Antisdel v. City of Oak Creek Police & Fire Commission

600 N.W.2d 1, 229 Wis. 2d 433, 1999 Wisc. App. LEXIS 768

• Court: Court of Appeals of Wisconsin
• Decided: July 20, 1999
• Docket: No. 97-3818
• Status: Published

Opinions

FINE, J.

James Antisdel is a police officer employed by the City of Oak Creek. He joined the department in 1985. In March of 1996, Michael Youn-glove, then Oak Creek chief of police, promoted Antisdel to sergeant. A memorandum that Younglove sent to Antisdel on March 1,1996, told him that he was "being promoted to the position of sergeant effective March 10, 1996." It also told Antisdel: "Upon completion of a one year probationary period, you will receive a permanent appointment as sergeant." In December of 1996, Thomas P. Bauer, who had succeeded to the chief-of-police position, demoted Antisdel to "police officer." Antisdel sought a "just cause" hearing under § 62.13(5)(em), Stats. The Oak Creek Police and Fire Commission refused to grant him one. Antisdel then sought review in the circuit court.¹ The trial court granted summary judgment to the defendants and dismissed Antisdel's action. Antisdel appeals. We reverse.

Our review of a trial court's grant of summary judgment is de novo. See Green Spring Farms v. Kers-ten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). Summary judgment is to be granted if "there is no genuine issue as to any material fact" so that a party "is entitled to a judgment as a matter of law." See Rule 802.08(2), Stats.; Green Spring Farms, 136 Wis. 2d at 315, 401 N.W.2d at 820. The parties do not contend that there are any genuine issues of fact material to this appeal. The only issue is whether the Board of Police and Fire Commissioners acted "under an incorrect theory of law" in denying Antisdel a hearing under § 62.13(5)(em), STATS. See Owens v. Board of Police & Fire Comm'rs, 122 Wis. 2d 449, 451, 362 N.W.2d 171, 173 (Ct. App. 1984) (explaining scope of review on certi-orari). We conclude that it did.

Section 62.13(5)(em), STATS., provides:

No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable:

1. Whether the subordinate could reasonably be expected to have had knowledge of the probable consequences of the alleged conduct.

2. Whether the rule or order that the subordinate allegedly violated is reasonable.

3. Whether the chief, before filing the charge against the subordinate, made a reasonable effort to discover whether the subordinate did in fact violate a rule or order.

4. Whether the effort described under subd. 3. was fair and objective.

5. Whether the chief discovered substantial evidence that the subordinate violated the rule or order as described in the charges filed against the subordinate.

6. Whether the chief is applying the rule or order fairly and without discrimination against the subordinate.

7. Whether the proposed discipline reasonably relates to the seriousness of the alleged violation and to the subordinate's record of service with the chief s department.

This statute is plain: "[n]o subordinate may be . . . reduced in rank . . . based on charges filed by . . . the chief.. . unless the board determines whether there is just cause ... to sustain the charges." Absent a constitutional infirmity, we must apply unambiguous statutes as they are written. Department of Natural Resources v. Wisconsin Power & Light Co., 108 Wis. 2d 403, 408, 321 N.W.2d 286, 288 (1982); State v. Young, 180 Wis. 2d 700, 704, 511 N.W.2d 309, 311 (Ct. App. 1993), aff'd by an equally divided court, 191 Wis. 2d 393, 528 N.W.2d 417 (1995). The syllogism here is inescapable:

1) Antisdel is a "subordinate." See Kaiser v. Board of Police & Fire Comm'rs, 104 Wis. 2d 498, 503, 311 N.W.2d 646, 649 (1981) ("As used in the statute, ['subordinate'] is a generic term including all police officers.");

2) The defendants seek to "reduce[ ]" Antisdel "in rank" based on "charges" made (albeit, apparently, not formally "filed") "by . . . the chief."

This they may not do unless the board of police and fire commissioners "determines . . . there is just cause" for the proposed reduction in rank.

In attempting to avoid the statute's clear mandate, the defendants argue that Antisdel accepted his promotion with the understanding that he would be on probation as a sergeant for the first year, and that this is the way the Oak Creek police department has routinely handled promotions within the force. Additionally, the defendants point out, the Wisconsin Supreme Court has recognized probationary employment as a valuable management tool. We discuss these contentions in turn.

There is no doubt but that, with one exception not material here, Oak Creek has routinely subjected police officers promoted to sergeant to a period of probation, and that Antisdel did not contest the "terms" of his promotion as explained to him in Younglove's memorandum. The defendants thus contend that Antisdel agreed, either explicitly or implicitly, to the probationary nature of the promotion. Agreements and practices that conflict with a statute, however, must give way; the statute controls. See State ex rel. Cooper v. Baumann., 231 Wis. 607, 286 N.W. 76 (1939) (practice in conflict with statute); Drivers, etc., Local No. 695 v. WERC, 121 Wis. 2d 291, 298, 359 N.W.2d 174, 177-178 (Ct. App. 1984) (contract in conflict with statute); Milwaukee Police Ass'n v. City of Milwaukee, 113 Wis. 2d 192, 196, 335 N.W.2d 417, 419 (Ct. App. 1983) (contract in conflict with statute). Although it is also true "that the use of a probationary period is an excellent means of examining candidates and is well-suited to securing the best service available," Kaiser, 104 Wis. 2d at 504, 311 N.W.2d at 649, the only statute authorizing probationary terms for law-enforcement officers is § 165.85(4)(b), Stats. Indeed, in Kaiser, it was § 165.85(4)(b) (and the collective-bargaining agreement recognizing that under § 165.85(4)(b) newly hired police officers are probationary employees) upon which the court relied in determining that Kaiser was a probationary police officer and thus not entitled to a "just cause" hearing under § 62.13(5)(em). Kaiser, 104 Wis. 2d at 501-503, 505, 311 N.W.2d at 648-649, 650.²

There is no allegation that Antisdel's original appointment as an Oak Creek police officer did not satisfy § 165.85(4)(b), Stats. Once having cleared that hurdle, any promotion he received could not be taken away without the "just cause" hearing required by § 62.13(5)(em), Stats.³ Any other rule would give to the appointing authority the limitless power to circumvent the "just cause" protection against arbitrary action the legislature created in § 62.13(5)(em) by simply making every promotion temporary or probationary or otherwise terminable at will.

By the Court. — Judgment reversed.

1 Antisdel sought judicial review by filing in the circuit court a document that he designated "notice of review" (upper-casing omitted), which stated that it was filed "pursuant to Sec. 62.13(5)(i), Wis. Stats." This statute permits "[a]ny person . . . reduced" by a board of police and fire commissioners to "appeal from the order of the board to the circuit court." Antisdel was not, however, reduced in rank by the Oak Creek Board of Police and Fire Commissioners; he was reduced in rank by Bauer, Oak Creek's chief of police. The Board deified Antisdel the "just cause" hearing required by § 62.13(5)(em), STATS. Although Antisdel filed another action in the circuit court seeking specifically a writ of mandamus directing the Board to give him a "just cause" hearing under § 62.13(5)(em), the parties and the circuit court in this case have treated Antisdel's notice of review as seeking an order directing the Board to grant Antisdel his requested hearing. Although we do not decide this issue, we, as did the parties and the circuit court, view Antisdel's notice of review as, in effect, seeking certiorari and mandamus relief, inasmuch as these avenues of judicial review may also be used by a police officer aggrieved by some disciplinary action. See Owens v. Board of Police & Fire Comm'rs, 122 Wis. 2d 449, 451, 362 N.W.2d 171, 172 (Ct. App. 1984).

2 Section 165.85(4)(b), Stats., provides, as material here:

1. No person may be appointed as a law enforcement . . . officer, except on a temporary or probationary basis, unless the person has satisfactorily completed a preparatory program of law enforcement training approved by the board and has been certified by the board as being qualified to be a law enforcement... officer.

3 The defendants contend, and the Dissent agrees, that because § 165.85(4)(e), Stats., does not prohibit "any law enforcement . . . agency . . . from setting recruit training and employment standards which are higher than the minimum standards set by the [law enforcement standards] board" the City of Oak Creek could condition promotion on an initial probationary period and could thus demote Antisdel without a "just cause" hearing. We disagree. It is not standards set by the law enforcement standards board that permit the discharge of probationary police officers without a "just cause" hearing required by § 62.13(5)(em), STATS. — it is the statute: § 165.85(4)(b), STATS. See Kaiser v. Board of Police & Fire Comm'rs, 104 Wis. 2d 498, 502-503, 311 N.W.2d 646, 649 (1981) (police officer not "entitled to the procedures" set out in § 62.13(5) because § "165.85(4)(b) limited his hiring as a probationary officer").