Bryan W. Massman v. City of Prescott

2020 WI App 3COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2018AP1621
†Petition for Review Filed
Complete Title of Case:
STATE OF WISCONSIN EX REL. BRYAN W. MASSMAN
AND RYAN M. MOST,
†PETITIONERS-APPELLANTS,
V.
CITY OF PRESCOTT, CITY OF PRESCOTT POLICE COMMISSION AND
ROBERT S. FUNK,
RESPONDENTS-RESPONDENTS.
Opinion Filed: December 17, 2019
Submitted on Briefs: April 2, 2019
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the petitioners-appellants, the cause was submitted on the
briefs of Matthew A. Biegert and Allyson M. Moore of Doar, Drill &
Skow, S.C., New Richmond.
Respondent
ATTORNEYS: On behalf of the respondents-respondents, the cause was submitted on
the brief of Sven W. Strutz, Jerilyn Jacobs and Fred L. Morris of Weld
Riley, SC, Eau Claire.
2
2020 WI App 3COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 17, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2018AP1621 Cir. Ct. No. 2017CV209
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN EX REL. BRYAN W. MASSMAN
AND RYAN M. MOST,
PETITIONERS-APPELLANTS,
V.
CITY OF PRESCOTT, CITY OF PRESCOTT POLICE COMMISSION
AND ROBERT S. FUNK,
RESPONDENTS-RESPONDENTS.
APPEAL from a judgment of the circuit court for Pierce County:
JAMES DUVALL, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 HRUZ, J. Bryan Massman and Ryan Most appeal a judgment
dismissing their claims against the City of Prescott, the City of Prescott Police
Commission, and police chief Robert Funk (collectively, the City). Most and
No. 2018AP1621
Massman were terminated from their employment as police officers during the
eighteen-month probationary period for new hires established by the applicable
collective bargaining agreement. They assert that as a matter of contract they
could be terminated only for just cause. Most additionally argues that he was
entitled to statutory protection against termination without just cause because he
had served on a probationary basis for more than one year. Together, they assert
the City deprived them of notice of the reasons for their termination and a hearing
at which they could challenge whether those reasons met the “just cause” standard.
¶2 We conclude that the “just cause” protections under the applicable
collective bargaining agreement do not apply to new officers who have not yet
completed the initial probationary period set forth in the contract. We further
conclude that, under longstanding precedent, Most is not entitled to the protections
against termination afforded by WIS. STAT. § 62.13(5)(em) (2017-18).1 In
reaching that conclusion, we reject Most’s argument that WIS. STAT.
§ 165.85(4)(a)3. limits the term of a probationary period for all recruits to one
year. Accordingly, we affirm the judgment dismissing Most and Massman’s
complaint.
BACKGROUND
¶3 The City hired Most as a full-time law enforcement officer on
June 1, 2016. Massman was hired in the same capacity on October 17, 2016. It is
undisputed that, as officers, Most and Massman were governed by a Labor
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
No. 2018AP1621
Agreement between the City and the Prescott Professional Police Association, a
unit of the Wisconsin Professional Police Association (WPPA).2 The Agreement
established an eighteen-month probationary period for new hires, during which
time such employees could be “discharged without recourse to the grievance
procedure.”
¶4 Most and Massman maintain that they never received formal written
reprimands, negative job performance reviews, or disciplinary action during their
tenure. In early 2017, police chief Gary Kutkel took a leave from the police
department for health reasons. Following Kutkel’s departure, Massman
questioned whether department policies were being followed, including the
department’s vacation pay policy. According to Massman, department leaders
then began excluding him from communications and otherwise ignored him.
¶5 On August 7, 2017, the City’s police commission met in closed
session. After coming out of closed session, the commission voted unanimously
to appoint Funk as the City’s Interim Chief of Police. The commission also voted
unanimously to “have the Interim Chief of Police handle the personnel issues as
discussed in closed session.” The record does not reveal the content of the
discussions that took place during the commission’s closed session, but according
to Funk, he was directed to “use [his] discretion and proceed as [he] found
appropriate regarding Mr. Massman’s and Mr. Most’s employment.”
2
The applicable version of the Labor Agreement was in effect between January 1, 2016,
and December 31, 2017. By virtue of the Agreement, the City recognized the Association as the
exclusive collective bargaining representative for all the City’s full-time officers. The explicit
purpose of the Agreement was to establish hours, wages and conditions for employment, as well
as the procedures for dispute resolution concerning the Agreement’s interpretation and
application.
3
No. 2018AP1621
¶6 The day following the commission meeting, Funk wrote to both
Most and Massman that their employment was being terminated “due to ongoing
job performance issues.” The letters mistakenly advised that the former officers
would have ten days to file a grievance regarding the termination decision. 3 Most
and Massman both filed grievances, and they subsequently met with Funk and the
city attorney on September 7, 2017. On September 14, the City notified Most and
Massman that, because of their probationary status, they had no constitutional or
statutory right to a statement of reasons for their firing, a hearing to contest their
termination, or recourse to the grievance procedure established by the Agreement.
¶7 In October 2017, Most and Massman filed a complaint seeking
certiorari review of their terminations. The complaint alleged the City did not
have just cause for the firings, that it had breached the Agreement, and that by
firing Most it had violated WIS. STAT. § 62.13 regarding disciplinary action
against subordinate officers. Both parties filed dispositive motions on March 1,
2018. Most and Massman filed a “Motion for Certiorari Relief” seeking an order
reinstating them to their previous positions with full back pay and benefits. The
City, on the other hand, moved for summary judgment, asserting that the former
officers were not entitled to certiorari review of their terminations or any form of
post-termination review because the officers were at-will employees as a result of
their probationary status.
¶8 The circuit court issued an oral ruling at a hearing on the motions.
The court concluded the Labor Agreement unambiguously established that Most
3
It is undisputed in this appeal that Most and Massman had no right to the grievance
procedure set forth in the Labor Agreement.
4
No. 2018AP1621
and Massman were probationary employees and just cause was therefore not
required to terminate their employment. The court determined that probationary
periods for police officers were not statutorily capped at one year. The court also
concluded that certiorari review of their terminations was not available to the
former officers. In the alternative, the court found the Agreement ambiguous and
concluded, based upon evidence extrinsic to the contract, that neither the City nor
the Association intended to create any “for cause” termination rights for
probationary employees. Accordingly, the court granted summary judgment in the
City’s favor. Most and Massman now appeal.
DISCUSSION
¶9 Typically, our first task on appeal is to identify the applicable
standard of review. Here, the parties disagree about whether we should apply the
standards applicable to certiorari review or the standards applicable when
reviewing a grant of summary judgment. Most and Massman argue certiorari
review is appropriate, under which we review the municipality’s decision using a
highly deferential standard that searches for only limited categories of potential
error. See Sliwinski v. Board of Fire & Police Comm’rs of Milwaukee, 2006 WI
App 27, ¶12, 289 Wis. 2d 422, 711 N.W.2d 271. The City contends that such an
exercise would be futile, as there is no reviewable municipal decision and the case
was disposed of on summary judgment, which we review de novo. See McAdams
v. Marquette Univ., 2018 WI 88, ¶19, 383 Wis. 2d 358, 914 N.W.2d 708.
¶10 The determination of which of these standards applies is interwoven
with our consideration of the merits of the former officers’ claims. Ultimately,
although they urge us to treat this matter as a certiorari review, the former officers
agree that “neither the legal issues nor the standard of review are affected by
5
No. 2018AP1621
whether this court views the order as arising from a summary judgment motion or
consideration of the merits of the request for certiorari relief.”4 For the reasons
that follow, we conclude that the former officers, due to their probationary status,
were not entitled to any form of certiorari review of the City’s termination
decision. Accordingly, the correct standard of review in this case is the one for
summary judgment, which we review de novo and which must be granted if there
is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. See WIS. STAT. § 802.08(2).
I. Contractual Procedures Regarding Termination
¶11 Most and Massman first assert they are entitled to relief because the
City’s termination of their employment violated the Labor Agreement. They
acknowledge that, under Article 3 of the Agreement, they were classified as
probationary employees during the relevant term of employment:
Section 3.01 Probation: All new employees hired after
October 1, 2012 shall be covered under the provisions of
this Agreement, but shall serve a one and a half year
probationary period, during which the employee may be
discharged without recourse to the grievance procedure.
4
We note that these types of cases often involve competing assertions as to the
appropriate standard of review. For example, in Milwaukee Police Association v. Flynn, 2011
WI App 112, 335 Wis. 2d 495, 801 N.W.2d 466, the “parties quibble[d] over whether the trial
court’s use of certiorari review was appropriate.” Id., ¶13. Because the issue involved the
officer’s statutory entitlement to a “just cause” due process hearing, we concluded the issue
would be reviewed de novo under either standard. Id., ¶¶12-13. As here, the question of the
applicable standard is somewhat academic, because a certiorari review involving whether the
municipality proceeded on a correct theory of law (such as by providing sufficient constitutional
or statutory protections) is also decided de novo. Id., ¶13 (citing Kraus v. City of Waukesha
Police & Fire Comm’n, 2003 WI 51, ¶10, 261 Wis. 2d 485, 662 N.W.2d 294).
6
No. 2018AP1621
(Emphases added.) The grievance procedure, in turn, is contained in Article 5,
and it provides officers with a series of steps and deadlines, culminating in
arbitration, for addressing “[a]ny dispute over the interpretation, application, or
alleged violation of any provisions of this contract.”
¶12 Article 9 sets forth the provisions related to “Discipline and
Discharge.” Section 9.01 broadly discusses disciplinary action against officers
and states that review of such actions is available only through the grievance
procedure set forth in Article 5:
Section 9.01 – Disciplinary Action: It is the Employer’s
responsibility to offer and provide reasonable training and
supervision, and to establish reasonable work rules.
Disciplinary action may only be imposed on an employee
for failing to fulfill his/her responsibilities as an employee.
Any disciplinary action, or measure imposed upon an
employee may be appealed through the regular Grievance
Procedure.
The section immediately following this provision establishes just cause protections
for employees:
Section 9.02 – Just Cause Notification: Employees shall
not be disciplined or discharged without cause. If the
[City] feels there is just cause for suspension or discharge,
the employee and the WPPA representative shall be
notified in writing as soon as practical but no later than 72
hours following the discharge or suspension, that the
employee has been discharged or suspended and the
reason(s) therefore.
(Emphasis added.)
¶13 Most and Massman assert that the “just cause” protections of Section
9.02 apply to all employees, irrespective of whether the employee is within the
probationary period. They reach this conclusion by noting that Section 3.01 states
that new employees “shall be covered under the provisions of this Agreement.”
7
No. 2018AP1621
Most and Massman assert that the meaning of the phrase “probationary period”
under Section 3.01 is quite specific, defining that phrase only with respect to the
availability of the grievance procedure. In other words, Most and Massman argue
the effect of the “probationary period” under Section 3.01 is simply to make the
grievance procedure unavailable, with all other contractual rights, including those
in Article 9, remaining intact. As we explain, this interpretation is untenable.
¶14 We construe contracts as they are written. Tufail v. Midwest
Hospitality, LLC, 2013 WI 62, ¶29, 348 Wis. 2d 631, 833 N.W.2d 586. We give
contract language its plain or ordinary meaning, consistent with what a reasonable
person would understand the words to mean under the circumstances. Id., ¶28. If
the terms of the contract are clear and unambiguous, we construe the contract
according to its terms. Id., ¶26. If the contract language is fairly susceptible to
more than one reasonable construction, the contract is ambiguous and extrinsic
evidence may be used to determine the parties’ intent. Id., ¶27.
¶15 One important principle in this case is that “we read a contract as a
whole, to avoid the potential for ambiguity that can result if a small part of the
agreement is read out of context.” Little Chute Area Sch. Dist. v. Wisconsin
Educ. Ass’n Council, 2017 WI App 11, ¶25, 373 Wis. 2d 668, 892 N.W.2d 312.
If we determine that the contract contains contradictory statements, we must
attempt to harmonize them, but if it is impossible to give meaning to both parts,
we must determine which part is to be given effect. Jones v. Jenkins, 88 Wis. 2d
712, 723, 277 N.W.2d 815 (1979).
¶16 The premise of Most and Massman’s argument is that the phrase
“probationary period” in Section 3.01 must refer only to the general unavailability
of the Agreement’s grievance procedures to new employees during that time
8
No. 2018AP1621
period. This premise is not evident from the face of the contract. The Agreement
does not include a formal definition of the term “probationary period,” and the
language on which Most and Massman rely regarding the unavailability of the
grievance procedure is fashioned as a nonrestrictive clause. Based upon these
observations, it seems reasonable to conclude there may be other contractual
provisions affected by the officers’ probationary status beyond the general
unavailability of the grievance procedures.
¶17 Most and Massman’s “probationary” employment status—and the
expressed, general unavailability of grievance protocols—is fundamentally
incompatible with the notion that they could be terminated only for cause.
“Probation is a continuation of the hiring process.” Kaiser v. Board of Police &
Fire Comm’rs of Wauwatosa, 104 Wis. 2d 498, 504, 311 N.W.2d 646 (1981).
Accordingly, our supreme court has recognized that a probationary period “is an
excellent means of examining candidates and is well-suited to securing the best
service available.” Id. The termination of a probationary officer need not involve
misconduct by the employee or constitute “discipline”; it may be based upon the
hiring authority’s evaluation of the potential officer’s skill and character. See id.¶18 The plain and ordinary meaning of “probation” in the employment
context comports with Kaiser’s observations. See Employee, BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining a “probationary employee” as a “recently
hired employee whose ability and performance are being evaluated during a trial
period of employment”); Probationer, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“Someone who is in a probationary period; a new hire … who is being tested for
on-the-job suitability and competence.”).
9
No. 2018AP1621
¶19 “Just cause,” on the other hand, requires more than just the
generalized unsuitability of the employee. “Just cause”—at least in the statutory
context, and we have no reason to question this meaning is also what is envisioned
by the Agreement—exists when an officer has “violated a reasonable rule or order
and should have known that the violation would have consequences, and where
the chief has made a reasonable, fair, and objective effort to determine that the
officer … actually committed the violation.” City of Madison v. DWD, 2003 WI
76, ¶16, 262 Wis. 2d 652, 664 N.W.2d 584. The purpose of a probationary period
would be defeated if we were to view Section 9.02 in isolation and declare that the
City could terminate an officer only for cause within that period. We must
interpret contracts to avoid absurd or unreasonable results. Chapman v. B.C.
Ziegler & Co., 2013 WI App 127, ¶11, 351 Wis. 2d 123, 839 N.W.2d 425.5
¶20 Our interpretation is buttressed by the very contractual limitation on
which Most and Massman rely. The grievance procedure established by the
Agreement broadly covers “[a]ny dispute over the interpretation, application, or
5
Most and Massman argue that, pursuant to City of Racine v. Town of Mount Pleasant,
61 Wis. 2d 495, 213 N.W.2d 60 (1973), we must, in essence, sever Section 9.02 from the
remainder of the contract when determining whether they enjoy just cause protections. They rely
on the court’s statement that “a specific provision of [a] contract establishing one obligation of
that contract should not be applied in determining the other contractual obligations established by
other provisions of that contract.” Id. at 501.
Their reading of City of Racine is, in fact, quite at odds with what the court actually
stated. In that case, a city attempted to retroactively collect additional amounts due under a
contract for waste treatment with a town, which according to the city reflected the actual costs of
past treatment. Id. at 497-500. Our supreme court faulted the circuit court for focusing solely
upon the contractual provisions establishing the term of payment and the procedure for adjusting
those payments, while ignoring the provision establishing the amount to be paid by the town. Id.
at 502. Thus, the message of City of Racine is that the contract must be read as a whole, which is
consistent with our conclusion here.
10
No. 2018AP1621
alleged violation of any provisions of this contract ….” A dispute regarding
whether the City had cause to terminate an employee certainly falls within this
procedure’s ambit. Thus, even if Most and Massman are correct that the “just
cause” provisions of Section 9.02 apply to them, there is no relief that could be
afforded to them under the terms of the Agreement. They offer no explanation as
to why the City and the Association would establish a right for a probationary
employee, only to then specifically exclude them from participating in the only
mechanism by which he or she could vindicate that right. 6 For the foregoing
reasons, the notion that Section 9.02 establishes “just cause” protections for
probationary employees is incompatible with the officers’ probationary status
established in the Agreement.7
¶21 As a corollary to their argument regarding Section 9.02, Most and
Massman also assert they are entitled to constitutional procedural due process
protections with respect to their termination. Although Most and Massman admit
they are uncertain as to what specific “level of process” would satisfy
constitutional norms (they note they received no process whatsoever), the essential
principle of due process is that a deprivation of property must be preceded by
6
Moreover, the Agreement dictates that arbitration is the means by which to resolve any
disagreements over the interpretation and application of the Agreement’s terms. Most and
Massman’s interpretation would produce the incongruent result that probationary employees
could seek recourse to the judicial system to resolve disputes about whether a termination was
with just cause, while non-probationary employees would be required to abide by the arbitration
decision and could challenge it in the courts on only very limited bases. See generally WIS.
STAT. § 788.10. This result seems incompatible with the manifest purpose of the Agreement,
which was to give probationary employees fewer grievance rights than non-probationary
employees.
7
Because we conclude the Agreement is unambiguous, we need not address Most and
Massman’s assertions that the circuit court improperly considered affidavits submitted by the
parties to the contract relating to their intended meaning.
11
No. 2018AP1621
notice and an opportunity for a hearing appropriate to the nature of the case.
Milwaukee Dist. Council 48 v. Milwaukee Cty., 2001 WI 65, ¶48, 244 Wis. 2d
333, 627 N.W.2d 866.
¶22 Most and Massman vigorously argue for Section 9.02’s applicability
in part because, to be entitled to procedural due process protections, “a plaintiff
generally is required to show that the terms of his [or her] employment provide for
termination only ‘for cause’ or otherwise evince ‘mutually explicit
understandings’ of continued employment.” Cole v. Milwaukee Area Tech. Coll.
Dist., 634 F.3d 901, 904 (7th Cir. 2011). As explained above, the Agreement,
when read as a whole, unambiguously excluded probationary employees like Most
and Massman from the category of officers for whom just cause was required to
terminate employment. As a result of their probationary status, there was no
mutual understanding of continued employment.
¶23 Kaiser also informs our conclusion that constitutional due process
protections are unavailable to probationary employees. Indeed, the court there
held that the probationary officer “did not have a constitutional right, nor statutory
right, to a statement of specifications and a hearing on the City of Wauwatosa’s
decision not to retain him for this nontenured appointment.” Kaiser, 104 Wis. 2d
at 506. As a probationary officer, Kaiser had “no more than a unilateral
expectation” of completing his probation and being hired as a permanent officer.
Id. at 505. That expectation was insufficient for procedural due process
protections to attach; an employee must instead have a “legitimate claim of
entitlement” to the position to give rise to a property interest warranting
protection. Id. (quoting Regents v. Roth, 408 U.S. 564, 577 (1972)). An officer
who serves at the “will and pleasure” of the hiring authority has no expectation of
keeping his or her job. Id. at 506 (quoting Bishop v. Wood, 426 U.S. 341, 345
12
No. 2018AP1621
(1976)); see also Kraus v. City of Waukesha Police & Fire Comm’n, 2003 WI
51, ¶11, 261 Wis. 2d 485, 662 N.W.2d 294 (observing that, under Kaiser,
probationary officers “do not have a property interest in their new positions and
are usually subject to discharge during the probationary period without a statement
of reasons or a determination of just cause”).
II. Statutory Procedures Regarding Termination
¶24 Most additionally argues that, given his service time, he qualifies for
statutory protection against termination without cause.8 Most makes specific
reference to WIS. STAT. § 62.13(5)(em), which provides:
No subordinate may be suspended, reduced in rank,
suspended and reduced in rank, or removed by the [city]
board [of police commissioners] 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.[9]
The statute identifies seven factors for the board of police commissioners to
consider in making its “just cause” determination, including the reasonableness of
the rule or order the subordinate allegedly violated, the adequacy of the
investigation by the chief, and the proportionality of the proposed discipline. See
§ 62.13(5)(em)1.-7.
8
For reasons that will become apparent, only Most is the subject of this argument. It is
undisputed that Massman, because of his service time being less than one year, is not entitled to
avail himself of the cited statutory procedures.
9
In this context, “subordinate” includes individuals who are appointed to police officer
positions by the chief of police. See WIS. STAT. § 62.13(4)(a); see also Kaiser v. Board of Police
& Fire Comm’rs of Wauwatosa, 104 Wis. 2d 498, 503, 311 N.W.2d 646 (1981) (“As used in the
statute, [‘subordinate’] is a generic term including all police officers.”).
13
No. 2018AP1621
¶25 Most’s assertion that he is entitled to WIS. STAT. § 62.13(5)
disciplinary protocols runs headlong into Kaiser, which held that such
mechanisms were unavailable to probationary employees. In that case, Kaiser,
too, claimed he was entitled to the statutory protections enumerated in § 62.13(5).
Kaiser, 104 Wis. 2d at 502. The supreme court rejected his argument, stating that
Kaiser “fail[ed] to recognize that he was hired as a probationary officer” under
both the terms of the collective bargaining agreement with the city and the
statutory provisions governing the standards for the exercise of law enforcement
functions. Id. at 501-03. Notably, the supreme court treated probationary status
under the contract and probationary status under the statutes as separate reasons
for holding the statute inapplicable. See id. at 501-02.
¶26 To avoid Kaiser, Most proposes that WIS. STAT. § 165.85(4)(a)3.
limits a probationary term of employment for police officers to one year. Most
argues that cases subsequent to Kaiser have “established that municipalities are
not free to label employees as probationary to avoid complying with employees’
statutory rights before being disciplined.” Most accuses the circuit court of
confusing “a municipal probationary period, which a municipality can establish in
order to determine when the officer becomes vested in certain rights afforded by
the municipality, and the permitted probationary procedure during which recruits
may exercise law enforcement powers pursuant to the standards enforced by the
Law Enforcement Standards Board.”
¶27 We disagree with these assertions, beginning with the notion that
WIS. STAT. § 165.85(4)(a)3. contains an explicit limitation regarding the length of
a probationary period for recruits. Section 165.85 generally recognizes the public
interest in establishing standards to ensure that law enforcement officers are
properly trained and educated. See § 165.85(1). Accordingly, the statute created
14
No. 2018AP1621
the Law Enforcement Standards Board, which, among other things, has the
authority to establish minimum educational and training standards for employment
as a law enforcement officer and is responsible for certifying a person as being
qualified for such employment. See § 165.85(3)(b), (c).
¶28 Most’s argument centers on WIS. STAT. § 165.85(4), which requires
the board to establish a minimum 600-hour preparatory program of law
enforcement officer training. See § 165.85(4)(a)1. All persons employed as a law
enforcement officer, except on a “temporary or probationary basis,” must
satisfactorily complete the preparatory training program and become certified by
the board as being qualified to serve as an officer. Sec. 165.85(4)(a)2. Subsection
(4)(a)3., the crux of Most’s argument, states that “[a] recruit may exercise law
enforcement powers during an original period of temporary or probationary
employment that, except as provided in subd. 6 or as otherwise authorized by law,
may not exceed 12 months from the recruit’s first date of employment.”10
¶29 We conclude that, by its plain terms, WIS. STAT. § 165.85(4)(a)3.
does not limit the length of a probationary employment period established by a
municipal contract for new law enforcement officers. Subdivision 3. refers to the
period during which the recruit “may exercise law enforcement powers” without
completing the preparatory training program and becoming certified by the Law
Enforcement Standards Board. It does not place any explicit limitation upon the
length of a probationary period that a municipality may require pursuant to a
10
Under WIS. STAT. § 165.85(4)(a)6., the board may extend the recruit’s original period
of temporary or probationary employment upon a showing of good cause for a period of time it
deems appropriate. It is undisputed that Most was never the subject of any board action under
this provision.
15
No. 2018AP1621
contract with the officer or his or her bargaining representative. While it may
seem incongruous for a municipality to continue employing a recruit who cannot
exercise law enforcement powers, we can perceive of several reasons why both a
municipality and a potential officer might benefit from such an arrangement. 11
¶30 Indeed, WIS. STAT. § 165.85(4)(f) states that “[n]othing in this
subsection shall preclude any law enforcement … agency … from setting recruit
training, employment, and recertification training standards that are higher than
the minimum standards set by the board.” The authority to make probationary
hires predates the enactment of § 165.85(4), and therefore it is not derived solely
from that source. See Kraus, 261 Wis. 2d 485, ¶28. The supreme court has
already validated the interpretation we adopt here by noting (albeit in the context
of a case involving a probationary promotion) that the “statute does not require
that newly hired law enforcement officers go through a one-year probationary
11
It is not necessary, and we do not attempt, to define the permissible duties to which a
recruit who is not trained and certified within one year may be assigned when a contract specifies
a longer probationary period. We note, however, that the potential officer benefits from this
arrangement because the municipality need not terminate the recruit if he or she does not become
certified by the conclusion of the one-year period set by WIS. STAT. § 165.85(4)(a)3. A longer
contractual probationary period might allow the municipality to further examine the recruit’s
performance in a support role, or it might provide time for the municipality and recruit to seek an
extension under § 165.85(4)(a)6. that permits the recruit to exercise law enforcement powers
despite the lack of certification.
Milwaukee Police Association v. Board of Fire & Police Commissioners of Milwaukee,
708 F.3d 921 (7th Cir. 2013), illustrates the foregoing considerations. There, the recruit was
injured during a training exercise just three days into her employment. Id. at 924. She was
assigned to clerical duties for several months while she awaited the next training class to begin,
and then, just two weeks before graduating from that class, she was reinjured and again had to be
placed on restricted duty. Id. Although she was ultimately certified by the Law Enforcement
Standards Board based upon her training activities, the city board had virtually no opportunity to
evaluate her performance as a police officer within the one-year period established by WIS. STAT.
§ 165.85(4)(a)3. Milwaukee Police Ass’n, 708 F.3d at 924.
16
No. 2018AP1621
period if they have fully satisfied state training requirements and been properly
certified before they are hired.” Id., ¶38. In other words, “[t]here is little doubt
that WIS. STAT. § 165.85(4) effectively imposes probation on virtually all new
officers in relation to their training and also permits [police commissions] to
require probation to supplement the standards set out in the statute.” Kraus, 261
Wis. 2d 485, ¶27.
¶31 Notably, WIS. STAT. § 165.85(4)(a)3. previously included language
much closer to the interpretation Most urges for the current version of the statute.
Formerly, the statute was structured so as to place a substantive time limitation
upon a probationary term of employment:
The total period during which a person may serve as a law
enforcement … officer on a temporary or probationary
basis without completing a preparatory program of law
enforcement training approved by the board shall not
exceed 2 years, except that the board shall permit part-time
law enforcement … officers to serve on a temporary or
probationary basis without completing a program of law
enforcement training approved by the board to a period not
exceeding 3 years.
WIS. STAT. § 165.85(4)(b)1. (2011-12). That version of the statute was repealed
and recreated in 2013, at which point the legislature added the “exercise law
enforcement powers” language. See 2013 Wis. Act 214, § 19. The modification
clarifying that the statute pertains only to a recruit’s ability to exercise law
enforcement powers strongly supports our interpretation.
¶32 We also disagree with Most’s reliance on Antisdel v. City of Oak
Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d
17No. 2018AP1621
464, which was decided subsequent to Kaiser and under the previous version of
WIS. STAT. § 165.85(4).12 In that case, our supreme court decided that a long-time
officer who had been recently promoted to sergeant on a probationary basis but
reduced in rank during the probation term was entitled to a just cause procedure
under WIS. STAT. § 62.13(5)(em). Antisdel, 234 Wis. 2d 154, ¶¶2-3. The
Antisdel court, however, was careful to note that the collective bargaining
agreement there only required a probationary period for new employees and did
not establish a probationary period for officers promoted to sergeant or other
supervisory positions. Id., ¶¶16-17. The court also noted that the charges against
the officer related to alleged misconduct prior to promotion, not to his
performance as a sergeant.13 Id., ¶25. The court expressly declined to address
whether the result would be the same “if the plaintiff were reduced in rank from
probationary sergeant to police officer because he [or she] failed to meet the level
of performance demanded by his superiors.” Id., ¶26. Most reads Antisdel far too
broadly.
¶33 Our supreme court’s decision in Kraus further undercuts Most’s
argument that he is entitled to the protections outlined in WIS. STAT.
§ 62.13(5)(em). Kraus held that statutory “just cause” hearing provisions are not
available to an officer who is returned to his or her prior rank for failure to
12
Technically, the Antisdel court relied upon the 1981 version of the statute discussed in
Kaiser. See Antisdel v. City of Oak Creek Police & Fire Comm’n, 2000 WI 35, ¶11, 234
Wis. 2d 154, 609 N.W.2d 464 (characterizing the statute at issue in Kaiser as “mandating that all
new police hires be subject to a probationary period not to exceed one year”).
13
The allegations of misconduct were related to a scheme to allow a colleague to use the
officer’s address to avoid paying nonresident tuition at a high school. Antisdel, 234 Wis. 2d 154,
¶¶24-25.
18
No. 2018AP1621
successfully complete a probationary period associated with a promotion. Kraus,
261 Wis. 2d 485, ¶3. Thus, Kraus clarified that the Antisdel rule is limited to
situations in which an officer who was promoted on a probationary basis is
returned to his or her prior position for disciplinary reasons unrelated to his or her
performance in the new position. Kraus, 261 Wis. 2d 485, ¶¶12-14, 67-69. A
recruit like Most, who did not complete the initial probationary term of
employment as a police officer, is not entitled to avail himself of the just cause
protections afforded by § 62.13(5)(em).
¶34 Most argues the foregoing rule creates a “slippery slope” whereby
municipalities might attempt to circumvent state law governing certification
standards by imposing years-long probationary periods. We consider it quite
unlikely that municipalities would seek to employ uncertified recruits for
significant periods of time without seeking an extension under WIS. STAT.
§ 165.85(4)(a)6. In any event, the City concedes that although it is not limited to a
one-year probationary period for new hires under § 165.85(4), it may not bargain
for a probationary period of whatever length it wants. The City argues that
whatever concerns Most has about the potential length of probationary periods are
largely mitigated by Kraus, which recognizes a “reasonableness” requirement in
the exercise of a municipality’s inherent authority to make appointments. See
Kraus, 261 Wis. 2d 485, ¶74. Given that the probationary period in this case was
only eighteen months—which no party argues was unreasonable in duration—as
well as the City’s concession regarding the applicability of Kraus’s
“reasonableness” rule, we need not decide under what circumstances a
municipality would go too far.
By the Court.—Judgment affirmed.
19
No. 2018AP1621
20