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Schoen v. Bd. of Fire & Police Comm'rs

Court of Appeals of Wisconsin, District I

November 24, 2015

RICHARD SCHOEN, PETITIONER-APPELLANT,
v.
BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF MILWAUKEE, RESPONDENT-RESPONDENT

Submitted on Briefs August 3, 2015.

APPEAL from an order of the circuit court for Milwaukee County: DAVID A. HANSHER, Judge. Cir. Ct. Nos. 2013CV100, 2013CV1038.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Jonathan Cermele and Brendan P. Matthews of Cermele & Matthews, S.C. of Milwaukee.

On behalf of the respondent-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney by Maurita Houren, assistant city attorney of Milwaukee.

Before Kessler and Brennan, JJ., and Daniel L. LaRocque, Reserve Judge.

OPINION

KESSLER, J.

Page 233

[366 Wis.2d 282] [¶1] Richard Schoen appeals an order of the circuit court affirming the Board of Fire and Police Commissioners' (the Board) decision to discharge Schoen. The Board first found that Schoen acted with excessive force, in violation of Milwaukee Police Department Rules and Procedures.[1] In determining the penalty, the Board, by an oral decision, initially announced a 60-day suspension for the violation. The Board reconsidered that decision prior to issuing its written decision, which ultimately imposed discharge as the penalty. The circuit court, in Schoen's certiorari petition and appeal,[2] upheld the Board's decision to discharge Schoen. Schoen appeals.

[¶2] The sole issue here is whether the Board acted within its authority when, based on the Board's conclusion that its earlier disciplinary decision was based on a mistake of law, it changed its oral decision to suspend Schoen and discharged him instead. Schoen argues that the Board had no authority to reconsider its decision, regardless of the reason. We disagree and affirm.

BACKGROUND

[¶3] On May 1, 2012, Milwaukee Police Chief Edward Flynn discharged Schoen for use of excessive force. The discharge stemmed from an incident on [366 Wis.2d 283] September 22, 2011, after Schoen arrested J.T. Schoen stopped J.T.'s car and ultimately arrested J.T. for disorderly conduct. A squad car camera showed that upon arrival at the District Seven police station, Schoen removed J.T., who was handcuffed, from the backseat of the squad car by grabbing her shirt near her abdomen. Schoen punched J.T.'s head multiple times with one hand, while still clutching her shirt with the other. Schoen then grabbed J.T.'s hair, threw her to the ground, got on top of her and " delivered a knee strike." J.T. was escorted into the police station by another officer.

[¶4] Schoen appealed his discharge to the Board, pursuant to Wis. Stat. § 62.50(13) (2013-14).[3] A two-phase hearing, as required by statute and Fire and Police Commission Rule XVI, Sections 12-14, was

Page 234

held on November 28, 2012. In the first phase, the Board focused on the first five " just cause" factors, outlined by § 62.50(17)(b)[4] and Section 12 of the Commission Rules, to determine whether discipline should be imposed.[5] [366 Wis.2d 284] During the Phase One hearing, both parties submitted evidence, examined and cross-examined witnesses and made closing arguments. The Board then went into a closed session to deliberate.

[¶5] The Board reconvened on December 3, 2012, and announced in an open session that the charge against Schoen was sustained. The Board immediately proceeded to Phase Two to determine the appropriate discipline. The parties presented evidence primarily related to the last two " just cause" factors in Wis. Stat. § 62.50(17)(b) and Commission Rule XVI, Section 12. At the conclusion of evidence, the Board again went into a closed session to deliberate. In an open session later that day, the Board announced that it decided the penalty for Schoen's use of excessive force would be a 60-day suspension:

[HEARING EXAMINER JOHN] CARTER: Commissioners, this is a Phase II and 62.50(17)(b) 6 and 7 are the just cause standards.
[366 Wis.2d 285] Has the commission reached a decision?
COMMISSIONER COX: Yes, the commission has.
MR. CARTER: With respect [to] Just Cause Standard 6 which indicates that the rule fairly and without discrimination applied to the officer, has the commission determined that that has been met?
COMMISSIONER COX: That unanimously the commission believes that standard has been met.
MR. CARTER: Thank you. And with respect to Just Cause Standard 7, it is a two-to-one decision and the majority of the commission has determined that the chief's determination of a dismissal is not sustained and ... the appropriate ...

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