Department of Health & Social Services v. State Personnel Board

267 N.W.2d 644, 84 Wis. 2d 675, 1978 Wisc. LEXIS 1110
CourtWisconsin Supreme Court
DecidedJune 30, 1978
Docket76-116
StatusPublished
Cited by13 cases

This text of 267 N.W.2d 644 (Department of Health & Social Services v. State Personnel Board) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Health & Social Services v. State Personnel Board, 267 N.W.2d 644, 84 Wis. 2d 675, 1978 Wisc. LEXIS 1110 (Wis. 1978).

Opinions

DAY, J.

This is an appeal from a circuit court order in a ch. 227 review of proceedings under the civil service law before the appellant, State Personnel Board (board). The board ordered the respondent Department of Health and Social Services (D.H.S.S.) to immediately reinstate appellant Donald R. Ferguson, a former employee of D.H.S.S. The circuit court reversed the board’s order on the theory that the board lacked jurisdiction to hear Mr. Ferguson’s case because he was not an employee “. . . with permanent status in class. . . .” Sec. 16.05 (1) (e), Stats. 1975.1

There are four issues on this appeal:

1. Did the board have jurisdiction under sec. 16.05(1) (e), Stats. 1975 to hear Mr. Ferguson’s appeal alleging that his discharge from the classified service was not for just cause under sec. 16.28(1) (a), Stats. 1975?

2. Is Mr. Ferguson denied fourteenth amentment equal protection because state employees receiving intra-de-partmental promotions retain their tenure rights, but state employees receiving inter-departmental promotions, such as Mr. Ferguson, do not?

3. Did the termination of Mr. Ferguson’s employment by the department deprive him of a property interest protected by fourteenth amendment due process ?

[679]*6794. Did the reasons given by the department for terminating Mr. Ferguson deprive him of a liberty interest protected by fourteenth amendment due process?

We hold that the board did not have jurisdiction to hear Mr. Ferguson’s appeal and that Mr. Ferguson’s discharge does not deprive him of any constitutional rights.

The facts of this case as set forth in the trial court’s decision are undisputed:

“On August 14, 1970, the Appellant, Donald R. Ferguson, commenced his employment with the State of Wisconsin as a Management Information Specialist 2 with the University of Wisconsin. He satisfactorily completed an original probationary period, and, thereby, acquired permanent status in class in the classified service of the State. On April 23, 1973, Appellant received a promotional appointment to Information Specialist 3 position with the Department of Health and Social Services.
“On October 8, 1973, approximately five and one-half months later, the appellant was advised that his employment with the Department was terminated, as of October 19, 1973, a few days before the end of his probationary period of six months.
“The letter notifying him of such action stated the reasons to be as follows:
“1. Failure to handle assignments at a level required for a Management Information Specialist 3.
“2. Lack of initiative in learning the scope of the job.
“3. Failure to follow directions in carrying out assignments or asking for clarification when assignments aren’t clear.
“4. A continued tardiness, including tardiness when working with the counties.
“Appellant’s discharge from the Department was, in practical effect, discharge from State employment.”

Mr. Ferguson appealed to the board for a hearing and a determination of whether he was discharged for just cause. On December 11, 1975 the board issued its final opinion and order, concluding that Mr. Ferguson had [680]*680been improperly terminated and ordering that he be reinstated forthwith as an Information Specialist 2 at D.H.S.S. with full back pay, seniority and benefits.

On January 8, 1976 D.H.S.S. petitioned the Dane County circuit court for review of the board’s decision. On July 9, 1976 the circuit court entered an order reversing the board’s order.

Board’s Jurisdiction.

The major issue in this case is whether the board had jurisdiction to hear Mr. Ferguson’s appeal. The board has authority to,

“Hear appeals of employes with permanent status in class, from decisions of appointing authorities when such decisions relate to . . . discharges, . . . but only when it is alleged that such decision was not based on just cause. . . .” Sec. 16.05 (1) (e), Stats. 1975.

Sec. 16.28(1) (a), Stats. 1976 provides that,

“An employee with permanent status in class- may be . . . discharged . . . only for just cause. This paragraph shall apply to all employes with permanent status in class in the classified service. . . .”

Based on the above two statutes, the board could only hear Mr. Ferguson’s appeal if he had “permanent status in class” and if it was alleged that his discharge was not for “just cause.” In this case the problem phrase is “permanent status in class.” Sec. 16.22(1) (a), Stats. 1975 provides that,

“. . . All original and all promotional appointments to permanent. . . positions in the classified service shall be for a probationary period of 6 months. . . . Dismissal may be made at any time during such periods.”

The exception to this rule appears in sec. 16.22(1) (d), Stats., providing that,

[681]*681“. . . (d) A promotion or other change in job status within a department shall not affect the permanent status in class and rights, previously acquired by an employe within such department.”

Sec. 16.22(1) (a) and (d), Stats., requires that promotional appointments in the classified service are subject to a six month probationary period, and possible discharge from the classified .service. If an employe is promoted within a department, he may be dismissed from the new position during the probationary period. If dismissal from the new position occurs, the employe must be reinstated to his former position or a similar position within that department. There is no effect on, “. . . permanent status in class and rights, previously acquired,” if the promotion is intra-departmental. If the legislature had intended a different result they would not have included the words “within a department” and “within such department” in sec. 16.22(1) (d). If the employe is discharged during his probationary period in an inter-departmental promotion, his dismissal results in his discharge from the classified service.

It is undisputed that Mr. Ferguson had not been employed by D.H.S.S. in his new position for the six month probationary period at the time of his discharge. Therefore, he did not have permanent status in class and the board did not have jurisdiction to hear his appeal.

The board admits that Mr. Ferguson did not have permanent status in class in his promotional position, but it claims that he did have tenure rights based on his old position. From this fact, the board argues that Mr. Ferguson could only be discharged without cause from his new position with D.H.S.S. and must be reinstated to a job in his former classification. This argument ignores the requirement of sec. 16.05(1) (e), Stats., that the board can only hear appeals of employes with permanent [682]*682status in class. Pers. 13.11, Wis. Adm. Code defines permanent status in class as,

“. . . the status of an employe in a position who has served a qualifying period to attain a permanent position for that class.”

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Department of Health & Social Services v. State Personnel Board
267 N.W.2d 644 (Wisconsin Supreme Court, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
267 N.W.2d 644, 84 Wis. 2d 675, 1978 Wisc. LEXIS 1110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-health-social-services-v-state-personnel-board-wis-1978.