State Supreme Court News

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By JR ROSS
Associated Press Writer
MADISON, Wis. (AP) - Police officers and firefighters who fail
to complete probationary promotions for nondisciplinary reasons are
not entitled to a hearing to appeal the decision, the state Supreme
Court ruled Friday in separate cases.
The court also explicitly granted police chiefs and police and
fire commissions the authority to promote officers on a
probationary basis.
The justices ruled 6-1 that the City of Waukesha Police and Fire
Commission acted properly when it denied Steven E. Kraus a hearing
to appeal a decision to return him to his rank of patrol officer.
He had failed to successfully complete a probationary promotion to
sergeant.
They also voted 4-3 that Madison firefighter Chris Gentilli was
not entitled to an arbitration hearing after the chief told
Gentilli his probationary promotion had been revoked.
Officers are given probationary promotions to gauge how they
will perform in a higher rank before assuming the job permanently.
State law requires a hearing when an officer fails to complete
probation because of disciplinary reasons.
John Fuchs, Kraus' attorney, said Friday's decisions mean those
officers have greater protections under state law than those who
fail a probationary promotion for nondisciplinary reasons, such as
their performance.
Chiefs "can just unilaterally declare you're not doing a good
job and not give him a hearing," Fuchs said.
Kraus joined the Waukesha Police Department in 1990 and the
chief promoted him to sergeant in 1997, subject to his successful
completion of a one-year probationary period. A week before the
period ended, Kraus was told he had failed to complete the
probation, though no specific reason was given for his return to
patrol officer.
Kraus then asked the police and fire commission for a hearing,
arguing the chief had no authority under state law to grant a
probationary promotion and he was entitled to a hearing on what his
rank should be.
The commission denied the request, saying a hearing was not
required because his failure to complete probation was based on
performance.
A circuit court upheld the commission's decision and Kraus
appealed. The appeals court sent the case directly to the Supreme
Court.
The justices ruled that the power to grant probationary
promotions is inherent to police chiefs and commissions, although
it is not expressly spelled out in state statutes.
"Numerous management tools integrally related to appointment,
such as interviews, references and letters of recommendation, are
not expressly enumerated in that statute. These tools are not
forbidden simply because they are not enumerated," Justice David
Prosser wrote for the majority.
Gentilli was promoted in 1995. But 11 months into his 12-month
probation, the chief told him the probation had been revoked.
Gentilli filed a grievance through his union seeking
reinstatement to his promotion with back pay and benefits
associated with the higher rank.
The union then filed a complaint with the Wisconsin Employment
Relations Commission, which ruled Gentilli was entitled to
arbitration.
A circuit court agreed, and the appeals court sent the case
directly to the Supreme Court.
The Supreme Court reversed the ruling, saying the authority to
determine who is qualified for appointment and promotion rests
solely under state law with the chief and the police and fire
commission and may not be transferred to an arbitrator.
Attorney Bruce Ehlke, who represented Gentilli, said chiefs and
police and fire commissions now have the authority to trump
officers' rights to arbitration.
"Police and firefighters should expect further diminution of
their rights," he said.
Gentilli was dismissed from the Madison fire department on an
unrelated incident as part of an investigation into drug use by
firefighters. Ehlke said part of Gentilli's appeal of his dismissal
is still pending in court.
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On the Net:
State Court System: http://www.courts.state.wi.us/

(Copyright 2003 by The Associated Press. All Rights Reserved.)

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MADISON, Wis. (AP) - Police and fire commissions can hire
independent hearing examiners to speed up disciplinary cases
against police officers or firefighters, the state Supreme Court
ruled Tuesday.
A Madison firefighters' union sued to stop the city's police and
fire commission from using hearing examiners to expedite cases as
part of an investigation into cocaine trafficking at a downtown
Madison bar. The union claimed having an examiner, rather than the
full commission, hear cases violates firefighters' and police
officers' due process rights.
But the state Supreme Court said in a 4-3 decision that
implementing the rule permitting hearing examiners "provides a
rational and efficient means of carrying out the board's duties."
Justice Patrick Crooks, writing for the court's majority, said
firefighters' due process rights are not harmed because the
commission, not the hearing examiner, makes the final decision.
Madison Fire Chief Debra Amesqua filed disciplinary charges
connected to the drug investigation against seven firefighters
alleging they used or sold cocaine. Five firefighters were fired
after an investigation, and four of those firings were upheld in
court. Two others were demoted and suspended.
The commission, made up of community residents, usually meets
only during evenings or weekends. State law requires the department
to pay firefighters while they are under suspension, which was one
reason the commission wanted to expedite the cases, said commission
attorney Scott Herrick.
"We had cases that were going on for three months," he said.
The union appealed after the 4th District Court of Appeals ruled
hiring examiners was within the board's authority under state law.
The appeals court decision overturned Dane County Circuit Judge
Moria Krueger, who said state law doesn't include justification for
hiring examiners.
Aaron Halstead, an attorney for Firefighters Local 311, did not
immediately return a telephone message Tuesday to The Associated
Press.
Herrick said the commission didn't get to use hearing examiners
in the drug-related cases because it put those plans on hold while
the court challenge was pending. But Herrick said the decision will
have statewide impact, and he expected other city police and fire
commissions to adopt similar rules.
Chief Justice Shirley Abrahamson and Justices William Bablitch
and Ann Walsh Bradley dissented from the majority opinion.
Abrahamson wrote the effect of the rule is to "transform the board
from a decision-making body into a reviewing body and eliminate the
right of Madison police officers and firefighters to request a
hearing before the board."
Abrahamson said the decision, along with two decisions the court
released last week, erode the rights of police officers and
firefighters to obtain a just cause hearing before the police and
fire commission.
The court ruled in those decisions that police officers and
firefighters who fail to complete probationary promotions for
nondisciplinary reasons are not entitled to a hearing to appeal the
decision.
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On the Net:
Wisconsin Court System: http://www.courts.state.wi.us

(Copyright 2003 by The Associated Press. All Rights Reserved.)