|
COURT OF APPEALS DECISION DATED AND RELEASED July 26, 1995 |
NOTICE |
|
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. 94-2061
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
JEROME R. CHRISTENSEN,
Petitioner-Appellant,
v.
CITY OF RACINE POLICE
AND FIRE COMMISSION,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Racine County:
DENNIS J. BARRY, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER CURIAM. Jerome R. Christensen appeals from a
circuit court order affirming the City of Racine Police and Fire Commission's
decision to terminate his employment as a City of Racine police officer. We are unpersuaded by Christensen's
appellate arguments, and we affirm.
Christensen was a Racine
police officer for approximately ten and one-half years prior to his
termination. He was convicted of
disorderly conduct in April 1992 as a result of an off-duty altercation
with his former wife. In May 1992,
Christensen entered into a disciplinary stipulation with Racine police chief
Richard Polzin in which he agreed to a twenty-day suspension without pay
(with five-days stayed) for having violated the department's conduct
rules. The stipulation required
Christensen to refrain from similar conduct for the next twelve months.
On March 14, 1993,
Christensen was involved in another off-duty incident with his former wife and
was again convicted of disorderly conduct.
In September 1993, Chief Polzin began termination proceedings against
Christensen on the grounds that Christensen had again violated the department's
conduct rules requiring "Compliance with the Law" and prohibiting
"Unbecoming Conduct."[1] Chief Polzin alleged that Christensen had
received a second conviction for disorderly conduct in less than two years and
had violated the May 1992 disciplinary stipulation.
After a hearing, the
Commission made the following findings.
Christensen violated the department's rules of conduct by reason of his
most recent disorderly conduct conviction and other unbecoming conduct. The department's internal investigation and
investigatory report, which was evidence at the hearing, documented "a
number of incidents demonstrating extremely poor judgment, and overly
aggressive and assaultive behavior by" Christensen. Christensen's off-duty conduct reflected
negatively on the department, contrary to the conduct rules which require an
officer to act off-duty in a manner which reflects favorably on the
department. Christensen had received a
"measure of leniency" at the time of his first disorderly conduct
conviction but "the good of the service" required terminating
him. On certiorari review, the trial
court affirmed the Commission.
We review whether the
Commission's decision to terminate Christensen was reasonable based upon the
evidence. See § 62.13(5)(i), Stats., 1991-92;[2]
see also State ex rel. Smits v. City of De Pere, 104
Wis.2d 26, 31, 310 N.W.2d 607, 609 (1981).
Our focus is on whether the Commission acted within its jurisdiction and
proceeded on a correct theory of law. See
id. at 31-32, 310 N.W.2d at 609.
Christensen apparently
believes that termination was an extreme sanction. However, he does not contend that the Commission acted outside
its jurisdiction or that it lacked the legal authority to terminate him. The question on review is whether terminating
Christensen was reasonable under the evidence.
The Commission's decision must be supported by substantial evidence,
i.e., "evidence of such convincing power that reasonable persons could
reach the same decision as the [Commission]." Clark v. Waupaca County Bd. of Adjustment, 186
Wis.2d 300, 304, 519 N.W.2d 782, 784 (Ct. App. 1994).
Although Christensen
suggests there was no evidence that he could no longer act as a police officer
or that he would impair public safety, this was not the standard for termination. The parties stipulated to the admission into
evidence of the department's investigatory report and internal investigation as
the factual basis for the charges, although Christensen reserved the right to
deny or clarify certain of those allegations at the hearing. The record indicates Christensen assaulted
his former wife, made numerous harassing phone calls to her and her friend, and
assaulted and harassed his former girlfriend.
During his testimony, Christensen admitted the inappropriate nature of
his conduct but sought to place the conduct in the context of a difficult
divorce and an alcohol problem. The
parties stipulated that Christensen had violated the "Compliance with the
Law" and "Unbecoming Conduct" conduct rules. The parties also stipulated that the hearing
would be to determine the appropriate disciplinary action.
Because there was
substantial evidence that Christensen violated the department's conduct rules,
it was reasonable to terminate Christensen.[3] The Commission was not obligated to honor
Christensen's request for another suspension in lieu of termination or accept
his testimony regarding the reasons for his conduct.
Christensen's appellate
briefs address the just cause standard.
We disregard this issue for two reasons. First, Christensen stipulated before the Commission that the just
cause standard would not apply. The
minutes of a telephone prehearing conference held with a Racine Police and Fire
Commission commissioner reveal that the parties agreed the just cause standard
would not apply because the standard did not go into effect until November 25,
1993. Therefore, Christensen is
estopped from arguing the just cause standard on appeal. See Siegel v. Leer, Inc.,
156 Wis.2d 621, 628, 457 N.W.2d 533, 536 (Ct. App. 1990).[4]
Second, Christensen
waived his argument that the just cause standard in the officers' collective
bargaining agreement should have applied because he did not make that argument
before the Commission or the trial court.
See Segall v. Hurwitz, 114 Wis.2d 471, 489, 339
N.W.2d 333, 342 (Ct. App. 1983).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1]
Racine Police Department Manual Procedure 400, Rules of Conduct B-2,
"Compliance with the Law," states:
All personnel shall obey all laws
(or ordinances) of the United States and of any state and local jurisdiction in
which they are present. A conviction of
the violation of any law (ordinance) shall be prima facie evidence of a
violation of this section. Any member
under investigation for violation of the criminal law or laws may be suspended
for cause indefinitely or for a time certain by the Chief of Police, depending
on the seriousness of the allegations.
Rules of Conduct G(7),
"Unbecoming Conduct," states:
Members shall conduct themselves at all times, both on and off duty, in such a manner as to reflect most favorably on the Department. Conduct unbecoming an officer shall include that which brings the Department into disrepute or reflects discredit upon the officer as a member of the Department, or that which impairs the operations or efficiency of the Department or officer.
[2] Pursuant to 1993 Wis. Act 53, § 7, effective November 25, 1993, the court's standard of review of the Commission's decision changed from whether the Commission's decision was reasonable based upon the evidence, § 62.13(5)(i), Stats., 1991-92, to whether there is just cause to sustain the charges against the officer. See § 62.13(5)(i), Stats., 1993-94. As we discuss later, Christensen stipulated that the just cause standard did not apply.