PUBLISHED OPINION
Case No.: 95-2948
Complete Title
of Case:
COREY W. HUSSEY,
Plaintiff-Appellant,
v.
OUTAGAMIE COUNTY,
Defendant-Respondent.
Submitted on Briefs: February 26, 1996
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: March 12, 1996
Opinion Filed: March
12, 1996
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Outagamie
(If "Special", JUDGE: Philip M. Kirk
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
plaintiff-appellant, the cause was submitted on the briefs of Frederick J.
Mohr of Frederick J. Mohr, S.C. of Green Bay.
Respondent
ATTORNEYSOn behalf of
defendant-respondent, the cause was submitted on the brief of Anna M.
Pepelnjak and Michele M. Ford of Crivillo, Carlson, Mentkowski
& Steeves, S.C. of Milwaukee.
COURT OF APPEALS DECISION DATED AND RELEASED MARCH 12, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2948
STATE
OF WISCONSIN IN COURT OF
APPEALS
COREY W. HUSSEY,
Plaintiff-Appellant,
v.
OUTAGAMIE COUNTY,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Outagamie county:
PHILIP M. KIRK, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Corey Hussey appeals a summary judgment
dismissing his complaint against Outagamie County. Hussey sought a permanent injunction prohibiting the County from
discharging him as a deputy sheriff until the County complied with the procedures
contained in § 59.21(8)(b), Stats.[1] The circuit court dismissed the complaint on
the grounds that Hussey was employed on a probationary basis and that the
County need not comply with the procedural requirements of § 59.21(8)(b)
to discharge a probationary officer.
Hussey argues that the procedural requirements of § 59.21(8)(b)
unambiguously apply to probationary officers.
Because the employment terms of a probationary law enforcement officer
are governed by § 165.85(4), Stats.,[2]
and the parties' collective bargaining agreement, not by § 59.21(8)(b), we
reject Hussey's argument and affirm the judgment.[3]
The facts are undisputed. Hussey began his employment as a sheriff's
deputy with Outagamie County on April 11, 1994. The collective bargaining agreement between the County and the
Outagamie County Professional Police Association governed the terms of Hussey's
employment. The agreement provided that
law enforcement officers subject to its terms were on probationary status for
the first twelve months of employment and that Outagamie County can discharge
probationary officers "at the discretion of the County without regard to
cause and without regard to any appeal or grievance procedure."
The County alleges that
during Hussey's tenure as a probationary officer, Hussey acted improperly on
several occasions. Specifically, Hussey
failed to secure proper proof at a crime scene, failed to file the proper
documentation several times and acted unprofessionally toward a district
attorney. The most serious incident
occurred on February 12, 1995, when Hussey was assigned to accompany a state prisoner
from Outagamie County to a hospital in Madison for emergency treatment. When they arrived in Madison, there was some
confusion as to who would take custody of the inmate. Hussey informed a corrections officer that someone else must take
custody of the prisoner within thirty minutes or Hussey would leave the
prisoner unguarded. Hussey hung up the
telephone on his superior when he told Hussey that he was not to leave the
prisoner until another officer came to relieve him.
A short time later, the
County decided to discharge Hussey because of his record of poor performance
and insubordination.[4] Hussey filed a complaint against the County
seeking an injunction requiring his reinstatement with back pay until the
County complied with the procedural requirements of § 59.21(8)(b), Stats.
Both parties moved for summary judgment. The circuit court granted the County's motion.
We review summary
judgment de novo. Park Bankcorp.
v. Sletteland, 182 Wis.2d 131, 140, 513 N.W.2d 609, 613 (Ct. App.
1994). When reviewing summary judgment,
we apply the standard set forth in § 802.08(2), Stats., in the same manner as the circuit court. Kreinz v. NDII Secs. Corp.,
138 Wis.2d 204, 209, 406 N.W.2d 164, 166 (Ct. App. 1987). Where, as here, both parties file
countermotions for summary judgment, and neither argues that factual disputes
bar the other's motion, the facts are deemed stipulated, leaving the court with
issues of law. Lucas v. Godfrey,
161 Wis.2d 51, 57, 467 N.W.2d 180, 183 (Ct. App. 1990).
The collective
bargaining agreement unambiguously provided that the County hired Hussey as a
probationary officer. In Kaiser
v. Board of Police & Fire Commr's, 104 Wis.2d 498, 311 N.W.2d 646
(1981), our supreme court held that § 165.85(4)(b), Stats., governs the terms of employment
for probationary city police officers, so that cities do not need to follow the
procedures in § 62.13(5), Stats.,[5]
to discharge probationary officers. The
plaintiff in Kaiser, 104 Wis.2d at 501, 311 N.W.2d at 648, argued
that § 62.13(5) entitled him to a list of the reasons for his termination
and a hearing. The Kaiser
court held that when an officer is hired as a probationary employee under
§ 165.85(4)(b), the terms of the collective bargaining agreement regarding
probationary officers govern the terms of employment, § 62.13(5) does
not. The bargaining agreement in Kaiser
stated that probationary employees could not make a claim or grievance with
respect to a discharge during the probation period. Id. at 502, 311 N.W.2d at 648.
In Kaiser,
the court reasoned that § 165.85(4)(b), Stats.,
specifically governed probationary officers, so the general provisions of
§ 62.13(5), Stats.,
governing the generic class of all police officers who were
"subordinates," did not apply.
Id. at 503, 311 N.W.2d at 649. The court further based its holding on the grounds that
"[t]here is no doubt that the use of a probationary period is an excellent
means of examining candidates and is well-suited to securing the best service
available. It enables the board to
better evaluate a potential officer's skill and character. Probation is a continuation of the hiring process." Id. at 504, 311 N.W.2d at
649. We conclude that the reasoning of Kaiser
controls this case, so that the County may discharge probationary deputies
pursuant to the terms of its collective bargaining agreement, regardless of
§ 59.13(8), Stats.
Hussey attempts to
distinguish Kaiser on the grounds that the statutory section at
issue in that case, § 62.13(5), Stats.,
governed "disciplinary actions," whereas the statutory section at
issue in this case, § 59.21(8)(b), Stats.,
governs instances when the sheriff terminates a deputy on grounds of
incompetence. Hussey claims this distinction
is significant because the supreme court in Kaiser noted that
§ 62.13(5) did not apply because "Kaiser was not disciplined; he was
terminated as not suited for service as a police officer." Id. at 503, 311 N.W.2d at
649. This sentence in Kaiser
is actually an inaccurate characterization of the statute. A reading of § 62.13(5) reveals that
among the disciplinary choices are suspension, demotion or removal. See § 62.13(5)(e), Stats.
We conclude that Hussey
fails to meaningfully distinguish Kaiser. The distinction he notes does not affect the
rationale that § 165.85(4)(b), Stats.,
specifically controls the employment status of probationary employees to the
exclusion of general statutes. In Kaiser,
our supreme court concluded that § 62.13(5), Stats., was a general statute because it governed all
"subordinates," a generic term that included all police
officers. Id. at 503, 311
N.W.2d at 649. Similarly, we conclude
that § 59.21(8)(b), Stats.,
is a general provision because it governs all "deputy sheriffs."
Hussey contends that the
rationale of Kaiser, that § 165.85, Stats., governs because it is more specific, does not apply
in this case. First, Hussey argues that
§ 59.21(8)(b), Stats., is
more specific than § 165.85(4)(b), Stats.,
because § 59.21(8)(b) delineates specific procedures for termination
whereas § 165.85(4)(b) does not address the issue of discharge. Next, Hussey argues the two statutes do not
deal with the same subject matter in that § 165.85(4)(b) applies to hiring
officers and § 59.21(8)(b) applies to the procedures required to discharge
an officer. Analogous arguments could
have been made with respect to § 62.13(5), Stats., in Kaiser. By reaching its decision, our supreme court implicitly rejected
these arguments.
We also note that the
reasoning in Kaiser that a probationary period is "an
excellent means of examining candidates and is well-suited to securing the best
service available" in the area of law enforcement applies here. Id. at 504, 311 N.W.2d at
649. Hussey offers no reasonable basis
to persuade us that the use of probationary status is less useful in hiring
County deputies than in hiring city police officers.
Finally, Hussey argues
that the clause in the collective bargaining agreement, which states that
probationary employees can be terminated without a grievance procedure, is void
because it violates § 59.21(8)(b), Stats. Because we conclude that that section does
not impose procedural requirements for the termination of probationary
employees, we reject Hussey's argument.
In sum, Hussey fails to
distinguish Kaiser. Per Kaiser,
the collective bargaining agreement controls the terms of Hussey's employment,
and, under the agreement, he can be discharged without following the procedures
of § 59.21(8)(b), Stats.
By the Court.—Judgment
affirmed.
[1]
Section 59.21(8)(b), Stats.
provides in part:
1. [W]henever the
sheriff ... believes that a deputy has acted so as to show the deputy to be
incompetent to perform the duties of deputy sheriff or to have merited
suspension, demotion or dismissal, the sheriff ... shall report in writing to
the grievance committee setting forth specifically the complaint against the
deputy, and ... may suspend or demote the officer at the time such complaint is
filed.
2. The grievance
committee shall forthwith notify the accused officer of the filing of the
charges and on request furnish the accused officer with a copy of the same.
3. The grievance committee shall, if the officer requests a hearing, appoint a time and place for the hearing of the charges ....
[2]
Section 165.85(4)(b), Stats.,
provides in part:
No person may be appointed as a
law enforcement or tribal law enforcement officer, except on a temporary or
probationary basis, unless the person has satisfactorily completed a preparatory
program of law enforcement training approved by the board and has been
certified by the board as being qualified to be a law enforcement or tribal law
enforcement officer.
[3] Hussey also argues that the circuit court erred by holding that his claim was barred by § 893.80(1), Stats., because he failed to provide the County with timely notice of his claim. Our decision that the County was not required to follow the procedures in § 59.21, Stats., to discharge Hussey disposes of the appeal. If a decision on one point disposes of the appeal, we will not consider other issues raised. See Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983).
[4] In circuit court, the County argued that Hussey voluntarily resigned. For purposes of this appeal, the County concedes that Hussey was terminated.
[5]
Section 62.13(5), Stats.,
provides in part:
(c) A subordinate may
be suspended for just cause ... by the chief or the board as a penalty. The chief shall file a report of such
suspension with the commission immediately upon issuing the suspension. ... If
the subordinate suspended by the chief requests a hearing before the board, the
chief shall be required to file charges with the board upon which such
suspension was based.
(d) Following the filing of charges in any case, a copy thereof shall be served upon the person charged. The board shall set date for a hearing .... [B]oth the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas ....