Baken v. Vanderwall

Mandamus commenced on July 28, 1943, by Gordon R. Baken for the purpose of compelling E. J. Vanderwall, director of the state conservation commission of Wisconsin, to place plaintiff's name upon the conservation commission pay roll for the period from March 15, 1942, when plaintiff was suspended from his position as conservation warden, to January 22, 1943, when he was reinstated to said position by the conservation commission. From a judgment allowing peremptory writ of mandamus and from said peremptory writ, dated November 17, 1943, defendant appeals.

Gordon R. Baken had been conservation warden since October 10, 1936, and had acquired permanent status in a competitive division. March 16, 1942, the conservation commission suspended Baken for fifteen days, and on March 26, 1942, discharged him, effective April 1, 1942. It is admitted in the pleadings that Baken appealed to the personnel board, hereinafter referred to as the "board," within the period provided by law. June 16, 1942, a public hearing was held by the board, where both respondent and appellant appeared, together with other appearances. A complete stenographic transcript of the proceedings was made. The reasons for terminating services of the respondent are set forth in the minutes. No decision was made on the date of hearing. The board met again July 8, 1942, and July 21, 1942, and rendered no decision. August 4, 1942, the board made findings and sustained the action of the director of the conservation department discontinuing the services of Gordon Baken, and dismissed the case. Written notice to this effect was mailed to the parties August 8, 1942. August 18, 1942, the board voted unanimously to reconsider its action, and directed that Ernest L. Swift, acting director of the conservation commission, and Baken be requested to attend the next meeting. Baken was unable to attend the next meeting on September 8, 1942, and the board set the hearing for September 22, 1942. Swift and Baken both appeared on September 22, 1942, and testified, and the board requested Baken to submit certain supporting evidence in time to be presented to the board at its next meeting. October 6, 1942, the board made new findings, reversing its decision of August 4, 1942, and fully reinstating Baken with compensation from March 16 to March 31, 1942, and with pay effective from October 15, 1942. December 8, 1942, the conservation commission voted to reinstate Baken, but did not reinstate him until January 22, 1943. He has been employed in such capacity ever since. Both parties moved for judgment upon the pleadings. Respondent's motion to dismiss the appeal for, the reason that it had not been authorized by the state conservation commission of Wisconsin is denied, as sec; 23.09 (6), Stats., provides that the conservation director shall be the administrative head of the conservation department and shall exercise the powers of the commission in the interim of meetings. The commission had authority to order this appeal and the director had the same authority between meetings of the commission. It also appears that the commission proved the appeal after it had been ordered by the director.

Respondent seeks to recover compensation for the period that he was not on the pay roll, under the provisions of sec. 16.24 (3), Stats., which provides that any employee who shall have been removed and is reinstated by order of the board or any court of review shall be entitled to compensation therefor from the date of his unlawful removal. Respondent relies upon the action of the board reinstating him under date of October 6, 1942. Appellant contends that the decision of the board made August 4, 1942, was final, and that it had no authority to grant a rehearing and that its action of October 6, 1942, was unlawful and of no effect. It is considered that the position of the appellant is sound. Ch. 16 of the statutes, providing civil-service status for state employees, provides that it shall be administered by the bureau of personnel and creates as an arm of this bureau a personnel board. Sec. 16.24, Stats., and subdivisions thereof provide for the procedure for removal of employees who have a permanent status, whereby the employee has a right of appeal to the personnel board from the action of the employing department. Respondent, as a permanent employee, exercised this privilege and appealed to the board. Sec. 16.24 (1), Stats. 1941, provided that within sixty days after date of appeal the board shall hold a public hearing thereon, and par. (a) of the same section provided that after public hearing the board "shall either sustain the action of the appointing officer, or shall reinstate the employee fully."

In the instant case the board held the public hearing and sustained the action of the employing department on August 4, 1942, and dismissed the appeal. It later attempted to grant a rehearing. We are unable to find where it had such power. The powers of the board are fixed by statute and are limited in authority as defined by the statute creating it. This frequently has been held to be the rule as to commissions and bureaus. Brunette v. Brunette (1920), 171 Wis. 366,177 N.W. 593; Wisconsin Mut. Liability Co. v. Industrial Comm. (1926) 190 Wis. 598, 209 N.W. 697; Sentinel News Co. v.Industrial Comm. (1937) 224 Wis. 355, 271 N.W. 413, 272 N.W. 463, 273 N.W. 819; Employers Mut. L. Ins. Co. v.Industrial Comm. (1939) 230 Wis. 374, 284 N.W. 40;Butte A. P. R. Co. v. United States (1933), 290 U.S. 127,54 Sup. Ct. 108, 78 L. Ed. 222. There is no provision of the statute authorizing a rehearing or reconsideration of a matter that once has been determined. This does not mean that the board cannot adjourn a hearing from time to time, but the statute provides that after a public hearing before the board "the board shall either sustain the action of the appointing officer, or shall reinstate the employee fully." It is reasonable to conclude that the board should not have the unlimited right to grant a rehearing. In state service all departments and commissions are allowed a budget by the legislature, from which they must operate. They require a certain number of employees to perform specific services. Their funds are limited to the amount allowed in the budget, and they necessarily are clothed with the authority to discharge an employee for cause. This means that another person must be employed to perform the services. It is very proper that the employee should have an opportunity to be heard on the question of whether the facts warrant the action of the employer, but this should be determined within a reasonable time. Frequently it depends upon the judgment of the board upon a given statement of facts. Personnel of the board changes, as the members are appointed for a definite term. If the board has the implied power to grant one rehearing it may necessarily follow that any number of rehearings could be granted. In this way the employing agency would have no way to determine when an employee is finally discharged, and an employee likewise would never be able to determine whether he was finally and wholly reinstated. The employing agency may find at any time that it is required to furnish proof which justified the removal of an employee where all members of the board or commission who discharged the employee are out of state service and not available to provide the information. It could create a chaotic condition. In Berg v. Seaman (1937), 224 Wis. 263, 267, 271 N.W. 924, where the personnel board, under sec. 16.24, Stats., attempted to reinstate a discharged employee to a position in state service other than the one which he formerly held, this court said:

"Power so to disrupt the service of a state institution by the bureau of personnel is nowhere expressly given by the statutes, and cannot be implied."

To hold that the board has the implied authority to grant rehearings is to give it the power to disrupt state institutions. It is considered that the statute creating the personnel board and specifying its duties does not authorize the board to grant a rehearing where the matter has been fully determined and the appeal dismissed.

Other questions presented have been carefully considered, but we are unable to find where they change the conclusion reached in this case.

By the Court. — Judgment reversed, and cause remanded with directions to quash the writ of mandamus and dismiss the proceedings.