Andrade v. City of Milwaukee Bd. of Fire & Police Comm'r

411 Wis. 2d 340

Erik A. Andrade, Petitioner-Appellant-Petitioner,

v.City of Milwaukee Board of Fire and Police Commissioners, Respondent-Respondent.

Supreme Court

No. 2020AP333. Oral argument, October 9, 2023.—Decided April 30, 2024.

(Affirming 399 Wis. 2d 390, 965 N.W.2d 178.)

2024 WI 17

(Also reported in 5 N.W.3d 261.)

REVIEW of a decision of the Court of Appeals. Affirmed.

For the petitioner-appellant-petitioner, there were briefs filed by Brendan P. Matthews and Cermete & Matthews, S.C., Milwaukee. There was an oral argument by Brendan P. Matthews.

For the respondent-respondent, there was a brief filed by Stacie H. Rosenzweig and Halling & Cayo, S.C., Milwaukee. There was an oral argument by Stacie H. Rosenzweig.

An amicus curiae brief was filed by Scott B. Thompson, T.R. Edwards, and Law Forward, Inc., Madison, on behalf of Black Leaders Organizing for Communities.

An amicus curiae brief was filed by William E. Fischer, Kyle J. Gulya, and Von Briesen & Roper, S.C., Neenah, on behalf of League of Wisconsin Municipalities.

An amicus curiae brief was filed by Jonathan Cermele and Cermele Law, S.C., Milwaukee, on behalf of Milwaukee Police Association and Green Bay Professional Police Association.

¶ 1. BRIAN HAGEDORN, J. Former Milwaukee Police Officer Erik Andrade challenges his termination for a series of posts and comments he made on Face- book. The posts garnered significant local and national attention following a civil rights lawsuit that brought them to light. As part of its internal investigation into the posts, the Milwaukee Police Department informed Andrade of the policies he potentially violated and scheduled an interview. During that interview, Andrade reviewed and read the relevant portions of those policies out loud. The investigator then questioned Andrade about the posts, one by one. Andrade was afforded the opportunity to respond to their intended meaning, his understanding of how they might be received by the public and affect the Department's work, and whether he believed they violated Department policy.

¶ 2. Following the internal investigation, the Department formally charged Andrade with violating two policies. Both charges cited Andrade's posts as the basis for the violations. The responsibility then shifted to Chief of Police Alfonso Morales to determine his guilt and impose the appropriate punishment. The Chief had internal affairs reach out to the Milwaukee County District Attorney's Office, which explained that Andrade's posts would diminish his credibility in court so severely that they would no longer use him as a witness. Given the critical importance of testifying in police work, this fact convinced the Chief that termination was appropriate. The Chief formally found Andrade guilty of the charges and discharged him for one of them. The Chief filed a complaint containing the same charges and allegations with the entity that reviews his decision—the Board of Fire and Police Commissioners. Neither the initial charges, the Chief's order of discharge, nor the complaint with the Board mentioned Andrade's inability to testify.

¶ 3. After a full evidentiary trial, the Board issued a detailed decision determining that Andrade was guilty of the violations and the punishments he received were appropriate. Andrade then filed two actions in the circuit court. The first—a statutory appeal under Wis. Stat. § 62.50(20) (2017–18)¹—focused on whether there was just cause to sustain the charges.² The second—a petition for a writ of certiorari—alleged that the Board committed legal and jurisdictional errors. The circuit court upheld the Board's decision, Andrade appealed on his certiorari petition, and the court of appeals affirmed.

¶ 4. Before us, Andrade challenges his termination on procedural grounds. First, he contends it fell short of the Fourteenth Amendment's due process guarantee. He argues that due process required the Department to explain why Chief Morales terminated him instead of imposing a lesser form of discipline. As such, the Department should have told him that Chief Morales made his decision based on the DA's determination that they would no longer use Andrade as a witness. Andrade insists that the Department's failure to tell him this prior to termination means he was not given an explanation of the evidence supporting his termination in violation of the United States Supreme Court's decision in Cleveland Board of Education v. Loudermill.³

¶ 5. The law does not support Andrade's claim. For public employees terminable only for cause, Loudermill generally entitles a terminated employee to notice of the charges, an explanation of the evidence supporting them, and some pre-termination opportunity to respond. The scope and nature of the pretermination procedures can vary depending on the nature of the post-termination proceedings and the interests that are implicated. The Fourteenth Amendment's due process guarantees in this context are not rigid and formal; they are flexible, giving employers wide latitude on the process and nature of the notice due when terminating employees.

¶ 6. Here, the Department notified Andrade of his conduct (the Facebook posts) and what policies this conduct violated. The Department provided Andrade an opportunity to respond to the allegations before the Chief imposed punishment. The Chiefs decision to terminate was confirmed after a full administrative hearing before the Board, as well as judicial review of the Board's decision. We conclude the Due Process Clause does not require a more exacting and rigid pre-termination process than what Andrade received.

¶ 7. Andrade's second argument is that Chief Morales's complaint did not comply with Wis. Stat. § 62.50(13) because it did not sufficiently explain the reasons for the discharge. However, the complaint listed the policies Andrade violated and referenced the Facebook posts that formed the basis for the violations. The statute requires nothing more.

I. BACKGROUND

¶ 8. On January 26, 2018, Milwaukee police officers arrested Milwaukee Bucks player Sterling Brown, using force and shocking him with a Taser. Officer Erik Andrade transported Brown to the police station after his arrest. Later that day, Andrade posted about the encounter on his personal Facebook page.⁴ Over the following months, Andrade posted a number of other "inappropriate, disrespectful and defamatory comments"—as the Chief would later describe them—on Facebook.

¶ 9. Sometime later, a member of the City of Milwaukee Common Council shared Andrade's posts with the Department. The Department's Internal Affairs Division opened an investigation in May. Things escalated on June 19 when Sterling Brown sued the City, Chief Morales, and the police officers present at the scene of his arrest, including Andrade. Brown's complaint cited many of Andrade's offensive posts as an admission that Andrade and other officers could engage in "unlawful attacks and arrests of African Americans without justification" or a "fear of real discipline." That same day, the Milwaukee Journal Sentinel published an article about the lawsuit featuring Andrade's posts.

¶ 10. The day after Brown filed the lawsuit, an officer from Internal Affairs called Andrade to inform him that they were investigating allegations he posted inappropriate content on social media. Internal affairs also sent Andrade a written notice, which he signed, that summarized several of the offending posts and referenced two Department policies (called "Core Values") that his conduct implicated.⁵ The notification further warned, "Disciplinary action may result," and set the date Andrade was "required to provide verbal responses and/or 'Memorandum' Reports(s)."⁶

¶ 11. Internal Affairs interviewed Andrade on June 28. During the interview, investigators asked Andrade to read aloud relevant portions of the Department policies he was given notice of earlier.

¶ 12. The first policy violation concerned social media use. This was based on Core Value 1.00 (entitled "Competence") referencing "Guiding Principle" 1.05. Core Value 1.00 reads: "We are prudent stewards of the public's grant of authority and resources. We are accountable for the quality of our performance and the standards of our conduct. We are exemplary leaders and exemplary followers." Guiding Principle 1.05 provides: "All department members shall be familiar with department policy, procedures and training and shall conduct themselves accordingly." Investigators therefore had Andrade read portions of the Department's social media policy during the interview. Andrade read Standard Operating Procedure 685.15(A)(5), which provides: "As public employees, members do not lose their rights under the First Amendment of the U.S. and Wisconsin constitutions. However, speech, on or off duty, pursuant to your official duties and professional responsibilities as members of the Milwaukee Police Department is not protected. Members are free to express themselves as private citizens on [social media sites] to the degree that their speech is not disruptive to the mission of the department." Andrade also read Standard Operating Procedure 685.15(A)(10): "Members must be aware that their communication on [social networking sites] can be used by a skilled defense attorney in impeaching testimony in association with their professional duties as a member of the department."⁷

¶ 13. In addition to the social media policies, Andrade was also asked to read Core Value 3.00 (entitled "Integrity") and Guiding Principle 3.01. Core Value 3.00 reads: "We recognize the complexity of police work and exercise discretion in ways that are beyond reproach and worthy of public trust. Honesty and truthfulness are fundamental elements of integrity. It is our duty to earn public trust through consistent words and actions. We are honest in word and deed." Andrade also recited Guiding Principle 3.01: "Our behavior shall inspire and sustain the confidence of our community. Whether on or off...