Joseph Conway, Jr. v. Board of the Police and Fire Commissioners of the City of Madison

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2003 WI 53 SUPREME COURT CASE NO.: OF WISCONSIN 01-0784 COMPLETE TITLE: Joseph Conway, Jr., and the International Association of Firefighters, Local 311, AFL-CIO, Petitioners-Respondents-Petitioners, v. Board of the Police and Fire Commissioners of the City of Madison, Wisconsin, and Fire Chief Debra Amesqua, Respondents-Appellants. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 135 Reported at: 256 Wis. 2d 163, 647 N.W. 291 (Ct. App. 2002-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 12, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Moria Krueger JUSTICES: CONCURRED: DISSENTED: June 3, 2003 ABRAHAMSON, C.J., dissents (opinion filed). BABLITCH and BRADLEY, JJ., join dissent. NOT PARTICIPATING: ATTORNEYS: For the petitioners-respondents-petitioners there were briefs by Aaron N. Halstead and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Aaron N. Halstead. For respondent-appellant, Board of Police and Fire Commissioners of the City of Madison, there was a brief by Scott Herrick and Herrick & Kasdorf, LLP, Madison, and oral argument by Scott N. Herrick. For the respondent-appellant, Fire Chief Debra H. Amesqua, there was a brief by Carolyn S. Hogg, assistant city attorney, and James L. Martin, city attorney, and oral argument by Carolyn S. Hogg. An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities. 2 2003 WI 53 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-0784 (L.C. No. 00 CV 762) STATE OF WISCONSIN : IN SUPREME COURT Joseph Conway, Jr., and the International Association of Firefighters, Local 311, AFL-CIO, FILED Petitioners-RespondentsPetitioners, JUNE 3, 2003 v. Board of the Police and Fire Commissioners of the City of Madison, Wisconsin, and Fire Chief Debra Amesqua, Cornelia G. Clark Clerk of Supreme Court Respondents-Appellants. REVIEW of a decision of the Court of Appeals. ¶1 N. PATRICK CROOKS, J. Affirmed. Lieutenant Joseph Conway, Jr., and the International Association of Firefighters, Local 311, AFL-CIO (hereinafter collectively referred to as Conway), seek review of a published court of appeals' decision that reversed a circuit court declaratory judgment. The Dane County Circuit Court held that Rule 7.20 of the Board of the Police and Fire Commissioners of the City of Madison (board) was void, declaring that the rule was in excess of the board's statutory authority. No. ¶2 01-0784 We affirm the decision of the court of appeals and hold that the board had express statutory authority to adopt Rule 7.20. authority That to rule falls promulgate Wis. Stat. § 62.13(5) § 62.13(5)(g). within "rules the for (1999-2000), the in express statutory administration" accord with Wis. of Stat. Rule 7.20 ensures that the ultimate decision- making authority remains with the board.1 ¶3 Accordingly, we agree with the court of appeals that "[r]ule 7.20 provides a rational and efficient means of carrying out the board's duties under § 62.13(5) and does not delegate to the hearing examiner the specific duties vested in the board under that section." Conway v. Bd. of Police and Fire Comm'rs of the City of Madison, 2002 WI App 135, ¶22, 256 Wis. 2d 163, 647 N.W.2d 291. ¶4 Our decisions holding leaving is the consistent means of with carrying this out court s prior administrative duties in the hands of the agency involved wherever possible. It is also consistent with the legislature s intent that Wis. Stat. §§ 62.01 to 62.26 be liberally construed in favor of the rights, powers, and privileges of cities, as long as compatible with the constitution and general law. I. ¶5 On December 8, BACKGROUND 1999, the board adopted Rule 7.20, which allows the board to engage a Hearing Examiner to conduct 1 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise noted. 2 No. the when Initial Hearing disciplinary and the action is continuing taken evidentiary against a 01-0784 hearings Madison police officer or firefighter under Wis. Stat. § 62.13(5). ¶6 Wisconsin Stat. § 62.13 (1) and (2)(a) require cities with populations over 4000 to establish a board of police and fire commissioners. The legislature has granted Wisconsin s cities various powers concerning police and fire departments in accord with Wis. Stat. § 62.13. The mayor of each Wisconsin city with a population of 4000 or more must appoint a board of police and fire commissioners, according to Wis. Stat. § 62.13(1). ¶7 Wisconsin Stat. § 62.13(5) outlines the procedural steps for disciplinary action against a subordinate officer of a police or fire department. A subordinate officer may be suspended, reduced in rank, suspended and reduced in rank, or removed for just cause. addition to the Wis. Stat. § 62.13(5)(e) and (em). specific duties outlined, the In legislature granted to boards of police and fire commissioners the broad authority to make rules for the administration of Wis. Stat. § 62.13 under Wis. Stat. § 62.13(5)(g). Wisconsin § 62.13(5) states: (5) Disciplinary actions against subordinates. (a) A subordinate may be suspended as hereinafter provided as a penalty. The subordinate may also be suspended by the commission pending the disposition of charges filed against the subordinate. 3 Stat. No. 01-0784 (b) Charges may be filed against a subordinate by the chief, by a member of the board, by the board as a body, or by any aggrieved person. Such charges shall be in writing and shall be filed with the president of the board. Pending disposition of such charges, the board or chief may suspend such subordinate. (c) A subordinate may be suspended for just case, as described in par. (em), 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. No hearing on such suspension shall be held unless requested by the suspended subordinate. 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 [the] date for hearing not less than 10 days nor more than 30 days following service of charges. The hearing on the charges shall be public, and both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board on request and be served as are subpoenas under ch. 885. (e) If the board determines that the charges are not sustained, the accused, if suspended, shall be immediately reinstated and all lost pay restored. If the board determines that the charges are sustained, the accused, by order of the board, may be suspended or reduced in rank, or suspended and reduced in rank, or removed, as the good of the service may require. (em) No subordinate may be suspended, reduced in rank, suspended and reduced in rank, or removed by the board under par. (e), based on charges filed by the board, members of the board, an aggrieved person or the chief under par. (b), unless the board determines whether there is just cause, as described in this paragraph, to sustain the charges. In making its determination, the board shall apply the following standards, to the extent applicable: . . . . . . . 4 No. 01-0784 (f) Findings and determinations hereunder and orders of suspension, reduction, suspension and reduction, or removal, shall be in writing and, if they follow a hearing, shall be filed within 3 days thereof with the secretary of the board. (g) Further rules for the administration of this subsection may be made by the board. (Emphasis added.) ¶8 The rule at issue in this case, Madison Police and Fire Commissioners Rule 7.20, provides that: "[t]he Board may engage a Hearing Examiner to conduct the Initial Hearing and the continuing evidentiary hearings." The rule also provides that at the initial hearing,2 the hearing examiner is charged with the responsibility to rule on procedural motions, make rulings on discovery issues, set a date for the hearing and, where appropriate, dismiss the complaint filed against the subordinate employee. The hearing examiner is charged with the responsibility to hear the case and "prepare a comprehensive report including demeanor for an review evaluation by the of witness Board and credibility and including the recommendations of the Hearing Examiner regarding disposition of the charges."3 2 Rule 7.08 provides guidelines for the initial hearing. 3 Rule 7.20 specifically states: a. The Board may engage a Hearing Examiner to conduct the Initial Hearing and the continuing evidentiary hearings. b. The Hearing Examiner shall conduct and preside at proceedings in conformity with these rules and in consultation with Board counsel. References to the 5 No. ¶9 This matter commenced when Lieutenant 01-0784 Joseph Conway Jr., a member of the Madison Fire Department and President of the International Association of Firefighters Local 311, and Local 311, filed a motion in the circuit court for judgment on the pleadings. They sought a declaration that the board had neither express nor implied statutory authority to promulgate Rule 7.20. In Wis. Stat. § 62.13 particular, does not Conway authorize asserted the use that because of hearing examiners in a city with a population of more than 4000 persons, Rule 7.20 was in excess of the board's statutory authority. Board in this rule shall be construed to refer to a Hearing Examiner as context requires. c. All evidentiary proceedings conducted by a Hearing Examiners [sic] shall be videotaped and a certified transcript shall be prepared. d. Promptly following completion of the evidentiary proceedings and receipt of briefs, the Hearing Examiner shall forward the complete record to the Board and shall prepare a comprehensive report including an evaluation of witness credibility and demeanor for review by the Board and including the recommendations of the Hearing Examiner regarding disposition of the charges. The report of the Hearing Examiner shall be included in the record of the Board proceedings. e. Promptly following receipt of the Hearing Examiner's report the Board shall convene for deliberations. The Board may require further proceeding before the Hearing Examiner or before the Board. Following the close of any such further proceedings and deliberations the Board shall issue its decision in the matter. 6 No. ¶10 Krueger 01-0784 On January 18, 2001, the circuit court, Judge Moria presiding, found that the board lacked statutory authority under Wis. Stat. § 62.13(5) to promulgate Rule 7.20, and granted pleadings. void. the plaintiffs' motion for judgment on the In doing so, the circuit court declared Rule 7.20 The court held that § 62.13(5) did not authorize the board to delegate to a hearing examiner the responsibility for conducting the initial hearing and the continued evidentiary hearing, in a case involving the suspension, reduction in rank, or removal of a subordinate police officer or firefighter. ¶11 The circuit court noted that the board did not cite to any agencies that utilize hearing examiners when there is no specific statutory authority to do so. court noted that in Wis. Stat. Furthermore, the circuit § 62.13(6m), the legislature provided for the use of a hearing examiner in the case of a city with a population of less than 4000. Consequently, the circuit court reasoned that had the legislature intended to permit the use of a hearing examiner for a city with a population of more than 4000, it could have done so specifically. ¶12 The circuit court issued a declaratory judgment declaring that Rule 7.20 was adopted in excess of the board s statutory powers, and that the board had no statutory authority under Wis. Stat. § 62.13(5) to delegate the responsibility for conducting hearings to hearing examiners or other persons not members of the board. ¶13 the The board appealed, and the court of appeals reversed circuit court s declaratory judgment. 7 In doing so, the No. court of appeals authority under found that the board had Wis. Stat. § 62.13(5)(g) express to 01-0784 statutory adopt "a rule permitting a hearing examiner to carry out the tasks delineated in Rule 7.20, including conducting initial and evidentiary hearings and making a report to the board on the examiner's recommendations." appeals Conway, 2002 WI App 135, ¶1. The court of considered the legislature s statement of intent in Wis. Stat. § 62.04 was significant. The relevant portion of that statute states: For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that ss. 62.01 to 62.26 shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof. Wis. Stat. § 62.04 (emphasis added). ¶14 Conway's Furthermore, comparison the court the between of tasks appeals of a did not hearing find examiner under Wis. Stat. § 62.13(6m) and Rule 7.20 appropriate, because of the differences authority. not hearing the scope of the hearing examiners The court of appeals determined that the board was delegating hearing in its examiner duties by examiner, under Wis. Stat. § 62.13(5) Rule 7.20, because the board, makes the final decision to not a the concerning discipline. ¶15 within The court of appeals concluded that Rule 7.20 came the board s express 8 authority under No. Wis. Stat. § 62.13(5)(g) to create further rules 01-0784 for the of the administration of Wis. Stat. § 62.13(5). ¶16 Conway petitioned this court for review decision of the court of appeals and asked for reinstatement of the judgment of the circuit court, which held that the board did not have statutory authority to promulgate Rule 7.20. Conway s petition for review was granted on August 23, 2002. II. ¶17 This is a ISSUE of first case impression addressing board's power to promulgate such administrative rules. a The issue presented is whether the board acted within its statutory authority in promulgating a rule, which delegates to private citizens the responsibility for hearing contested cases involving the discipline, including discharge, of firefighters and police officers. III. STANDARD OF REVIEW ¶18 The issue presented involves interpretation of Wis. Stat. §§ 62.01 to 62.26 in order to determine whether Rule 7.20 is a valid exercise of the board's authority. We especially focus on Wis. Stats. §§ 62.04 and 62.13(5). ¶19 This applicable in court has held determining that whether the standard of an review administrative rule exceeds statutory authority is de novo, although we benefit from the analyses of the circuit court and the court of appeals. Seider v. N.W.2d 659. O Connell, 2000 WI 76, ¶25, 236 Wis. 2d 211, 612 We have also held that [t]o determine whether an agency has exceeded its statutory authority in promulgating a 9 No. rule, this court first examines the enabling 01-0784 statute. The enabling statute indicates whether the legislature expressly or impliedly authorized the agency to create the rule. (citations omitted). Id., ¶70 An administrative rule exceeds statutory authority if it conflicts with the language of the statute or the statute s legislative intent. IV. ¶20 Conway asks appeals' decision. this Id., ¶72. ARGUMENTS court to reverse the court of He argues that the circuit court decision correctly held that Wis. Stat. § 62.13 does not expressly, nor impliedly, authorize the board to adopt a rule providing for hearing examiners. ¶21 First, Conway argues that there is no express statutory authority within Wis. Stat. § 62.13(5) for employing a hearing examiner populations of for 4000 disciplinary or more. proceedings Consequently, in cities Conway with contends that, to uphold the court of appeals, this court must construe Wis. Stat. § 62.13 to contain an implied power to delegate board responsibilities. In determining the existence of implied administrative powers, "any reasonable doubt as to the existence of an implied power in an agency must be resolved against the exercise of such authority." Pet'r Br. at 8 (citing Kimberly- Clark Corp. v. Public Serv. Comm'n, 110 Wis. 2d 455, 462, 329 N.W.2d 143 (1983)). ¶22 authority Second, to Conway employ contends hearing that examiners the board's becomes lack apparent of when Wis. Stat. § 62.13(5) is compared to other statutes wherein the 10 No. legislature expressly provides authority for both promulgation of rules and the use of hearing examiners.4 in accord with the decision emphasizes that the board of has the not circuit cited any 01-0784 the Arguing court, Conway agency rules adopting the use of hearing examiners, unless there is express statutory authority granted by the legislature for such use. ¶23 Next, Conway Wis. Stat. § 62.13(5)(g) argues to that adopt the provision further rules under for the administration of Wis. Stat. § 62.13(5) does not include the express or implied power to delegate power to hearing examiners. Conway asserts that if every agency's power to "administer" the statute under its supervision carried the power to engage hearing examiners, then the legislature's separate enactments, specifically permitting particular agencies to hire examiners, would be "surplusage" and run counter to well-established rules of statutory construction. Pet'r Br. at 17 (citing Aurora Medical Group v. Dep't of Workforce Dev., Equal Rights Div., 2000 WI 70, ¶28 n.18, 236 Wis. 2d 1, 612 N.W.2d 646). 4 Conway lists the following examples where the legislature expressly allowed administrative agencies to delegate the task of hearing contested cases to other persons: Wis. Stat. § 111.07(5) (relating to unfair labor practices and Wisconsin Employment Relations Commission (WERC)); Wis. Stat. § 111.70(4)(a). Wisconsin Stat. § 111.84(4) (State Employment Labor Relations Act); Wis. Stat. § 111.39 (4)(a) (Wisconsin Fair Employment Act); Wis. Stat. § 102.15(3) (Wisconsin Worker's Compensation Act); Wis. Stat. § 102.17(1)(b); Wis. Stat. § 108.14(2m) (Unemployment Insurance Act) and Wis. Stat. § 227.46(1). Pet'r Br. at 10-13 and 15-17. 11 No. ¶24 Furthermore, Conway maintains that 01-0784 Rule 7.20 impermissibly delegates to the hearing examiner the duty to make the "just cause" determination or the appropriate disposition. ¶25 Finally, Conway argues that the legislature's decision to permit delegation of board obligations to non-commissioners in cities of under 4000 persons excludes, by implication, the possibility that it intended to invest boards in larger cities with such power. ¶26 The board disagrees and argues that Rule 7.20 is a valid exercise of the board's authority to create rules for the administration of Wis. Stat. § 62.13(5), relating to disciplinary actions against police officers and firefighters. It maintains that Rule 7.20 is within the scope of the statutory delegation, consistent with Wisconsin case law, and consistent with the purpose of the statute as a whole. Accordingly, the board asks this court to affirm the decision of the court of appeals. V. ¶27 ANALYSIS OF WIS. STATS. §§ 62.04 AND 62.13(5) In this case, both Conway and the board do not dispute that the board is to be treated as an administrative agency. See State ex rel. Smits v. City of DePere, 104 Wis. 2d 26, 37, 310 N.W.2d 607 (1981). ¶28 are An administrative agency has only those powers that expressly conferred or necessarily implied statutory provisions under which it operates. from the Grafft v. DNR, 2000 WI App 187, ¶6, 238 Wis. 2d 750, 618 N.W.2d 897, review denied, 2001 WI 1, 239 Wis.2d 774, 621 N.W.2d 630 (2000). 12 No. ¶29 01-0784 In order for the board's adoption of Rule 7.20 to be a valid exercise of administrative power, it is necessary that such action: (1) be based upon a proper delegation of power by the legislature, and (2) not constitute an administrative action in excess of that statutorily conferred authority. of Admin. (1997). v. DILHR, 77 Wis. 2d 126, 133-34, State Dep't 252 N.W.2d 353 Thus, in examining whether an agency has exceeded its statutory authority in promulgating a rule, we begin by examining the statute that authorizes the agency to promulgate Seider v. O'Connell, 2000 WI 76, ¶70, 236 Wis. 2d 211, rules. 612 N.W.2d 659. ¶30 We should first statute. look to the plain language of the State v. Delaney, 2003 WI 9, ¶14, 259 Wis. 2d 77, 658 N.W.2d 416; VanCleve v. City of Marinette, 2003 WI 2, ¶17, 258 Wis. 2d 80, 655 N.W.2d 113. If the language of the statute is clear and unambiguous, we apply the language to the facts at hand. State v. Polashek, 2002 WI 74, ¶18, 253 Wis. 2d 527, 646 N.W.2d 330. statute in sections. (1997). common In addition, relationship to we consider the whole the sections statute and to of the related State v. Sweat, 208 Wis. 2d 409, 416, 561 N.W.2d 695 Generally, we construe words and phrases according to and approved usage, and if necessary, may consult a dictionary. State v. Sample, 215 Wis. 2d 487, 499, 573 N.W.2d 187 see (1998); reliance on ambiguous. a also Wis. Stat. § 990.01(1). dictionary does not Id. 13 mean that However, the such statute is No. ¶31 In deciding whether an administrative 01-0784 agency's rule was promulgated by express authorization from the legislature, we "identify the elements of the enabling statute and match the rule against those elements." Wisconsin Hosp. Ass'n v. Natural Res. Bd., 156 Wis. 2d 688, 706, 457 N.W.2d 879 (Ct. App. 1990). If the rule matches the statutory elements, then the statute expressly authorizes the rule. Id. However, the enabling statute need not spell out every detail of a rule in order to expressly authorize it; if it did, no rule would be necessary. Id. at 705-06. Therefore, whether the exact words used in an administrative rule appear in the statute is neither dispositive nor controlling. ¶32 Next, Id. at 706. we examine Wis. Stat. § 62.13(5). As noted previously, the overall purpose of §§ 62.01-26 is found in the language of § 62.04, which states: For the purpose of giving to cities the largest measure of self-government compatible with the constitution and general law, it is hereby declared that ss. 62.01 to 62.26 shall be liberally construed in favor of the rights, powers and privileges of cities to promote the general welfare, peace, good order and prosperity of such cities and the inhabitants thereof. Wis. Stat. § 62.04 (emphasis added). ¶33 Keeping in mind the legislature's directive that the statute should be liberally construed in favor of the rights, powers and privileges Wis. Stat. § 62.13(5)(g), of cities, which we turn authorizes the specifically board rules for the administration of Wis. Stat. § 62.13(5). 14 to to make No. ¶34 01-0784 As listed previously in paragraph 7 of this opinion, and noted by the court of appeals: The duties specifically vested in the board under Wis. Stat. § 62.13(5) regarding hearings are the following: (1) providing for a public hearing, in which both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses, §62.13(5)(d); (2) determining whether there is just cause to sustain the charges applying the standards of §62.13(5)(em)1-7; (3) determining the appropriate disposition, § 62.13(5)(e); and (4) reducing to writing the findings and determinations and orders of suspension, reduction, suspension and reduction, or removal, § 62.13(5)(f). Conway v. Bd. of Police and Fire Comm'rs of the City of Madison, 2002 WI App 135, ¶12, 256 Wis. 2d 163, 647 N.W.2d 291. ¶35 After listing the specific duties of the board, the legislature added: "[f]urther rules for the administration of this subsection may be Wis. Stat. § 62.13(5)(g). made by the board." We must look to see whether Rule 7.20 matches these statutory elements. ¶36 court Along with the provisions in Wis. Stat. § 62.04, the of appeals found the broad language of Wis. Stat. § 62.13(5)(g) significant in addressing the board's authority to promulgate Rule 7.20. of appeals looked at Wis. Stat. § 62.13(5)(g) to the In its analysis, the court word determine "administration" the board's scope in of power. Because the word "administration" is not specifically defined in this statutory provision, the court applied the dictionary definition of the word. Sample, 215 Wis. 2d 487, 499, 15 573 N.W.2d 187 of appeals See State v. (1998). The No. 01-0784 dictionary defines administration as follows: "[a]dministration is: '5 a: the principles, practices, and rationalized techniques employed in achieving organization.'" the objectives or aims of an Webster's Third New International Dictionary 28 (unabr. 1993). A. Express Authority ¶37 As noted previously, Conway has argued that Wis. Stat. § 62.13 does not contain statutory language allowing delegation of the board's statutory duties as done in Rule 7.20. For the reasons set forth below, we disagree, and hold that there is express statutory promulgate board's Rule authority 7.20. express supporting That rule authority to the plainly promulgate board's comes power within rules for to the the administration of Wis. Stat. § 62.13(5), and is consistent with the overall purpose of the statutes. The board's authority to enact a rule allowing hearing examiners to conduct evidentiary hearings is grounded in the express authorization in Wis. Stat. § 62.13(5)(g). ¶38 Rule 7.20 provides practices and rational techniques employed to providing aid public limited duties relate to of the board hearings the in as fulfilling required hearing administration of examiner the by the objective § 62.13(5). under Rule disciplinary 7.20 of The all proceedings. Specifically, Rule 7.20 assists the board in carrying out its duties under Wis. Stat. § 62.13(5)(d), (e), (em), and (f). ¶39 Wisconsin Stat. § 62.13, regulating boards of police and fire commissioners throughout Wisconsin, is a broad generic 16 No. 01-0784 statute that is meant to be flexible, in order to meet the needs of different cities. ¶40 Wisconsin Stat. § 62.13(5) provides a quasi-judicial proceeding with all the elements of "fair play" fundamental to due process in an administrative law setting. § 62.13(5) process broadly before outlines the the board, features from a whole demonstrates a of the complaint findings, determinations, and orders. as Wisconsin Stat. disciplinary filing through In addition, the statute legislative intent to provide due process protections to police officers and firefighters subject to disciplinary proceedings. Efficiency and fairness are the purposes for the disciplinary hearing process. State ex rel. Kaczkowski v. Bd. of Fire & Police Comm'rs, 33 Wis. 2d 488, 148 N.W.2d 44, rehearing denied, 33 Wis. 2d 488, 149 N.W.2d 547 (1967). ¶41 One of the primary purposes for the legislative act providing for the creation of the board was to remove the administration of fire and police departments from city politics and to place citizen it in boards. the State hands impartial rel. ex. of Pieritz Wis. 450, 230 N.W. 42 (1930). process in quasi-judicial and v. nonpolitical Hartwig, 201 None of the elements of due administrative hearings are compromised by the appointment of a hearing examiner for the purposes indicated in Rule 7.20, because the board, not the hearing examiner, makes the final decision and disposition. board may examiner or require before further the board proceedings itself. 17 before Due the process The hearing does not No. 01-0784 require that evidence be taken before the officer who ultimately decides the matter. Tecumseh Prods. Co. v. Wisconsin Employment Relations Bd., 23 Wis. 2d 118, 126, 126 N.W.2d 520 (1964). ¶42 with the Such a reading of Wis. Stat. § 62.13(5) is consistent legislature s statement of intent under Wis. Stat. § 62.04, that the authority of the board under statutes such as Wis. Stat. § 62.13(5) is to be liberally construed. ¶43 board's apparent As discussed previously, Conway has contended that the lack of when authority Wis. Stat. to employ § 62.13(5) hearing is examiners compared to is other statutes.5 He has argued that the comparison reveals that when the legislature intends to approve of the use of hearing examiners by agencies, it expressly provides authority for both the promulgation of rules and the use of hearing examiners in the relevant legislation. ¶44 Conway misstated the holding of the court of appeals when he maintained that: The court of appeals concluded that implicit in the Board's power to make rules for the purpose of "administering" sec. 62.13 is the power to hire hearing examiners, since such a rule "aid[s] the board in fulfilling the objective of providing public hearings as required by § 62.13(5)" and "assists the board in carrying out its duties under § 62.13(5)(d), (e), (em), and (f)." Pet'r Br. at 13 (citing 2002 WI App 135, ¶13)(emphasis added). 5 See supra note 3. 18 No. ¶45 01-0784 Contrary to Conway's contention, the court of appeals' decision clearly stated that the board had express statutory authority to create Rule 7.20. Conway, 2002 WI App 135, ¶15. ¶46 We agree with the decision of the court of appeals that the "rule falls squarely within the board's administration of its duties under Wis. Stat. § 62.13(5) and the legislature's express authorization that the board may make rules for that purpose." Conway, 2002 WI App 135, ¶15. Since we hold that the board has the express authority to enact Rule 7.20, we need not engage in an analysis of implied authority. B. Delegation of Authority ¶47 Next, Conway has argued that special qualifications for board appointment prohibit delegation of any of the board's functions to a hearing examiner. The board is composed of an impartial body that operates independently of the city itself. Eau Claire County v. General Teamsters Union Local No. 662, 228 Wis. 2d 640, 650, 599 N.W.2d 423 (Ct. App. 1999), aff'd, 2000 WI 57, 235 Wis. 2d 385, 611 N.W.2d 744. The board is comprised of citizen members who have no direct interest in the outcome of the case, as would a party to the dispute, and appointment of members is designed to prevent the board from operating as an agent of a city official or police or fire chief. ¶48 Id. Under Rule 7.20, the board, not the hearing examiner, makes the ultimate decision. Rule 7.20 assists the board in carrying out its duties under Wis. Stat. § 62.13(5)(d), (e), (em), and (f). As such, the hearing examiner is required to provide board to the a comprehensive 19 report, including an No. evaluation of witness credibility and 01-0784 demeanor, recommendations for disposition of the matter. and In addition, the hearing must be videotaped and a certified transcript prepared. The board may require further proceedings before either the hearing examiner or the board itself. ¶49 examiner Conway's to argument consider that procedural the rule motions, permits the a hearing parameters of discovery, and to dismiss the complaint at the initial hearing does not change our holding. The hearing examiner is only able to dismiss the complaint if the complainant fails to appear at the initial hearing. ¶50 As noted Rule 7.20. previously, in administrative proceedings, due process does not require that evidence be taken before the officer who ultimately decides the matter. Tecumseh Prods. Co. v. Wisconsin Employment Relations Bd., 23 Wis. 2d 118, 126, 126 N.W.2d 520 (1964). In a similar vein, we have held that the ability of administrative agencies should not be unnecessarily restricted by the courts. State ex rel. Cities Serv. Oil Co. v. Bd. of Appeals, 21 Wis. 2d 516, 541, 124 N.W.2d 809 (1963). See also Wright v. Indus. Comm., 10 Wis. 2d 653, 103 N.W.2d 531 (1960). Accordingly, our holding in this case is consistent with our precedent emphasizing the importance of providing an administrative agency with the discretion to perform its duties as it sees fit, provided that it is not promulgating rules in excess of statutorily conferred authority. board remains the ultimate Under Rule 7.20, the decision-making 20 authority, and, No. therefore, has not impermissibly abdicated its 01-0784 duties to a hearing examiner. C. Comparison of Wis. Stat. § 62.13(5) to Other Statutes ¶51 Finally, Conway has argued that the legislature did not intend to allow cities over 4000 to use hearing examiners. In support of this argument, Conway relied on the case of State v. Deborah J.Z., 228 Wis. 2d 468, 546 N.W.2d 490 (Ct. App. 1999), which held "[i]f a statute contains a given provision, 'the omission of such provision from a similar statute concerning a related subject is significant in showing that a different intention existed.'" Pet'r Br. at 20 (citing Deborah J.Z., 228 Wis. 2d 468 at 475-76 (citations omitted). ¶52 Conway has argued that Wis. Stat. § 62.13(6m) contains a clause allowing persons other than the members of a board to "act . . . in place commissioners." of the board Pet'r Br. at 20. of police and fire He has maintained that this clause follows the statutory provisions governing the board in Wis. Stat. § 62.13(1)-(6). in subd. (1)-(6) is Conway has asserted that "[n]owhere there found any language respecting a board's employment of hearing examiners or committees of persons who are not Board members." ¶53 Pet'r Br. at 20. We agree with the court of appeals that the statute establishing alternative ways to conduct hearings in cities with a population of less than 4000 (municipalities not required to establish a board of police and fire commissioners) is not persuasive as to whether the board had authority here to enact Rule 7.20. 21 No. ¶54 Conway's argument relying on Deborah J.Z. 01-0784 overlooks the difference between the authority of the hearing examiners under Wis. Stat. § 62.13(6m) and under Rule 7.20. Wisconsin Stat. § 62.13(6m) establishes two alternative ways to conduct hearings in cities that are not required to establish a board of police and fire commissioners a hearing examiner. three-member committee or a Either acts entirely in place of the board under Wis. Stat. § 62.13(5) in all respects. Thus, for example, a hearing examiner under Wis. Stat. § 62.13(6m) has the duty that a board has under Wis. Stat. § 62.13(5) to make the appropriate disposition. It may be reasonable to infer from subsection (6m) that the legislature did not intend that in cities with a board, a hearing examiner could assume all the board's responsibilities under subsection (5). However, this subsection does not indicate that the legislature intended to prohibit the board from delegating to a hearing examiner the tasks the board has identified in Rule 7.20. ¶55 The other statutes listed by Conway are not helpful or persuasive in construing Wis. Stat. § 62.13(5). Wisconsin Stat. § 111.07(5) and Wis. Stat. § 111.70(4)(a) examiner to hear and decide the complaint. allow the hearing As stated above, Rule 7.20 does not purport to delegate to the hearing examiner the authority to make the determination and disposition required under Wis. Stat. § 62.13(5). § 62.13, Wisconsin, regulating is a police broad As noted previously, Wis. Stat. and fire commissions statute that is meant throughout to provide flexibility to meet the needs of different cities and is to be 22 No. liberally construed. Statutes regulating agencies, 01-0784 like the Department of Workforce Development, are more specific, and are meant to apply the same procedures universally throughout Wisconsin. ¶56 of less Thus, Conway s analogy between cities with populations than 4000, which are regulated by Wis. Stat. § 62.13(6m), and cities with populations of 4000 or more, which are regulated appropriate. by Wis. Stat. § 62.13(1) through (5), is not Simply because the legislature has given smaller cities without boards of police and fire commissioners a choice of engaging a hearing examiner for disciplinary proceedings does not mean that the legislature intended that boards in larger cities may not choose to appoint hearing examiners. ¶57 Wisconsin Stat. legislature believed disciplinary proceedings § 62.13(6m) that was with Wis. Stat. § 62.13(5), actually hearing using a shows examiners satisfactory and that such way use of that the for complying satisfied the legislature s due process concerns. ¶58 by the Rule 7.20 is based upon a proper delegation of power legislature, and does not constitute administrative action in excess of that statutorily conferred authority. VI. CONCLUSION ¶59 In summary, we affirm the decision of the court of appeals. We hold that the City of Madison s Board of Police and Fire Commissioners had the express statutory authority to adopt Rule 7.20, because Rule 7.20 falls within the authority under Wis. Stat. § 62.13(5)(g) to 23 promulgate "rules for the No. administration" of Wis. Stat. § 62.13(5). that the board. ultimate decision-making 01-0784 Rule 7.20 ensures authority remains with the We are satisfied that Rule 7.20 matches the statutory elements of statute Wis. Stat. expressly § 62.13(5), authorizes that and therefore, rule. Our that decision the is consistent with this court s prior decisions leaving the means of carrying out administrative duties in the hands of the agency involved whenever possible, and with the legislature s intent that Wis. Stat. §§ 62.01 to 62.26, be liberally construed in favor of the rights, powers, and privileges of cities, as long as compatible with the constitution and general law. Our interpretation here is compatible. By the Court. The decision affirmed. 24 of the court of appeals is No. ¶60 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE 01-0784.ssa (dissenting). I agree with the circuit court that Wis. Stat. § 62.13(5) does not authorize the Board of Police and Fire Commissioners of the City of Madison to promulgate Rule 7.20, delegating to a hearing examiner the responsibility for conducting the initial hearing and the continued evidentiary hearings in a case involving the suspension, reduction in rank, or removal of a subordinate police officer or firefighter. ¶61 First, the power Wis. Stat. § 62.13(5) to does promulgate not, as rules the to administer majority expressly include the power to adopt Rule 7.20.6 asserts, The statute simply grants the board the power to make "further rules for the administration of this subsection"7 and nowhere does it expressly state that these rules may include the delegation of the board's responsibilities to a hearing examiner. ¶62 In other statutes, when the legislature intends to permit an administrative agency to delegate its obligation to hear contested cases to a hearing examiner, the legislature not only grants the agency the power to make rules to administer the relevant statute but also expressly grants the agency the power 6 See majority op., ¶¶2, 37, 45, 46, 59. 7 Wis. Stat. § 62.13(5)(g). 1 No. to employ hearing examiners in the relevant 01-0784.ssa legislation.8 Furthermore, the legislature's decision to permit the delegation of board obligations to non-commissioners in cities of under 4000 persons by express language excludes, by implication, the possibility that it intended to invest boards in larger cities with such power.9 ¶63 by an Second, it is well-settled that if a rule promulgated administrative agency contradicts the language of the statute or the statute's legislative intent, the rule is not reasonable, exceeds the agency's statutory authority, and must be invalidated.10 The majority opinion announces this rule11 but then fails to apply it in the present case. ¶64 Wisconsin Stat. § 62.13(5)(c) gives police officers and firefighters suspended by the chief the right to request "a hearing before examiner.12 the board" not Section 62.13(5)(d) a hearing then before provides the that hearing the board 8 See, e.g., Wis. Stat. §§ 111.07(5) (granting the Wisconsin Employment Relations Commission power to make rules to regulate hearings); 111.71(1) (expressly granting WERC the power to employ hearing examiners); 111.375 (granting the Department of Workforce Development the power to make rules necessary to carry out the Fair Employment Act); 111.39(4) (granting the DWD power to employ hearing examiners to assist in effective administration). For more examples, see majority op., ¶22 n.4. 9 See Wis. Stat. § 62.13(6m) (relating to hearings for officers suspended, reduced in rank, or removed in cities of less than 4,000 people). 10 Seider v. O'Connell, 2000 WI 76, ¶73, 236 Wis. 2d 211, 612 N.W.2d 659. 11 Majority op., ¶19 (citing Seider, 236 Wis. 2d 211, ¶72). 12 Wis. Stat. § 62.13(5)(c) (emphasis added). 2 No. must set requested a date for "hearing" that requested shall "hearing" public.13 be and 01-0784.ssa that the Section 62.13(5)(d) further provides that at the public hearing "both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses by subpoenas which shall be issued by the president of the board."14 ¶65 The majority reads paragraphs (c) and (d) to vest in the board the mere duty to "provid[e] for a public hearing, in which both the accused and the complainant may be represented by an attorney and may compel the attendance of witnesses."15 In so doing, the majority ignores the fact that the right granted to subordinates is not just the right to request a public hearing, but the right to request a public hearing "before the board," and that the attendance of witnesses at the hearing is not ominously compelled, but rather compelled by subpoenas issued by the "president of the board." In short, the majority opinion ignores that Rule 7.20 contradicts the language of the statute establishing the presence of the board at the subordinate's hearing and a role for the board in the hearing's procedures. ¶66 The decision-making majority opinion authority focuses vested in exclusively the board on the under Wis. Stat. § 62.13(5), paragraphs (e), (em), and (f), when it 13 Wis. Stat. § 62.13(5)(d). 14 Wis. Stat. § 62.13(5)(d) (emphasis added). 15 Majority op., ¶34 (citing Conway v. Bd. of Police and Fire Comm'rs, 2002 WI App 135, ¶12, 256 Wis. 2d 163, 647 N.W.2d 291). 3 No. concludes that examiner Rule any 7.20 duties Wis. Stat. § 62.13(5). does not vested delegate in to the hearing board the Section 62.13(5), 01-0784.ssa under paragraphs (c) and (d), however, make clear that the board's duties are not simply to make ultimate decisions but to participate in the hearing as well. ¶67 I also write separately to highlight that today's erroneous decision is the third decision released by this court this term eroding the rights of police officers and firefighters to obtain a just cause hearing before the Board of Police and Fire Commissioners under Wis. Stat. § 62.13(5).16 ¶68 2003 WI In Kraus v. City of Waukesha Police & Fire Commission, 51, __ Wis. 2d ___, ___ N.W.2d ___, this court effectively held that Wis. Stat. § 62.13(5)(em) does not protect municipal employees who are promoted subject to successful completion of a period of probation when they are denied that promotion during the period of probation. Wisconsin Employment Relations In City of Madison v. Commission, 2003 WI 52, ___ Wis. 2d ___, ___ N.W.2d ___, this court effectively held that the same statute collectively bars those bargaining same with municipal a employees municipality from under Wis. Stat. § 111.70 to require that a chief's or PFC's decision to deny a promotion be reasonable. ¶69 Now, in the present case, where a municipal employee is entitled to a just cause hearing, this court approves the 16 See also City of Madison v. WERC, 2003 WI 52, ___ Wis. 2d ___, ___ N.W.2d ___; Kraus v. City of Waukesha Police & Fire Comm'n, 2003 WI 51, ___ Wis. 2d ___, ___ N.W.2d ___. 4 No. Madison PFC's decision to delegate responsibilities to a hearing examiner. a hearing initial examiner hearing, the (2) responsibility conducting all almost 01-0784.ssa all of its Rule 7.20 delegates to for (1) conducting continuing an evidentiary hearings, (3) ruling on procedural motions, (4) making rulings on discovery issues, (5) setting dates for a hearing, (6) where appropriate, dismissing a complaint filed against a subordinate employee, (7) evaluating witness credibility, and (8) making a preliminary recommendation on disposition of the charges.17 I think it is fair to say that the likely effect of Rule 7.20 is to transform reviewing officers the body board and from a eliminate and firefighters As I decision-making the to right of body Madison hearing into a police request "a before the Kraus, Wis. Stat. § 13.93(2)(d) board."18 ¶70 stated in requires the revisor of statutes to report to the law review committee of the legislature those decisions of this and other courts "in which Wisconsin statutes or session laws are stated to be in conflict, ambiguous, anachronistic, unconstitutional or otherwise in need of revision."19 I suggest that the just cause provisions are of Wis. Stat. § 62.13 in need oversight. ¶71 For the foregoing reasons, I dissent. 17 Majority op., ¶8. 18 Wis. Stat. § 62.13(5)(c). 19 Wis. Stat. § 13.93(2)(d). 5 of legislative No. ¶72 I am authorized to state that Justices BABLITCH and ANN WALSH BRADLEY join this dissent. 6 01-0784.ssa WILLIAM A.

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