2009 WI App 116
court of appeals of
published opinion
Case No.: |
2008AP1210 |
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Complete Title of Case: |
†Petition for Review filed. |
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Plaintiff-Respondent,† v. Organization, Defendant-Appellant. |
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Opinion Filed: |
June 16, 2009 |
Submitted on Briefs: |
December 2, 2008 |
Oral Argument: |
— |
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JUDGES: |
Fine, Kessler and Brennan, JJ. |
Concurred: |
— |
Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the defendant-appellant, the cause was
submitted on the brief of Nola J.
Hitchcock Cross of Cross Law Firm, S.C. of |
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Respondent |
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ATTORNEYS: |
On behalf of the plaintiff-respondent, the cause was
submitted on the brief of Alyson K. Zierdt of |
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2009 WI App 116
COURT OF APPEALS DECISION DATED AND FILED June 16, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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Plaintiff-Respondent, v. a Labor Organization, Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before Fine, Kessler and Brennan, JJ.
¶1 BRENNAN, J. The Washington County
Deputy Sheriff’s Association (WCDSA) appeals the trial court’s order
prohibiting arbitration of its grievance against the Sheriff. The trial court declared that the Sheriff’s
decision to staff the security screening station at the
Background
¶2
¶3 In May 2006, the WCDSA filed a grievance claiming that the hiring of the part-time special deputies, who were non-union, was a violation of the collective bargaining agreement. The WCDSA petitioned the Wisconsin Employment Review Commission (“WERC”) for arbitration. The County filed a declaratory judgment lawsuit and a petition for an injunction to prevent the arbitration. The parties submitted briefs and affidavits, and the trial court held a hearing on the County’s motions. The trial court made a factual finding, which is undisputed by the parties, describing the nature of the job involved in the grievance:
The nature of the job to which
Sheriff Rahn assigned the Special Deputies was performing courthouse entrance
security screening duties, including
manning a walk‑through metal detector and an x-ray machine to look for
weapons and other things that were not permitted in the Justice Center.
(Emphasis added.)
¶4 The trial court granted the County’s motion declaring that the grievance was not substantively arbitrable because the decision to staff the security screening station with special deputies was part of the Sheriff’s constitutionally protected duties. The trial court granted the County’s injunction request and ordered the WCDSA to withdraw the grievance. WCDSA appeals.
¶5 The facts in this case are undisputed, with one exception. WCDSA contends that the County Board Committee made the decision that special deputies would be hired. The County contends that the Sheriff made that decision. The trial court’s order of February 28, 2008, included the specific factual finding that the Sheriff made the decision to staff the security screening station with special deputies.
Standards
of Review
¶6 We review the trial court’s decision granting the County’s
motion for declaratory judgment without deference to the decision of the trial
court. See Ball v. District No. 4, Area Bd., 117
¶7 We review the disputed issue of fact in this case, whether
the County or the Sheriff made the decision to staff the security screening
station with part‑time special deputies, under the “clearly erroneous”
standard. See Noll v. Dimiceli’s, Inc., 115
I. The Trial Court’s Disputed Factual
Finding Is Not “Clearly Erroneous”
¶8 WCDSA argues that the decision to staff the security screening station with special deputies was really made by the County Board Committee and, therefore, the staffing decision was not part of the Sheriff’s exercise of his constitutionally protected powers. The County argues that the Sheriff made the staffing decision. The trial court found that the Sheriff made the staffing decision. That finding was not clearly erroneous.
¶9 There is evidence in the record supporting the trial court’s finding that the Sheriff was the one who made the decision. In his deposition testimony, Sheriff Rahn stated that he was the first to propose two full-time deputy sheriffs to staff the new security screening station. He agreed that if the County Board Committee had approved his initial proposal to hire two new full-time deputies, he would have staffed the security screening station with the new deputies. He acknowledged that he only revised the proposal because the County officials required him to do so. But on redirect by the County’s attorney, Sheriff Rahn testified that he revised the proposal because the County officials advised him to come back with additional options after they had discussed privatization of the staff at the security screening station. When directly asked who made the decision to staff the secure entrance with the special deputies, he said he did.
¶10 WCDSA argues that by discussing privatization of the positions, the County, in effect, was making the decision to staff the security screening station with special deputies. But this argument ignores two obvious facts. First, the County only discussed, and did not order, privatization. And second, the topic being discussed was hiring private-sector security officers, not part-time special deputies of the Washington County Sheriff’s Department. WCDSA does not offer any evidence from the record demonstrating that it was the County that initiated or ordered the special deputies. Accordingly, the record supports the trial court’s finding that it was the Sheriff who decided to staff with special deputies; and we cannot say that finding was clearly erroneous.
II. The
Sheriff’s Constitutionally Protected Duties
¶11 The main issue on appeal is whether the Sheriff’s decision to staff x‑ray and metal detector machines with part-time special deputies is one of the Sheriff’s constitutionally protected duties. A sheriff cannot be constrained by a collective bargaining agreement if he acts on his constitutional powers. See Wisconsin Prof’l Police Ass’n v. Dane County, 106 Wis. 2d 303, 305, 316 N.W.2d 656 (1982) (WPPA I); Dunn County v. WERC, 2006 WI App 120, ¶15, 293 Wis. 2d 637, 718 N.W.2d 138. If the Sheriff’s decision to staff the security screening station with special deputies was not part of his constitutionally protected duties, then it is substantively arbitrable under the collective bargaining agreement.
¶12 The Wisconsin Constitution does not define the duties of a
sheriff, but case law has described examples and a method of analysis. Initially, the definition of whether duties
were part of the sheriff’s constitutionally protected powers focused on a
historical analysis of whether they were longstanding established duties of the
sheriff at common law such as housing the county’s prisoners in the jail.
¶13 To properly determine whether the assigned job is within
constitutional protection, we first examine the nature of the job or duty. See WPPA I, 106
The nature of the job to which Sheriff Rahn assigned the Special Deputies was performing courthouse entrance security screening duties, including manning a walk-through metal detector and an x-ray machine to look for weapons and other things that were not permitted in the Justice Center.
¶14 Neither party has disputed this finding on appeal. Accordingly, we must determine whether
manning the walk-through metal detector and x-ray machine to look for weapons
and other things that are not permitted in the
¶15 No Wisconsin case has yet addressed whether the staffing of
security screening stations is part of the sheriff’s constitutionally protected
duties. Part of the reason for this is
that such stations have not existed until recent times. Now, however, it is common to see metal
detector screening stations at airports, schools, sporting events and both
private and public building entrances.
The record states clearly that the
¶16 Nonetheless, the County argues that staffing the screening
station machines is part of the Sheriff’s inherent constitutional powers
because it is similar to:
(1) “attendance upon the courts,” which the Wisconsin Supreme Court
has determined to be part of the Sheriff’s constitutional powers, see WPPA
I,
106 Wis. 2d at 313 (court security officer is part of sheriff’s
constitutionally protected duties) (citing Brunst, 26
¶17 We
first address the County’s argument that manning the security screening station
machines is similar to “attendance upon the courts.” In
¶18 More recently, in a series of three decisions, we have held
that execution of orders issued by the county’s judges is part of the sheriff’s
constitutionally protected duty of attendance upon the court. In WPPA II, we held that “when the sheriff
executes an arrest warrant issued by the court to bring a prisoner before the
court the sheriff attends upon the court.”
102, 763 N.W.2d 140. When the sheriff is executing orders from
jurisdictions other than his own, he is not acting within his constitutional
powers.
¶19 The
nature of the job of security screening is not similar to these other examples
of attendance upon the courts. Operating
the metal detector and x‑ray machine at an entrance to the
¶20 The County next argues that manning the screening station
machines here is part of the Sheriff’s constitutional duties because they are
similar to other duties that have been found to be constitutionally protected,
such as providing law enforcement. The
¶21 Here, waiving the metal-detecting wand or listening for the buzzer to ring at the county’s combined-use office building is a far cry from the sheriff’s county-wide law enforcement responsibilities noted above. It is a function frequently performed by private security guards at airports, schools, movie theaters, retail stores and public buildings.
¶22 The nature of the job of security screening is really
administrative. Duties of the sheriff
that are excluded from constitutional protection have been described as
“internal management and administrative duties” or “mundane and common administrative duties.” Heitkemper v. Wirsing, 194
¶23 All of the above determined administrative duties have some
connection to the sheriff’s constitutionally protected duties, but cannot be
said to be tasks that lend character and distinction to the office of sheriff. Operating the machines involved in screening
is a mundane task that is done in many places by private security
officers. These have not traditionally
been the sheriff’s tasks to perform.
They are too far removed from the courtroom itself, the orders of the
judges and the function of law enforcement.
Because staffing metal detector and x-ray machines is similar to the
duties that the courts have considered “mundane and commonplace,” “internal management and administrative,” Heitkemper, 194
By the Court.—Order reversed and cause remanded.
[1] We note, with some irony, that because the duty is part of the sheriff’s constitutional powers, he is permitted to delegate the task to an entity outside his department—here the U.S. Marshal’s Service.