Summary
In Irany v. Milwaukee County Civil Service Commission, 18 Wis.2d 132, 135, 118 N.W.2d 137 (1962), the court was presented with a situation where, in clear violation of the requirements, the employee was denied any hearing.
Summary of this case from State ex rel. Miller v. Milwaukee Cnty. Pers. Review Bd.Opinion
October 29, 1962 —
November 27, 1962.
APPEAL from an order quashing a writ of certiorari by the circuit court for Milwaukee county: RONOLD A. DRECHSLER Circuit Judge. Reversed.
For the appellant there was a brief and oral argument by Dominic H. Frinzi and Nicholas C. Catania, both of Milwaukee.
For the respondent there was a brief by Robert P. Russell, corporation counsel, and James J. O'Donnell, first assistant corporation counsel, and oral argument by Mr. O'Donnell.
James Irany, the appellant in this case, is employed as a probation officer for Milwaukee county. On April 7, 1961, Paul Kegel, the chief probation officer of the municipal and district courts of Milwaukee county, suspended the appellant from his employment for a period of three days and filed a written complaint with the Milwaukee County Civil Service Commission. At the same time, Mr. Irany wrote a letter to the commission requesting that it inquire into his suspension.
The appellant was accused of offensive conduct toward the public and disgraceful conduct while on duty. This accusation arose out of the appellant's participation in a disturbance outside a courtroom in Milwaukee county on March 28, 1961.
Upon receipt of this complaint, the Milwaukee County Civil Service Commission appointed members of its staff to conduct an investigation concerning the complaint. On July 24, 1961, a report was submitted to the commission by its staff investigators. After examining this report, the commission affirmed the action of the chief probation officer in suspending the appellant for a period of three days.
Following the action of the commission, the appellant requested the circuit court for Milwaukee county to issue a writ of certiorari to review the action of the Civil Service Commission, and a writ was issued on September 1, 1961. The circuit court subsequently entered an order on March 7, 1962, quashing the writ of certiorari. The instant appeal is from the order quashing the writ of certiorari.
Sec. 63.10, Stats., is pertinent to the decision in this case:
"(1) Whenever a person possessing appointing power in the county, the chief executive officer of a department, board, or institution, the county park commission, county election commission, civil service commission, and county board of welfare as to officers and employees under their respective jurisdictions, believes that an officer or employee in the classified service in his or its department has acted in such a manner as to show him to be incompetent to perform his duties or to have merited suspension, demotion, or dismissal, he or it shall report in writing to the civil service commission setting forth specifically his complaint, and may suspend the officer or employee at the time such complaint is filed. It shall be the duty of the chief examiner to file charges against any officer or employee in the classified service upon receipt of evidence showing cause for suspension, demotion, or discharge of such officer or employee in cases where a department head or appointing authority neglects or refuses to file such charges. Charges may be filed by any citizen against an officer or employee in the classified service where in the judgment of the commission the facts alleged under oath by such citizen and supported by affidavit of one or more witnesses would if charged and established amount to cause for the discharge of such officer or employee. The commission shall forthwith notify the accused officer or employee of the filing of such charges and on request provide him with a copy of the same.
"(2) The commission shall appoint a time and place for the hearing of said charges, the time to be within three weeks after the filing of the same, and notify the person possessing the appointing power and the accused of the time and place of such hearing. At the termination of the hearing the commission shall determine whether or not the charge is well-founded and shall take such action by 'way of suspension, demotion, discharge, or reinstatement, as it may deem requisite and proper under the circumstances and as its rules may provide. The decision of the commission shall be final. Neither the person possessing the appointing power nor the accused shall have the right to be represented by counsel at said hearing, but the commission may in its discretion permit the accused to be represented by counsel and may request the presence of an assistant district attorney to act with the commission in an advisory capacity."
The following is a long-standing administrative rule adopted by the commission regarding suspensions:
"Rule VII, Section 1 — SUSPENSION. Whenever a person possessing appointing power in the county, . . . believes that an officer or employee in the classified service in his or its department has acted in such a manner as to . . . have merited suspension, demotion, or discharge, he or it shall report in writing to the civil service commission, setting forth specifically his complaint, and may suspend the officer or employee without pay at the time such complaint is filed, but only for a reasonable period, not exceeding twenty-one workdays. The commission, either on its own motion or upon request of such employee, may, in its discretion, investigate any such suspension and in the case of its disapproval the suspended employee shall be immediately reinstated, and any part or all of the pay which he may have lost may be restored to him by order of the commission."
The rule adopted by the commission is in direct conflict with the statute enacted by the legislature and, accordingly, the former must fail. The legislative pronouncement requires a hearing before the Civil Service Commission when charges are made against a person in the classified service whereby such person is suspended, demoted, or dismissed. A regulation or rule adopted by the commission which precludes such hearing as a matter of right is defective.
The respondent urges that we construe the statute in such manner that suspensions be regarded differently from dismissals. The respondent concedes that a hearing is required when a civil servant is dismissed. Our analysis of the statute convinces us that the requirement for a hearing applies equally to suspensions and dismissals. Unless waived by the employee, a hearing is assured him by the statute.
In sub. (2) of sec. 63.10, Stats., the legislature has provided that "the commission shall appoint a time and place for the hearing of said charges, . . ." It is our interpretation of the statute that the "charges" for which the commission shall hold a hearing are the "charges" referred to in sub. (1) relating to "suspension, demotion, or dismissal."
In State ex rel. Esser v. McBride (1934), 215 Wis. 574, 577, 254 N.W. 657, this court stated, with reference to what is now sec. 63.10, Stats.:
"When a proper complaint is made to the commission, time and place for a hearing are to be appointed, notice given, and after the hearing the commission is to determine whether or not the charge is well founded, . . ."
While the foregoing case related to discharge rather than suspension, the language quoted would, in our opinion, be equally applicable to a suspension case.
We recognize that a long and uninterrupted interpretation of the law by those who have the task of applying it is persuasive as to its meaning. Trczyniewski v. Milwaukee (1961), 15 Wis.2d 236, 240, 112 N.W.2d 725. However, in State ex rel. Durando v. State Athletic Comm. (1956), 272 Wis. 191, 195, 75 N.W.2d 451, this court noted that such interpretation should be given great weight "unless it is plainly erroneous or inconsistent."
We are convinced that the commission's rule which fails to grant a hearing to a suspended civil servant is at odds with the statute and therefore cannot stand. That the suspension is only for a short period of time is immaterial in the face of the language of sec. 63.10, Stats. Mr. Irany was entitled to a hearing; it is apparent that he did not waive it. The circuit court should enter an order which directs the commission to hold a hearing or, upon its failure to do so, to set aside the suspension. By the Court. — Order reversed, and cause remanded with directions to enter an order in conformity with this opinion.
I concur with the majority opinion that sec. 63.10, Stats., required a hearing as a matter of right on this suspension and that the rule of the Milwaukee County Civil Service Commission to the contrary is invalid. A suspension with its attendant loss of pay to the employee and black mark on his personnel record can be almost as serious (especially if repeated) to the employee as removal or discharge. There is just as much reason for affording an employee a hearing on charges leading to suspension as on charges leading to removal or discharge.
I cannot concur with that part of the opinion remanding the matter to the circuit court with directions that an order be entered directing the commission to hold a hearing. In my opinion the commission has failed to order a hearing to be held "within three weeks" after the filing of the charge. If there was a breach of the statute, as there was, in the commission's failure to order a hearing on the suspension charge, it was just as much a breach not to hold the hearing within the time prescribed by the statute. It would not be "fair play" to expect the employee, over a year and a half after the alleged offense to now present his case at a hearing that should have been held within twenty-one days of the charge. State ex rel. Ball v. McPhee (1959), 6 Wis.2d 190, 199, 94 N.W.2d 711. I would therefore reverse the judgment and remand the cause to the circuit court with instructions to enter an order directing the commission to set aside the suspension and reimburse the employee for any pay loss that he has suffered as a result of the illegal suspension.