January/February 2018 Issue

Also in this issue: Legislature Approves Options for Providing Financial Assistance for Private Lead Service Line Replacements     |     New Law Exempts Religious Organizations from Paying Property Taxes when a Church Burns Down

Court of Appeals Addresses the Disciplinary Process for Police and Fire Commissions

Jared Walker Smith | 02.07.18

In a recent unpublished decision, Ryan T. Trapp v. Board of Fire and Police Commissioners of the City of Milwaukee, 2016AP1970 (Nov. 7, 2017), the Wisconsin Court of Appeals discussed the evidentiary standards that the City of Milwaukee’s Board of Fire and Police Commissioners (Board) must apply in upholding a chief’s discharge of an officer, and when it is appropriate for the Board to give deference to the chief’s decision.

Under Wis. Stat. § 62.50, in order for the City of Milwaukee (City) to suspend for greater than five days, reduce in rank, or terminate a non-probationary member of the police or fire department, the City is required to file charges and hold a trial before the Board. In rendering a decision under Wis. Stat. § 62.50(17)(a)&(b), the Board must perform a two-step analysis. In Phase 1, the Board must determine whether ​“just cause” supports sustaining the charges through consideration of seven factors. If the Board sustains those charges, the Board must determine in Phase II whether the ​“good of the service” requires discharge or suspension. While this case involves the application of §62.50, the court interpreted language which is identical to that found in Wis. Stat. §62.13(5)(em) and, therefore, the decision is instructive to all municipalities who are governed by either statute. 

In 2015, the Milwaukee Fire Chief issued an order discharging Trapp for various violations of department rules. On appeal, the Board concluded that the Department satisfied the ​“just cause” standards, and that the ​“good of the service” required discharge. In making its ​“good of the service” determination, the Board concluded that ​“deference may appropriately be given to a chief’s decision to discharge, assuming that the decision is substantively reasonable, procedurally fair, and not motivated by any improper bias or personal animus.” Trapp appealed the decision to the circuit court, which upheld the Board’s decision, and then filed an appeal with the court of appeals 

Trapp argued that the Phase 1 analysis under Wis. Stat. § 62.50(17)(a) of the ​“just cause” factors precluded the Board in Phase 2 from giving deference to the Chief’s decision, based upon the board’s ​“good of the service” requirement. The court concluded that it ​“would not be reasonable for a board to ignore the impact of a discharge on the chief and the department as part of that determination.” Determining what is in the ​“good of the service” necessarily requires an analysis of the chief’s recommendations and giving the chief’s decision deference when appropriate. 

In this case, the court concluded that the Board gave deference to the chief’s decision to discharge only after finding that that chief’s decision was ​“reasonable, fair, and not improperly motivated.” By making an independent determination that these conditions were present, the Board exercised the independent judgment required in the Phase 2 analysis. 

The case is significant in that it outlines the responsibilities of Commissions or committees hearing cases under §62.13(5). In such cases, the Commission or committee must make an independent assessment of whether ​“just cause” exists under the seven factor test. If so, then the Commission or committee can give deference to the Chief’s decision as to what discipline to impose, provided it makes an independent judgment that the chief acted reasonably, fairly and without improper motivation in determining the disciplinary level. As a practical matter, Commissions and committees typically look to the chief’s recommendation of discipline and rationale behind it, and Trapp suggests that such complies with the statutory disciplinary scheme. 

— Jared Walker Smith