State of Wisconsin ex rel. Bryan W. Massman and Ryan M. Most, Petitioners-Appellants,
City of Prescott, City of Prescott Police Commission and Robert S. Funk, Respondents-Respondents.
from a judgment of the circuit court for Pierce County: Cir.
Ct. No. 2017CV209 JAMES DUVALL, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
Bryan Massman and Ryan Most appeal a judgment dismissing
their claims against the City of Prescott, the City of
Prescott Police Commission, and police chief Robert Funk
(collectively, the City). Most and Massman were terminated
from their employment as police officers during the
eighteen-month probationary period for new hires established
by the applicable collective bargaining agreement. They
assert that as a matter of contract they could be terminated
only for just cause. Most additionally argues that he was
entitled to statutory protection against termination without
just cause because he had served on a probationary basis for
more than one year. Together, they assert the City deprived
them of notice of the reasons for their termination and a
hearing at which they could challenge whether those reasons
met the "just cause" standard.
We conclude that the "just cause" protections under
the applicable collective bargaining agreement do not apply
to new officers who have not yet completed the initial
probationary period set forth in the contract. We further
conclude that, under longstanding precedent, Most is not
entitled to the protections against termination afforded by
Wis.Stat. § 62.13(5)(em) (2017-18). In reaching that
conclusion, we reject Most's argument that Wis.Stat.
§ 165.85(4)(a)3. limits the term of a probationary
period for all recruits to one year. Accordingly, we affirm
the judgment dismissing Most and Massman's complaint.
The City hired Most as a full-time law enforcement officer on
June 1, 2016. Massman was hired in the same capacity on
October 17, 2016. It is undisputed that, as officers, Most
and Massman were governed by a Labor Agreement between the
City and the Prescott Professional Police Association, a unit
of the Wisconsin Professional Police Association
(WPPA). The Agreement established an
eighteen-month probationary period for new hires, during
which time such employees could be "discharged without
recourse to the grievance procedure."
Most and Massman maintain that they never received formal
written reprimands, negative job performance reviews, or
disciplinary action during their tenure. In early 2017,
police chief Gary Kutkel took a leave from the police
department for health reasons. Following Kutkel's
departure, Massman questioned whether department policies
were being followed, including the department's vacation
pay policy. According to Massman, department leaders then
began excluding him from communications and otherwise ignored
On August 7, 2017, the City's police commission met in
closed session. After coming out of closed session, the
commission voted unanimously to appoint Funk as the
City's Interim Chief of Police. The commission also voted
unanimously to "have the Interim Chief of Police handle
the personnel issues as discussed in closed session."
The record does not reveal the content of the discussions
that took place during the commission's closed session,
but according to Funk, he was directed to "use [his]
discretion and proceed as [he] found appropriate regarding
Mr. Massman's and Mr. Most's employment."
The day following the commission meeting, Funk wrote to both
Most and Massman that their employment was being terminated
"due to ongoing job performance issues." The
letters mistakenly advised that the former officers would
have ten days to file a grievance regarding the termination
decision. Most and Massman both filed grievances,
and they subsequently met with Funk and the city attorney on
September 7, 2017. On September 14, the City notified Most
and Massman that, because of their probationary status, they
had no constitutional or statutory right to a statement of
reasons for their firing, a hearing to contest their
termination, or recourse to the grievance procedure
established by the Agreement.
In October 2017, Most and Massman filed a complaint seeking
certiorari review of their terminations. The complaint
alleged the City did not have just cause for the firings,
that it had breached the Agreement, and that by firing Most
it had violated Wis.Stat. § 62.13 regarding disciplinary
action against subordinate officers. Both parties filed
dispositive motions on March 1, 2018. Most and Massman filed
a "Motion for Certiorari Relief" seeking an order
reinstating them to their previous positions with full back
pay and benefits. The City, on the other hand, moved for
summary judgment, asserting that the former officers were not
entitled to certiorari review of their terminations or any
form of post-termination review because the officers were
at-will employees as a result of their probationary status.
The circuit court issued an oral ruling at a hearing on the
motions. The court concluded the Labor Agreement
unambiguously established that Most and Massman were
probationary employees and just cause was therefore not
required to terminate their employment. The court determined
that probationary periods for police officers were not
statutorily capped at one year. The court also concluded that
certiorari review of their terminations was not available to
the former officers. In the alternative, the court found the
Agreement ambiguous and concluded, based upon evidence
extrinsic to the contract, that neither the City nor the
Association intended to create any "for cause"
termination rights for probationary employees. Accordingly,
the court granted summary judgment in the City's favor.
Most and Massman now appeal.
Typically, our first task on appeal is to identify the
applicable standard of review. Here, the parties disagree
about whether we should apply the standards applicable to
certiorari review or the standards applicable when reviewing
a grant of summary judgment. Most and Massman argue
certiorari review is appropriate, under which we review the
municipality's decision using a highly deferential
standard that searches for only limited categories of
potential error. See Sliwinski v. Board of Fire &
Police Comm'rs of Milwaukee, 2006 WI.App. 27,
¶12, 289 Wis.2d 422, 711 N.W.2d 271. The City contends
that such an exercise would be futile, as there is no
reviewable municipal decision and the case was disposed of on
summary judgment, which we review de novo. See McAdams v.
Marquette Univ., 2018 WI 88, ¶19, 383 Wis.2d 358,
914 N.W.2d 708.
The determination of which of these standards applies is
interwoven with our consideration of the merits of the former
officers' claims. Ultimately, although they urge us to
treat this matter as a certiorari review, the former officers
agree that "neither the legal issues nor the standard of
review are affected by whether this court views the order as
arising from a summary judgment motion or consideration of
the merits of the request for certiorari
relief." For the reasons that follow, we conclude
that the former officers, due to their probationary status,
were not entitled to any form of certiorari review of the
City's termination decision. Accordingly, the correct
standard of review in this case is the one for summary
judgment, which we review de novo and which must be granted
if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.
See Wis. Stat. § 802.08(2).
Contractual Procedures Regarding Termination
Most and Massman first assert they are entitled to relief
because the City's termination of their employment
violated the Labor Agreement. They acknowledge that, under
Article 3 of the Agreement, they were classified as
probationary employees during the relevant term of
Section 3.01 Probation: All new employees hired
after October 1, 2012 shall be covered under the provisions
of this Agreement, but shall serve a one and a half year
probationary period, during which the employee may be
discharged without recourse to the grievance procedure.
added.) The grievance procedure, in turn, is contained in
Article 5, and it provides officers with a series of steps
and deadlines, culminating in arbitration, for addressing
"[a]ny dispute over the interpretation, application, or
alleged violation of any provisions of this contract."
Article 9 sets forth the provisions related to
"Discipline and Discharge." Section 9.01 broadly
discusses disciplinary action against officers and states
that review of such actions is available only ...