January/February 2020 Issue

Also in this issue: Wisconsin Court of Appeals Invalidates DOT's Jurisdictional Offer     |     Lease, License or Easement?

Wisconsin Court of Appeals Upholds Termination of Probationary Police Officers

02.06.20

Pursuant to state statute, sworn law enforcement officers can only be terminated for disciplinary reasons for cause after a due process hearing. This does not apply to probationary officers, who are at-will employees during their probationary period. In addition to state statute, the discipline of officers, including termination, may also be subject to the terms of a collective bargaining agreement (CBA). In a recent case, the Wisconsin Court of Appeals upheld a city’s termination of two probationary police officers under both a CBA and state statute. State ex rel. Massman and Most v. City of Prescott, No. 2018AP1621. In doing so, the court re-affirmed that probationary law enforcement officers can be terminated without just cause or a due process hearing. 

In Prescott, officers were subject to an eighteen-month probationary period under the CBA. The CBA also precluded probationary officers from grieving discipline, including termination, under the CBA’s grievance procedure. During their probationary period, two officers were notified that their employment was being terminated due to ongoing job performance issues, even though they claimed they were never given any formal written reprimands, negative job performance reviews, or discipline. Both officers filed grievances under the CBA challenging their terminations. The City took the position that, as probationary officers, they had no constitutional, contractual or statutory right to a statement of the reasons they were fired, to recourse to the grievance procedure, or to a hearing to contest their termination. Therefore, the City refused to arbitrate the grievances.

The officers sued the City and the City’s Police Commission, arguing that, under the terms of the CBA, officers could only be terminated for just cause and that an employee with this protection has a property right entitling them to a due process hearing. The court noted that the purpose of probationary period would be defeated if a probationary officer could only be terminated for just cause. Therefore, the court concluded that probationary employees under the CBA have no guarantee of continued employment and have no property right to enforce through a due process hearing. This was particularly true in this case because the CBA expressly provided that probationary officers did not have access to the CBA’s grievance procedure. 

One of the officers also argued that he was statutorily entitled to protection against termination without just cause because he had worked for the City for more than a year. Under Wis. Stat. § 165.85(4)(a)3, officers are subject to a 12-month probationary period for purposes of satisfying the Law Enforcement Standards Board requirements. The officer argued that this provision limited the length of a probationary period to 12 months. The court rejected this argument, concluding that this statute did not limit a municipality’s ability to establish a longer probationary period for newly-hired law enforcement officers. Instead, the court concluded that because this statute allows law enforcement agencies to set employment standards higher than the minimum standards set by the Law Enforcement Standards Board, it also allows them to set a longer probationary term in a CBA.

This case is important for municipalities because it re-affirms the right of municipalities to impose probationary periods on newly hired police officers and the right to terminate those employees who fail to successfully complete their probationary period without having to show cause or hold a due process hearing.

Recently, Attorneys Steven Zach, Catherine Wiese, and Julia Potter of Boardman Clark authored chapters on the hiring and disciplinary processes of Police and Fire Commissions in the new Wisconsin League of Municipalities’ Handbook for Wisconsin Police and Fire Commissioners.