Kraus v. City of Waukesha Police & Fire Commission

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 78. (dissenting). This court releases two decisions today1 that, read together, hold that when a police officer or firefighter is promoted contingent upon the successful completion of a period of probation, the promotion may be denied for a completely false, irrational, or unsubstantiated reason before the end of the probationary period, even if:

(1)' the actual reason for denying the promotion is disciplinary and is subject to the just cause *524provisions of Wis. Stat. § 62.13(5)(em); and
(2) a collective bargaining agreement negotiated pursuant to Wis. Stat. § 111.70 requires that the denial be reasonable.

¶ 79. In the present case, this court holds that the just cause protections of Wis. Stat. § 62.13(5)(em) apply only to "disciplinary" actions that lead to the reduction in rank of police officers, citing Antisdel v. Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, not to "nondisciplinary actions" such as the failure to successfully complete probation due to poor performance. Furthermore, according to the majority opinion, the officer in question, Steven Kraus, was not "disciplined" and thus not entitled to a just cause hearing.2

¶ 80. In short, the language of Wis. Stat. § 62.13(5) alone does not resolve whether just cause hearings are available to officers returned to their prior rank for "nondisciplinary" reasons. The statute can be read to support both Kraus's interpretation and the majority opinion's interpretation. Given this ambiguity, I conclude that Kraus's interpretation must prevail. The distinction drawn by the majority between disciplinary and nondisciplinary is illusory. Police chiefs and Police and Fire Commissions can avoid just cause hearings in all cases where a promoted officer is returned to his prior rank before completing a period of probation, as a result of this decision, by simply labeling the reason for the return to prior rank "nondisciplinary." This decision therefore effectively overrules Antisdel.

¶ 81. The majority opinion asserts that the plain language of Wis. Stat. § 62.13(5)(em) compels its con-*525elusion that a police officer who is promoted on a probationary basis and thereafter returned to his former rank for "nondisciplinary" reasons is not entitled to a just cause hearing. According to the majority, the language of § 62.13(5) "clearly"3 refers only to situations in which an officer's reduction in rank results from a "charge"4 and the adverse personnel action is a "penalty"5 for "an accusation of misconduct or of a violation of laws, rules or policies."6 Therefore, according to the majority opinion, Kraus is not entitled to a just cause hearing: he was returned to his former rank for performance reasons and not "charged" with violating any rule; he was not subject to "charges," no penalty was imposed on the basis of an accusation of misconduct or of a violation of laws, rule or policies; and he was not "disciplined."7

¶ 82. I do not agree that the language of § 62.13(5)(em) so clearly affords greater protection to officers who fail to complete their period of probation for "disciplinary" reasons than those officers who do not complete probation for "nondisciplinary" reasons. To my mind, the language of § 62.13(5) can just as easily be read to provide just cause hearings for officers returned to their prior rank for "nondisciplinary" reasons, before completing probation.

¶ 83. The majority opinion rests its position to a large extent on the word "charges" found in the statute. To understand what is meant by "charges," the majority *526opinion resorts to the dictionary definition of the word and concludes that it refers to a claim of wrongdoing or an accusation.8

¶ 84. This definition of the word "charges" does not, however, render the statute inapplicable to Kraus. Here, the police chief made "an accusation" that Kraus "[did] not successfully complete[] the probationary period for regular promotion to the rank of Police Sergeant."9 Moreover, not successfully completing the probationary period, that is, incompetence, implicates wrongdoing. According to the dictionary, wrongdoing means doing wrong. A person who does not do a job competently is doing something wrong.

¶ 85. In addition, nothing in the language of § 62.13(5)(em) itself limits just cause hearings to accusations of violations of laws, rules, or policies. The section reads:

No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board 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 hoard determines whether there is just cause, as described in this paragraph, to sustain the charges.10

¶ 86. Finally, the use of words like "charges" and "accused" and "violated" in other paragraphs under Wis. Stat. § 62.13(5) is not necessarily evidence that the statute applies only to allegations of misconduct or rule violations. Wisconsin Stat. § 59.26, which governs the demotion of incompetent deputy sheriffs during proba*527tionary periods, proves this point. Section 59.26(8)(b)2, like § 62.13(5), speaks in terms of "the accused" and "charges"11 even though § 59.26 governs a just cause hearing on both disciplinary issues and issues related to a deputy's inability to competently perform his or her duties.12 Even when a demotion is based on incompetence, § 59.26 requires that "just cause" be shown to "sustain the charges," and it repeatedly refers to rules and orders being "violated" by the subordinate, just as § 62.13 does.13

¶ 87. Thus, there is nothing about the statutes' use of the word "charges" that necessarily prevents Kraus from obtaining a just cause hearing in this case.

¶ 88. Furthermore, there is additional support in the language of Wis. Stat. § 62.13(5)(em) for Kraus's conclusion that no reduction in rank should be imposed unless the board determines there is "just cause" to *528sustain the chiefs accusation that he failed to successfully complete the probationary period. The majority opinion concludes that the phrase "disciplinary actions against subordinates" refers to the grounds for the disciplinary action. It is equally defensible, however, to read the phrase to establish instead the forms of punishment for an officer — that is, the types of disci-plinaiy actions (suspension, demotion, or removal) that might be taken against an officer and the procedure for taking them.

¶ 89. Indeed, courts in Wisconsin have divided over the proper interpretation of this statute. In Kaiser v. Board of Police & Fire Commissioners, 104 Wis. 2d 498, 311 N.W.2d 646 (1981), this court held that § 62.13(5) applies to disciplinary actions, not to decisions to terminate probationary new hires as not suited for service as a police officer.14 More recently, in Hussey v. Outagamie County, 201 Wis. 2d 14, 548 N.W.2d 848 (Ct. App. 1996), the court of appeals rejected this interpretation as "an inaccurate characterization of the statute. A reading of s. 62.13(5) reveals that among the disciplinary choices are suspension, demotion or removal."15

¶ 90. The majority opinion today dismisses the Hussey interpretation in conclusory fashion, stating simply that whether a job action is disciplinary is not determined by the consequences of the action but by *529whether a "charge" is filed by the chief to impose the "penalty."16 I cannot agree that this interpretation carries the day.

¶ 91. The first line of Wis. Stat. § 62.13(5)(a) grants permission to suspend a subordinate as a penalty. It says nothing about the grounds for suspension, only that suspension is a permissible form of penalty. The second line adds, "the subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate."17 Again, the statute references a procedure for disciplining, not what type of behavior creates the grounds for taking that action.

¶ 92. In addition, Wis. Stat. § 62.13(5m)(c) further supports the Hussey interpretation that "disciplinary" refers to methods of discipline and not reasons for discipline. Subsection (5m) (c) was enacted at the same time as subsection (5)(em) and reads as follows:

[T]he name of a subordinate dismissed for any just cause set forth in this section shall be left on an eligible reemployment list for a period of 2 years after the date of dismissal, except that if the dismissal was for disciplinary reasons the subordinate may not be left on an eligible reemployment list.18

The language of § 62.13(5m)(c) suggests that dismissals for "disciplinary reasons" are merely a subset of all just cause dismissals under § 62.13. The implication, therefore, is that § 62.13 addresses the methods for disciplining a police officer, not the grounds for disciplining him *530or her. Those methods of discipline include the reduction in rank that Kraus was subject to in the present case.

¶ 93. I thus conclude that the language of Wis. Stat. § 62.13(5) is not clear. It can be read to support Kraus's interpretation, providing officers reduced in rank for nondisciplinary reasons with a just cause hearing, as easily as it can be read to support the majority opinion.

¶ 94. None of this means, however, that the outcome of this case is unclear. It is a general maxim of statutory interpretation that when a statute is capable of two different, reasonable constructions, courts should avoid that construction which works an absurd or unreasonable result.19 The result of the majority opinion's interpretation here is unreasonable, and thus must be avoided, because it eliminates just cause hearings for all police officers reduced in rank during a period of probation despite the conclusion in Antisdel that officers reduced in rank for disciplinary reasons during a period of probation are entitled to just cause hearings under Wis. Stat. § 62.13(5)(em).

¶ 95. That is, the result of the majority opinion is that no police officer who is promoted contingent upon the successful completion of a period of probation will ever receive a just cause hearing under Wis. Stat. § 62.13(5)(em) when that promotion is denied before completion of the period of probation, since police chiefs and PFCs will be able to avoid a just cause hearing by simply labeling the reason for the reduction in rank "nondisciplinary."

*531¶ 96. In the present case, for example, the police department informed Kraus and the PFC that Kraus did not successfully complete probation without offering a specific reason for his failure. The court accepts the absence of a reason as a "nondisciplinary" reason without hesitation despite the fact that Kraus asserts his demotion might not have been due to poor job performance.20 Indeed, Kraus argues in his briefs that he should at a minimum get a hearing to determine whether the negative job action was taken for disciplinary or non-disciplinary reasons. The majority opinion does not even afford him this remedy.

¶ 97. Any line this court might hope to draw between disciplinary reasons and nondisciplinary reasons for reduction in rank is illusory. Any rule violation, of course, is also going to be evidence of poor performance; any penalty imposed for misconduct will provide grounds for concluding that an officer "has not successfully completed the probationary period for regular promotion." The illusion of a discernable distinction is especially deceptive where the court forecloses the possibility of further inquiry into the underlying facts and willingly accepts the chiefs stated reason for a reduction in rank at face value.21

*532¶ 98. The majority opinion itself even acknowledges the difficulty of drawing a line between disciplinary cases and nondisciplinary cases, yet fails to tackle the difficulty it creates.

¶ 99. The majority opinion explains that in Eastman v. City of Madison, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983), the court of appeals held that the decision to remove two municipal employees who violated Madison's residency ordinance was not disciplinary in nature. After noting that the Eastman decision pre-dates the current version of Wis. Stat. § 62.13(5), the majority opinion then concludes ambiguously: "[T]he question of whether non-residency, in violation of a specific rule or ordinance, would today require a § 62.13(5)(em) hearing, is a closer question."22 The majority opinion provides no guidance for distinguishing between disciplinary reasons and nondisciplinary reasons should the Eastman facts present themselves again.

¶ 100. As Kraus argues, a police chief will , now always be expected to argue that a reduction in rank or any other negative job action resulting in the loss of a promotion during a period of probation was due to nondisciplinary reasons. The majority opinion not only denies a just cause hearing to promoted officers reduced in rank for nondisciplinary reasons, it also denies those officers a hearing to determine whether the nondisci*533plinary reason is a mere pretext for a "disciplinary" reason. Consequently, the court actually holds today that no police officer who is promoted contingent upon the successful completion of a period of probation will ever receive a just cause hearing under § 62.13(5)(em) when that promotion is denied before completion of the period of probation. This court's decision in Antisdel is thus effectively overruled and just cause hearings (and arbitration) for officers reduced in rank during a period of probation have been entirely eliminated.

¶ 101. By the two decisions released today, this court has eliminated the protections extended by the legislature to employees of our municipal police and fire departments who have been promoted contingent upon completion of a period of probation. Wisconsin Stat. § 13.93(2) (d) requires the revisor of statutes to report to the law review committee of the legislature those decisions of this and other courts "in which Wisconsin statutes or session laws are stated to be in conflict, ambiguous, anachronistic, unconstitutional or otherwise in need of revision."23 I suggest that the just cause provisions of Wis. Stat. § 62.13 are in need of legislative oversight.

¶ 102. For the foregoing reasons, I dissent.

Majority op., ¶ 77.

Id., ¶ 66.

Id., ¶¶ 62-64.

Id., ¶ 66.

Id., ¶ 64.

Id., ¶ 67.

Id., ¶ 64 (quoting American Heritage Dictionary of the English Language 322 (3d ed. 1992)).

Id., ¶ 6 n.3.

Wis. Stat. § 62.13(5)(em).

See, e.g., Wis. Stat. § 59.26(8)(b)2. ("The grievance committee shall immediately notify the accused officer of the filing of the charges and on request furnish the accused officer with a copy of the same."); § 59.26(8)(b)5m. ("No deputy may be suspended, demoted or discharged by the grievance committee under subd. 3 or 5., based on charges filed by the sheriff... unless the committee determines whether there is just cause, as described in this subdivision, to sustain the charges.")-, § 59.26(8) (b)5m.b. (committee determination should be based on consideration of "whether the rule or order that the deputy allegedly violated is reasonable").

The majority opinion concludes that that the absence of similar express language in § 62.13 relating to incompetence of police officers suggests that grounds of incompetence for demoting police officers are not subject to a just cause hearing. While this inference is reasonable and supports the majority opinion's reading of the statute, these other parts of Wis. Stat. § 59.26 contravene the majority opinion's reading of § 62.13(5).

Wis. Stat. § 59.26(8)(b)5m.

Kaiser v. Bd. of Police & Fire Comm'rs, 104 Wis. 2d 498, 503, 311 N.W.2d 646 (1981).

Hussey v. Outagamie County, 201 Wis. 2d 14, 20, 548 N.W.2d 848 (1996).

Majority op., ¶ 65 n.19.

Wis. Stat. § 62.13(5)(a).

Wis. Stat. § 62.13(5m)(c) (emphasis added).

Jadair Inc. v. U.S. Fire Ins. Co., 209 Wis. 2d 187, 195, 562 N.W.2d 401 (1997); Braun v. Wis. Elec. Power Co., 6 Wis. 2d 262, 268, 94 N.W.2d 593 (1959).

Kraus asserts that the police chief characterized the reason for a reduction in rank as nondisciplinary only after the this court's decision in Antisdel v. Oak Creek Police & Fire Commission, 2000 WI 35, 234 Wis. 2d 154, 609 N.W.2d 464, was released.

The same problem arises in the companion case released today, City of Madison v. WERC. The firefighter in WERC argued in his brief that his reduction in rank was the result of a "heated discussion" he had with a superior, the letter from the chief informing him of the reduction in rank is silent on the reason, and the hearing examiner employed to resolve the *532dispute held that it was an open question as to whether the revocation of his probationary status constituted "appropriate discipline for the violation of a work rule.” Although both parties conceded that the reduction in rank was due to nondisciplinary reasons, the facts of City of Madison v. WERC provide an example of the potential for the decision in the present case to be applied with broad strokes to difficult facts.

Majority op., ¶ 65 n.20.

Wis. Stat. § 13.93(2)(d).