In Vidmar v. Milwaukee City Bd. of Fire Police Commissioners, No. 2015AP1832 (Ct. App. Nov. 15, 2016) (recommended for publication), the court of appeals upheld a decision by the Milwaukee City Board of Fire and Police Commissioners (Board) to terminate an officer for rules violations arising out of his falsifying a document that allowed him to take possession of an unclaimed dirt bike from police inventory.
In late August 2012, Daniel Vidmar, a police officer with the City of Milwaukee Police Department since December 2004, saw a dirt bike in an inventory room and thought it would be good for his son. According to Vidmar, he was told by an unnamed person in the Department’s Property Control Division 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 then completed and filed an official form for the release of the bike. He listed a friend as the “claimant” on the form, omitted the date and description of the bike, and misspelled the friend’s name. An audit of returned bicycle records disclosed the irregularities, which led to Vidmar returning the bike. That would have been the end of it, but for the Board receiving an anonymous letter disclosing the incident and suggesting that it was being swept under the rug. At that point a reference was made to the Department’s Internal Affairs Division for a more thorough investigation.
After a referral, the Milwaukee County District Attorney’s office chose not to charge Vidmar criminally. However, the District Attorney’s office advised the Police Department that it would not use Vidmar as a witness in future proceedings. The Milwaukee City Attorney’s office followed suit. In addition, an Assistant United States Attorney advised the Department that if Vidmar were to be called to testify as a witness, his office would be required to disclose the investigation regarding the bike.
At the conclusion of the internal investigation, Milwaukee Police Chief Edward Flynn discharged Vidmar based on three rules violations involving integrity and competence. The Board upheld the termination. Vidmar appealed that decision to the circuit court and also challenged the decision on certiorari. The circuit court affirmed the Board’s decision on appeal and dismissed the certiorari action. Vidmar appealed.
The court of appeals affirmed as well, rejecting Vidmar’s three arguments. The court rejected Vidmar’s first argument – that the Board proceeded on an incorrect theory of law when the Board concluded that he lacked the capacity to enforce federal and state laws and city ordinances in violation of the Department’s policies. The court agreed with the Board that the “capacity” to enforce the laws embraced the “full spectrum” of the responsibilities an officer may be called upon to undertake, including the “crucial” responsibility of giving testimony in court that is worthy of belief.
The court of appeals likewise rejected Vidmar’s second argument, that the circuit court gave undue deference to the board’s findings of fact and credibility determinations. Noting first that caselaw precluded Vidmar from making an evidence-based argument on appeal, the court concluded that “the Board made sufficient findings of fact and credibility determinations to supports its decision.”
Lastly, Vidmar argued that the circuit court applied an incorrect standard of review by focusing on the “reasonableness” of the Board’s decision rather than the “just cause” standard adopted by 1997 Wisconsin Act 237. The court rejected this argument. The court stated that the circuit court applied the correct standard of review by thoroughly considering each of the just cause standards in light of Vidmar’s arguments and found that there was sufficient evidence to support the board’s determination. Thus, the court upheld Vidmar’s termination.
This decision serves as a reminder that the statutory standards of appellate review in police and fire disciplinary cases are limited to whether the Board kept within its jurisdiction or applied correct legal theories. The court of appeals reviews the Board’s decision. It cannot, for example, set aside a PFC board’s findings of fact and credibility determinations or reweigh the evidence. For additional information about the PFC process in general, including appellate options, see Stafford's previous blog post on this topic.
If you have any questions about the PFC disciplinary process, contact a member of Stafford Rosenbaum LLP’s Government Law Team members.