Richard Burby v. Langlade County

COURT 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.
June 14, 2022
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. 2020AP1658 Cir. Ct. No. 2019CV20
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
RICHARD BURBY,
PLAINTIFF-APPELLANT,
V.
LANGLADE COUNTY,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Langlade County:
WILLIAM F. KUSSEL, JR., Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Richard Burby appeals from an order of the circuit
court denying his motion for summary judgment and granting summary judgment
No. 2020AP1658
to Langlade County (the County). The court’s order affirmed the decision of the
Langlade County Board of Supervisors (the Board) removing Burby from his
position as a county board supervisor for cause. Burby argues that he was
removed from his elected position for exercising his First Amendment right to free
speech, and, accordingly, the proper standard and scope of review on appeal is
de novo, rather than the common law certiorari standard of review. He asserts that
when we review this matter de novo and properly apply First Amendment
jurisprudence, the court’s decision and the removal order must be vacated. We
conclude that the Board correctly applied the relevant law, acted within its
jurisdiction, and reached a decision supported by sufficient evidence.
Accordingly, we affirm.
BACKGROUND
¶2 Burby was re-elected and sworn in as a Langlade County Board
Supervisor on April 17, 2018. On October 11, 2018, complainants David J. Solin,
Ronald M. Nye, and Douglas Nonnenmacher, as residents and taxpayers of the
County, presented a “Verified Statement of Charges against Richard J. Burby”
(the Statement). A hearing on the charges was subsequently scheduled before the
Board on November 27, 2018.1
1
On October 26, 2018, a certified copy of the Statement, a copy of the Rules of the
Langlade County Board, and written notice of the November 27, 2018 hearing were
hand-delivered to Burby. On November 1, 2018, Burby was served with a certified copy of the
Statement and a copy of the Rules of the Langlade County Board.
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¶3 The complainants requested that Burby be removed from his elected
position based on WIS. STAT. §§ 17.09(1) and 17.16 (2019-20).2 The Statement
included four specific charges against Burby: (1) he “failed to act in the best
interests of County government, as he engaged in conduct that a reasonable person
would deem unethical, offensive or otherwise contrary to community values or the
oath of office”; (2) he “intentionally failed to follow policies and procedures
adopted by the Langlade County Board, including but not limited to the
governmental accountability and complaint resolution policy”; (3) he “failed to act
in the best interest of county government by refusing to complete the remedial
measures he was directed to undertake by the executive committee or Langlade
County”; and (4) he “neglected his duty as a county board supervisor as he has not
maintained at least two committee appointments during his current term in office.”
¶4 These charges were based in part on complaints filed years earlier
against Burby. A September 21, 2016 letter to Burby from the Executive
Committee for the Langlade County Board of Supervisors (the Executive
Committee) identified five instances in which Burby was said to have “engaged in
conduct that violated the policies and/or rules of the Langlade County Board of
Supervisors.” The letter provided notice of a hearing on the complaints, stated
that Burby would have an opportunity to respond to the complaints, and requested
that Burby submit any information or evidence that he intended to present at the
hearing to Robin J. Stowe, the Langlade County Corporation Counsel. Burby did
not submit any information or evidence to Stowe prior to the hearing.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. For ease of reference, we cite to the current version because there have been no changes to
the relevant language from the 2015-16 version that was applied by the Executive Committee and
the Board.
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¶5 On October 12, 2016, the Executive Committee met in a closed
session, pursuant to Rule 17.1 of the Rules of the Langlade County Board
(2016-18),3 and held an evidentiary hearing regarding the complaints the County
had received regarding Burby’s conduct as a Board member. Burby was present at
the hearing. After hearing evidence, the Executive Committee determined that
there was sufficient evidence to find that Burby engaged in conduct that violated
the policies and/or rules of the Board. There were five instances of Burby’s
claimed misconduct, as explained below.
¶6 First, it was alleged that during an airport committee meeting,
Steve Koss, a member of the public and a disabled veteran, had requested that he
be allowed to sit at the committee table “as an accommodation for his hearing
disability.” Burby then repeatedly asked Koss, “[W]here is your hearing aid[?]”
The Executive Committee determined that “the conduct engaged in by Burby
would offend any reasonable person” and that “it was appropriate to remove
Burby from the Airport Committee” and to request a letter of apology from Burby
to Koss.
¶7 Second, the Executive Committee “found that Burby made false
and/or misleading statements about County Board Supervisor Ronald M. Nye.”
The Executive Committee found that Burby had claimed that “Nye committed
‘malfeasance’ while [Nye was] acting as the Chairman of the Forestry Committee
during the recruitment and selection process for the Recreation
Coordinator/Forestry Technician position.” After an investigation, the Executive
Committee determined that Burby’s complaints were without merit. The
3
All citations to the Rules of the Langlade County Board are to the 2016-18 version.
4
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Executive Committee requested that Burby publicly retract both his claim of
Nye’s wrongdoing during the hiring process and his claim that Nye committed
“malfeasance” while acting as the Chairman of the Forestry Committee, and that
he also submit a letter of apology to Nye.
¶8 Third, the Executive Committee determined that Burby had
“intentionally abused Langlade County’s Accountability and Complaint
Resolution Policy” by filing complaints similar to ones that he had previously filed
that were determined to be without merit. The Executive Committee took the
possible imposition of penalties under advisement.
¶9 Fourth, the Executive Committee “found that Burby made false
and/or misleading statements about the Langlade County Board while attending
the Wisconsin County Association (WCA) seminar as a representative of the
Langlade County Board of Supervisors.” According to the Executive Committee
record, Burby stated that the Board had “engaged in ‘terrible wrongdoings,’ and
conducted ‘illegal meetings’ with ‘illegal notices.’” This finding was based on an
investigation and a statement from another official who was at the WCA seminar.
The Executive Committee “determined that Burby failed to act in the best interests
of Langlade County, by failing to refrain from conduct that a reasonable person
would deem unethical, offensive or otherwise contrary to the community values or
the Oath of Office.”
¶10 For the fifth, and final, instance of Burby’s claimed misconduct, the
Executive Committee found that “on or about September 7, 2016[,] Burby
contacted the Langlade County Clerk’s Office and spoke with Chief Deputy Clerk
Becky Rank regarding an invoice for a document request.” Burby was found to
have been “demeaning, intimidating, and he bullied the staff of the County Clerk’s
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Office,” such that a “reasonable person would be offended and/or intimidated by
Burby’s conduct.” The Executive Committee requested that Burby submit a letter
of apology to Rank and attend “sensitivity” training.
¶11 During the October 12, 2016 evidentiary hearing, Burby was offered
the opportunity to respond to the allegations and to present evidence to dispute the
Executive Committee’s findings. According to the record, “Burby did not offer
any relevant and/or contrary evidence during the evidentiary hearing, other than to
allege for the first time that Steve Koss assaulted him at the Airport Committee
meeting.” After considering all the evidence presented at the hearing, the
Executive Committee decided to remove Burby from all committee assignments,
pursuant to Rule 17.2 of the Rules of the Langlade County Board.4 Burby would
not be considered for reassignment to committees until he had completed all the
required remedial actions, including the letters of apology and the sensitivity
training. The Executive Committee reduced the decision to writing and sent it to
Burby. Burby did not appeal the Executive Committee’s decision.5
¶12 On November 12, 2018, Burby submitted an answer to the
October 11, 2018 Statement that is the subject of this appeal. In his answer, Burby
alleged that the “[t]ransgressions complained of are occurrences that occurred
during the last term of office (April 2016-2018)” and his “removal cannot be
based upon transgressions in a prior term.” He further argued that “retroactive
4
Rule 17.2 of the Rules of the Langlade County Board provides: “Depending upon the
severity of the rules violation, sanctions may include: private reprimand, public reprimand,
removal from committee assignment, referral for criminal prosecution, payment of a forfeiture
and/or a request for removal from office.”
5
By letters dated February 13, 2017, and April 20, 2018, Burby was asked to inform
Stowe regarding his intentions to complete the requested remedial actions.
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enforcement does not satisfy the due process consideration mandated by the Fifth
Amendment” as “[t]here was no corrective action compliance plan to follow” and
Stowe “never scheduled the sensitivity training [Stowe] and the board demanded.”
Finally, he claimed that the “allegations infringe on [his] First Amendment free
speech rights.” Ultimately he argued that there was no cause for his removal, but
he did not specifically deny any of the allegations outlined in the Statement.
¶13 The Board held an evidentiary hearing on November 27, 2018.
After taking testimony and reviewing the documents presented, the Board
deliberated and determined that Burby had engaged in misconduct and neglected
his duties as a Langlade County Board Supervisor. In its response brief, the
County correctly describes the Board’s findings as follows:
 Burby engaged in conduct at the meeting of the Airport
Committee that would offend any reasonable person.
 Burby made false and/or misleading statements about
County Board Supervisor Ronald M. Nye.
 Burby failed to act in the best interests of Langlade
County, by failing to refrain from conduct that a
reasonable person would deem unethical, offensive or
otherwise contrary to the community values or the Oath
of Office.
 During interactions with the County Clerk’s Office and
specifically during his interaction with Chief Deputy
Clerk Becky Rank, Burby was demeaning, intimidating,
and bullied the staff of the County Clerk’s Office.
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 Burby did not complete the remedial actions set forth in
the Decision of the Executive Committee of the
Langlade County Board.[6]
 Since his removal from all committee assignments on
October 12, 2016, Burby had not maintained any
committee appointments during the last or present term
of office.
 Burby neglected his duty as a Langlade County Board
Supervisor by failing to maintain at least two committee
appointments during the last two terms of office, in
violation of the provisions in WIS. STAT. § 17.09(1).[7]
In accordance with WIS. STAT. §§ 17.09(1) and 17.16(3), and the Rules of the
Langlade County Board, the Board removed Burby as a county board supervisor
6
Burby states in his briefing before this court that he provided the three letters of
apology on October 17, 2016. The transcript from the November 27, 2018 hearing reflects that
this was a point of contention. Burby argued that he had sent the letters, including presenting a
letter to Rank at an open meeting, and received confirmation of receipt of the letters from the
County’s former human resources director. Other witnesses stated that they had not seen the
letters, and, in any event, the letters were never presented to Stowe for review as required before
being submitted to Koss, Nye, and Rank. Further, the Executive Committee was never provided
evidence that the letters were submitted in order for it to consider Burby for reassignment to
committees. Burby was unable to provide copies of the letters at the hearing.
7
WISCONSIN STAT. § 17.09 provides that a county supervisor may be removed “for
cause.” In this case, “cause” was failing to comply with Rule 13.2 of the Rules of the Langlade
County Board, which provides:
The members appointed to committees pursuant to Rule 13.1
shall serve a 2 year term on such committees. Each member
shall be appointed to at least two standing committees (listed
under Rule 14.1) and each member is expected to maintain at
least two committee appointments during each term of office.
The term of appointment for committee members shall end at
such time when new committee members are appointed, which is
as soon as possible following the April Organizational Meeting
and no later than May 1, subject to vacancy. Vacancies on the
Board will be filled pursuant to Chapter 59 of Wisconsin
Statutes. The names of all persons interested in filling a vacancy
will be announced to the Board prior to confirmation of the
Chairman’s nominee.
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for cause by a vote of two-thirds of all county board supervisors, including sixteen
votes for removal, two votes against removal, and one abstaining.
¶14 On February 11, 2019, Burby filed a complaint in the circuit court,8
arguing that he was illegally or wrongfully removed from office and seeking,
among other things, an interlocutory order in the form of a writ of certiorari. 9 The
County filed an answer on February 27, 2019, denying the allegations.
¶15 Burby filed a motion to supplement the record on certiorari and his
first motion for summary judgment on April 8 and 10, 2019, respectively. Among
other things, Burby attempted to supplement the record with copies of the apology
letters Burby stated he sent to the intended recipients, which were discussed at the
November 27, 2018 hearing but not provided by Burby during that hearing. The
County filed a response in opposition to both motions. Following a
nonevidentiary hearing, the circuit court denied both motions.
¶16 After the circuit court denied these motions, Burby filed a document
titled “First Amendment Memorandum,” which outlined his “First Amendment
position” and argued that he “was removed from office based upon what he said
and wrote. Since what he said and wrote was protected by the First Amendment,
he must be reinstated.” The parties then filed cross-motions for summary
judgment.
8
This case was filed in Langlade County, but, for reasons that are unclear in the record,
the matter was heard by The Honorable William F. Kussel, Jr., a Shawano County Judge.
9
Burby filed an amended summons and complaint on February 12, 2019.
9
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¶17 After a nonevidentiary hearing and additional briefing from the
parties, the circuit court issued a written decision denying Burby’s motion for
summary judgment and granting summary judgment in favor of the County. The
court concluded that the Board’s decision was appropriate under the common law
certiorari standard of review set forth in Hanlon v. Town of Milton, 2000 WI 61,
¶23, 235 Wis. 2d 597, 612 N.W.2d 44. While the court acknowledged that under
Hanlon, First Amendment rights may be raised in a certiorari review, the court
nevertheless determined that the Board could reasonably have found that Burby’s
actions were not protected under the First Amendment. Finally, the court
concluded that the Board could remove Burby for actions taken during his prior
term and that, in any event, some of the behavior at issue took place during the
present term. Burby appeals.10
DISCUSSION
¶18 Burby argues that “[t]he principal dispute between the parties is the
standard and scope of review,” and he claims that “[t]he answer to this question
determines the outcome of this case.” As noted above, the circuit court applied the
10
We note that Burby has failed to comply with our Rules of Appellate Procedure. See
WIS. STAT. RULE 809.19(1). Burby’s brief does not contain appropriate record citations, and in
most instances, we were unable to determine where in the record Burby was directing us. We
have no duty to scour the record to review arguments unaccompanied by adequate record
citations. See Tam v. Luk, 154 Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990). Further,
we note that Burby’s briefing is also deficient for improperly using record citations as the subject
of a sentence. For example, Burby writes in his brief-in-chief, “Reliance on (4-31, 32) remains
valid given the September 24, 2021 opinion by USDJ Brett Ludwig (A-Ap 56-68).” Aside from
the problematic nature of using record citations as the argument, rather than developing a legal
argument based on information contained in the documents in the record, even the record
citations that Burby references appear to be incorrect or, at the very least, the citations lack proper
pinpoint citations to support the propositions Burby asserts. As a high-volume, appellate court,
we are entitled to expect briefing by an attorney that follows the basic Rules of Appellate
Procedure. We caution Burby’s counsel that future violations of the Rules of Appellate
Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).
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common law certiorari standard of review to decide whether the Board properly
removed Burby from his position as a county board supervisor pursuant to WIS.
STAT. § 17.16(3). Burby contends, however, that he was removed from his
position without consideration of his First Amendment rights.11 He explains that
“First Amendment jurisprudence sets forth the standard and scope of review for all
First Amendment matters, common law certiorari or otherwise.” Burby asserts
that because he raises a constitutional argument, we should review all of the
evidence—including the basis for the Executive Committee’s October 12, 2016
decision—de novo, rather than under a deferential certiorari standard. We
disagree, and we conclude for several reasons that under the circumstances of this
case, the court properly applied the common law certiorari standard of review.
¶19 First, while Burby correctly argues that under Hanlon, 235 Wis. 2d
597, ¶13, “litigants can raise constitutional objections to municipal determinations
in certiorari review,” that case does not assist his argument regarding the
applicable standard of review here. In Hanlon, one of the issues was whether a
litigant challenging an administrative determination may bring an equal protection
claim. Id., ¶1. Our supreme court explained that “[i]n a certiorari proceeding a
litigant may argue that his or her constitutional right to equal protection has been
violated in an effort to establish that a municipal determination was not made
according to law or is unreasonable, arbitrary and oppressive.” Id., ¶14 (collecting
cases). The court noted that “[c]ertiorari proceedings are distinct from civil
“The First Amendment to the United States Constitution, made applicable to the states
11
by the Fourteenth Amendment, provides that ‘Congress shall make no law … abridging the
freedom of speech.’” State v. Hemmingway, 2012 WI App 133, ¶10, 345 Wis. 2d 297, 825
N.W.2d 303 (citation omitted). Burby argues that “[t]his removal order is entirely based on
speech or writing which is protected by the First Amendment.”
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actions, which are filed to resolve a controversy between the parties.” Id., ¶22.
“Additional fact finding by the circuit court is not permitted,” and “[t]he court’s
scope of review is limited to the record produced in the proceeding below.” Id.
(citing WIS. STAT. § 68.13 (1997-98)).
¶20 In this case, Burby wrote in his initial memorandum in support of his
motion for summary judgment: “This is a common law certiorari action to review
a [WIS. STAT. §] 17.16(3) removal order.” “Common law certiorari review is a
limited review of the record made before the [Board], while de novo review is an
entirely independent circuit court action in which the circuit court creates its own
record and gives no deference to the [Board’s] determination.” See Metropolitan
Assocs. v. City of Milwaukee, 2011 WI 20, ¶2, 332 Wis. 2d 85, 796 N.W.2d 717.
Burby did not file an entirely independent circuit court action asserting violations
of his First Amendment rights. He merely contends in this appeal that the Board’s
decision was illegal and his removal was wrongful. In fact, it was not until his
second motion for summary judgment that he developed a First Amendment
argument. While Burby may raise a First Amendment constitutional objection on
certiorari review in an effort to establish that the Board’s determination was not
made according to law or is unreasonable, arbitrary, and oppressive, the court did
not take evidence, and the scope of review on certiorari was not enlarged by
statute.12 See Hanlon, 235 Wis. 2d 597, ¶¶13-14, 23. Accordingly, de novo
review is not proper here.
12
While some statutes providing for certiorari review explicitly permit a reviewing court
to take evidence, Burby has not argued that any of those statutes apply here. See, e.g., State
ex rel. Brookside Poultry Farms, Inc. v. Jefferson Cnty. Bd. of Adjustment, 131 Wis. 2d 101,
120, 388 N.W.2d 593 (1986).
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¶21 Second, Burby’s First Amendment challenge to the Board’s decision
is based entirely on the testimony and evidence presented at the evidentiary
hearing of the Executive Committee that resulted in its October 12, 2016 decision.
Burby argues that if we were to review the Executive Committee’s October 12,
2016 findings de novo, we would conclude that the findings were erroneous, as the
evidence shows that his actions that served as the basis for the decision were
protected by the First Amendment. Burby further argues that, having concluded
the Executive Committee’s findings were erroneous, we would then conclude that
the Board erred in its November 27, 2018 decision because it relied on the
Executive Committee’s erroneous 2016 findings.
¶22 The problem with this argument is that there is no evidence in this
record that Burby raised any First Amendment argument before the Executive
Committee in 2016. All the record states is that “Burby did not offer any relevant
and/or contrary evidence during the evidentiary hearing, other than to allege for
the first time that Steve Koss assaulted him at the Airport Committee meeting.”
Further, we agree with the circuit court that to the extent Burby raised the
argument before the Board in his November 12, 2018 answer, this argument was
“presented in a very limited manner insufficient for the Board … to make such a
finding in favor of Burby.”
¶23 The decision at issue in this appeal is the Board’s November 27,
2018 decision removing Burby from his position as a county board supervisor.
The Executive Committee’s October 12, 2016 decision is not before us on appeal.
Burby was provided an opportunity to respond to the allegations included in the
list of complaints and provide evidence to the Executive Committee to refute those
allegations. Burby did not do so. Burby then failed to appeal the decision of the
Executive Committee, either to the Board, pursuant to Rule 17.1 of the Rules of
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No. 2020AP1658
the Langlade County Board,13 or to the circuit court. Burby cannot do so now as
he has forfeited that opportunity. See State v. Ndina, 2009 WI 21, ¶29, 315
Wis. 2d 653, 761 N.W.2d 612 (“[F]orfeiture is the failure to make the timely
assertion of a right.”).
¶24 Because Burby forfeited his First Amendment claims related to the
Executive Committee’s findings, he cannot now raise them years later by certiorari
review of the Board’s November 27, 2018 decision. The Board, therefore, could
accept the Executive Committee’s 2016 findings and rely upon them in 2018 to
remove Burby as a county board supervisor for cause. The circuit court properly
upheld the Board’s decision on summary judgment review, as there were no
material questions of fact—those Burby attempted to raise were already decided in
2016—and the court could decide the issue of whether the removal was proper as
a matter of law under the certiorari review standard.
¶25 In response, Burby argues that he “did not fail to exhaust
administrative remedies by not appealing the Executive Committee’s decision,”
see WIS. STAT. §§ 68.01, 68.13; State ex rel. Mentek v. Schwarz, 2001 WI 32, ¶8,
242 Wis. 2d 94, 624 N.W.2d 150 (“The law is well established that ‘judicial relief
13
Rule 17.1 of the Rules of the Langlade County Board provides in pertinent part:
For rules violations that occur at all other times, any
complaint shall be forwarded to the Executive Committee. The
Committee shall meet with the County Board Member(s), who
is/are the subject of the complaint, in closed session to review
the complaint. The committee shall decide upon the merits of
the complaint and render a decision on the appropriate remedy
for any violation of these Rules. The Executive Committee’s
decision may be appealed to the County Board. If the complaint
involves a member of the Executive Committee, then that
member shall be replaced on the Committee until the complaint
is resolved.
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No. 2020AP1658
will be denied until the parties have exhausted their administrative remedies; the
parties must complete the administrative proceedings before they come to court.’”
(citation omitted)), as “the First Amendment is not implicated prior to removal
from office.” Burby cites to Werkheiser v. Pocono Township, 780 F.3d 172, 181
(3d Cir. 2015), for this proposition. We disagree that Werkheiser stands for the
proposition that Burby would have been unable to assert a First Amendment
argument on appeal from the Executive Committee’s October 12, 2016 decision
prior to being removed from office.
¶26 In Werkheiser, the issue was “whether elected officials are entitled
to qualified immunity when they retaliate against a fellow official by denying him
reappointment to a non-elected position because of comments he made in his
capacity as an elected official.” Id. at 174. Werkheiser alleged that “he was
denied his position as Roadmaster as a result of speech he expressed in his
capacity as an elected official concerning the Board of Supervisors’ overpayment
for administrative duties.” Id. at 175. The Third Circuit Court of Appeals
explained that “not all retaliation violates the First Amendment” and that “the First
Amendment requires ‘retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights.’” Id. at 181 (quoting Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)). The court observed that
“one kind of very serious retaliation by elected officials is unlawful—the
exclusion of a duly elected official from office,” but in Werkheiser, “[t]here [was]
no allegation … that the failure to reappoint Werkheiser as Roadmaster in any way
excluded him from Town Supervisors’ meetings, interfered with his rights,
privileges, or responsibilities as an elected official, or hindered his ability to fulfill
his elected duties.” Id. at 181, 183; see also Werkheiser v. Pocono Twp.
(Werkheiser II), 210 F. Supp. 3d 633, 640-42 (M.D. Pa. 2016).
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¶27 Unlike in Werkheiser, Burby was removed from all committee
assignments as a result of the Executive Committee’s October 12, 2016 decision.
Pursuant to Rule 13.2 of the Rules of the Langlade County Board, “each member
is expected to maintain at least two committee appointments during each term of
office.” Thus, the Executive Committee’s decision interfered with his
responsibilities as an elected county supervisor and, as demonstrated by his
removal from office by the Board based in part on Rule 13.2, ultimately interfered
with his right to hold his elected office. We disagree with Burby’s assertion that
his speech only “becomes protected under the First Amendment when he loses his
office because of that speech.” If Burby intended to assert a First Amendment
challenge to the Executive Committee’s decision, he should have raised that
challenge in 2016, as the decision involved tangible consequences—namely, he
was removed from his committee assignments and had to pay for sensitivity
training out of his own pocket. Burby has forfeited his First Amendment claim by
failing to appeal the Executive Committee’s October 12, 2016 decision.
¶28 The County also claims that Burby “[e]ssentially” argues that
as courts had not definitively established that an elected
official was entitled to First Amendment protections at the
time he was removed from his committee assignments, he
chose not [to] appeal the Executive Committee’s decisions
as he could not assert with certainty that the conduct, which
served as the basis for the Executive Committee’s
decisions, was protected by the First Amendment.
Burby’s argument on this point is not clear, but we will address it summarily. As
the County notes, one of the cases relied on by Burby, Werkheiser II, determined
on remand that elected officials were entitled to First Amendment protection when
acting in their official capacity. See Werkheiser II, 210 F. Supp. 3d at 637-40.
Werkheiser II was decided on September 28, 2016, approximately fourteen days
16
No. 2020AP1658
before the Executive Committee’s October 12, 2016 decision. Thus, to the extent
Burby argues that he could not appeal the Executive Committee’s decision
because no courts had determined whether he was entitled to First Amendment
protections within his elected position, we are unpersuaded.
¶29 Finally, we review the actions of the Board under the common law
certiorari standard of review. In an action for certiorari review, appellate review is
the same as in the circuit court. See State ex rel. Wilson v. Schocker, 142 Wis. 2d
179, 183, 418 N.W.2d 8 (Ct. App. 1987). The traditional standards of common
law certiorari review are: “(1) whether the board kept within its jurisdiction;
(2) whether it acted according to law; (3) whether its action was arbitrary,
oppressive or unreasonable and represented its will and not its judgment; and
(4) whether the evidence was such that it might reasonably make the order or
determination in question.” Hanlon, 235 Wis. 2d 597, ¶23 (quoting State ex rel.
Ruthenberg v. Annuity and Pension Bd., 89 Wis. 2d 463, 472, 474, 278 N.W.2d
835 (1979)).
¶30 Burby’s exact arguments on these points are underdeveloped and
difficult to discern. In general, Burby makes two arguments: (1) removing Burby
from office based on the charges found at the Executive Committee’s October 12,
2016 hearing violated his First Amendment right to free speech; and (2) the
removal order was not based on “cause” within the meaning of WIS. STAT.
§ 17.001, which provides that “‘cause’ means inefficiency, neglect of duty, official
17
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misconduct, or malfeasance in office.”14 It is unclear, however, under which
certiorari review standard (or standards) listed above Burby is challenging the
Board’s decision. Therefore, we will address all four.
¶31 Burby does not appear to argue that the Board did not keep within its
jurisdiction or that it did not “act[] within the scope of its powers.” See
Ruthenberg, 89 Wis. 2d at 472. WISCONSIN STAT. § 17.09 provides authority for
a county board to remove elective county officers. Section 17.09(1) provides that
a county supervisor may be removed “by the county board, for cause, by a vote of
two-thirds of all the supervisors entitled to seats on such board.” Thus, we agree
with the circuit court that the Board acted within its scope of powers when it voted
to remove Burby as a county supervisor.
¶32 The second standard asks whether the Board “acted according to
law,” which requires us to review the Board’s “procedure in light of the applicable
statutes and due process requirements.” Ruthenberg, 89 Wis. 2d at 472-73. The
procedure for removal for cause is found in WIS. STAT. § 17.16(3) and requires, as
relevant to this appeal: (1) “written verified charges brought by a resident
taxpayer,” (2) proper notice no less than ten days prior to the hearing, and (3) “a
speedy public hearing at which the officer shall have full opportunity to be heard
to present a defense against the charges, personally and by counsel.” “There is a
presumption that public officers in performing their official duties have complied
with all statutory requirements, and this presumption applies to acts of official
14
Burby does not appear to renew his argument that wrongdoings alleged to have
occurred in a prior term of office could not be considered as a basis for removal at the
November 27, 2018 hearing. Therefore, we do not address that argument. See A.O. Smith Corp.
v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised
in the trial court, but not raised on appeal, is deemed abandoned.”).
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No. 2020AP1658
boards and legislative bodies as well as to those of individual officers.” Bohn v.
Sauk County, 268 Wis. 213, 219, 67 N.W.2d 288 (1954).
¶33 Burby does not appear to dispute that the Board complied with the
applicable statutes and due process requirements. Our independent review of the
record on appeal indicates that the Board complied with the requirements and
procedures found in WIS. STAT. §§ 17.09(1) and 17.16(3), as well as with due
process, in removing Burby from office. Further, we have already determined that
Burby has forfeited his argument that the Board failed to act according to law
because his removal from office based on the misconduct found at the Executive
Committee’s October 12, 2016 hearing violated his First Amendment right to free
speech.
¶34 The third standard is “whether [the Board’s] action was arbitrary,
oppressive or unreasonable and represented its will and not its judgment.”
Hanlon, 235 Wis. 2d 597, ¶23 (citation omitted). This standard is established “if
[the Board] has acted without a rational basis or the exercise of discretion.”
Ruthenberg, 89 Wis. 2d at 473. The fourth standard is “whether the evidence was
such that [the Board] might reasonably make the order or determination in
question,” Hanlon, 235 Wis. 2d 597, ¶23 (citation omitted), which we review by
determining, “after considering all the evidence of record, [whether] reasonable
minds could arrive at the conclusion reached by the trier of fact,” Milwaukee
Symphony Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324 Wis. 2d 68, 781
N.W.2d 674; see also Ruthenberg, 89 Wis. 2d at 473. However, “[t]he weight
and credibility of the evidence are for the agency, not the reviewing court, to
determine.” Milwaukee Symphony, 324 Wis. 2d 68, ¶31 (citation omitted). We
address both of these factors together, as Burby’s argument on certiorari review
appears to be generally whether the Board proceeded upon a correct theory of law;
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No. 2020AP1658
in other words, whether Burby could be removed from office for cause under WIS.
STAT. §§ 17.09(1) and 17.16(3).
¶35 As addressed previously, Burby’s entire challenge to the Board’s
decision rests on his First Amendment argument that the “removal order [was]
entirely based on speech or writing which is protected by the First Amendment”
and “[c]ause for purposes of [WIS. STAT. §] 17.001 cannot result in a violation of
the First Amendment.” However, as also addressed above, while we are able to
review a First Amendment argument to determine if the Board’s decision was
made according to law or whether it was arbitrary, oppressive, or unreasonable,
we cannot do so here. In essence, Burby does not challenge the basis for the
Board’s November 27, 2018 removal decision. He challenges only the findings in
the underlying 2016 Executive Committee decision. But as we have already
concluded, Burby cannot retroactively seek to challenge the findings and review
the actions of the Executive Committee that formed part of the basis for the
Board’s November 27, 2018 removal decision.
¶36 Based on our review of the record on certiorari, it is clear that the
Board had a sufficient basis for determining that Burby “engaged in official
misconduct, and neglected his duties as a Langlade County Board … Supervisor.”
The Board determined, based on the findings of the Executive Committee, that
Burby had engaged in conduct that “would offend any reasonable person”; “made
false and/or misleading statements” while in his official capacity; “demean[ed],
intimidate[ed], and … bullied the staff of the County Clerk’s Office”; and failed
“to refrain from conduct that a reasonable person would deem unethical, offensive
or otherwise contrary to the community values or the Oath of Office.” The Board
also determined that Burby failed to complete all of the remedial actions set forth
in the Executive Committee’s October 12, 2016 decision, and he did not maintain
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No. 2020AP1658
his committee appointments as a result of his failure to take the steps necessary to
complete the remedial actions.
¶37 Both determinations are supported by the record. Thus, Burby’s
removal for cause was not without a rational basis or the exercise of discretion,
and reasonable minds could arrive at the conclusion reached by the Board.
Accordingly, we affirm the circuit court’s grant of summary judgment to the
County upholding the Board’s decision removing Burby as a county board
supervisor.15
15
Burby also filed a motion to supplement the record before this court. The County
opposed the motion, arguing that it was identical to earlier motions denied by the circuit court.
We granted the motion, explaining that “[b]ecause the documents were offered to the circuit
court, we will grant the motion. However, we take no position at this time whether it is
appropriate for this court to consider the documents, and the parties should address that issue in
their respective briefs.”
The County states that Burby actually filed two motions to supplement the record before
the circuit court. One motion was filed on April 8, 2019, and was denied by the court on
August 30, 2019. A second motion, pursuant to WIS. STAT. RULE 809.15(3), was filed on
December 28, 2020, and was denied by the court on January 14, 2021. The December 28, 2020
motion and the court’s denial do not appear in the appellate record.
Aside from copies of the apology letters, which Burby was unable to provide at the
Board’s November 27, 2018 hearing, the majority of the documents that Burby seeks to enter into
the record on appeal relate to the Executive Committee’s October 12, 2016 decision, which is not
before us on appeal. Accordingly, we cannot consider those documents. In any event, Burby’s
argument that we should consider these documents is undeveloped. He merely asserts, in a
conclusory fashion, that we should take judicial notice of these documents. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992). Our certiorari review is limited to the
record created before the Board. See State ex rel. Whiting v. Kolb, 158 Wis. 2d 226, 233, 461
N.W.2d 816 (Ct. App. 1990).
Finally, Burby argues that because he was not permitted to supplement the record fully,
the “innocent construction rule require[s] all ambiguities in the record, on de novo review, be
construed to be protected First Amendment speech.” First, Burby’s argument on this point is also
entirely undeveloped. See Pettit, 171 Wis. 2d at 646. Second, as we previously determined,
Burby’s First Amendment arguments are not implicated in this appeal, and our review is not
conducted de novo.
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No. 2020AP1658
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE 809.23(5).
22