Court of Appeals Suggests Possible Path To Waiver of PFC Review
Can a municipality and a public safety employee agree to waive the disciplinary process before a police and fire commission under Wis. Stat. § 62.13(5). Yes, at least in some circumstances, according to the Wisconsin Court of Appeals.
City of Janesville v. WERC, 193 Wis. 2d 492, 535 N.W.2d 34 (Ct. App. 1995), held that Wis. Stat. § 62.13(5) provides the exclusive method for law enforcement officers to challenge discipline and that a labor union’s proposal for arbitration of grievances related to discipline was a prohibited subject of bargaining. City of Menasha v. Wisconsin Employment Relations Comm’n, 2011 WI App 108, 335 Wis. 2d 250, 802 N.W.2d 531, recognized that by enacting Wis. Stat. §§ 111.70(4)(c)2.b. and (4)(mc) the Wisconsin Legislature had abrogated the City of Janesville decision. In 2011, the legislature then reversed itself, abolishing those sections, essentially resuscitating City of Janesville from the legal graveyard.
But this legislative yo-yo on the ability to “opt out” of the PFC disciplinary process was of no consequence to the court in State ex rel. Beck v. Lamb, 2017AP969 (Wis. Ct. App. July 25, 2018). In Beck, the waiver was made in the context of a “Last Chance Agreement” between Officer Beck and his employer, the City of Fond du Lac. The LCA was the product of a 2014 settlement between Beck and the City to resolve an investigation of Officer Beck’s honesty.
Pursuant to the LCA, Beck received a short suspension and agreed that any further “untruthful conduct” by him would constitute “cause” for his immediate discharge. He also agreed that any investigation into his alleged untruthful conduct would include a Loudermill hearing but would not be subject to the PFC procedure under Wis. Stat. § 62.13(5). Instead, reminiscent of the procedures that could be used during the brief period when Wis. Stat. § 111.70(4)(c)2.b. was in effect, the LCA afforded Lamb the right to appeal the investigation’s findings to the Wisconsin Employment Relations Commission (“WERC”).
Lamb tried to have it both ways. He resigned his employment, in order to preserve his vacation pay, and then grieved the matter to the WERC. But the WERC dismissed the grievance on the basis that Beck had voluntarily resigned. Beck then filed an action in circuit court seeking a writ of mandamus to order his reinstatement, alleging the LCA was a void and unlawful agreement to circumvent Wis. Stat. § 62.13(5). The circuit court agreed and ordered Beck’s reinstatement.
The court of appeals reversed. Rejecting Beck’s reliance on City of Janesville, the court stated that Beck failed to show “that a procedure that is exclusive and mandatory is also necessarily individually unwaivable.” Beck, ¶ 16 (emphasis added). The court also rejected Beck’s reliance on Faust v. Ladysmith-Hawkins School Systems, 88 Wis. 2d 525, 277 N.W.2d 303, on motion for reconsideration, 88 Wis. 2d 525[JM1], 281 N.W.2d 611 (1979) (per curiam) for the proposition that statutory procedures protecting both a private interest and a public policy purpose could not be waived. Concluding that Faust was limited to its peculiar facts, the court held it did not apply to void the LCA under which Beck knowingly and intentionally waived his statutory rights in the context of settling misconduct allegations. Beck, ¶¶ 17-21.
The result in Beck should not be construed broadly. The court emphasized that the question of a “prospective officer forsaking statutory PFC rights to land a job are not the facts before us.” Beck, ¶ 24. It emphasized that there was substantial caselaw addressing waivers of rights in the context of LCA agreements, suggesting that its holding here may be limited to that context.
Given that Beck is not recommended for publication, it is citable only “for its persuasive value.” Wis. Stat. § 809.23(3)(b). However, it does suggest that an individualized waiver of the PFC disciplinary process may be permissible, notwithstanding City of Janesville’s general prohibition upon opting out of the PFC process.
 See 2011 Wisconsin Act 32, §§ 2407dg and 2409cp, effective July 1, 2011.
 A due process hearing afforded under Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).