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State ex rel. Miller v. Milwaukee County Personnel Review Board

Court of Appeals of Wisconsin, District I

October 31, 2016

State of Wisconsin ex rel. Jacob D. Miller, Petitioner-Appellant-Cross-Respondent,
v.
Milwaukee County Personnel Review Board, Respondent-Respondent-Cross-Appellant, Milwaukee County, Respondent-Respondent.

         APPEAL and CROSS-APPEAL from an order of the circuit court for Milwaukee County Cir. Ct. No. 2014CV10572 PEDRO A. COLON, Judge. Modified and, as modified, affirmed; cause remanded with directions.

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

          BRENNAN, J.

         ¶1 Jacob D. Miller, a Milwaukee County Deputy Sheriff, appeals from a circuit court order affirming a Milwaukee County Personnel Review Board (PRB) disciplinary decision. The PRB imposed a 90-day suspension for rule violations, in lieu of discharge, followed by a career-long "re- evaluation period, " leading to a termination for any rule violation. Miller raises a Certiorari challenge to the PRB's imposition of a re-evaluation period contending that any re-evaluation period violates his right to a hearing and determination of "just cause" under due process and Wis.Stat. §§ 59.52(8)(b) and 63.10(2) (2013-14).[1]

         ¶2 The PRB counters that the re-evaluation period is permitted in general and cross-appeals that this particular re-evaluation period, with its permanent length, is permitted under the statutes, due process, and Milwaukee County PRB Rule VI, Section 8. Because the PRB already gave Miller a full "just cause" hearing and correctly determined that there was "just cause" to discharge Miller, the PRB argues, he has had his due process and the PRB has complied with the statutory requirements for a hearing. Under its own rule, the PRB asserts, it may, in effect, stay the Sheriff's recommendation of discharge and give Miller another opportunity to remain employed, provided he commits no new rule violation.

         ¶3 For the reasons that follow, we conclude that the PRB rule is not in conflict with the statutes, see Wis. Stat. §§ 59.52(8)(b) and 63.10(2), and affirm that portion of the circuit court's decision approving of a re-evaluation period. However, we further conclude that the terms of the re-evaluation period imposed on Miller do not comport with the PRB rule and must be modified. The circuit court found that only the term relating to length was impermissible and reversed just as to the length of the period. Our analysis differs somewhat from the circuit court, and we conclude the overly broad terms--of any and all rule violations for the entire length of employment--are impermissible. Therefore, although we affirm the order remanding to the PRB, we do so directing the PRB to impose terms that are consistent with this opinion.

         BACKGROUND

         ¶4 In November 2011, Miller and two other sheriff's deputies responded to a report of a suspected drunk driver who was "swerving between lanes, speeding and slowing its speed, and cutting off other vehicles." They conducted a traffic stop and learned that the driver was a retired law enforcement officer. At the scene of the stop, Miller observed that the driver showed several signs that he was intoxicated. However, none of the deputies investigated this possibility. Another deputy described the driver to dispatch as "sick" but, contrary to the rules for dealing with sick drivers, told dispatch not to send an ambulance. Instead, the driver was driven home by one of the deputies.

         ¶5 Others who heard the radio communications from the deputies noticed that they did not follow established procedures and suspected misconduct. Miller did not report the incident and was evasive when Criminal Investigations Division (CID) and Internal Affairs (IA) investigators interviewed him about the stop. He told them that he "want[ed] to protect" the deputy who took over. The Sheriff's Office charged him with violating rules and sought his discharge. Based on evidence gathered in the investigation, the PRB later determined following a hearing that Miller had "failed to take appropriate police action during a traffic stop … [and] failed to follow MCSO policies regarding sick or injured drivers, " and afterwards he "failed to report his conversation with [a second deputy involved][] and failed to be forthright about the incident with the CID and IA investigators." The PRB found that the evidence was sufficient to sustain the charges that Miller "violated Rule VII, Section 4(1) of the Civil Service Rules for Milwaukee County government." The PRB specified the following subsections:

(1) "Refusing or failing to comply with departmental work rules, policies or procedures, " specifically Milwaukee County Sheriff's Office Rules 200.00 Code of Conduct, 202.14 Violation of Policy to wit: 507.17.1 Injured/Sick Citizens, 202.17 Conduct of Members, 202.20 Efficiency and Competence, 202.33 Duty to Report Violations and 202.50 Neglect of Duty; (t) "Failure [or] inability to perform the duties of assigned position"; and (u) "Substandard or careless job performance."

         ¶6 However, in light of Miller's limited role in the stop and his lack of a prior disciplinary history during almost fifteen years with the Sheriff's Office, the PRB reversed the penalty of discharge and reinstated him. It ordered that "in lieu of discharge, Mr. Miller will serve a 90 working-day unpaid suspension[.]" The PRB also imposed a re-evaluation period to commence after the suspension that included the following terms, as relevant to this appeal:

4. Upon his return to work, Mr. Miller will serve [a] re-evaluation period until the end of his employment with Milwaukee County.
5. During the re-evaluation period, if Mr. Miller engages in any of the following or similar conduct or refuses or fails to comply with any departmental or county work rule, policy or procedure pertaining to the following, his actions or failure to act will constitute "just cause" for his discharge from County employment.
NOTE: Specific behaviors identified below might or might not have been alleged in the complaint against Mr. Miller, but are guidelines and examples presented for the benefit of the employee and County management:
a. Refusing or failing to comply with departmental work rules, policies or procedures. Mr. Miller shall abide by all departmental work rules, policies or procedures in a compliant manner. If Mr. Miller is uncertain of a departmental work rule, policy or procedure, he shall promptly notify his immediate supervisor that he needs clarification on the rule, policy or procedure or make any necessary effort to obtain clarification from supervisory personnel if his immediate supervisor is not available.
b. Failure or inability to perform the duties of assigned position. Mr. Miller shall perform the duties assigned to him in a matter [sic] that accords with the required duties of his job. If Mr. Miller has questions about how his job is to be performed, or if he is concerned about aspects of his job requirements, he is to notify his supervisor and request assistance and/or direction in the performance of his duties.
c. Substandard or careless job performance. Mr. Miller shall perform the duties assigned to him in a matter [sic] that accords with the required duties of his job. If Mr. Miller has questions about how his job is to be performed, or if he is concerned about aspects of his job requirements, he is to notify his supervisor and request assistance and/or direction in the performance of his duties.
The Board has imposed this re-evaluation period on the parties in order to provide Jacob D. Miller with an opportunity to rectify his conduct as delineated by the Board, so as to conform to the standards required by County management for such conduct. Mr. Miller shall be on notice that from the time of imposition of the re-evaluation period, failure to rectify his conduct in accord with the guidelines and examples presented by the Board for each civil service rule violation and to the satisfaction of county management may result in his being separated from county employment by the appointing authority at any time during the re-evaluation ...

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