State ex rel. Momon v. Milwaukee County Civil Service Commission

• Decision Date: 27 November 1973
• Docket Number: No. 136,136
• Citation: 212 N.W.2d 158,61 Wis.2d 313
• Parties: STATE ex rel. Joe L. MOMON, Respondent, v. MILWAUKEE COUNTY CIVIL SERVICE COMMISSION, Appellant.
• Court: Wisconsin Supreme Court

Page 158

212 N.W.2d 158

61 Wis.2d 313

STATE ex rel. Joe L. MOMON, Respondent, v. MILWAUKEE COUNTY CIVIL SERVICE COMMISSION, Appellant.

No. 136.

Supreme Court of Wisconsin.

Nov. 27, 1973.

Robert P. Russell, Corp. Counsel, Robert G. Polasek, Asst. Corp. Counsel, Milwaukee, for appellant.

Goldberg, Previant & Uelmen, John S. Williamson, Jr., Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

The county civil service commission and the circuit judge agree the competent evidence supported the charge brought against respondent employee that:

'On or about the 11th day of October, A.D. 1969 at 3:30 P.M. he reported late for duty. After noting his duty assignment to Ward South 4, he advised his supervisor, Mrs. Pearl Mac Arthur, supervisor of the P.M. shift, that he would not work with the other employees assigned to that ward. He repeated his refusal to Miss Aura Pugh, R.N., stating finally, 'I am going home.' He then left the premises. He has failed to heed repeated warnings regarding excessive absenteeism.'

The civil service commission held that respondent's conduct constituted a violation of three commission rules: (u) relating to absence from duty without leave; (f) relating to insubordination; and (k) relating to acts or omissions unbecoming an incumbent of the position held.

In reviewing these three commission findings of specific rules violated, the circuit court stated that the rule upon review was that findings of the commission as to facts or conclusions of law was that they are to be sustained if, in any reasonable view, the evidence sustains them. ¹ We agree that such is the rule for court review of commission findings. Applying this test, the trial court upheld two findings as to rules violated, setting aside the third.

As to rule (u), relating to absences from duty, the circuit court upheld the commission holding that the rule had been violated by respondent. ² We agree that clearly it was.

As to rule (f), relating to insubordination, the circuit court held that the commission could reasonably make a finding that the rule was violated. ³ We agree. Particularly in a hospital or health center, the refusal to report for work in a particular ward or with certain fellow employees involves the life and well-being of hospital patients. It was, under the facts and circumstances here, an act of insubordination.

As to rule (k), relating to conduct unbecoming an incumbent of a position, the circuit court found 'no evidence whatsoever' to support the commission finding of the rule being violated, ⁴ and set aside the commission's holding that it was. We agree. The charge and the evidence related solely to absence from duty and refusal to work on a particular shift. They related solely to absenteeism (plus tardiness) and to insubordination. As the trial court held, 'unless the scope of such paragraph ((k)) is tortured beyond its plain meaning,' violation of rule (k) was neither reached nor established.

Upholding the commission finding of rules (u) and (f) being violated, and setting aside the finding that rule (k) had been violated, the trial court felt itself obliged to 'either reject the decision of the Commission in toto or accept it as is.' ⁵ Seeing the situation as such either-or proposition, the trial court set aside the suspension imposed, thus vacating the entire commission ruling. Accepting or rejecting in toto did not exhaust the alternatives available to the circuit court. In what has come to be known as the Meehan doctrine, a federal court of appeals, where it had voided one of three charged violations by a government employee, directed a remand to the federal civil service commission for reconsideration of the penalty to be imposed. ⁶ This Meehan approach of remand for reconsideration of penalty has been followed in federal ⁷ and state courts ⁸ as did this court in a situation where the failure to provide a hearing at all was involved. ⁹ We do not deal with a criminal conviction based upon two acts, both proscribed in a single statute. ¹⁰ Here the commission found a violation of three separate and distinct rules. With one holding, (k), to be set aside; two, (u) and (f), stand. It is for the commission to determine if the same or different penalty is appropriate where the violation of two rules, not three, has been established and upheld on court review. This cause is remanded to the circuit court for remand to the civil service commission for reconsideration of the penalty to be imposed.

Both appellant and respondent would have this court deal with an additional issue. While holding that rule (k) had not here been violated, the circuit court added the observation that '. . . If paragraph (k) as applied to the facts of this case has a meaning contended for the Commission, . . .' rule (k) would become so vague as to violate the constitutional assurance of due process.

The temptation is strong to follow the circuit court reach-out to discuss the matter of vagueness as to the 'conduct unbecoming an . . .' type of proscription. Traditionally, courts have 'often upheld discharges for conduct described by similar phrases: 'unbecoming conduct,' 'conduct prejudicial to good order' and for 'conduct unbecoming an officer,' or 'employee' or 'gentleman. " ¹¹ In a recent case involving the charge of 'conduct unbecoming a police officer,' both majority and minority dealt with specificity of charge in terms of the employee's preparing a defense, rather than knowing earlier what conduct was being proscribed. ¹² However, the United States Supreme Court has said that a municipal ordinance must be drafted so that a reasonable person may know in advance what is prohibited, so that he may act accordingly. ¹³ Extending this requirement to discharge or disciplinary proceedings, some courts have held that disciplinary rules and regulations, providing penalties for violation, must 'provide meaningful guidance concerning the required mode of conduct.' ¹⁴ Whether one standard is to apply to policemen, servicemen, attorneys and, as here, hospital attendants, is not yet clear. Recently it was held that a rule proscribing 'conduct unbecoming a member of the bar' was not unconstitutionally vague in a lawyer disbarment case. ¹⁵ Almost as recently, it has been held that the phrases 'conduct of a nature to bring discredit upon the armed forces' ¹⁶ and 'conduct unbecoming an officer and a gentleman' ¹⁷ are unconstitutionally vague. The United States Supreme Court has agreed to review both cases. ¹⁸ Hopefully, the high court ruling will indicate the degree of specificity to which policemen, servicemen, attorneys and hospital attendants are constitutionally entitled in order to prepare a defense and to know in advance what conduct is proscribed.

However, in the case before us, both temptation and invitation to add our six-pence to the discussion are to be rejected. The road ends with the circuit court holding, affirmed on this appeal, that there was 'no evidence whatsoever' that respondent violated rule (k). As applied to this respondent, as the circuit court stated, violation of rule (k) could not be reached 'unless the scope of such paragraph is tortured beyond plain meaning.' The circuit court refused to do such torturing, and properly so. With rule (k) found not to have been violated by this respondent, we see no way to reach the issue of constitutional infirmity as applied to these facts, and no reason to travel further to reach the issue of possible unconstitutionality on its face of a rule which respondent did not violate.

Order affirmed as to finding rules (u) and (f) to have been violated by respondent; affirmed as to finding rule (k) not to have been violated by respondent; reversed as to vacating proceedings before the appellant commission. Cause remanded to the circuit court with directions to remand to appellant commission for reconsideration and redetermination of penalty.

1 Citing State ex rel. Morehouse v. Hunt (1940), 235 Wis. 358, 291 N.W. 745. Review by certiorari is limited to the following questions: "(1) Whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Gudlin v. Civil Service Comm. (1965), 27 Wis.2d 77, 82, 133 N.W.2d 799, 802, quoting State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis.2d 243, 111 N.W.2d 198.

2 Circuit judge stated: 'An examination of the record clearly supports a finding that though he was given prior warnings he was guilty of excessive absenteeism without leave and of tardiness and he thus violated paragraph (u).'

3 Circuit judge stated: 'The substantiation of the charge of insubordination is not as clear; however it is this Court's conclusion that the Commission could reasonably make a finding of insubordination.'

4 Circuit judge stated: '. . . the Court . . . also determines that there was no evidence whatsoever, let alone reasonably could conclude, that the petitioner violated paragraph (k) unless the scope of such paragraph is tortured beyond its plain meaning.'

5 The circuit judge stated: 'Because the Commission determined the petitioner violated all three paragraphs of the rule the Court must assume it measured the degree of punishment to some extent because of a violation of paragraph (k). It is now impossible for this Court to say how much the penalty was attributed to the Commission's belief that the petitioner had violated paragraph (k) and how much was attributed to violations of paragraphs (f) and (u). Because of the nature of the proceeding which brings this matter before the Court, the Court must either reject the decision of the Commission in toto or accept it as is. The Court cannot do the latter because to do so would be to permit the Commission to exceed its...