By Mark Hollinger
In an opinion written by Chief Justice Shirley S. Abrahamson, the Wisconsin Supreme Court unanimously affirmed the decision of the Court of Appeals in the above-referenced case on May 2, 2000. The only issue in this case was whether the Oak Creek Police and Fire Commission erred when it denied Antisdel a just cause hearing under Wis. Stat. §62.13 (5) (em). The Supreme Court held that Antisdel was entitled to a “just cause procedure” pursuant to Wis. Stat. §62.13 (5) (em) to contest his reduction in rank from sergeant to police officer.
James Antisdel joined the Oak Creek Police Department in 1985 and was promoted to sergeant on March 1, 1996. After promotion Antisdel began the department’s “Police Sergeant Training and Evaluation Program.” This program was designed to train new sergeants until they were capable of handling the job without “coaching” from their supervisors. The department recognized that “the collective bargaining agreement did not expressly address probationary periods for those promoted to sergeant or other supervisory positions,” but nevertheless claimed that its “probationary promotion” of one year was a procedure “done in accordance with the customary practices of the Oak Creek Police Department since 1985 and is consistent with the collective bargaining agreement with the police union.”
On December 9, 1996, the chief sent Antisdel a memorandum regarding “Notification of Your Failure to Pass Probation.” Antisdel’s position as sergeant was taken from him on December 10, 1996, without any reason given or a “just cause” hearing under Wis. Stat. §62.13 (5) (em). A department investigation had determined that he had “allowed one of his colleagues to use his Oak Creek address so the colleague’s child could enroll in the Oak Creek High School without paying the nonresident tuition.” The memorandum alleged that Antisdel’s conduct was “inappropriate and unprofessional,” “resulted in the dissolution of public respect and confidence in the Oak Creek Police Department” and violated the department’s policy on unprofessional conduct. There was no indication that Antisdel was being demoted for his performance as a sergeant.
Both parties in this case focused on Kaiser v. Board of Police & Fire Comm’rs, each reasoning that this case supported their respective positions. In Kaiser the court held that a newly-hired probationary police officer has neither a constitutional nor a statutory right to a hearing pursuant to Wis. Stat. §62.13 (5) (em) because Wis. Stat. §165.85 (4) (b) limited a police officer’s hiring to that of a probationary officer. Antisdel argued that the Kaiser holding was not, and should not be, extended to newly-promoted police officers because “there is no specific statutory authority that mandates or authorizes a period of training or probation for sergeants or other supervisory employees.” The department argued that because the court recognized the value of having a probationary period for newly-hired police officers, the court should extend this policy rationale and deny the statutory procedures of §62.13 (5) (em), Stats., to newly-promoted police officers as well. The court replied as follows: ” . . . we agree with the plaintiff (Antisdel) that policy rationales cannot be employed to deprive employees of procedural rights guaranteed by the legislature. The issue is whether Wis. Stat. §62.13 (5) (em) applies to this plaintiff.”
The court in Antisdel examined the requirements of Wis. Stat. §62.13 (5) (em) to determine whether Antisdel was a “subordinate” who “is suspended, reduced in rank, . . . or removed . . . based on charges filed . . .by the chief . . ..” The department never contested the fact that Antisdel was a subordinate.
The department claimed that Antisdel was never reduced in rank because he was never promoted in the first place, arguing that the promotion was never made “permanent” until its one-year probationary period was successfully completed. The court rejected this argument because Antisdel was congratulated by the chief and paid at the sergeant’s rate.
The department also argued that its action taken against Antisdel was not disciplinary and thus it did not come within the protections of Wis. Stat. §62.13 (5) (em). The court also rejected this argument and ruled that the department’s action taken against Antisdel was disciplinary. Therefore, the demotion was subject to Wis. Stat. §62.13 (5) (em) because Antisdel was charged with acting inappropriately and unprofessionally and the chief’s demotion of Antisdel had nothing to do with Antisdel’s “actual performance as a sergeant.” The court did not decide whether it would reach the same decision if the plaintiff (Antisdel) were reduced in rank from probationary sergeant to police officer because he failed to meet the level of performance demanded by his superiors or for some other non-disciplinary reason.” Interestingly, here the court appears to narrow the definition of what is, or is not, discipline for purposes of determining what fits within the jurisdiction of a police and fire commission.
Various issues are likely to arise in the wake of Antisdel. For instance, many collective bargaining agreements have promotional provisions that refer to a “probationary” or “trial” period. Under these existing contractual provisions, a promotee may be subject to unilateral demotion by the employer without any just cause hearing. The court in Antisdel, however, expressly held that Wis. Stat. §62.13 (5) (em) applies to an individual subordinate who is demoted based on charges filed by the chief. A contract provision that runs counter to an express statutory command is unenforceable. Thus, the due process right for promotees created in Wis. Stats. §62.13 (5) (em), and recognized in Antisdel, is likely to be held to be irreconcilable with such contract provisions. Therefore, contractual language that provides for a probationary period for promotees is now null and void. If a municipality refuses to abide by the Antisdel decision, contact your business agent immediately.