Police officers and firefighters manage difficult and often dangerous situations. Fortunately, most protective services employees are dedicated public servants, and smaller communities may see years go by without need for formal disciplinary action against an officer or firefighter. When an issue arises, the municipality must adhere to applicable procedures to reach a just resolution that will withstand judicial review.
The process for disciplining police officers and firefighters is a matter of statewide concern governed by state law. Absent agreement by the employee, a suspension, reduction in rank or termination can be imposed only after a due process hearing before a board of police and fire commissioners (“PFC”) or its equivalent. While the right to a hearing does not extend to newly-hired employees still in a probationary status, an employee promoted on a probationary basis is entitled to a hearing if a reduction in rank is based on misconduct allegations.
The disciplinary process is governed by Wis. Stat. § 62.13(5) and any administrative rules adopted by the PFC (“PFC rules”). PFC rules in some municipalities are posted online. This article provides an overview of the PFC disciplinary process.
Initiation of disciplinary proceeding.
Charges seeking discipline of a police officer or firefighter may be filed by a department chief, by a member of the PFC, the PFC as a body, or any aggrieved person. Complaints by “aggrieved persons” are also referred to as “citizen complaints.” Once charges are filed, the municipality should provide the PFC with legal counsel independent from municipal counsel to assist in managing the disciplinary process.
Upon the PFC finding “just cause,” an officer or firefighter may be “suspended, reduced in rank, suspended and reduced in rank, or removed.” For that reason, a chief will not file charges unless an unpaid suspension or greater penalty is sought.
While the PFC as a body or any member may file and prosecute charges, this is generally inadvisable. If an occasion arises where this is appropriate, the PFC should delegate its prosecutorial role to a special counsel. A PFC member who prosecutes should act solely in that capacity and should not participate in the decisional process.
The minimum requirements of a due process hearing include timely and adequate notice, an impartial decision-maker, and the opportunity to confront and cross examine adverse witnesses. Accordingly, disciplinary charges must contain sufficient detail to allow the respondent to prepare an adequate defense. The charges should be framed in light of the seven “just cause” standards. The charges should identify the department rule or order allegedly violated, describe any investigation of the charges, and set forth fact allegations supporting the charges.
The PFC must set a date for hearing not less than 10 days nor more than 30 days after service of the charges. Most matters will not be concluded within 30 days. While it is advisable to confirm the consent of the parties to continue the hearing beyond 30 days, if necessary, there is no reported decision suggesting that “continuing” the hearing beyond the 30 days violates the statute.
Typically the PFC sets an initial hearing to be held within 30 days of filing to address issues such as scheduling, discovery and pre-hearing motion practice. Months may elapse between the filing of charges and the final resolution, partly because due process requires that the employee be given a reasonable opportunity to be heard and partly because the PFC is composed of private citizens, often requiring that hearings be conducted during evening hours. If the charges are serious enough that termination is sought, commonly the employee is placed on a paid leave status pending resolution of the process.
PFC rules may allow for dismissal of charges without an evidentiary hearing, if the charges are facially groundless or frivolous, have been resolved in a prior proceeding, or the complainant lacks standing. Although the statutes do not address it, PFC rules may provide for pre-hearing discovery. A PFC that has not adopted such rules may consider allowing some discovery to avoid a possible claim of a due process deprivation upon later judicial review. If your PFC has not formally adopted administrative rules, it may be prudent to review rules developed in other municipalities to use as guidance in managing the pre-hearing process.
Hearing and Decision.
The evidentiary hearing is a quasi-judicial administrative proceeding. It is public. Both the complainant and respondent may compel the attendance of witnesses by subpoenas to be issued by the PFC president on request. The Wisconsin Supreme Court has upheld PFC rules providing for the employment of a hearing examiner to conduct both the pre-hearing process and the evidentiary hearing, at least where the rules have provided for the hearing to be videotaped. The PFC issues its final decision based on the evidence as well as the examiner’s report.
PFC rules may specify what, if any, evidentiary rules apply at the hearing. Given that the Wisconsin Supreme Court has described the hearing as having the elements of “fair play” fundamental to due process in an administrative law setting, following the procedures applicable in Case 3 contested hearings under Wis. Stat. ch. 227, including the rules of evidence set forth in § 227.45, should satisfy due process. Erroneous evidentiary rulings may result in a due process deprivation, which would require a new hearing.
The complainant bears the burden of proof by a preponderance of the evidence. The PFC’s deliberations on the evidence should be conducted privately with its counsel; other municipal officials should not be present. The PFC must issue its determination in writing within three days after the conclusion of the hearing. Counsel for the PFC will assist is crafting a decision that clearly states the PFC’s findings of fact and conclusions of law, as well as an order either imposing discipline or dismissing the charges. The written decision should address the seven just cause standards contained in Wis. Stat. § 62.13(5)(em). The decision and order must be filed with the secretary of the PFC.
If the PFC imposes discipline, the respondent has two avenues for judicial review: a right of statutory appeal to the circuit court under Wis. Stat. § 62.13(5)(i) and a petition to the circuit court for common law writ of certiorari. The respondent may pursue both avenues of review, and the resolution of issues on the appeal is not binding relative to issues on certiorari review, even though the issues on the two methods of review may overlap. These are the exclusive methods of review; the PFC’s decision cannot be collaterally attacked in another proceeding. A charging party can challenge the PFC decision to dismiss the charges by seeking certiorari review.
The statutory appeal focuses solely on whether there is just cause to sustain the charges. The respondent initiates an appeal by serving written notice on the PFC secretary within 10 days after PFC files its order. Service on the secretary must be in person. The secretary must certify the record to the clerk of circuit court within 5 days. Unless otherwise agreed by the parties, trial is to be scheduled not be later than 15 days after an application by either party. Trial is to the court on the record, but the court may require the return of further evidence. No costs are allowed and the municipality pays the clerk’s fees. If the PFC’s order is reversed, the respondent is reinstated and entitled to backpay. If the PFC’s order is sustained, respondent has no further no right of appeal.
Certiorari review is initiated by the respondent filing an action in circuit court and must be commenced within six months of the PFC action the respondent seeks to challenge. On certiorari, the court determines whether (1) the PFC exceeded its jurisdiction, (2) the PFC proceeded on a correct legal theory, (3) the PFC acted in an arbitrary, oppressive, or unreasonable manner that represented its will and not its judgment, and (4) whether the evidence was such that the PFC could reasonably make the determination at issue. Most allegations of error in the disciplinary process are addressed on certiorari review, given the limited scope of review on the statutory appeal. In contrast to the statutory appeal, the circuit court’s decision on certiorari review is subject to appellate review.
Discipline of employees in protective services poses a unique challenge to municipalities. This challenge falls to the PFC, a body ordinarily comprised of citizens not trained in the law. Providing the PFC with independent legal counsel to assist it in managing the process and conducting the disciplinary hearing best insures a just resolution that will withstand judicial review.
If you have questions about the PFC disciplinary process, contactPaul Schwarzenbart. Paul isa partner with Stafford Rosenbaum LLP, has extensive experience representing boards as well as individual clients in disciplinary hearings, and he has served as a member of the Village of Waunakee Police Commission. This article was prepared with the assistance of Attorneys Jeffrey A. Mandell and Holly J. Wilson, who are also members of Stafford’s Government Law Team.
This article originally appeared in the League of Wisconsin Munipalities' publication The Municipality.