Eau Claire County v. General Teamsters Union Local No. 662

CANE, C.J.

(dissenting). I respectfully dissent. Contrary to the majority's conclusion, I conclude that under our court's rationale in City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995), the statutory termination and appeal proce*652dures for deputy sheriffs under §§ 59.21 and 59.07(20), Stats.,1 are exclusive and cannot be modified by a collective bargaining agreement.

In this discharge proceeding, the County followed the statutory procedures for discharge under § 59.07(20)(b), Stats., and the statutory just cause hearing was held before the Committee on Personnel, acting as the civil service commission, on October 30, 1996. This was a full evidentiary hearing. Witnesses testified and were cross-examined; all testimony was transcribed; and exhibits were received into evidence.

After the commission found just cause for the discharge, a written notice was sent to Rizzo informing him of his statutory right to appeal the decision to the circuit court. No appeal was taken to the circuit court. Instead, Rizzo sought another just cause hearing before an arbitrator when he filed the prohibitive practice complaint. The County, on the other hand, filed a declaratory judgment action, thus joining the issue of whether the statutory circuit court review is the sole and exclusive remedy following an adverse decision of the commission. The circuit court agreed with the County, and this appeal followed.

It is important to observe that when enacting 1993 Wis. Act 53, effective November 25, 1993, the legislature inserted nearly identical disciplinary and appeal procedures into ch. 59, Stats., for deputy sheriffs and into ch. 62, Stats., for police officers. The procedures parallel each other almost word for word. In both procedures, charges are filed before a governmental body which must hold a public hearing to determine *653whether the statutory just cause standards have been met. If the decision is adverse to the law enforcement officer, he or she may appeal to the circuit court. If the circuit court sustains the order, it becomes final and conclusive.

As the County points out, before 1993 Wis. Act 53, no just cause due process hearing was required before the sheriff could discharge a deputy. Rather, before 1993 Wis. Act 53, the deputy's recourse was through the contractual grievance procedure which allowed up to forty days for the Committee on Personnel to review the sheriff s decision. If upheld, the decision could be appealed to arbitration within twenty days. Consequently, under this procedure, the deputy could go without pay for months before the process was completed.

The legislature addressed this situation in 1993 Wis. Act 53 by restricting the sheriff s authority to dismiss a deputy until the commission is convinced that just cause supports the discharge. No longer can the sheriff exercise independent authority and dismiss a deputy without pay and await arbitration. Now, until the commission files its written decision, the deputy's pay and employment status is maintained. Also, the statute gives the deputy a speedy court review of the commission's decision. Interestingly, an attempt was made through Senate Substitute Amendment 1 to 1993 Senate Bill 66 to give deputies the option of appealing the commission's order to either the circuit court or an arbitrator. However, that amendment was not incorporated into the final version of 1993 Wis. Act 53. While the legislature refused to give this option in the Act, Rizzo now attempts to have this court do what the legislature specifically refused to do.

*654Obviously, when enacting 1993 Wis. Act 53, the legislature was not only correcting what it perceived as an inequitable discipline and discharge process for sheriff deputies and police officers, it also was making the process the same for all law enforcement officers by developing a nearly identical procedure for deputies in ch. 59, Stats., and police officers in ch. 62, Stats. Thus, our rationale in City of Janesville becomes important, especially if the procedures are to remain identical as the legislature intended.

In City of Janesville, we specifically rejected the notion that a dismissed police officer could proceed with arbitration rather than participating in the just cause hearing before the commission. Id. at 509-11, 535 N.W.2d at 41-42. We held that because the commission was the exclusive body to conduct the just cause hearing and only that decision was subject to court review, allowing arbitration would render the statutory procedures meaningless. Id. at 504-05, 535 N.W.2d at 39-40. We concluded, therefore, that when there was an irreconcilable difference between the statutory procedure and the arbitration provisions of the collective bargaining agreement, the statute controls. Id. at 509-11, 535 N.W.2d at 41-42.

The same rationale applies here. If the deputy can decline to seek court review of the commission's decision and instead obtain a de novo hearing before an arbitrator on the just cause issue, the required statutory just cause hearing and subsequent circuit court review become meaningless.2 I would adopt our ratio*655nale in City of Janesville and likewise conclude that there is an irreconcilable difference between the statutory procedure and the arbitration provisions of the collective bargaining agreement. A contract provision that runs counter to an expressed statutory command is void and unenforceable. See, e.g., Drivers, etc., Local No. 695 v. WERC, 121 Wis. 2d 291, 297-99, 359 N.W.2d 174, 177-78 (Ct. App. 1984). Consequently, the statute must control.

As the trial court here correctly stated:

What the defendant seeks is for the court to adopt what the legislature has rejected and add the provision for independent de novo fact finding by the arbitrator. . . . Accordingly, the irreconcilable conflict between the arbitration provisions of the collective bargaining agreement and the statutes renders the arbitration provisions of the collective bargaining agreement invalid and void.

Both chs. 59 and 62, Stats., indicate that the deputy or officer "may" appeal the commission's decision to the circuit court. The word "may" simply means that *656the deputy or officer "may" appeal the commission's decision to the circuit court for speedy review, nothing more. By no stretch of the imagination can this mean that the legislature preserved the route of arbitration after the deputy or officer participated in the statutory just cause hearing. Otherwise, why require the statutory hearing before the commission and circuit court review of that decision? To have a trial run before going before the arbitrator? Obviously not.

Also, I find unpersuasive the majority's conclusion that because the governmental body holding the just cause hearing in ch. 62, Stats., was the Police and Fire Commission and in ch. 59, Stats., was the Committee on Personnel acting as the civil service commission, there is a difference in the bodies sufficient to justify a conclusion that the legislature must have intended to allow arbitration after the required statutory just cause hearing in ch. 59. It is a distinction without a difference. Both commissions act independently in deciding whether there is just cause for the imposed discipline or discharge. Under both procedures, the circuit court may then review the commissions' decision, not the arbitrator's, which if sustained becomes final and conclusive.

Unfortunately, because of the majority's holding, we now have two different procedures relating to deputy sheriffs and police officers. Under the holding in City of Janesville, the statutory procedure in ch. 62, Stats., is the exclusive method of dealing with an officer who is disciplined or removed. However, under the majority's holding in this case, ch. 59, STATS., is not the exclusive method of dealing with a deputy who is disciplined or removed. This is not what the legislature intended when enacting 1993 Wis. Act 53 for both deputy sheriffs in ch. 59 and police officers in ch. 62.

*657I conclude that because Rizzo failed to seek circuit court review, the commission's order became final and conclusive. Thus, I agree with the circuit court's holding that WERC is enjoined from holding any proceedings on the prohibited practices complaint.

Chapter 59, Stats., was recodified by 1995 Wis. Act 201 effective September 1, 1996. Section 59.07(20) was renumbered § 59.52(8), Stats. Section 59.21 was renumbered § 59.26, Stats. See 1995 Wis. Act 201 §§ 134, 273.

The County argues that we should adopt the rationale in Milas v. Labor Ass'n, 214 Wis. 2d 1, 571 N.W.2d 656 (1997), and conclude that Rizzo should be estopped from seeking arbitration after participating in the statutory just cause hearing and losing. The County argues persuasively that Rizzo knew from the *655very beginning that the commission's just cause hearing conducted was the statutory hearing and, therefore, he cannot now seek arbitration after losing. However, it appears that under the collective bargaining agreement the deputy must first participate in a just cause hearing before the Committee on Personnel, which in this case acted as the civil service commission. It is unclear whether Rizzo could have sought arbitration before participating in the commission's just cause hearing. Because I agree with the County's argument that the holding in City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995), applies equally to ch. 59, Stats., it is unnecessary to address its contention that we should apply the rationale in Milas and hold that Rizzo is estopped from pursuing arbitration.