Conway v. BOARD OF POLICE & FIRE COM'RS

262 Wis.2d 1

2003 WI 53

662 N.W.2d 335

Joseph CONWAY, Jr., and the International Association of Firefighters, Local 311, AFL-CIO, Petitioners-Respondents-Petitioners, v. BOARD OF the POLICE AND FIRE COMMISSIONERS OF the CITY OF MADISON, Wisconsin, and Fire Chief Debra Amesqua, Respondents-Appellants.

No. 01-0784.

Supreme Court of Wisconsin.

Oral argument February 12, 2003.

Decided June 3, 2003.

For the petitioners-respondents-petitioners there were briefs by Aaron N. Halstead and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Aaron N. Halstead.

For respondent-appellant, Board of Police and Fire Commissioners of the City of Madison, there was a brief by Scott Herrick and Herrick & Kasdorf, LLP, Madison, and oral argument by Scott N. Herrick.

For the respondent-appellant, Fire Chief Debra H. Amesqua, there was a brief by Carolyn S. Hogg, assistant city attorney, and James L. Martin, city attorney, and oral argument by Carolyn S. Hogg.

An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities.

¶ 1. N. PATRICK CROOKS, J

Lieutenant Joseph Conway, Jr., and the International Association of Firefighters, Local 311, AFL-CIO (hereinafter collectively referred to as Conway), seek review of a published court of appeals' decision that reversed a circuit court declaratory judgment. The Dane County Circuit Court held that Rule 7.20 of the Board of the Police and Fire Commissioners of the City of Madison (board) was void, declaring that the rule was in excess of the board's statutory authority.

¶ 2. We affirm the decision of the court of appeals and hold that the board had express statutory authority to adopt Rule 7.20. That rule falls within the express statutory authority to promulgate "rules for the administration" of Wis. Stat. § 62.13(5) (1999-2000), in accord with Wis. Stat. § 62.13(5)(g). Rule 7.20 ensures that the ultimate decision-making authority remains with the board.¹

¶ 3. Accordingly, we agree with the court of appeals that "[r]ule 7.20 provides a rational and efficient means of carrying out the board's duties under § 62.13(5) and does not delegate to the hearing examiner the specific duties vested in the board under that section." Conway v. Bd. of Police and Fire Comm'rs of the City of Madison, 2002 WI App 135, ¶ 22, 256 Wis. 2d 163, 647 N.W.2d 291.

¶ 4. Our holding is consistent with this court's prior decisions leaving the means of carrying out administrative duties in the hands of the agency involved wherever possible. It is also consistent with the legislature's intent that Wis. Stat. §§ 62.01 to 62.26 be liberally construed in favor of the rights, powers, and privileges of cities, as long as compatible with the constitution and general law.

I. BACKGROUND

¶ 5. On December 8, 1999, the board adopted Rule 7.20, which allows the board to "engage a Hearing Examiner to conduct the Initial Hearing and the continuing evidentiary hearings" when disciplinary action is taken against a Madison police officer or firefighter under Wis. Stat. § 62.13(5).

¶ 6. Wisconsin Stat. § 62.13(1) and (2)(a) require cities with populations over 4000 to establish a board of police and fire commissioners. The legislature has granted Wisconsin's cities various powers concerning police and fire departments in accord with Wis. Stat. § 62.13. The mayor of each Wisconsin city with a population of 4000 or more must appoint a board of police and fire commissioners, according to Wis. Stat. § 62.13(1).

¶ 7. Wisconsin Stat. § 62.13(5) outlines the procedural steps for disciplinary action against a subordinate officer of a police or fire department. A subordinate officer may be suspended, reduced in rank, suspended and reduced in rank, or removed for just cause. Wis. Stat. § 62.13(5)(e) and (em). In addition to the specific duties outlined, the legislature granted to boards of police and fire commissioners the broad authority to make rules for the administration of Wis. Stat. § 62.13 under Wis. Stat. § 62.13(5)(g). Wisconsin Stat. § 62.13(5) states:

(5) Disciplinary actions against subordinates.

(a) A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate.

(b) Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate.

(c) A subordinate may be suspended for just case, as described in par. (em), by the chief or the board as a penalty. The chief shall file a report of such suspension with the commission immediately upon issuing the suspension. No hearing on such suspension shall be held unless requested by the suspended subordinate. If the subordinate suspended by the chief requests a hearing before the board, the chief shall be required to file charges with the board upon which such suspension was based.

(d) Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set [the] date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885.

(e) If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require.

(em) 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 board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable . . . .

(f) Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board.

(g) Further rules for the administration of this subsection may be made by the board.

(Emphasis added.)

¶ 8. The rule at issue in this case, Madison Police and Fire Commissioners Rule 7.20, provides that: "[t]he Board may engage a Hearing Examiner to conduct the Initial Hearing and the continuing evidentiary hearings." The rule also provides that at the initial hearing,² the hearing examiner is charged with the responsibility to rule on procedural motions, make rulings on discovery issues, set a date for the hearing and, where appropriate, dismiss the complaint filed against the subordinate employee. The hearing examiner is charged with the responsibility to hear the case and "prepare a comprehensive report including an evaluation of witness credibility and demeanor for review by the Board and including the recommendations of the Hearing Examiner regarding disposition of the charges."³ [1]

¶ 9. This matter commenced when Lieutenant Joseph Conway Jr., a member of the Madison Fire Department and President of the International Association of Firefighters Local 311, and Local 311, filed a motion in the circuit court for judgment on the pleadings. They sought a declaration that the board had neither express nor implied statutory authority to promulgate Rule 7.20. In particular, Conway asserted that because Wis. Stat. § 62.13 does not authorize the use of hearing examiners in a city with a population of more than 4000 persons, Rule 7.20 was in excess of the board's statutory authority.

¶ 10. On January 18, 2001, the circuit court, Judge Moria Krueger presiding, found that the board lacked statutory authority under Wis. Stat. § 62.13(5) to promulgate Rule 7.20, and granted the plaintiffs' motion for judgment on the pleadings. In doing so, the circuit court declared Rule 7.20 void. The court held that § 62.13(5) did not authorize the board to delegate to a hearing examiner the responsibility for conducting the initial hearing and the continued evidentiary hearing, in a case involving the suspension, reduction in rank, or removal of a subordinate police officer or firefighter.

¶ 11. The circuit court noted that the board did not cite to any agencies that utilize hearing examiners when there is no specific statutory authority to do so. Furthermore, the circuit court noted that in Wis. Stat. § 62.13(6m), the legislature provided for the use of a hearing examiner in the case of a city with a population of less than 4000. Consequently, the circuit court reasoned that had the legislature intended to permit the use of a hearing examiner for a city with a population of more than 4000, it could have done so specifically.

¶ 12. The circuit court issued a declaratory judgment declaring that Rule 7.20 was adopted in excess of the board's statutory powers, and that the board had no statutory authority under Wis. Stat. § 62.13(5) to delegate the responsibility for conducting hearings to hearing examiners or other persons not members of the board.

¶ 13. The board appealed, and the court of appeals reversed the circuit court's declaratory judgment. In doing so, the court of appeals found that the board had express statutory authority under Wis. Stat. § 62.13(5)(g) to adopt "a rule permitting a hearing examiner to carry out the tasks delineated in Rule 7.20,...