|
COURT OF
APPEALS DECISION DATED AND
RELEASED December
28, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 93-2968
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
EUGENE
PARKS,
Petitioner-Appellant,
v.
CITY
OF MADISON,
MAYOR
PAUL R. SOGLIN,
AND
JOHN C. HAMILTON, HUMAN RESOURCE
DIRECTOR
OF THE CITY OF MADISON,
Respondents-Respondents.
APPEAL
from an order of the circuit court for Dane County: MORIA KRUEGER, Judge. Reversed.
Before
Eich, C.J., Dykman and Sundby, JJ.
SUNDBY,
J. In this appeal, we hold that petitioner, Eugene Parks, the
City of Madison's former Affirmative Action Officer, was not subject to
suspension and discharge under § 3.35(16) of the City's Civil Service
Ordinance. He is not, however, entitled
to reinstatement. On July 1, 1986,
Parks was appointed to a five-year term as the City's Affirmative Action
Officer, pursuant to § 3.58(2), Madison General Ordinances (MGO). That term has expired. He was not entitled to reappointment but
only the opportunity to be reappointed.
However, he is entitled to the wages and benefits of his office during
his term, subject to the customary offsets for wages and benefits earned during
that period in mitigation of his damages.
We therefore reverse the order of the circuit court dismissing Parks's
petition and remand the cause to the circuit court to determine and award Parks
his lost wages and benefits from the date of his discharge, October 6, 1988, to
the expiration of his term.
The
City argues that § 3.58(2), MGO, made § 3.35(16), MGO, applicable to
the position of Affirmative Action Officer.
Section 3.58(2) provides in part:
The ... Affirmative Action [Officer] shall hold office
for a term of five (5) years and until a successor is appointed. The ... Affirmative Action [Officer] shall
receive all the benefits and incidents of civil service subject to the five (5)
year term.
The
City argues that the civil service disciplinary procedure, § 3.35(16),
MGO, is a "benefit" or "incident" of civil service. However, § 3.35(16) applies only to
persons "holding positions in the civil service." It is undisputed that Parks does not hold a
position in the civil service. By
ordinance no. 6691, effective August 4, 1979, the Madison Common Council
created § 3.35(1)(w), which specifically excludes the position of
Affirmative Action Officer from civil service.
The
City argues that § 3.58(2), MGO, is more specific than § 3.35(1)(w),
MGO, and therefore § 3.58(2) controls.
However, this rule of construction does not apply when statutes or
ordinances are a part of the same enactment or enacted simultaneously. When statutes or ordinances are in pari
materia,[1] the
provisions of each are to be construed together. The amendment to § 3.58(2) was made by ordinance no. 6692 at
the same meeting at which ordinance no. 6691 excluded the office of Affirmative
Action Officer from the City's civil service.
Therefore, §§ 3.35(1)(w) and 3.58(2) are in pari materia
and must be construed together.
When determining the meaning and effect of statutory
sections in pari materia, "[i]t is assumed that whenever the
legislature enacts a provision, it has in mind previous statutes relating to
the same subject matter. In the absence
of any express repeal or amendment, the new provision is presumed in accord
with the legislative policy embodied in those prior statutes. Thus, they should all be construed
together."
Boucher Lincoln-Mercury v. Madison Plan Comm'n, 178 Wis.2d 74, 89, 503 N.W.2d 265, 270 (Ct. App. 1993)
(quoting State Farm Mut. Auto. Ins. Co. v. Kelly, 132 Wis.2d 187,
190, 389 N.W.2d 838, 839 (Ct. App. 1986) (quoting 2A N. Singer, Sutherland on Statutes and Statutory Construction §
51.02, at 453 (Sands rev. 4th ed. 1984) (footnotes omitted))). It is further the rule that: "Statutes for the same subject,
although in apparent conflict, are construed to be in harmony if reasonably
possible." Id. at
90, 503 N.W.2d at 270 (quoting 2B N. Singer,
Sutherland on Statutes and Statutory Construction § 51.02, at 122 (5th
ed. 1992)).
When
the common council created the position of Affirmative Action Officer, June 22,
1973, ordinance no. 4246, the City's civil service system was already in
existence. Robert J. Corcoran, An
Administration History of the City of Madison, Wisconsin 1836-1977, at 7-8
(1977) (civil service ordinance enacted in 1937).
When
the common council amended the affirmative action ordinance, § 3.58(2), MGO, it
plainly intended to establish a term of office for the Affirmative Action
Officer. It did not, however, change
the method of appointment of the Affirmative Action Officer. Section 3.58(2) provides that the
Affirmative Action Officer shall be "appointed by the Mayor subject to the
approval of the Common Council and shall be directly responsible to the Mayor
and Council." Officers so appointed
are removable only by the common council, for cause. Section 17.12(1)(c), Stats. Removals for cause may be made only upon
written verified charges brought by a resident taxpayer of the city, "and
after a speedy public hearing at which the officer shall have full opportunity
to be heard to present a defense against the charges, personally and by
counsel." Section 17.16(3), Stats.
The mayor denied Parks a public hearing.
A
city officer, by whomsoever appointed, subject to confirmation or concurrence
by the common council may be removed by the common council only by an
affirmative vote of three-fourths of all the members thereof. Section 17.12(1)(d), Stats.
In contrast, a city officer who holds a position in the civil service is
removable by the appointing authority. See
§ 3.35(16)(a), MGO. The officer is
not entitled to a public hearing, and his or her removal is not subject to
review by the common council. This
procedure is consistent with the philosophy of civil service. A civil service system is intended to
insulate public officers and employees from the influences of the political
process. Castelaz v. City of Milwaukee, 94 Wis.2d 513, 523, 289
N.W.2d 259, 263 (1980), rev'd in part on other grounds, Lindas v.
Cady, 183 Wis.2d 547, 515 N.W.2d 458 (1994). However, public officers who carry out the policies of the
governing body, which are sometimes very political, are usually excluded from
the civil service process and are made responsible to the governing body.
The
City's construction of §§ 3.35(1)(w) and 3.58(2), MGO, would require us to
conclude that the common council, by its amendment to § 3.58(2), intended
to relinquish its control over the Affirmative Action Officer. We reject the notion that the common
council simultaneously excluded the Affirmative Action Officer from the City's
civil service system and put the officer back under civil service.
Certainly,
the disciplinary procedure provided by § 3.35(16), MGO, is not a
"benefit" to an appointive city officer who would otherwise be
subject to the protections of §§ 17.12 and 17.16, Stats. If the
Affirmative Action Officer is subject to suspension and removal under
§ 3.35(16), he or she loses substantial benefits and protections. A city officer removable only for cause
under § 17.12(1)(c), if suspended pending a public hearing but reinstated,
is entitled to all of the emoluments of the office for all of the time that he
or she would have served had he or she not been suspended. Section 17.12(3) provides: "If such charges are dismissed, the
officer so suspended shall thereby be restored to office and be entitled to the
emoluments of the office for all of the time the officer would have served
therein had the officer not been suspended." In contrast, under § 3.35(16)(a), a person holding a
position in the civil service is subject to suspension without pay for an
almost indefinite period because, although the initial period of suspension may
not exceed 30 days in one year, extensions of suspensions may be made pending
investigation and hearing. An officer
subject to § 3.35(16) is not entitled to a public hearing and may not have his
or her removal reviewed by the common council.
It is illogical and unreasonable to conclude that the common council
intended by the amendment creating a term of office for the Affirmative Action
Officer to insulate that officer from the control of the common council. The office of Affirmative Action Officer is
a sensitive position, avowedly implementing employment policy as formulated by
the governing body.
The
City and the dissent rely on § 17.12(4), Stats.,
which creates a general exception to the removal and suspension of city
officers as follows: "But no
officer of any city, appointed according to merit and fitness under and
subject to a civil service or to a police and fire commission law, or whose
removal is governed by such a law, shall be removed otherwise than as therein
provided." (Emphasis added.) However, the Affirmative Action Officer is
not appointed according to merit and fitness under the civil service law. The Affirmative Action Officer is appointed
as city policy officers are customarily appointed, by the mayor subject to
confirmation by the common council.
Further, the Affirmative Action Officer is reappointed by a unique
procedure. See § 3.58(2),
MGO. The mayor may choose to present
the name of the incumbent to the common council for confirmation or may elect
not to submit the name of the incumbent to the common council. Only in the latter case is the Affirmative
Action Officer subject to appointment under the civil service ordinance. Parks was never subject to that procedure
because he was discharged during his first term.
Accordingly,
we reject the City's argument that the disciplinary procedure under the City's
civil service ordinance is a "benefit" or "incident" of the
office of Affirmative Action Officer.
According to the City's construction, the exclusion of the Affirmative
Action Officer from the civil service system by § 3.35(1)(w), MGO, was
meaningless because every provision of the civil service law is
"incident" to the Affirmative Action Office. This is an unreasonable construction of the
ordinance which we must reject. See
Falk v. Falk, 158 Wis.2d 184, 189, 462 N.W.2d 547, 548 (Ct. App.
1990).
The
City urges us to hold that Parks is not entitled to the equitable remedy of
mandamus because: (a) he
unreasonably delayed asserting his claim that he could be removed from office
only under §§ 17.12 and 17.16, Stats.;
(b) he failed to assert this claim in the administrative and judicial
proceedings he initiated to recover his office; and (c) his failure to
assert his ch. 17, Stats., claim
prejudiced the City. The City argues
that the elements of laches are thus satisfied. See Ozaukee County v. Flessas, 140 Wis.2d
122, 127, 409 N.W.2d 408, 410 (Ct. App. 1987).
We reject the City's argument.
The
City can hardly argue that Parks has not asserted a right to his office or
contested his removal. He appealed to
the Madison Personnel Board; pursued an unsuccessful civil rights action in the
federal court (Eugene Parks v. City of Madison, et al., No.
89-C-591-C); prosecuted unsuccessfully an action in Dane County Circuit Court
challenging the provisional appointment of Ms. Kirbie Mack as provisional
Affirmative Action Officer (Eugene Parks v. City of Madison, et al.,
No. 89-CV-3315); and began this action March 19, 1991, seeking a writ of
mandamus or, alternately, a declaratory judgment, ordering the City to
reinstate him and restore his lost salary and benefits. The City's argument is that Parks waited an
unreasonable period of time before he discovered and asserted his ch. 17, Stats., defense. Parks had no obligation to tell the City how
it could remove him; his only obligation was to show that it could not remove
him by following § 3.35(16), MGO.
He has not been tardy in pressing that claim.
The
doctrine of laches is based on principles of fairness: that a party may not delay prosecuting his
or her claim so long that the defendant is prejudiced in making a defense. See Flessas, 140 Wis.2d
at 127, 409 N.W.2d at 410. We fail to
see how the City has been prejudiced in this respect. Whether Parks was subject to removal under the civil service
ordinance is a question of law which can be as easily argued and answered now
as when he was discharged. We are not
ordering the trial court to reinstate Parks and, possibly, "bump" a
present employee. We do not require the
City to pay Parks damages other than the wages and benefits to which he was
entitled.
The
City attempts by its laches argument to relitigate the res judicata
(claim preclusion) defense we rejected in Parks v. City of Madison,
171 Wis.2d 730, 492 N.W.2d 365 (Ct. App. 1992). However, it is the law of the case that Parks's "avalanche
of litigation," id. at 733, 492 N.W.2d at 367, in the wake
of his firing, does not bar him from maintaining this action.
The
City insists, however, that Parks waived mandamus relief because he attempted
to obtain relief by exhausting the administrative remedies available to
him. In view of the state of the law as
to "exhaustion," it was merely careful lawyering to attempt to obtain
relief through whatever non-judicial remedies were available before seeking
judicial relief. See Lindas
v. Cady, 183 Wis.2d 547, 515 N.W.2d 458 (1994).
The
City makes two further arguments as to why we should affirm the judgment. First, the City argues that it is useless to
reinstate Parks because the common council will simply confirm his
discharge. We have not directed the
trial court to order the City to reinstate Parks. This argument is therefore moot.
Finally,
the City argues that we should affirm the trial court's dismissal of Parks's
petition because the City substantially complied with §§ 17.12 and 17.16, Stats.
We will not again recite the substantive differences between the
suspension and removal procedures under these statutes and § 3.35(16)(a),
MGO. However, procedurally, Parks was
denied a public hearing; he was discharged by the Mayor, not the common
council; and he was not removed by a three-fourths vote of the common
council. The City's argument is plainly
without merit.
By
the Court.—Order reversed.
Not
recommended for publication in the official reports.
No. 93-2968(D)
EICH,
C.J. (dissenting). The
controlling issue on this appeal is whether Parks was appointed to a position
"subject to a civil service ... law" within the meaning of
§ 17.12(4), Stats. If he was, the trial court correctly
dismissed his petition because the termination of his employment as affirmative
action officer was properly conducted under city civil service removal
procedures. If he was not, as the
majority holds, the trial court erred in dismissing his petition. I believe he was, and I would therefore
affirm the trial court's order.
Resolution
of the issue centers on which of two sections of the Madison General Ordinances
controls the status of the position: § 3.35, which lists the position of
affirmative action officer, along with dozens of other city jobs, as outside
the civil service; or § 3.58, an ordinance dealing specifically with the
position, which states that "[t]he Director of Affirmative Action shall
receive all the benefits and incidents of civil service." Despite the majority opinion's assertion
that such an interpretation "is illogical and unreasonable"--an
assertion with which, obviously, I wholeheartedly disagree--I conclude that
Parks's position was "subject to a civil service law" within the meaning
of § 17.12(4), Stats. See maj. op. at 6.
If
there is not a palpable conflict between the two ordinances, there certainly is
the appearance of one. The general
provisions of the city's civil service ordinance state:
3.35
CIVIL SERVICE SYSTEM
(1) Civil
Service Created - Exceptions Therefrom.
There is hereby created a civil service system for the City of
Madison.... All City officers and
employees except those specified below shall be selected, hold their status and
be subject to Section 3.35 of the Madison General Ordinances.
There follows a listing of thirty or so positions,
including that of "Affirmative Action Officer."
Another
ordinance, the specific ordinance relating to the position of affirmative
action officer, provides:
3.58
AFFIRMATIVE ACTION ORDINANCE
(2) Affirmative
Action Department. There is hereby
created a Department of Affirmative Action.
The Department ... shall be managed and directed by a Director of
Affirmative Action, who shall have responsibility and authority for the
development and implementation of the City's Affirmative Action
Program.... The Director of
Affirmative Action shall receive all the benefits and incidents of civil
service subject to the five (5) year [appointive] term.
(Emphasis added.)
"It
is a cardinal rule of statutory construction ... that when a general and a
specific statute relate to the same subject matter, the specific statute
controls," Payment of Witness Fees in State v. Huisman, 167
Wis.2d 168, 174, 482 N.W.2d 665, 667-68 (Ct. App. 1992), and I believe the rule
applies here.
Additionally,
as the city points out, specific ordinances relating to various other city
positions--even though they, like that of the affirmative action officer, are
listed as "except[ions]" to the civil service provisions in § 3.35,
MGO--expressly state that the positions are not within the civil
service;[2]
and such language would be wholly unnecessary if the common council, in
enacting § 3.35(1) intended to unequivocally and unconditionally mandate
exclusion of all the listed positions from the city's civil service
system.
A
more reasonable reading of the ordinances is that § 3.35(1), MGO, is a general
provision establishing a civil service system for the city and mandating, as a
general matter and with some exceptions, that all city officials and employees
are subject to its provisions--but that it was not intended to foreclose the
expression of a contrary intent in a specific ordinance creating a position and
setting forth its accouterments, powers and duties. Such a result, in my opinion, supplies the necessary harmony to
two apparently conflicting provisions,[3]
and I believe the trial court appropriately resolved the conflict.
Because
I respectfully disagree with the conclusions on which the majority opinion is
based, I would affirm the trial court's order dismissing Parks's petition.
[1] In pari materia means: "Upon the same matter or
subject." Black's Law Dictionary 791 (6th ed. 1990).
[2] See, e.g., § 3.04(1), MGO
(assistants to the mayor "shall not be covered by the civil service
ordinances"); § 3.48(3), MGO (position of human resource director "is
not within the City's Civil Service system"); § 3.69(8)(d), MGO (position
of executive director of the community development authority "shall have
the status of a noncivil service appointment").