State ex rel. Massman v. City of Prescott

• Citation: 390 Wis.2d 378,2020 WI App 3,938 N.W.2d 602
• Decision Date: 17 December 2019
• Docket Number: Appeal No. 2018AP1621
• Parties: STATE of Wisconsin EX REL. Bryan W. MASSMAN and Ryan M. Most, Petitioners-Appellants, v. CITY OF PRESCOTT, City of Prescott Police Commission and Robert S. Funk, Respondents-Respondents.
• Court: Court of Appeals of Wisconsin

390 Wis.2d 378

938 N.W.2d 602

2020 WI App 3

STATE of Wisconsin EX REL. Bryan W. MASSMAN and Ryan M. Most, Petitioners-Appellants,

v.CITY OF PRESCOTT, City of Prescott Police Commission and Robert S. Funk, Respondents-Respondents.

Appeal No. 2018AP1621

Court of Appeals of Wisconsin.

Submitted on Briefs: April 2, 2019

Opinion Filed: December 17, 2019

On behalf of the petitioners-appellants, the cause was submitted on the briefs of Matthew A. Biegert and Allyson M. Moore of Doar, Drill & Skow, S.C., New Richmond.

On behalf of the respondents-respondents, the cause was submitted on the brief of Sven W. Strutz, Jerilyn Jacobs and Fred L. Morris of Weld Riley, SC, Eau Claire.

Before Stark, P.J., Hruz and Seidl, JJ.

HRUZ, J.

¶1 Bryan Massman and Ryan Most appeal a judgment dismissing their claims against the City of Prescott, the City of Prescott Police Commission, and police chief Robert Funk (collectively, the City). Most and Massman were terminated from their employment as police officers during the eighteen-month probationary period for new hires established by the applicable collective bargaining agreement. They assert that as a matter of contract they could be terminated only for just cause. Most additionally argues that he was entitled to statutory protection against termination without just cause because he had served on a probationary basis for more than one year. Together, they assert the City deprived them of notice of the reasons for their termination and a hearing at which they could challenge whether those reasons met the "just cause" standard.

¶2 We conclude that the "just cause" protections under the applicable collective bargaining agreement do not apply to new officers who have not yet completed the initial probationary period set forth in the contract. We further conclude that, under longstanding precedent, Most is not entitled to the protections against termination afforded by WIS. STAT. § 62.13(5)(em) (2017-18).¹ In reaching that conclusion, we reject Most's argument that WIS. STAT. § 165.85(4)(a)3. limits the term of a probationary period for all recruits to one year. Accordingly, we affirm the judgment dismissing Most and Massman's complaint.

BACKGROUND

¶3 The City hired Most as a full-time law enforcement officer on June 1, 2016. Massman was hired in the same capacity on October 17, 2016. It is undisputed that, as officers, Most and Massman were governed by a Labor Agreement between the City and the Prescott Professional Police Association, a unit of the Wisconsin Professional Police Association (WPPA).² The Agreement established an eighteen-month probationary period for new hires, during which time such employees could be "discharged without recourse to the grievance procedure."

¶4 Most and Massman maintain that they never received formal written reprimands, negative job performance reviews, or disciplinary action during their tenure. In early 2017, police chief Gary Kutkel took a leave from the police department for health reasons. Following Kutkel's departure, Massman questioned whether department policies were being followed, including the department's vacation pay policy. According to Massman, department leaders then began excluding him from communications and otherwise ignored him.

¶5 On August 7, 2017, the City's police commission met in closed session. After coming out of closed session, the commission voted unanimously to appoint Funk as the City's Interim Chief of Police. The commission also voted unanimously to "have the Interim Chief of Police handle the personnel issues as discussed in closed session." The record does not reveal the content of the discussions that took place during the commission's closed session, but according to Funk, he was directed to "use [his] discretion and proceed as [he] found appropriate regarding Mr. Massman's and Mr. Most's employment."

¶6 The day following the commission meeting, Funk wrote to both Most and Massman that their employment was being terminated "due to ongoing job performance issues." The letters mistakenly advised that the former officers would have ten days to file a grievance regarding the termination decision.³ Most and Massman both filed grievances, and they subsequently met with Funk and the city attorney on September 7, 2017. On September 14, the City notified Most and Massman that, because of their probationary status, they had no constitutional or statutory right to a statement of reasons for their firing, a hearing to contest their termination, or recourse to the grievance procedure established by the Agreement.

¶7 In October 2017, Most and Massman filed a complaint seeking certiorari review of their terminations. The complaint alleged the City did not have just cause for the firings, that it had breached the Agreement, and that by firing Most it had violated WIS. STAT. § 62.13 regarding disciplinary action against subordinate officers. Both parties filed dispositive motions on March 1, 2018. Most and Massman filed a "Motion for Certiorari Relief" seeking an order reinstating them to their previous positions with full back pay and benefits.

The City, on the other hand, moved for summary judgment, asserting that the former officers were not entitled to certiorari review of their terminations or any form of post-termination review because the officers were at-will employees as a result of their probationary status.

¶8 The circuit court issued an oral ruling at a hearing on the motions. The court concluded the Labor Agreement unambiguously established that Most and Massman were probationary employees and just cause was therefore not required to terminate their employment. The court determined that probationary periods for police officers were not statutorily capped at one year. The court also concluded that certiorari review of their terminations was not available to the former officers. In the alternative, the court found the Agreement ambiguous and concluded, based upon evidence extrinsic to the contract, that neither the City nor the Association intended to create any "for cause" termination rights for probationary employees. Accordingly, the court granted summary judgment in the City's favor. Most and Massman now appeal.

DISCUSSION

¶9 Typically, our first task on appeal is to identify the applicable standard of review. Here, the parties disagree about whether we should apply the standards applicable to certiorari review or the standards applicable when reviewing a grant of summary judgment. Most and Massman argue certiorari review is appropriate, under which we review the municipality's decision using a highly deferential standard that searches for only limited categories of potential error. See Sliwinski v. Board of Fire & Police Comm'rs of Milwaukee , 2006 WI App 27, ¶12, 289 Wis. 2d 422, 711 N.W.2d 271. The City contends that such an exercise would be futile, as there is no reviewable municipal decision and the case was disposed of on summary judgment, which we review de novo. See McAdams v. Marquette Univ. , 2018 WI 88, ¶19, 383 Wis. 2d 358, 914 N.W.2d 708.

¶10 The determination of which of these standards applies is interwoven with our consideration of the merits of the former officers’ claims. Ultimately, although they urge us to treat this matter as a certiorari review, the former officers agree that "neither the legal issues nor the standard of review are affected by whether this court views the order as arising from a summary judgment motion or consideration of the merits of the request for certiorari relief."⁴ For the reasons that follow, we conclude that the former officers, due to their probationary status, were not entitled to any form of certiorari review of the City's termination decision. Accordingly, the correct standard of review in this case is the one for summary judgment, which we review de novo and which must be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See WIS. STAT. § 802.08(2).

I. Contractual Procedures Regarding Termination

¶11 Most and Massman first assert they are entitled to relief because the City's termination of their employment violated the Labor Agreement. They acknowledge that, under Article 3 of the Agreement, they were classified as probationary employees during the relevant term of employment:

Section 3.01 Probation: All new employees hired after October 1, 2012 shall be covered under the provisions of this Agreement, but shall serve a one and a half year probationary period, during which the employee may be discharged without recourse to the grievance procedure.

(Emphases added.) The grievance procedure, in turn, is contained in Article 5, and it provides officers with a series of steps and deadlines, culminating in arbitration, for addressing "[a]ny dispute over the interpretation, application, or alleged violation of any provisions of this contract."

¶12 Article 9 sets forth the provisions related to "Discipline and Discharge." Section 9.01 broadly discusses disciplinary action against officers and states that review of such actions is available only through the grievance procedure set forth in Article 5:

Section 9.01 – Disciplinary Action: It is the Employer's responsibility to offer and provide reasonable training and supervision, and to establish reasonable work rules. Disciplinary action may only be imposed on an employee for failing to fulfill his/her responsibilities as an employee. Any disciplinary action, or measure imposed upon an employee may be appealed through the regular Grievance Procedure.

The section immediately following this provision establishes just cause protections for employees:

Section 9.02 – Just Cause Notification: Employees shall not be disciplined or discharged without cause. If the [City] feels there is just cause for suspension or discharge, the employee and the WPPA representative shall be notified in writing as soon as practical but no later than 72 hours following the discharge or

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