State ex rel. Beck v. Lamb

• Decision Date: 25 July 2018
• Docket Number: Appeal No. 2017AP969
• Parties: STATE of Wisconsin EX REL. Curt BECK, Plaintiff-Respondent, v. William LAMB and City of Fond du Lac, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

383 Wis.2d 785

918 N.W.2d 643 (Table)

2018 WI App 54

STATE of Wisconsin EX REL. Curt BECK, Plaintiff-Respondent,

v.William LAMB and City of Fond du Lac, Defendants-Appellants.

Appeal No. 2017AP969

Court of Appeals of Wisconsin.

DATED AND FILED July 25, 2018

NEUBAUER, C.J.

¶ 1 The City of Fond du Lac and its police chief, William Lamb, appeal from a judgment directing the reinstatement of one of its police officers, Curt Beck, who the City had discharged without following the Police and Fire Commission (PFC) procedure set forth in WIS. STAT. § 62.13(5) (2015-16).¹ The City contends Beck waived the statutory PFC procedure when he previously settled a disciplinary matter involving allegations of dishonesty by entering into a "Last Chance Agreement" (LCA), a term of which replaced the PFC procedure with an alternative one for any future allegations of job-related dishonesty. We agree, concluding that Beck intentionally, knowingly, and explicitly relinquished the PFC procedure. We therefore reverse and remand.

BACKGROUND

¶ 2 In early 2014, Beck was the subject of a police department investigation essentially related to his honesty. Beck and the City engaged in negotiations to settle the matter. If no settlement was reached, the City would have filed charges with the PFC, pursuant to WIS. STAT. § 62.13(5), seeking Beck’s discharge.

¶ 3 In April 2014, the parties reached a settlement. As part of the deal, they executed an LCA by which Beck agreed that certain "untruthful conduct" by him would constitute "cause" for immediate discharge, any investigation into such alleged conduct would include a Loudermill² hearing, any disciplinary action would not be subject to the PFC procedure of WIS. STAT. § 62.13(5), and Beck could appeal the investigation’s factual findings to the Wisconsin Employment Relations Commission (WERC).³ In addition, after a short suspension, Beck would keep his job.

¶ 4 In June 2014, the department began a new investigation into whether Beck had been dishonest in relation to his job, possibly violating the LCA. In July 2014, the City held a Loudermill hearing during which Beck was questioned regarding his alleged dishonesty. At the hearing, the City determined Beck had been dishonest in violation of the LCA, and Lamb told him that his employment would end immediately.⁴ The City told Beck that it "would not process the final paperwork for [his] separation" for a few days so Beck could consider resigning, which would preserve his vacation pay. The City also advised Beck that, under the LCA, he could appeal its findings to WERC.

¶ 5 Beck tendered his resignation to preserve his vacation pay, but also filed a grievance with WERC, challenging the City’s determination that he violated the LCA. The City moved to dismiss, asserting Beck had not been disciplined under the LCA. The WERC arbitrator agreed and granted the motion, essentially concluding it lacked jurisdiction because Beck chose to resign rather than be disciplined under the LCA.

¶ 6 In March 2015, Beck commenced this action, seeking a writ of mandamus ordering his reinstatement. He alleged the LCA was based on "mutual mistake, illusory consideration, and illegality." He contended the LCA was void and unenforceable because it did not comply with the procedure for termination under WIS. STAT. § 62.13(5).

¶ 7 In October 2015, the circuit court held an evidentiary hearing, but cut it short after "clarif[ying] with the parties that there really wasn’t a dispute as to the majority of the facts." The court asked for briefing on whether the LCA was legally enforceable in light of the statutory PFC procedure for terminations. In December 2015, the court determined the City terminated Beck’s employment, the LCA was impermissible because it contravened the exclusive disciplinary procedure of WIS. STAT. § 62.13(5), and Beck should be reinstated to his job. In denying the City’s subsequent motion to reconsider, the court explained "what the [LCA] did was not legal in that the only way for a law enforcement officer to be terminated is for charges to be brought in front of the [PFC]. So the agreement was not even legal."

DISCUSSION

Standard of Review and the Statutory PFC Procedure

¶ 8 "In order for a writ of mandamus to be issued, four prerequisites must be satisfied: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law." Pasko v. City of Milwaukee , 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72 (citation omitted). The burden to make this showing rests with the person seeking the writ. Vretenar v. Hebron , 144 Wis. 2d 655, 662, 424 N.W.2d 714 (1988). Whether public policy renders a contract void or unenforceable—which was the circuit court’s basis for issuing the writ here—is a question of law, which we decide independently. See Jezeski v. Jezeski , 2009 WI App 8, ¶¶ 10-11, 316 Wis. 2d 178, 763 N.W.2d 176 (2008).

¶ 9 We first summarize the statutory PFC procedure at issue. Municipalities must set up and maintain a PFC with jurisdiction over the hiring, promotion, discipline, and discharge of officers.⁵ WIS. STAT. § 62.13(1) & (5). Under this statutory framework, an officer may not be disciplined unless written charges are filed (usually by the police chief) with the PFC, the PFC promptly holds a public hearing with a right to compel witness attendance, and the PFC "determines whether there is just cause ... to sustain the charges" of misconduct. Sec. 62.13(5). That determination includes reviewing seven standards and considerations (e.g., whether the rule that was violated was reasonable, whether reasonable efforts were made to discover if a violation occurred, and whether the proposed discipline is reasonable). Sec. 62.13(5)(em).

Beck Intentionally, Voluntarily, and Clearly Waived the PFC Procedure

¶ 10 The City argues Beck waived the statutory PFC procedure when, in exchange for leniency during the disciplinary investigation in early 2014, he agreed to the terms of the LCA which used a Loudermill hearing process in place of the PFC process for any subsequent allegations of untruthful conduct. We agree.

¶ 11 In general, a waiver occurs when a person intentionally relinquishes or abandons a known right. Ceria M. Travis Academy, Inc. v. Evers , 2016 WI App 86, ¶ 23, 372 Wis. 2d 423, 887 N.W.2d 904. Absent an applicable public policy limitation, a waiver can be made of "most any statutory right" provided that "the waiver is intentional, voluntary and is a clear and specific renunciation."Id. (citations omitted).

¶ 12 Beck’s relinquishment of his right to the statutory PFC procedure for "untruthful conduct" was intentional, voluntary, clear, and specific. When Beck faced allegations of dishonesty in early 2014, he was undisputedly free to contest them through the statutory PFC procedure had charges been filed. He chose, instead, to enter into settlement negotiations. Represented by legal counsel throughout, Beck reached an agreement with the City, the terms of which were also agreed to by Beck’s union.

¶ 13 Per the settlement, the City promised not to file charges with the PFC seeking Beck’s termination for the alleged misconduct, and it permitted Beck to keep his job after a short suspension. In exchange, Beck agreed to the Loudermill hearing process in the event he was subsequently investigated for untruthful conduct as set forth in the LCA. Beck could challenge adverse findings with WERC. Specifically, the LCA—which was in writing and signed by Beck, his union, and the City—stated that a disciplinary action under the LCA "shall not be subject to any grievance procedure or statutorily prescribed procedure for challenging discipline ... [but that] said waiver does not preclude ... Beck from" filing a challenge with WERC. (Emphasis added.) The LCA further stated that the parties made the agreement "voluntarily," had a "full opportunity to review" it with a chosen representative, and the terms were "final and binding."

Beck Fails to Show that Public Policy Bars his Waiver of the PFC procedure in the LCA

¶ 14 Beck does not deny that his waiver was intentional, voluntary, clear, and specific. He argues, instead, that the statutory PFC procedure simply could not be waived via the LCA for allegations of misconduct as a matter of law, as it would contravene public policy. "The parties created an illegal contract," Beck asserts, "through their own ignorance," making the LCA void and unenforceable.⁶

¶ 15 We are unpersuaded. Although Beck discusses at length the importance of the statutory PFC procedure and the need for fairness in officer disciplinary decisions, he fails to provide legal support that public policy precluded his intentional and voluntary waiver in the LCA of the PFC procedure.

¶ 16 Beck quotes from employment cases that point up the exclusive and mandatory nature of WIS. STAT. § 62.13(5), see, e.g. , City of Janesville v. WERC , 193 Wis. 2d 492, 502, 535 N.W.2d 34 (Ct. App. 1995) (by statute, "the PFC has the ultimate authority to suspend subordinates and the exclusive authority to reduce in rank and remove subordinates"), but he does not take the next step and assert, much less show, that a procedure that is exclusive and mandatory is also necessarily individually unwaivable. He provides no statutory analysis that would support his position, and none of the employment cases cited by him address waiver of statutory procedures or rights.

¶ 17 In less than clear fashion, both Beck and the City refer for support to Faust v. Ladysmith-Hawkins School Systems , 88 Wis. 2d 525, 277 N.W.2d 303, on motion for reconsideration , 88 Wis. 2d 525, 281 N.W.2d 611 (1979) (per curiam). Beck argues that Faust holds that, where a statutory procedure protects both a private interest and a public policy purpose, it cannot be waived. We disagree that Faust is dispositive.

¶ 18 In Faust , a school district argued that a teacher, who challenged the nonrenewal of her one-year contract, waived her statutory rights for notice and a...