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Vidmar v. Milwaukee City Board of Fire Police Commissioners

Court of Appeals of Wisconsin, District I

November 15, 2016

Daniel J. Vidmar, Petitioner-Appellant,
v.
Milwaukee City Board of Fire Police Commissioners, Respondent-Respondent

         APPEAL from an order of the circuit court for Milwaukee County: Nos. 2014CV6204 2014CV6481, JOHN J. DiMOTTO, Judge. Affirmed.

          Before Curley, P. J., Kessler and Brash, JJ.

          BRASH, J.

         ¶1 Daniel J. Vidmar appeals an order affirming the decision of the Milwaukee City Board of Fire and Police Commissioners (Board) to permanently discharge him from his employment as a police officer with the Milwaukee Police Department (Department). Vidmar makes the following arguments on appeal: (1) the Board proceeded on an incorrect theory of law; (2) the circuit court wrongly concluded that deference was owed to the Board's findings of fact and credibility determinations; and (3) the circuit court erred by applying an incorrect standard of review. We disagree and affirm.

         BACKGROUND

         ¶2 Vidmar began working as a police officer for the Department in December 2004. In August 2012, Vidmar was working in the bicycle unit at the District 7 station.

         ¶3 On August 18, 2012, Officer Joseph Newell took possession of a dirt bike in connection with an arrest for disorderly conduct. When a bike is retrieved as part of an arrest, it is tagged with a number for inventory purposes. After the identifying number and a description of the bike are entered into the Department's computer system, a document entitled "Officer Drop Receipt" is generated. The "Officer Drop Receipt" is used by the Department to track property that it seizes. Officer Newell entered into the computer system that the person he arrested indicated that the dirt bike did not belong to him. The dirt bike was placed in the District 7 station inventory room for storage.

         ¶4 The Department has a standard operating procedure for disposing of bicycles that come into police possession, but are not claimed. It states in relevant part:

560.80 BICYCLES, MOPEDS, AND MINI-BIKES
Bicycles, mopeds, and mini-bikes less than 51 cc shall be maintained at all District Stations and processed in the following manner:
C. Prior to initiating the disposal process on an inventoried bicycle, moped, or mini-bike, NCIC and CIB shall be checked a second time for stolen/wanted and the printout must be attached to the white copy of the Property Inventory.
D. Bicycles, mopeds, and mini-bikes will be retained for thirty (30) days if ownership cannot be established. If the owner is known, complete and mail a Property Release Letter (Form PP-47) to the owner and attach a copy of the letter to the original inventory. The bicycle, moped, or mini-bike shall be retained for thirty (30) days from the date of the Property Release Letter being mailed.
F. All bicycles, mopeds, or mini-bikes or parts thereof, not returned to the lawful owner or claimant shall be maintained at each district station.
G. Property Control will dispose of all unclaimed bicycles not picked up by the owner or claimant.
H. Disposal of bicycles shall be done expeditiously and in accordance with City Ordinance 102.11(6)(7).
I. Bicycle disposal generated revenue will be deposited in the Milwaukee Police Department's Bicycle Equipment Special Purpose Fund in accordance with City Ordinance 304.25.5.

(Some formatting changed; italics in original).

         ¶5 In late August 2012, Vidmar saw the dirt bike in the inventory room at the District 7 station and thought it would be good for his son. Vidmar asserts that he contacted the Department's Property Control Division and was advised that if the dirt bike was unclaimed after thirty days in inventory, he could claim it as long as someone else was listed as the claimant. Vidmar waited thirty days and filled out a PO-5 "Order for Property" form, omitting the date and description of the dirt bike.[1] In the space for the property claimant's name, Vidmar wrote "Mark Dempski." Vidmar took the PO-5 form to Sergeant Lawrence Mueller and asked him to sign the form to release the dirt bike. Sergeant Mueller testified that he signed the form because he trusted that the information Vidmar provided was correct. Vidmar took the bike home a few days later.

         ¶6 During the summer of 2012, Officer David Ziebell was assigned the task of auditing all bicycles inventoried at each of the Department's district stations. In reviewing the PO-5 form associated with the dirt bike, Officer Ziebell noticed that it was incomplete. The name listed on the form was also familiar to him-Mark Dempski-although the person Officer Ziebell knew spelled it "Demski."[2] Officer Ziebell confirmed that Mark Demski had not claimed the dirt bike, and, after further investigation, discovered that the dirt bike was in Vidmar's possession. Soon thereafter, Vidmar returned the dirt bike to the District 7 station.

         ¶7 Officer Ziebell brought the PO-5 form to Lieutenant Robert Menzel, who contacted Captain Regina Howard. Subsequently, Vidmar met with Captain Howard regarding the incident, although it is disputed who initiated this meeting. Captain Howard advised Vidmar that his actions were improper and provided him with a copy of the Code of Conduct. Captain Howard did not refer the matter to Internal Affairs. The conversation between Captain Howard and Vidmar would likely have marked the end of this matter if not for an anonymous letter sent to the Board. This letter, dated November 19, 2012, states in relevant part:

Lt. Menzel, acting captain at Property the [sic] Division, found out a District 7 officer, Daniel Vidmar, filed [sic] out an inventory form involving a bicycle worth approximately $1500.00. Officer Vidmar waited a certain amount of time and then decided to release the bicycle to himself, he took the bike by falsify [sic] paperwork. Officer Vidmar, but [sic] a false claimant down, forged a person's name and walked out of District 7 with the bike, while he was being carried as Injured on Duty.
Lt. Menzel knew this, called Capt. Howard and District 7 and they both wept [sic] this under the rug. Lt. Menzel said Capt. Howard owes him a favor now. This was clear cut theft and forgery. Officer Zibel [sic] from the Property Division called the claimant, whom [sic] Officer Vidmar's report [sic] took the bike. The individual said he never received a bike from the Milwaukee Police Department.
All Capt. Howard did was call Officer Vidmar and tell him to return the bike. The rest ...

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