(dissenting). William S. Jessen has served as chief of police, sanitary landfill area attendant and assistant sewer operator for the Village of Lyndon Station for more than six and one-half years.1 He also serves as the elected constable of the Village of Lyndon Station — elected April, 1977, reelected April, 1979, and reelected April, 1981.
*498The decision announced today means that Jessen can no longer serve as chief of police. He can continue to serve as constable,2 a position whose powers and duties, although unclear under the statute,3 may overlap those of the chief of police. I do not know whether Lyndon Station, a village whose population was 533 in 1970 and 375 in 19804 will continue to employ Jessen as sanitary landfill area attendant or assistant sewer operator if he cannot also perform as chief of police. Whether or not Jessen remains an employee, the Village is now without a police chief.
1 dissent because I believe it is error for this court to make the determination, as it does here, that the circumstances of Jessen’s felony convictions in 1973 substantially relate to the present circumstances of his job as police chief and that he is therefore disqualified from being police chief in 1981. In my view the Law Enforcement Standards Board (LESB), not this court, should make this determination. In making the determination itself the majority has, I believe, usurped the powers of the LESB and of the Village Board of Lyndon Station; has exceeded its appellate jurisdiction by acting as a fact-finder; and has violated rudimentary concepts of fair play.
The absence of an LESB determination of whether a substantial relation exists between the circumstances of the convictions and of the job and the need for such a determination as of this date is best shown by detailing the facts in chronological order.
*499Jessen was convicted of 26 counts of misconduct (falsification of uniform traffic citations in violation of sec. 946.12(4), Stats. 1971) while chief deputy sheriff of Juneau county.5 He was sentenced in June of 1973 to the Wisconsin State Prison at Waupun, one year on each count, sentence on all 26 counts to run concurrently. The sentence was stayed and Jessen was placed on probation for a term of two years.6
On September 30, 1974, the Village Board of Lyndon Station hired Jessen, who was then on probation, to serve as chief of police, sanitary landfill area attendant, and assistant sewer operator. Initially Jessen was hired for a six-month probationary period and then on a permanent basis. It was the belief of the Board at that time that Jessen had been convicted of misdemeanors not felonies.7 The district attorney of Juneau county had in fact represented the charges against Jessen as misdemeanors. This error was caused by the legislature’s error in failing to state expressly whether a violation of sec. 946.12(4), Stats. 1971, was a misdemeanor or a felony. The trial court, the court of appeals and this *500court8 conclude that violation of sec. 946.12(4) was a felony. The soundness of the Village Board’s judgment in hiring as chief of police in 1974 a former Juneau county deputy sheriff who, 17 months earlier, had been convicted of 26 counts of falsifying traffic citations and who was on probation at the time he was hired is not the issue in this case.
In December 1974, the Village requested the LESB to certify Jessen as a qualified law enforcement officer. *501The LESB concluded that Jessen was ineligible for employment on a probationary, temporary, part-time, or full-time basis as a law enforcement officer by virtue of his having failed to comply with LES 2.01(1) (d), Wis. Adm. Code, a rule promulgated by LESB, which provides that an applicant for a position as a law enforcement officer shall not have been convicted “of any offense which if committed in Wisconsin could be punished as a felony unless the applicant has been granted an absolute and unconditional pardon.”9 Over two and one-half years later, on April 1, 1977, the office of the attorney general, representing the LESB, wrote the president of the Village Board of Lyndon Station that unless the Village Board immediately removed Jessen as Lyndon Station chief of police, the LESB would “proceed to institute the appropriate proceedings on behalf of the Board for such removal.” On July 8, 1977, the LESB initiated action against the Village Board asking the circuit court for Juneau county for relief in the form of the issuance of a writ of mandamus directing the Village to remove and discharge Jessen from his employment as chief of police.
Before the matter came before the Juneau county circuit court, the legislature enacted Chapter 125, Laws of 1977, effective November 1, 1977, adopting sec. 111.32 (5) (a) and (5) (h), Stats. 1979-80, prohibiting discrimination in employment because of an applicant’s arrest record or conviction record. See also sec. 111.325, Stats. 1979-80. The Wisconsin legislature clearly set forth the public policy of the State: Prejudice and legal barriers which unfairly deny employment opportunities to ex-offenders should be eradicated.10 The legislature care*502fully provided, however, that “it shall not be unlawful . . . [f]or an employer or licensing agency to refuse to employ or license, or to bar or terminate from employment or licensing, any person who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity.” Sec. 111.32 (5) (h)2.b., Stats. 1979-80.
The LESB however did not revise its rule, LES sec. 2.01(1) (d), Wis. Adm. Code, to bring it into harmony with sec. 111.32(5) (a) and (5) (h) and legislative policy.11 Nor did the LESB interpret LES sec. 2.01(1) (d), *503Wis. Adm. Code, as the majority now interprets it, as being modified by sec. 111.32(5) (h) to mean that an applicant for a position as a law enforcement officer shall not have been convicted “of any offense which if committed in Wisconsin could be punished as a felony” (LES sec. 2.01(1) (d), Wis. Adm. Code) if the “circumstances of [the felony conviction] substantially relate to the circumstances of the particular job or licensed activity” (sec. 111.32(5) (h)2.b.) “unless the applicant has been granted an absolute and unconditional pardon” (LES sec. 2.01(1) (d), Wis. Adm. Code).12
After enactment of sec. 111.32(5) (h), the Village Board specifically considered whether there was a substantial relation between the circumstances of Jessen’s conviction and his position of police chief and concluded that there was not.13 The LESB, by comparison, proceeded in its lawsuit without reviewing its rule or its position as to Jessen and urged the circuit court to hold that the LESB had authority to exclude all unpardoned felons from law enforcement positions.
*504The Juneau county circuit court in September 1978 adopted the LESB’s position. The circuit court concluded, as a matter of law, that LES 2.01(1) (d), Wis. Adm. Code, renders convicted and non-pardoned felons ineligible to serve as law enforcement officers; that LES 2.01(1) (d) is not voided by sec. 111.32(5) (h), Stats. 1979-80; and that sec. 111.32(5) (h) is not violated by enforcement of LES 2.01(1) (d). The majority rejects these conclusions of law and affirms the order and judgment on grounds not considered by the circuit court.
The court of appeals based its affirmance of the circuit court order and judgment not on LES 2.01(1) (d), Wis. Adm. Code, or on sec. 111.32(5) (h), but on the Wisconsin Constitution. The court of appeals held that sec. 3, Art. XIII, Wis. Const., barred Jessen from serving as chief of police. The majority need not and properly does not concern itself with this constitutional issue. I disagree with the reasoning of the court of appeals on this issue and find the reasoning set forth by Judge Bablitch in her dissenting opinion, Wisconsin Law Enforcement Stds. Bd. v. Lyndon Station Village, 98 Wis.2d 229, 251, 295 N.W.2d 818 (Ct. App. 1980), legally sound and persuasive.
As this restatement of the facts demonstrates, neither the LESB, nor the circuit court, nor the court of appeals has considered the issue of whether the circumstances of Jessen’s convictions substantially relate to the circumstances of the job.
The majority — after correctly concluding that rule LES 2.01(1) (d) must be interpreted in harmony with sec. 111.32(5) (h) as barring only those felons, “the circumstances of [whose convictions] substantially relate to the circumstances of the particular job or licensed activity” — goes on to make that determination on its own, without a factual record, and to “hold that the circumstances of Jessen’s convictions for falsifying uni*505form traffic citations substantially relate to his duties as police chief for the Village of Lyndon and thus [Jes-sen] is barred from holding a law enforcement position in Wisconsin.” Supra, p. 492.
The majority does not state its authority or rationale for this ab initio determination.
The courts may have power to review the decision of a village board or the LESB as to whether a particular applicant meets the qualifications, but a court should not, as the majority does here, ab initio determine whether or not an individual is disqualified on the basis of his conviction record. The legislature has said that the village boards and the LESB — not the courts — have the authority to determine whether an individual meets the qualifications which the village boards and the LESB have established for police officers.
The legislature has granted power to the village board to select police officers. The village board is empowered “to act for the government and good order of the village . . . for its health, safety, welfare and convenience of the public.” Sec. 61.34(1), Stats. 1979-80. The legislature makes clear that the statutory powers granted the village board are broad, and the powers granted in sec. 61.34(1), Stats., are “in addition to all other grants and shall be limited only by express language.” Sec. 61.34 (1), Stats. 1979-80.
The village board’s power to select police officers has, however, been limited by express statutory language. In 1969 the legislature created the LESB14 which is *506authorized to establish state-wide minimum educational and training standards for law enforcement officers15 and to certify persons as being qualified to be law enforcement officers.16 The legislature also empowered the LESB to fix “minimum qualifications for the employment of law enforcement officers as relate to the competence and reliability of persons to assume and discharge the responsibilities of law enforcement officers, and the [LESB] shall prescribe the means for presenting evidence of fulfillment of these requirements.” Sec. 165.85(4) (c), Stats. 1979-80. The LESB has not afforded Lyndon Station or Jessen the opportunity to present evidence to the LESB that Jessen has fulfilled the requirements set forth in LES 2.01 (1) (d), Wis. Adm. Code, as interpreted by the majority opinion announced today. The LESB has never determined — with or with*507out a hearing — that the circumstances of Jessen’s conviction substantially relate to the circumstances of the job.
The import of secs. 61.34(1), 165.85 and 111.32(5) (h), Stats. 1979-80, and LES 2.01, Wis. Adm. Code, is that the village board and the LESB, not this court, must make the determination whether the applicant meets the minimum qualifications for the job, including whether the circumstances of the conviction substantially relate to the circumstances of the job.17 In Wisconsin a conviction of a felony does not raise an irrebutable presumption of unfitness. The LESB must decide the issue of an ex-offender’s fitness on the basis of the statute, its rules and the evidence presented to it. When, as here, an agency fails to exercise the decision-making function delegated to it by the legislature, the court cannot and should not exercise it. Many cases can be cited to illustrate this well-recognized principle. Reidinger v. Optometry Examining Board, 81 Wis.2d 292, 260 N.W.2d 270 (1977), is particularly relevant to the instant case. Reidinger’s license to practice optometry was revoked by the Optometry Examining Board in 1975 pursuant to sec. 449.07 (1) (d), Stats. 1975, which empowered, but did not require, the Optometry Board to revoke a license if the licensee was convicted of any felony.18 Reidinger was convicted of federal income tax evasion. He was in*508vestigated by the Optometry Board and participated in the subsequent hearing on license revocation. The Optometry Board concluded that because Reidinger had been convicted of a felony, his license should be revoked. This court remanded the matter to the Optometry Board because the Optometry Board had failed to exercise its discretion. The Optometry Board’s duty to protect the public, we said, can only be done on facts set forth in the Board’s action based on the record before it.19 In the instant case, a mandamus action, this court cannot, as a matter of procedure, remand the matter to the LESB. The court can, however, reverse the decision of the court of appeals and quash the writ thereby enabling *509the LESB to make the essential determination which is missing in this case.20
One possible rationale supporting the majority’s making this ab initio determination is that the majority views the question of whether there is a substantial relation between the circumstances of the convictions and the position of police chief as a question of law which this court may decide ab initio.21 The application of the legal standard “substantially relates” to the facts is generally, but not invariably, viewed as a question of law for purposes of judicial review. This court might well give weight to a determination of the LESB if made after seeing and hearing the witnesses. Such a determination might well be viewed as being in the area *510of the LESB’s expertise.22 Here, however, the LESB has made no such determination.
The resolution of the issue of substantial relation, even if a legal question, must be predicated on findings of fact. A factfinder must determine the circumstances of Jes-sen’s conviction and of the duties of the job. A determination of the duties of the chief of police of Lyndon Station might involve both factual findings and conclusions of law, that is, an interpretation of the state statutes and the village ordinances. No such findings as to the conviction or the duties have been made by the LESB or the circuit court. The majority makes no mention of these missing factual determinations and apparently is prepared to act in a factual vacuum or supply the findings it needs. It is not the function of an appellate court to make factual determinations. Cf. Wurtz v. Fleichman, 97 Wis.2d 100, 107, 293 N.W.2d 155 (1980).
Even if I were to conclude, as the majority does, that this court can ab initio determine whether the circumstances of the convictions substantially relate to the circumstances of the job, I do not think that the court can on the basis of this record determine either the circumstances of Jessen’s conviction or his duties as police chief of Lyndon Station.
The record does not contain the circumstances of Jes-sen’s conviction. Essentially the record consists of the pleadings, lengthy briefs of the parties in the trial court, the decision of the trial court and the stipulation of facts entered into between the parties. The pleadings do not state facts which would be helpful, even if we *511considered the facts as admitted as true for purposes of deciding the question of substantial relation. There was no trial at which evidence was submitted and the parties’ stipulation does not supply the needed facts. The stipulation basically sets forth the chronology of events which is set forth in the majority opinion and in this opinion.23 None of these documents describes the circumstances of the offense. Certainly those circumstances exist.
I believe that Jessen and Lyndon Station might, if given the opportunity, provide relevant information about the circumstances of Jessen’s conviction. Jessen had defended himself against the charges by claiming that the sheriff of Juneau county and other employees had committed the offenses, not he. The jury obviously did not believe Jessen. After his conviction and after serving probation Jessen sought relief from the conviction, asserting that his attorney had learned that the Wis*512consin Department of Justice had not disclosed at trial information in its files which revealed that the sheriff of Juneau county had committed misdeeds in office. Jessen also asserted that a representative of the Wisconsin Department of Justice informed his counsel that the investigation against that particular sheriff of Juneau county was terminated when the sheriff resigned from office.24 Jessen’s motion for post-conviction relief came to this court. This court denied Jessen relief on procedural grounds and did not review the merits of Jes-sen’s claim that he had been denied due process of law as a result of the unconstitutional suppression of evidence by the state. This court held that a circuit court has no jurisdiction to entertain Jessen’s postconviction motion or grant him relief because he was no longer under sentence. Jessen v. State, 95 Wis.2d 207, 290 N.W.2d 685 (1980). Although Jessen was unsuccessful in reopening the convictions, his assertions might be important to the determination of whether the circumstances of his conviction substantially relate to the duties of his job.
The record is similarly devoid of facts relating to the circumstances of Jessen’s job. Is Jessen the only police officer in the Village? If not, how many officers does he command ? The duties of village police chief are probably set forth in part by law and in larger part by custom.25 Jessen has been police chief for six and one-half years. If this court is going to decide whether there is a substantial relation between the circumstances of the conviction and the circumstances of the job, as both *513the statute and the majority opinion require, it ought to look at what Jessen is doing on the job.
The majority errs, I believe, in deciding this case on a record devoid of facts or evidence regarding Jessen’s conduct prior to the convictions, Jessen’s conduct upon which the convictions are based, Jessen’s conduct after conviction, or the nature of the job of Lyndon Station police chief.
And the majority does not even consider the significant evidence there is on this threadbare record. For example the majority fails to consider that more than nine years have elapsed since Jessen committed the crimes; that Lyndon Station is prepared to prove that Jessen has successfully performed as a law enforcement officer for nearly seven years; that Lyndon Station can prove (I assume) that Jessen has had no convictions since 1973; that Jessen can continue to serve as constable; and that Lyndon Station is prepared to prove by testimony of Juneau county law enforcement officers that if Jessen is discharged law enforcement in the Village and Juneau county will be affected adversely.26 The *514only fact the majority has considered is that Jessen was convicted of felonies committed while he was a law enforcement officer. Although announcing a test which accurately reflects the statutory language, i.e., do the circumstances of the conviction substantially relate to the duties of the job, the majority in applying the test fails to recognize the difference between the circumstances of the conviction and the existence of a conviction.
Perhaps because the record lacks the necessary facts, the majority does not explain what the statutory phrase “substantially relate” means; it does not provide any guidelines for the agencies or circuit courts to use in applying the statutory test of “substantially relate;” and it does not explain how it applied the statutory test to the “facts of this case.”
In determining whether there is a substantial relation between the circumstances of the conviction and the circumstances of the job, I would consider such factors as the potential impact of the offense on job performance; whether the job provides an opportunity for the commission of similar offenses; whether the circumstances leading to the offense still exist or are likely to recur; whether the person has committed other offenses since conviction; whether the person’s conduct since conviction makes it likely that he will commit other offenses ; the rehabilitative efforts of the person including job history and reputation in the community; and the *515time elapsed since conviction.27 I do not propose at this time to give weights to each of these factors or to state further the way in which they should be balanced, but it is clear that the majority has not considered them and has not indicated what consideration these or similar factors ought to be given.
I view the majority opinion as limited to its facts— namely a felony committed nearly seven years ago by a law enforcement officer. Nevertheless, I am concerned that the opinion might be read to bar forever all un-pardoned felons from being law enforcement officers. The majority says “We agree with the LESB that employment of a non-pardoned felon in a law enforcement capacity would only serve to undermine the public’s trust in its police officers as well as the ability of such persons to adequately perform the duties of officers of the law.” The majority cannot intend this language to bar all unpardoned convicted felons from all law enforcement positions, because the majority would then be rewriting sec. 111.32(5) (h), not interpreting it. The Wisconsin legislature did not exclude law enforcement officers from the substantial relation test.28
I reluctantly conclude that the majority has violated rudimentary concepts of fair play by ordering Jessen *516removed without giving either Jessen or the Village of Lyndon Station an opportunity to present evidence on and to argue therefrom the issue of whether the circumstances of Jessen’s conviction in 1973 substantially relate to the circumstances of his job in 1981. Summary disposition of this issue by the majority without any factual record not only violates the state legislative mandate but also offends state and federal constitutional guarantees of due process. Cf. Application for Admission to Bar of Douglas Childs, 101 Wis.2d 159, 303 N.W.2d 663 (1981); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957).
Because the LESB has not determined that the circumstances of Jessen’s conviction substantially relate to the circumstances of the job and because the LESB has not determined that it cannot certify Jessen as a law enforcement officer under Rule 2.01(1) (d), as interpreted by the majority, the LESB has not demonstrated that it has a clear legal right to the issuance of the writ or that Lyndon Station’s duty is positive or plain; and the LESB has not shown that it has not been guilty of laches. These showings are prerequisites for the issuance of the writ. See majority opinion, p. 494. Furthermore the record shows that special reasons exist rendering resort by the LESB to the remedy of mandamus inequitable in this case.
I conclude that the circuit court erred as a matter of law in issuing the writ of mandamus, and for the reasons I have set forth, I dissent.
At the time he was hired, Jessen’s salary as chief of police was $450 a month, as sanitary landfill area attendant $100 a month, and as assistant sewer operator $100 a month. He was to receive a raise of $50 per month after six months.
The LESB has no jurisdiction over popularly elected officials. Sec. 165.85(4) (a)2., Stats. 1979-80. See also paragraph 8 of the Stipulation of Facts.
See State v. Christensen, 100 Wis.2d 507, 510, 302 N.W.2d 448 (1981).
Wis. Legist Ref. Bureau, 1980 Census of Population, Tables 9 and 10 (April 3, 1981).
See Jessen v. State, 95 Wis.2d 207, 290 N.W.2d 685 (1980).
On May 15, 1975, Jessen received a discharge from the Department of Health and Social Services, Division of Corrections, effective June 5, 1975. The discharge stated that “Any civil rights lost as a result of such judgments of conviction are restored by virtue of this discharge, under the provisions of section 57.078 of the Statutes of the State of Wisconsin.”
See paragraph 13 of the Stipulation of Facts which states:
“13. At the time the Village Board first appointed Mr. Jessen as a law enforcement employee, the members of the Village Board believed that Mr. Jessen had been convicted of misdemeanors and not felonies. This belief was based upon two letters from the District Attorney’s office which were made available to the Village Board which stated that the offenses of which Mr. Jessen was convicted were misdemeanors. Copies of the letters are attached hereto and incorporated herein as Exhibits D and E.”
While the majority holding that violation of sec. 946.12, Stats. 1971, is a felony is supportable, the method by which it is reached is not. The majority states: “In McDonald, supra at 577-681, we re-examined State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143 N.W.2d 437 (1966), and its progeny, and held that it is no longer necessary to engage in the legislative history analysis set forth therein when dealing with the question of whether an offense punishable with confinement of not more than one year and which fails to prescribe the institution of confinement is a felony or misdemeanor.”
In McDonald the court tracked two arguments together to reach its result, one based on a reading of secs. 346.67, 346.74(5), 939.60 and 973.02, Stats., the other based on the analysis of legislative history which State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143 N.W.2d 437 (1966), requires. While the McDonald opinion was clearly critical of the Gaynon decision, and while the McDonald opinion is subject to the criticism that it straddles the approaches of both majority and dissenting opinions in Gaynon, the McDonald opinion deliberately stopped short of either overruling or abandoning the Gaynon decision. The court clearly stated in McDonald that it was not willing to go that far, saying:
“Our examination of these cases leads us to question seriously the rationale of Gaynon .... Despite the foregoing, our holding in this case does not require that we expressly overrule Gaynon. We believe the legislative history of sec. 346.67 and its accompanying penalty section, sec. 346.74(5), reveal a clear intent that failing to return to the scene of an accident involving death or injury to a person be a felony, and thus Gaynon is not an obstacle to reaching that result.” McDonald, supra, 100 Wis.2d at 577.
The majority opinion in the instant case interprets McDonald as saying that it is no longer necessary to engage in the legislative history analysis. Yet in McDonald the court did engage in legislative history analysis at length, see 100 Wis.2d at 579, n. 7.
LES 2.01(1) (d), Wis. Adm. Code, became effective October 1, 1970, and was amended, effective February 1, 1975, to exempt pardoned felons.
The subjects of civil disabilities imposed on ex-offenders and employment discrimination have received increasing amounts *502of attention from courts, state legislatures, and commentators. See Potato, A Model Proposal to Avoid Ex-Offender Employment Discrimination, 41 Ohio St. L. J. 77 (1980); Perlman & Potato, The Uniform Law Commissioners Model Sentencing and Corrections Act: An Overview, 58 Neb. L. Rev. 925 (1979); Brantiegan, Rehabilitation and Occupational Licensing: A Conflict of Interests, 13 Wm. & M. L. Rev. 794 (1972); Special Project, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929, 1001-1117, 1155-1167 (1970); Comment, Employment of Former Criminals, 55 Corn. L. Rev. 306 (1970).
Several states have enacted statutes substantially similar to sec. 111.32(5) (h), Stats. 1979-80. See, e.g., Conn. Gen. Stat. Revision of 1958, Revised to 1981, see. 4-61q; Fla. Stat. sec. 112.011 (1979); Hawaii Rev. Stat. ch. 378 (1976); Minn. Stat., secs. 364.01-10 (1980); N.J. Stat. Ann., sec. 11:10-6.1 (West 1976) (civil service employment); Criminal Offender Employment Act N.M. Stat. Ann., secs. 28-2-1 to 28-2-6 (1978); N.Y. Corree. Law, sec. 750-755 (McKinney Supp. 1979-80); Wash. Rev. Code, secs. 9.96A.010-9.96A.050 (1979).
For the approach of the National Conference of Commissioners on Uniform State Laws, see sec. 4-1005, Model Sentencing and Corrections Act, 10 U.L.A. Cum. Ann. Pocket Part for use in 1981 at p. 212. For another view, see A.B.A. Criminal Justice Section Project on Standards Relating to the Legal Status of Prisoners, Tentative Draft of Standards Relating to the Legal Status of Prisoners, 14 Am. Crim. L. Rev. 377, 613-619 (1977).
Sec. 227.011(2), Stats. 1979-80, provides: “No agency may adopt a rule which conflicts with state law.”
The majority concludes that sec. 111.32(5) (h) modifies LES 2.01(1) (d), saying “Thus it is obvious that the statute, sec. 111.32(5) (h), modifies the administrative rule, LES sec. 2.01(1) (d) .... Further, we hold that Wis. Adm. Code LES sec. 2.01 (1) (d), as modified herein, and sec. 111.32(5) (h), Stats., are not in conflict.” Supra, pp. 491, 492.
The parties’ Stipulation of Facts states:
“15. As a result of the signing into law by Governer Schrieber on October 25, 1977, of Chapter 125, Laws of 1977, creating sec. 111.32(5) (h), Wis. Stats., the Village Board held a hearing at its regular meeting on March 13, 1978, to determine whether the circumstances of Mr. Jessen’s conviction of violation of sec. 946.12, Wis. Stats., related to the circumstances of his present law enforcement employment for the Village of Lyndon Station and concluded said conviction does not substantially relate to his current employment. Copies of the minutes of the March 13, 1978, hearing at the Village Board and the resolution duly passed by the Village Board are attached hereto and incorporated herein as Exhibits G and H.”
The legislature states its findings and policy in part as follows:
“165.85 Law enforcement standards board. (1) FINDINGS AND POLICY. The legislature finds that the administration of criminal justice is of state-wide concern, and that law enforcement work is of vital importance to the health, safety and welfare of the people of this state and is of such a nature as to require training, education and the establishment of standards *506of a proper professional character. It is in the public interest that such standards be established and that such training and education be made available to persons who seek to become law enforcement officers, persons who are serving as such officers in a temporary or probationary capacity and persons already in regular service.”
Sec. 168.85(3) (b), Stats. 1979-80:
“(3) POWERS. The board may:
“(b) Establish minimum educational and training standards for admission to employment as a law enforcement officer: 1) in permanent positions, and 2) in temporary, probationary or part-time status.”
Secs. 168.85(3) (c) and 168.85(4) (d), Stats. 1979-80:
“(c) [The board may:] Certify persons as being qualified under this section to be law enforcement officers.”
“(4) REQUIRED STANDARDS. . . . (d) The board shall issue a certificate evidencing satisfaction of the requirements of pars, (b) and (c) to any applicant who presents such evidence as is required by its rules, of satisfactory completion or requirements in another jurisdiction equivalent in content and quality to those fixed by the board under the board’s authority as set out in pars, (b) and (c).”
The Village Board argues, without citing authority, that it, not the LESB, has the final decision-making authority as to “substantial relation.” I cannot at this stage of the proceeding accept this position. It appears contrary to sec. 165.85. I do note, however, that the statutes do not make clear the relation of the LESB and the Village Board, the procedures to be used by the two, and the nature and scope of judicial review of their decisions.
The court noted in Reidinger that since the Optometry Board’s decision the legislature had amended the Optometry statute to make it subject to sec. 111.82(5) (a) and (h). Reidinger, supra, 81 Wis.2d at 299, n. 3.
In Reidinger the court said:
“In the statute under consideration here, it is clear that the Board ‘may’ revoke a license for conviction of a felony. It is equally clear that the Board may decide not to revoke a license when a licensee has been convicted of a felony. Under the statute, conviction of a felony does not raise an irrebuttable presumption of unfitness to practice optometry, but does raise a question for the board in the exercise of its discretion to determine. The choice lies within the discretion of the Board for one purpose only, to protect the public from incompetent or untrustworthy optometrists. As the Board pointed out in its brief, the legislative purpose in authorizing the suspension or revocation of a license for felony conviction is to protect the public interest and not to impose a second penalty for the criminal offense involved. Kachian v. Optometry Board, 44 Wis.2d 1, 6, 170 N.W.2d 743 (1969); State v. MacIntyre, 41 Wis.2d 481, 483-484, 164 N.W.2d 236 (1969). There is no reference to the protection of the public anywhere in the Board’s findings, conclusion or order. Neither is there any mention of the relationship between the particular felony conviction here, the circumstances surrounding it and the fitness of petitioner to continue in the practice of optometry.
“This court regards income tax evasion as a serious offense, but here there is not a word as to the Board’s view of the nature of the felony conviction much less as to how it relates to the protection of the public under the circumstances of this case.” Reidinger, supra, 81 Wis.2d at 298-299.
I believe Judge Bablitch of the court of appeals correctly analyzed the issue in her dissenting opinion in the court of appeals, 98 Wis.2d at 256-257, saying:
“The state undoubtedly has a high interest in protecting the public’s confidence in government and in ensuring that public offices are not misused for private gain, as the majority notes. It also has a high interest in identical goals with respect to the many professions it licenses to serve the public. I think the former interest is no better served than the latter by an across-the-board exclusion of a large class of individuals who may have committed a single act, remote in time, then characterized as felonious but having no ‘rational connection’ to the office they subsequently seek to hold. Schwwre v. Board of Bar Examiners, 353 U.S. 232, 239 (1957).
“For these reasons I would hold . . . that the Law Enforcement Standards Board could not lawfully require the discharge of this village police chief absent a factual showing that the circumstances of his conviction ‘substantially relate to the circumstances’ of his office. . . .”
But see Aetna Life Ins. Co. v. Mitchell, 101 Wis.2d 90, 303 N.W.2d 639 (1981), where a similar issue was classified as one of fact to be decided by the circuit court on the basis of a record made in the circuit court and reviewed by the supreme court to determine if the circuit court’s findings of fact are clearly erroneous and against the great weight and clear preponderance of the evidence.
See Aetna Life Ins. Co. v. Mitchell, 101 Wis.2d 90, 130, note 16, 303 N.W.2d 639 (1981) (Abrahamson, J. dissenting). See also Note, Labor Law — Unemployment Compensation — Voluntary Termination Not Found Where There is Meritorious Excuse for Refusal to Pay Union Dues Based on Religious Grounds, 64 Marq. L. Rev. 203, 207-210 (1980), for a discussion of judicial review of administrative agency decisions.
The Stipulation does state that if the matter went to trial witnesses would testify that Jessen served the Village well as Police Chief and that his removal would cause hardship:
“16. If this matter went to trial numerous citizens and officials would testify that Mr. Jessen has faithfully, diligently and honestly served the Village of Lyndon Station as a law enforcement employee.
“17. If the matter went to trial Juneau County District Attorney Michael Solovey, Juneau County State Probation and Parole Agent James Dallman; Juneau County Sheriff Jack Ripley, Father Gaffney of St. Marys, Lyndon Station and citizens and officials would testify the law enforcement needs of the Village of Lyndon Station include an increase in crime in juvenile delinquency and surrounding areas require a full-time law enforcement officer in Lyndon Station. Mr. Jessen is the only law enforcement employee of the Village of Lyndon Station, and his removal will result in danger to public health and safety. Moreover, 'this position will not be filled by another given the established salary of $700 per month which is all the Village is able to pay. Thus, the discharge of Mr. Jessen will result in great hardship and irreparable injury to the Village of Lyndon Station.”
It appears that prior to Jessen’s trial, the Governor had ordered an investigation of the Juneau County Sheriff’s office at Jessen’s request. Jessen v. State, 95 Wis.2d 207, 290 N.W.2d 685 (1980).
The Stipulation of Facts states:
“7. As a law enforcement employee, Mr. Jessen reports to, and obeys all orders of the President of the Village of Lyndon Station and the Village Board.”
The attorney general similarly concluded. In an opinion reviewing the legislative history and background of sec. 111.32 (5) (h) the attorney general stated that “the policy behind the antidiscrimination statute militates against any automatic disqualification of applicants with criminal records. The thrust of the statute indicates that all of the information presented by the applicant, including but not limited to the former offense, should be considered by the licensing agency.
“. . . [S]uch factors as the nature and number of offenses, the circumstances of the offense, the severity of the offense, the time intervening since the offense and any and all information evidencing rehabilitation of the offender, including job history and reputation in the community should be reviewed. Only then can an informed, nondiscriminatory decision be made as to the substantial relation of the conviction to the circumstances of the licensed activity and the applicant’s good moral character.” 68 OAG 202, 207-208 (1979).
See also sec. 4-100.5(c), Model Sentencing and Corrections Act adopted by the National Conference of Commissioners on Uni*514form State Laws in 1978, appearing in Cum. Ann. Pocket Part for use in 1981, 10 U.L.A., and sec. 10.4, A.B.A. Criminal Justice Section Project on Standards Belating to the Legal Status of Prisoners, Tentative Draft of Standards Belating to the Legal Stat-us of Prisoners, 14 Am. Crim. L. Rev. 377, 613-619 (1977), for criteria similar to the ones I have set forth.
For state statutes similar to Wisconsin, some setting forth guidelines similar to the ones 1 set forth for determining the “relationship”, see note 10 supra.
See Stipulation of Facts quoted at note 23 supra.
The legislature knew how to exempt law enforcement officers if it wished to do so. Sec. 111.32(5) (e), Stats. 1979-80, expressly exempts law enforcement employment from prohibitions against age discrimination. Prior to 1977 legislative bills prohibiting criminal-record based disqualifications contained specific exemptions for law enforcement.
Statutes in several states exempt law enforcement officers from the operation of the prohibition against discrimination against ex-offenders. See, e.g., Conn. Gen. Stat. Revision of 1958, Revised to 1981, sec. 4-6; Fla. Stat., sec. 112.011(2)(a) (1979); Minn. Stat., sec. 364.09 (1980); N.M. Stat. Ann., sec. 28-2-5 (1978); N.Y. Corree. Law, sec. 750(5) (McKinney Supp. 1979-80).