times with one hand, while still clutching her shirt with the other. Schoen then grabbed J.T.'s hair, threw her to the ground, got on top of her and "delivered a knee strike." J.T. was escorted into the police station by another officer.

¶ 4 Schoen appealed his discharge to the Board, pursuant to WIS. STAT. § 62.50(13) (2013–14).³ A two-phase hearing, as required by statute and Fire and Police Commission Rule XVI, Sections 12–14, was held on November 28, 2012. In the first phase, the Board focused on the first five "just cause" factors, outlined by § 62.50(17)(b)⁴ and Section 12 of the Commission Rules, to determine whether discipline should be imposed. ⁵

During the Phase One hearing, both parties submitted evidence, examined and cross-examined witnesses and made closing arguments. The Board then went into a closed session to deliberate.

¶ 5 The Board reconvened on December 3, 2012, and announced in an open session that the charge against Schoen was sustained. The Board immediately proceeded to Phase Two to determine the appropriate discipline. The parties presented evidence primarily related to the last two "just cause" factors in WIS. STAT. § 62.50(17)(b) and Commission Rule XVI, Section 12. At the conclusion of evidence, the Board again went into a closed session to deliberate. In an open session later that day, the Board announced that it decided the penalty for Schoen's use of excessive force would be a 60–day suspension:

[HEARING EXAMINER JOHN] CARTER: Commissioners, this is a Phase II and 62.50(17)(b) 6 and 7 are the just cause standards.

Has the commission reached a decision?

COMMISSIONER COX: Yes, the commission has.

MR. CARTER: With respect [to] Just Cause Standard 6 which indicates that the rule fairly and without discrimination applied to the officer, has the commission determined that that has been met?

COMMISSIONER COX: That unanimously the commission believes that standard has been met.

MR. CARTER: Thank you. And with respect to Just Cause Standard 7, it is a two-to-one decision and the majority of the commission has determined that the chief's determination of a dismissal is not sustained and ... the appropriate penalty is a 60–day suspension and that vote was two-to-one.

COMMISSIONER COX: That is correct.

¶ 6 On December 7, 2012, prior to issuing its written decision, the Board publically announced that it would reconvene on December 11, 2012, for further proceedings regarding Schoen's disciplinary appeal. During a phone conference between Schoen's counsel, the Milwaukee City Attorney and the Hearing Examiner, Schoen's counsel objected to the December 11 session.

¶ 7 When the Board reconvened on December 11, Commissioner Michael O'Hear, a professor of law at Marquette University Law School, moved to reconsider the Board's penalty decision. O'Hear explained that he had applied an incorrect legal standard in reaching the earlier disciplinary decision. O'Hear explained that he failed to fully consider Rule XVI, Section 14 because only a portion of the text of that Rule had been provided during the initial deliberations.⁶

Essentially, after review of both the criteria for whether to discipline (focusing on reasonableness of the conduct)⁷ and what discipline to impose (focusing on "the good of the service" measured by "the impact of the misconduct on the complainant, department and community"),⁸ O'Hear realized that he had not properly considered "the good of the service."

¶ 8 O'Hear's full explanation is set out here:

In the process of working with my colleagues on the commission to prepare a written decision in this matter, it became apparent to me that I had applied an incorrect legal standard in my decision in the first instance. My decision initially was based solely on the seven just cause standards set forth in Section 12 of the Fire and Police Commission rules dealing with trial procedures and it was based on a view that the chief bore a burden of proof with respect to all matters in both Phase I and Phase II. This viewpoint was based on, as I have indicated, Section 12 of our Fire and Police Commission rules.

It has since come to my attention that there are some relevant considerations also set forth in Section 14 of our trial procedures. We were not provided prior to our deliberations in this matter with the full text of Rule 14—or Section 14. We were given a truncated version of that section and I have since carefully read and reviewed the full text of Section 14 and also Section 12 and the relevant statutes and based on a full review of Section 14, have determined that my understanding of governing legal standards was an incorrect one, incorrect in a number of ways, but two in particular I would highlight.

One relates to the burden of proof. If you read Section 14 in its entirety and you put it next to Section 12, it is very striking that Section 14 says nothing about a burden of proof to be imposed on the chief at the Phase II determination of what discipline is to be imposed on the officer.

If you then review Section 12 carefully, you realize that the burden of proof imposed in Section 12 is only with respect to sustaining the charge. That is to say, the Phase I determination of whether there was a rule violation.

It is now my view that at Phase II, after a rule violation has been established, that the chief does not bear a burden of proof and in fact, that a measure of deference to the chief's decision is permissible and perhaps even required with respect to the disciplinary choice only at Phase II.

So the burden of proof is one way in which my view of the governing law has changed.

The second way is based on the language that was omitted from the version of Section 14 that was given to us prior to our deliberations. The truncated version of Section 14 is contained in Exhibit 3 at the initial trial and the language that was omitted specifies that our decision must be to determine what discipline— let me get the right language here—is for the good of the service. We have to determine whether the good of the service requires one of a number of disciplinary choices. This is a different and more focused inquiry tha[n] what is set forth in Section 12 and the seven just cause standards which speaks only of the reasonableness of the decision.

So my initial decision was based on an open-ended reasonableness test and instead, in Section 14, I see that the inquiry should instead be focused on what is in—what is for the good of the service.

So in light of those two misunderstandings about the nature of the governing legal standards, I would now request that we move into a closed session to conduct further deliberations that will be informed by a proper understanding of the governing legal standards.

The Board voted to reconsider its decision in a closed session. Following the closed session, the Board publically announced its decision to discharge Schoen. Schoen's counsel was present for the entirety of the hearing and objected to the Board reconvening and reconsidering its earlier decision.

¶ 9 In a written decision, the Board detailed its findings of fact, its analysis of each just cause factor, and the statutes implicated. In discussing its reasoning for Schoen's discharge, the Board concluded that Rule XVI, Section 14, and WIS. STAT. § 62.50(17)(a),⁹ require the Board to determine what discipline is necessary for the "good of the service." In making that decision, some deference is given to the Police Chief's decision, as he is obliged to enforce these Department Rules, and is required to apply the same criteria in imposing discipline that the Board is required to consider. The Board's written decision acknowledged Schoen's positive contributions to the police department, but noted that excessive...