DocketNumber: Appeal No. 2017AP969
Citation Numbers: 918 N.W.2d 643, 2018 WI App 54, 383 Wis. 2d 785
Judges: Neubauer
Filed Date: 7/25/2018
Status: Precedential
Modified Date: 10/16/2022
¶ 1 The City of Fond du Lac and its police chief, William Lamb, appeal from a judgment directing the reinstatement of one of its police officers, Curt Beck, who the City had discharged without following the Police and Fire Commission (PFC) procedure set forth in WIS. STAT. § 62.13(5) (2015-16).
BACKGROUND
¶ 2 In early 2014, Beck was the subject of a police department investigation essentially related to his honesty. Beck and the City engaged in negotiations to settle the matter. If no settlement was reached, the City would have filed charges with the PFC, pursuant to WIS. STAT. § 62.13(5), seeking Beck's discharge.
¶ 3 In April 2014, the parties reached a settlement. As part of the deal, they executed an LCA by which Beck agreed that certain "untruthful conduct" by him would constitute "cause" for immediate discharge, any investigation into such alleged conduct would include a Loudermill
¶ 4 In June 2014, the department began a new investigation into whether Beck had been dishonest in relation to his job, possibly violating the LCA. In July 2014, the City held a Loudermill hearing during which Beck was questioned regarding his alleged dishonesty. At the hearing, the City determined Beck had been dishonest in violation of the LCA, and Lamb told him that his employment would end immediately.
¶ 5 Beck tendered his resignation to preserve his vacation pay, but also filed a grievance with WERC, challenging the City's determination that he violated the LCA. The City moved to dismiss, asserting Beck had not been disciplined under the LCA. The WERC arbitrator agreed and granted the motion, essentially concluding it lacked jurisdiction because Beck chose to resign rather than be disciplined under the LCA.
¶ 6 In March 2015, Beck commenced this action, seeking a writ of mandamus ordering his reinstatement. He alleged the LCA was based on "mutual mistake, illusory consideration, and illegality." He contended the LCA was void and unenforceable because it did not comply with the procedure for termination under WIS. STAT. § 62.13(5).
¶ 7 In October 2015, the circuit court held an evidentiary hearing, but cut it short after "clarif[ying] with the parties that there really wasn't a dispute as to the majority of the facts." The court asked for briefing on whether the LCA was legally enforceable in light of the statutory PFC procedure for terminations. In December 2015, the court determined the City terminated Beck's employment, the LCA was impermissible because it contravened the exclusive disciplinary procedure of WIS. STAT. § 62.13(5), and Beck should be reinstated to his job. In denying the City's subsequent motion to reconsider, the court explained "what the [LCA] did was not legal in that the only way for a law enforcement officer to be terminated is for charges to be brought in front of the [PFC]. So the agreement was not even legal."
DISCUSSION
Standard of Review and the Statutory PFC Procedure
¶ 8 "In order for a writ of mandamus to be issued, four prerequisites must be satisfied: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law." Pasko v. City of Milwaukee ,
¶ 9 We first summarize the statutory PFC procedure at issue. Municipalities must set up and maintain a PFC with jurisdiction over the hiring, promotion, discipline, and discharge of officers.
Beck Intentionally, Voluntarily, and Clearly Waived the PFC Procedure
¶ 10 The City argues Beck waived the statutory PFC procedure when, in exchange for leniency during the disciplinary investigation in early 2014, he agreed to the terms of the LCA which used a Loudermill hearing process in place of the PFC process for any subsequent allegations of untruthful conduct. We agree.
¶ 11 In general, a waiver occurs when a person intentionally relinquishes or abandons a known right. Ceria M. Travis Academy, Inc. v. Evers ,
¶ 12 Beck's relinquishment of his right to the statutory PFC procedure for "untruthful conduct" was intentional, voluntary, clear, and specific. When Beck faced allegations of dishonesty in early 2014, he was undisputedly free to contest them through the statutory PFC procedure had charges been filed. He chose, instead, to enter into settlement negotiations. Represented by legal counsel throughout, Beck reached an agreement with the City, the terms of which were also agreed to by Beck's union.
¶ 13 Per the settlement, the City promised not to file charges with the PFC seeking Beck's termination for the alleged misconduct, and it permitted Beck to keep his job after a short suspension. In exchange, Beck agreed to the Loudermill hearing process in the event he was subsequently investigated for untruthful conduct as set forth in the LCA. Beck could challenge adverse findings with WERC. Specifically, the LCA-which was in writing and signed by Beck, his union, and the City-stated that a disciplinary action under the LCA "shall not be subject to any grievance procedure or statutorily prescribed procedure for challenging discipline ... [but that] said waiver does not preclude ... Beck from" filing a challenge with WERC. (Emphasis added.) The LCA further stated that the parties made the agreement "voluntarily," had a "full opportunity to review" it with a chosen representative, and the terms were "final and binding."
Beck Fails to Show that Public Policy Bars his Waiver of the PFC procedure in the LCA
¶ 14 Beck does not deny that his waiver was intentional, voluntary, clear, and specific. He argues, instead, that the statutory PFC procedure simply could not be waived via the LCA for allegations of misconduct as a matter of law, as it would contravene public policy. "The parties created an illegal contract," Beck asserts, "through their own ignorance," making the LCA void and unenforceable.
¶ 15 We are unpersuaded. Although Beck discusses at length the importance of the statutory PFC procedure and the need for fairness in officer disciplinary decisions, he fails to provide legal support that public policy precluded his intentional and voluntary waiver in the LCA of the PFC procedure.
¶ 16 Beck quotes from employment cases that point up the exclusive and mandatory nature of WIS. STAT. § 62.13(5), see, e.g. , City of Janesville v. WERC ,
¶ 17 In less than clear fashion, both Beck and the City refer for support to Faust v. Ladysmith-Hawkins School Systems ,
¶ 18 In Faust , a school district argued that a teacher, who challenged the nonrenewal of her one-year contract, waived her statutory rights for notice and a private conference because her contract stated it would not be renewed. Concluding there was no voluntary and knowing waiver, the Faust court reasoned that the nonrenewal language was not a term of the contract, but a "statement of understanding," that any relinquishment of the rights was not express, and that there was nothing to show that the teacher knew of these rights. Id. at 532-33.
¶ 19 Faust does not render Beck's waiver invalid. Critically absent in Faust were showings that the teacher's alleged waiver was express, knowing, and clear. Here, Beck effectively concedes that these elements of waiver are satisfied.
¶ 20 Beck instead relies on Faust 's additional and unnecessary comment and explanation that, even if Faust had known of her rights, a waiver would be ineffective. "Where a statutorily created private right serves a public policy purpose, the persons or entities protected by the statute cannot waive the right." Id. at 533. However, Beck overlooks the supreme court's subsequent per curiam decision on a motion for reconsideration that informs and narrows these statements. Namely, the court reviewed a concern that language in its opinion "could be construed to hold that in no circumstances could a teacher waive the [applicable statutory rights]." Id. at 537. The court "confined" its holding to the facts of the case, i.e., a nonrenewal provision in a teacher's contract does not waive the teacher's statutory procedural rights. Id. at 537-38. The court clarified that "[w]e do not suggest that a teacher who has been given a preliminary notice of nonrenewal does not have the right to waive the subsequent [statutory procedural rights]. That question and other questions of waiver not raised by the facts of this case are left undecided." Id. at 538.
¶ 21 Plainly, the question here is a "question[ ] of waiver not raised by the facts of" Faust .
¶ 22 Beck simply does not offer support for a determination that public policy negates his knowing and unequivocal waiver of the statutory PFC process. It is Beck's burden to establish that a writ of mandamus-"an extraordinary legal remedy"-should issue, which requires the showing of a "positive and plain" duty to enforce a "clear legal right." See Vretenar ,
¶ 23 Perhaps the closest Beck comes to identifying a public policy violation is his assertion that the waiver was for future allegations of dishonesty under the LCA. Beck concedes that an officer may, during an investigation for past misconduct, accept discipline for the alleged misconduct in lieu of having charges filed with the PFC. "That is simply a settlement," Beck suggests. Waiving the PFC procedure, however, in advance of any alleged misconduct violates the law and public policy, Beck argues, and could be used improperly, for example, by a police chief as a condition of employment.
¶ 24 Beck's argument, however, is merely theoretical, as he neither develops nor supports it. A prospective officer forsaking statutory PFC rights to land a job are not the facts before us. Moreover, not a single case or other legal authority is cited for our consideration. See State v. Pettit ,
¶ 25 To hold the LCA void on public policy grounds would require a full and on-point analysis, which is not offered by Beck. The lack of briefing notwithstanding, it is clear that a substantial amount of case law exists on so-called "last chance" or "second chance" agreements. The Iowa Supreme Court recently issued a thoughtful and thorough opinion, concluding a firefighter may prospectively waive statutory hearing rights via a last chance agreement in order to avoid termination proceedings and keep his job. Whitwer v. Civil Serv. Comm'nof Sioux City ,
¶ 26 Although of course not controlling, Whitwer points up the type of analysis a party should provide when pressing to void an otherwise valid LCA on public policy grounds. Beck fails to address how the public's interest is undermined in any way, when he knowingly waived his statutory rights and derived a significant benefit in return. We will not generate or expand on arguments for either side. See Milwaukee Metro. Sewerage Dist. v. City of Milwaukee ,
¶ 27 In seeking reversal of the circuit court's decision, the City advanced several arguments in addition to waiver, such as requesting severance of any illegal portion of the LCA, asserting that Beck chose to resign and was not terminated, and disputing the court's determination that the parties made a mutual mistake when entering into the LCA. In light of our holding, we need not and do not address any other arguments. See Summers v. Touchpoint Health Plan, Inc. ,
By the Court. -Judgment reversed and cause remanded.
Not recommended for publication in the official reports.
All references to the Wisconsin Statutes are to the 2015-16 version. For ease of reference, we will typically refer to the City and Lamb collectively as "the City."
Cleveland Bd. of Educ. v. Loudermill ,
The LCA provides in pertinent part:
From the date of this Agreement and for the duration of his employment with the City, Beck agrees to serve a period of last chance. During this period of last chance, Beck agrees that should he be found to have engaged in any dishonest or otherwise untruthful conduct towards a coworker, or in any official capacity as a member of this Department that violates Department policies regarding said conduct, such conduct shall be "cause" for immediate discharge pursuant to any collectively bargained agreement between the City and Association [Beck's union] or otherwise....
The City agrees to conduct an investigation into any allegations that Beck has violated the terms of this agreement that includes a Loudermill hearing with Beck prior to a disciplinary decision. Beck and the Association agree that should the City exercise its rights under this [p]aragraph ... such disciplinary action shall not be subject to any grievance procedure or statutorily prescribed procedure for challenging discipline whether part of a collectively bargained agreement between the City and Association or not. However, said waiver does not preclude the Association or Beck from challenging the accuracy of factual findings from the investigation with the Wisconsin Employment Relations Commission.
There is a dispute over whether Beck was terminated or resigned, a dispute which we need not address given our holding.
With certain exceptions, the requirement of a PFC system does "not apply to cities of less than 4,000" people.
There are no allegations the City, by either entering into or enforcing the LCA, acted in bad faith. Beck actually acknowledges the City's "good faith."
Although we disagree with the circuit court's conclusion the LCA was illegal and void for circumventing the statutory PFC procedure, we note the circuit court had to unravel difficult legal issues with briefing that was not sufficiently comprehensive. Illustrative of this was the parties' treatment of Faust v. Ladysmith-Hawkins Sch. Sys. ,
Beck cites Deputy v. Lehman Bros., Inc. ,
Beck does not suggest that any provision of