STATE OF WISCONSIN
CIRCUIT COURT BRANCH 1
WISCONSIN EMPLOYMENT RELATIONS
TOWN OF MADISON, WISCONSIN,
MEMORANDUM DECISION AND ORDER
Case No.: 98 CV 1437
[Decision No. 28647-D]
[NOTE: This document was re-keyed by WERC. Original pagination has been
ADMINISTRATIVE AGENCY REVIEW
The matter before the court is Petitioner Christian Thomsen's Wis. Stat. ch. 227
petition for judicial
review of a decision of the Wisconsin Employment Relations Commission (Commission),
the Municipal Employment Relations Act (MERA), Wis. Stats.
§§111.70-111.77. The Commission
reversed its Examiner in part and found Thomsen in violation of §111.70(3)(b)4 of the
careful review, the court must affirm the Commission's decision, with modification.
Petitioner Thomsen was a law enforcement officer with the Town of Madison (Town)
approximately eight years. The Town is a municipal employer as defined in
§111.70(1)(j), Wis. Stats.
The Wisconsin Professional Police Association (WPPA) is a labor organization as defined in
§111.70(l)(h), and was at all times pertinent to this case the exclusive bargaining
representative for all regular, permanent full-time and regular, permanent part-time
employees in the
Town of Madison Police Department having the power of arrest. In 1994, the Town
Thomsen's employment. Thomsen was represented for collective bargaining purposes by the
of Madison Professional Police Association (TMPPA), and served as President of the
Thomsen filed a grievance concerning his termination on August 16, 1994, and the
Town denied the
grievance at the first step of the grievance procedure on August 22, 1994. The TMPPA is
with the WPPA, and WPPA Business Representative Steve Urso appealed Thomsen's
step two of the grievance procedure on August 30, 1994. The Town denied the grievance at
second step on September 20, 1994.
Thomsen and the WPPA sought mediation of the grievance on September 22, 1994,
mediation session was held before representatives of the Commission on January 17, 1995.
mediation session, the Town was represented by Attorney Kirk Strang and the WPPA was
represented by WPPA Representative Urso. Thomsen attended the mediation session in his
as grievant and, in that capacity, was represented by WPPA Representative Urso. At the
of the mediation session, Strang, Urso, and Thomsen (along with other individuals) met in
session, during which Strang and Urso discussed settlement terms. On or about February 9,
Strang reduced to writing a "Memorandum of Understanding" which purported to be a
understanding of what was agreed to by the parties in the joint session, and which provided
The parties to this agreement, the Town of Madison (hereinafter the "Town"),
Wisconsin Professional Police Association (hereinafter the "Union"), and Chris
Thomsen (hereinafter "Mr. Thomsen"), have reached certain understandings that they
wish to reduce to writing. Therefore, the parties do hereby agree as follows:
1. The Union and Mr. Thomsen will provide the Town with all necessary
information required for the Town to certify in good faith that Mr. Thomsen was
injured while performing his duties as a police officer pursuant to Sec. 40.65, Wis.
Stats. In addition, the Union and Mr. Thomsen agree to provide the Town with any
and all waivers necessary to secure such information.
2.Upon Mr. Thomsen's and the Union's satisfaction of the duties set forth in paragraph
the Town will certify that Mr. Thomsen's injuries incurred in May, 1994, were work related
Mr. Thomsen's Duty Disability Application and any related documentation required by the
Department of Employee Trust Funds, Wisconsin Retirement System.
3. The Union and Mr. Thomsen agree to stay and/or refrain from commencing
and all grievances or other actions he has or may have against the Town of whatever
kind or nature while Mr. Thomsen's Duty Disability Application is processed.
Further, upon favorable resolution of Mr. Thomsen's Duty Disability Application, all
such claims and any and all grievances shall be dropped and shall not be refiled in any
other form in any other forum, consistent with paragraph 5, below.
4. Upon satisfaction of the parties' obligations set forth in paragraphs 1, 2 and 3,
above, Mr. Thomsen will be treated as having retired in good standing due to a
5. In consideration for the foregoing, Mr. Thomsen and the Union hereby agree
fully waive and forever release discharge the Town, its present and former agents,
assigns and subsidiaries of any and all claims, demands, damages, actions and cause
of action of whatever kind or nature which they have or may have arising out of Mr.
Thomsen's employment, his separation from employment, and any and all other
employment matter without limitations including, but not limited to, matters arising
at law, in equity, under the Town's collective bargaining agreement with the Union,
or in state or federal agencies, courts, or other tribunals or competent jurisdiction.
6. This Memorandum of Understanding shall not constitute an admission of
wrongdoing by either party, and, further, the parties to this agreement recognize that
this agreement is non-precedential (sic) and that this agreement may not be utilized
in any way by any person or party as evidence, except to enforce its terms or to rebut
claims inconsistent with either this agreement or the circumstances giving rise to this
7. The parties mutually recognize that this agreement is a full and complete
settlement, there are no other claims hereto, and the parties reserve no other rights or
obligations except those specifically set forth herein.
. . . .
Following receipt of the "Memorandum of Understanding," Thomsen advised Urso that
"Memorandum of Understanding" had been reviewed by Thomsen's attorneys and that his
had advised him not to sign the "Memorandum of Understanding." At all times material
Thomsen has refused to sign the "Memorandum of Understanding."
On June 7, 1995, the Town filed a complaint with WERC, alleging that the WPPA
had committed prohibited practices by refusing to execute a collective bargaining agreement,
to bargain in good faith and/or violating the terms of a collective bargaining agreement in
of §§111.70(3)(b)3, 111.70(3)(b)4, and 111.70(3)(c), Wis. Stats. At the
hearing on the complaint,
the WPPA and the Town entered into a settlement agreement under which the Town
complaint against the WPPA. One of the main issues considered by the WERC Examiner in
decision was whether the "Memorandum of Understanding" accurately reflected the
reached by the parties in grievance mediation. The WERC Examiner made the following
fact regarding the mediation and joint sessions:
4. . . . At the conclusion of this discussion [the joint session], Town Attorney Strang
summarized the terms of the settlement. Neither WPPA Representative Urso nor
Respondent Thomsen objected to this summarization. WPPA Representative Urso
advised Town Attorney Strang that the settlement would have to be reviewed and
approved by WPPA Attorney Harfst.
5. During the mediation session, Respondent Thomsen advised WPPA
Representative Urso that Respondent Thomsen would not sign any settlement until
the settlement had been reviewed and approved by Respondent Thomsen's attorneys.
At the time of this conversation, WPPA Representative Urso knew that Respondent
Thomsen had a pending Sec. 40.65, Stats., claim, as well as an EEOC claim against
the Town. At the time of the mediation session, Respondent Thomsen had also filed
a workers' compensation claim against the Town and was consulting with an attorney
regarding other potential claims against the Town. At no time during the mediation
session was Town Attorney Strang advised that Respondent Thomsen would not sign
the settlement until it had been reviewed and
approved by Respondent Thomsen's attorneys. Following the mediation session,
WPPA Representative Urso contacted Town Attorney Strang and advised him that
Attorney Harfst had approved the settlement.
Examiner's Decision at 6-7.
In a decision dated August 28, 1997, the WERC Examiner dismissed the complaint
Thomsen in its entirety. As to the alleged §111.70(3)(b)4 violation, the Examiner
found that by
advising the individual who was representing Thomsen at the mediation session, i.e. Urso,
would not sign any settlement unless it was approved by Thomsen's attorneys, Thomsen
his right to have the settlement agreement reviewed by his attorneys. Therefore, since the
"Memorandum of Understanding" was not a valid grievance settlement because it was not
by all three parties to the settlement, and was not a collective bargaining agreement within
meaning of §111.70(3)(b)4, Thomsen did not have a duty to execute or comply with
the terms of the
"Memorandum" and was not in violation of §111.70(3)(b)4, Wis. Stats.
The Town filed a petition with the WERC seeking review of the Examiner's decision.
decision dated May 11, 1998, the Commission affirmed all of the Examiner's findings of fact
made one additional finding of fact as follows: "The Memorandum of Understanding
reflects the settlement agreement reached by Strang, Urso and Thomsen on January 17,
Commission's Decision at 2. The Commission affirmed two of the Examiner's conclusions
reversed and set aside four of her conclusions of law and substituted the following conclusion
"By failing to sign the Memorandum of Understanding, Respondent Thomsen did not violate
111.70(3)(b)3, Stats. but did violation Sec. 111.70(3)(b)4, Stats." Commission's
Decision at 2. The
Commission ultimately affirmed the Examiner's order as to
the dismissal of the §§111.70(3)(b)3 and 111.70(3)(c) claims, but reversed
the Examiner's order to
the extent that it dismissed the alleged violation of §111.70(3)(b)4 by Thomsen. The
thus ordered Thomsen to sign the "Memorandum of Understanding."
Thomsen now appeals the Commission's decision pursuant to ch. 227, Wis. Stats.
STANDARD OF REVIEW
The scope of review for this court is found in § 227.57, Wis. Stats. This
court must affirm the
Commission's decision unless the court finds a basis for setting aside, remanding, or
action under a specific provision of § 227.57. Wis. Stat. § 227.57(2). However,
this court will
reverse or remand a case to the agency if the agency's exercise of discretion is: (1) outside
of discretion delegated to the agency by law; (2) inconsistent with an agency rule, an
agency policy or a prior agency practice; or (3) is otherwise in violation of a constitutional
statutory provision. Wis. Stat. §227.57(8); Barakat v.
DHSS, 191 Wis. 2d 769, 782, 530 N.W.2d
392 (Ct. App. 1995). If the court finds the Commission has "erroneously interpreted a
law and a correct interpretation compels a particular action," the court shall set aside or
action. Wis. Stat. § 227.57(5). The court must accord due weight to the
competence, and specialized knowledge" of the Commission as well as "discretionary
conferred upon it." Wis. Stat. § 227.57(10).
The Commission's findings of fact must stand if they are supported by substantial
in the record. Wis. Stat. § 227.57(6). "[J]udicial review under ch. 227 is limited to
evidence was such that the agency might reasonably make the finding that it did."
Boynton Cab. Co.
v. ILHR Dept., 96 Wis. 2d 396, 405, 291 N.W.2d 850 (1980). Even if
more than one inference can reasonably be drawn from the evidence, the finding of the
conclusive if it is supported by substantial evidence in the record. Village of Whitefish
v. WERC, 103 Wis. 2d 443, 448, 309 N.W.2d 17 (Ct. App.
Although the court is not bound by the Commission's interpretations of law,
Local No. 695
v. LIRC, 154 Wis. 2d 75, 82, 452 N.W.2d 368 (1990), the supreme court has set out
standards of review of an agency's legal and statutory interpretation:
This court has generally applied three levels of deference to conclusions of law and
statutory interpretation in agency decisions. First, if the administrative agency's
experience, technical competence, and specialized knowledge aid the agency in its
interpretation and application of the statute, the agency determination is entitled to
"great weight." The second level of review provides that if the agency decision is
"very nearly" one of first impression it is entitled to "due weight" or "great bearing."
The lowest level of review, the de novo standard, is applied where it is clear
lack of agency precedent that the case is one of first impression for the agency and the
agency lacks special expertise or experience in determining the question presented.
Jicha v. DILHR, 169 Wis. 2d 284, 290-91, 485 N.W.2d 256 (1992)
Petitioner Thomsen has set forth six arguments which he asserts warrant reversal of
Commission's decision. Thomsen first argues that the Commission's decision must be
because none of the Commission's conclusions are entitled to any deference. While it is
the court may review some of the Commission's conclusions without deference, this by itself
compel the finding that the Commission's decision must be reversed. Instead, the court will
the level of deference to be accorded the Commission's conclusions as each of Thomsen's
The second argument raised by Thomsen is that the Commission should be reversed
because the Commission violated Thomsen's due process rights by making adverse credibility
findings without consulting the Examiner, which the court will review de novo.
maintain that the Commission did not violate Thomsen's due process rights because the
Commission did not actually reverse any of the factual findings made by the Examiner.
the Commission specifically affirmed the findings of fact made by the Examiner and added
new finding of fact, namely that "The Memorandum of Understanding accurately reflects the
settlement agreement reached by Strang, Urso and Thomsen on January 17, 1995."
Thomsen argues, however, that the addition of this finding of fact is simply a de
modification or reversal of the Examiner's factual findings. Thomsen cites to Shawley
Industrial Comm., 16 Wis. 2d 535, 541-42, 114 N.W.2d 872 (1962), for the
[w]here credibility of witnesses is at issue, it is a denial of due process if the
administrative agency making a fact determination does not have the benefit of the
findings, conclusions, and impressions of the testimony of each hearing officer who
conducted any part of the hearing.
Likewise, Thomsen refers to Falke v. Industrial Comm., 17 Wis. 2d 289,
295, 116 N.W.2d 125
(1962), wherein our supreme court found that
there is a constitutional right to the benefit of demeanor evidence which is lost if an
administrative agency decides the controversy without the benefit of participation of
the hearing officer who heard such testimony, and credibility of a witness is a
substantial element in the case.
Based on this reasoning, Thomsen maintains that the Commission's additional finding
credibility determinations which required consultation with the Examiner. The following is
Commission's explanation for its new finding that the Memorandum of Understanding was an
accurate reflection of the settlement agreement reached by Strang, Urso and Thomsen:
We base our Finding on the testimony of Urso and Strang (and Strang's
contemporaneous notes), the individuals who bargained the agreement as adversaries,
but who both agree that the Memorandum accurately reflects the terms of the
settlement agreement. From our review of the record and the
context within which the settlement agreement was reached, we find the testimony
and evidence presented by Urso and Strang to be more credible and consistent than
that of Thomsen and Ratliffe [an individual present at the hearing].
Thomsen claims that the Examiner ruled in his favor and did not make any adverse
against him, whereas the Commission drew negative credibility inferences from the record
first consulting with the Examiner.
Respondents agree that where the credibility of a witness is at issue and the
reverses its Examiner and makes contrary findings, then due process requires that the
consult with the Examiner regarding credibility and include in a memorandum opinion an
for its disagreement with the Examiner. Pieper Elec., Inc. v. LIRC, 118 Wis.
2d 92, 97-98, 346
N.W.2d 464 (Ct. App. 1984). However, in this case, Respondents maintain that the
made by the Commission did not involve any reversal of a credibility determination made by
Examiner, and therefore the Commission was not required to consult with the Examiner
making this finding.
The court agrees with Respondents. In Appleton v. ILHR Dept., 67
Wis. 2d 162, 172,
226 N.W.2d 497 (1974), the supreme court held that
the failure of the record to affirmatively show that the ILHR commission consulted
with the hearing examiner in respect to his impressions and conclusions in regard to
the credibility of the witnesses, coupled with the failure of the ILHR commission to
prepare a separate statement or memorandum opinion setting forth the reasons, facts
and ultimate conclusions relied upon in rejecting the
recommendations of the
examiner and in substituting its own findings, requires that the decision of the circuit
court be reversed with directions to remand to the ILHR. (emphasis added)
In reaching its decision in Appleton, the supreme court relied on the
"Fundamental fairness requires that administrative agencies, as well as courts, set forth
why a fact-finder's findings are being set aside or reversed, and spell the
independent findings substituted." Id. at 171 (emphasis added) (quoting
Transamerica Ins. Co. v.
ILHR Dept., 54 Wis. 2d 272, 284, 195 N.W.2d 656 (1972). Likewise, in
Pieper, the court of
Where the credibility of a witness is at issue and a commission reverses
and makes contrary findings, due process requires that the commission (1) glean,
from the record or from personal consultation with the examiner, the examiner's
personal impressions of the material witnesses and (2) include in a memorandum
opinion an explanation for its disagreement with the examiner.
118 Wis. 2d at 97-98 (emphasis added). While the Commission in the case at hand did
credibility determinations in making its additional finding of fact, it did not reverse any of
Examiner's findings or make contrary findings. The extent to which the Examiner
commented on the
accuracy of the Memorandum of Understanding can be encapsulated by the Examiner's
Fact #4, which states in part: ". . . At the conclusion of this discussion [the joint session],
Attorney Strang summarized the terms of the settlement. Neither WPPA Representative
Respondent Thomsen objected to this summarization. . . . " The court finds that the
of fact made by the Commission does not contradict or reverse the findings of fact made by
Examiner, and in fact tends to reinforce the Examiner's finding that the terms of the
summarized at the end of the joint session were not objected to by either Urso or Thomsen.
Therefore, since the Commission affirmed all of the factual findings of the Examiner and
new finding that did not reverse the Examiner, the court finds that Thomsen was not denied
The third argument raised by Thomsen is that the Commission plainly exceeded its
in attempting to enforce a settlement agreement of claims external to the collective bargaining
agreement. Paragraph 5 of the Memorandum of Understanding provides that in
consideration for the Town certifying that Thomsen's injuries were work-related on his
Disability Application and treating Thomsen as having retired in good standing, Thomsen
agree to fully waive and forever release discharge the Town, its present and former
agents, assigns and subsidiaries of any and all claims, demands, damages, actions and
cause of action of whatever kind or nature which they have or may have arising out
of Mr. Thomsen's employment, his separation from employment, and any and all other
employment matter without limitations including, but not limited to, matters arising
at law, in equity, under the Town's collective bargaining agreement with the Union,
or in state or federal agencies, courts, or other tribunals or competent jurisdiction.
This issue is of particular importance to Thomsen because he currently has a First
pursuant to 42 U.S.C. §1983 pending in the Seventh Circuit Court of Appeals.
See Thomsen v.
Romeis, et al., 7th Circuit No. 98-1343. In its decision, the Commission found that it
is not precluded
from enforcing a waiver of non-contractual claims, and that waivers such as the one found in
Memorandum of Understanding are commonplace when discharge grievances are settled.
Commission's Decision at 8. Whether the Commission isauthorized to
enforce such agreements is
a question of law which appears to be one of first impression; therefore, the court will
issue de novo.
Respondents contend that there does not appear to be any legal prohibition against
a general release in a settlement agreement, and that the Commission is entitled to require
to sign the written settlement agreement. The court disagrees. It is well-established that an
administrative agency is created by the legislature and has only those powers which are
conferred or which are necessarily implied by the statutes under which it operates.
Corp. v. Public Serv. Comm., 110 Wis. 2d 455, 461-62, 329 N.W.2d 143 (1983).
Commission derives its authority from the MERA, which was enacted by the legislature in an
to encourage voluntary settlement of disputes. Local 60
American Fed. v. Wisconsin Employ., 217 Wis. 2d 602, 608, 579
N.W.2d 59 (Ct. App. 1998). This
policy is set forth in the statutes:
Declaration of Policy. The public policy of the state as to labor disputes
arising in municipal employment is to encourage voluntary settlement through the
procedures of collective bargaining.
Section 111.70(6), Wis. Stats. Section 111.70(l)(a), Wis. Stats., specifically defines
bargaining as relating primarily to "wages, hours and conditions of employment." While the
recognizes that the MERA is to be read broadly, Id. at 612, the court finds no
statutory authority for
the Commission to enforce a settlement agreement which waives a §1983 constitutional
In addition, in Wright v. Universal Maritime Serv., 119 S. Ct. 391, 142
L. Ed. 2d 361 (1998),
the Supreme Court considered the issue of whether a union can waive an employee's right to
judicial forum for statutory antidiscrimination claims. The Court found that
the right to a federal judicial forum is of sufficient importance to be protected against
less-than-explicit union waiver in a CBA [collective bargaining agreement]. The CBA
in this case does not meet that standard. Its arbitration clause is very general,
providing for arbitration of "matters under dispute" . . . And the remainder of the
contract contains no explicit incorporation of statutory antidiscrimination
Id. at 396. The MERA governs wages, hours and conditions of
employment. The Commission is
given the explicit authority in mediation disputes with law enforcement to "function as a
labor disputes. . . . The function of the mediator shall be to encourage voluntary settlement
parties but no mediator shall have the power of compulsion." Section 111.70(4)(c)l., Wis.
There is no language in the MERA which explicitly waives a statutorily protected right such
§1983 claim. Likewise, the Memorandum of Understanding contains no "clear and
waiver of a statutorily protected right. Id. (quoting
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708, 75 L. Ed. 2d 387
(1983). The court finds that
the Commission did exceed its authority by enforcing a settlement agreement that waived a
protected §1983 claim without an explicit waiver stating so. Accordingly, the court
must set aside
the enforceability of the Memorandum of Understanding to the extent that it waives Thomsen
statutorily protected right to pursue a §1983 claim.
The fourth issue raised by Thomsen is that the Commission plainly erred when it
Thomsen was not entitled to rely on the contingency of attorney approval as a valid basis for
to sign the Memorandum of Understanding, despite the fact that Thomsen notified Urso that
would not sign the settlement agreement until it was reviewed and approved by his attorneys.
Whether a party is entitled to assert attorney approval as a valid basis for refusing to sign a
agreement presents a question of law, and the court will give the Commission's conclusions
deference since this is an issue which the Commission has dealt with before.
The Examiner made the legal conclusion that Thomsen's agreement to the
settlement of January
17, 1995, was conditioned upon having the settlement reviewed and approved by Thomsen's
attorneys. Examiner's Decision at 11. However, the Commission found that since Thomsen
state to the Town, the opposing party in this case, that its agreement was contingent on
review, then Thomsen was bound to the settlement and would be in violation of the
agreement if he
failed to comply with it. The Commission has consistently held that contingency of attorney
could be a bona fide reason to allow a bargaining team members to oppose a tentative
had reached without violating their duty to bargain in good faith; however, such
be stated to the opposing party during
bargaining. See Joint School District No. 5, City of
Whitehall, Dec. No. 10812-A (Torosian,
9/73), aff'd in pertinent part, Dec. No. 10812-B (WERC, 12/73);
Hartford Union High School
District, Dec. No. 11002-A (Fleischli, 2/74) aff'd in pertinent part,
Dec. No. 11002-B (WERC,
9/74); City of Columbus, Dec. No. 27853-B (WERC, 6/95). Based on WERC
precedent, the court
must affirm the Commission's conclusion that Thomsen failed to preserve the contingency of
attorney review by not revealing to the Town that the settlement reached was subject to the
of his attorneys.
Thomsen's fifth argument is that the Examiner erred by permitting the Town's
to testify as a witness at the hearing held before the Examiner, and that the Commission
excluded Strang's testimony. This presents a question of law which the court reviews
Thomsen contends that Strang's testimony should have been excluded by SCR
provides in pertinent part:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to
be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
(3) disqualification of the lawyer would work substantial hardship on the client.
Although courts should not usually permit an attorney who is an advocate in a trial to
testify in that
trial, this is not an absolute rule and a court may in its discretion permit an attorney to testify
justice requires. State v. Foy_, 206 Wis. 2d 629, 643-44, 557 N.W.2d 494 (Ct.
Attorney Strang bargained the settlement agreement for the Town. When the
accuracy of the
settlement agreement was challenged by Thomsen at the hearing, Strang asked and was
allowed to testify as to his recollection of the settlement agreement, which was also
reflected in his
notes from the mediation session. As to whether Strang's testimony should have been
SCR 20:3.7, the court is not particularly persuaded that it was foreseeable that Strang was
be a necessary witness" at the hearing. In addition, even if Strang's testimony had been
Strang's notes and the testimony of Urso provided substantial evidence to support the
conclusions. Therefore, the court finds no reason to reverse the Commission on the basis of
Finally, the last argument set forth by Thomsen is that the settlement agreement
ordered to sign does not constitute a binding contract because of failure of consideration.
argument was not considered by the Commission and this is the first time that it has been
Thomsen. Respondents argue that under ch. ERC 12, Wis. Admin. Code, which governs
relating to prohibited practices proscribed by §l11.70, Wis. Stats., an answer shall
contain a "specific
detailed statement of any affirmative defenses." Sec. ERC 12.03(4)(b), Wis. Admin.
Code. In his
Answer to the Town's prohibited practice complaint, Thomsen raised four affirmative
or want of consideration was not one of them. According to §802.02(3), Wis. Stats.,
defenses must be pled in a responsive pleading, and Respondents maintain that Thomsen has
waived this argument.
The court agrees with Respondents that Thomsen has effectively waived his
of failure of consideration by not pleading it. However, Thomsen's argument fails even on
The basic terms of the settlement agreement called for the Town to certify Thomsen's
Stats., duty disability claim, and to treat Thomsen as having retired in good standing due to a
disability, and Thomsen in exchange would waive all claims against
the Town. Thomsen maintains that at the time the Town sought enforcement of the
agreement, the agreement had nothing to offer Thomsen because he had already brought a
Wis. Stats., duty disability claim to hearing on his own. To the extent that the settlement
does not waive Thomsen's statutorily protected right to pursue a §1983 claim, the
court has already
upheld the Commission's finding that the Memorandum of Understanding accurately reflects
settlement agreement reached by the Town and Thomsen. Likewise, the court has found that
Thomsen failed to reserve the contingency of attorney approval as a valid basis for refusing
the Memorandum of Understanding. Therefore, at the time the settlement agreement was
there was consideration. The fact that Thomsen by his own actions destroyed the ability of
to fulfill the terms of the agreement and denied himself the benefit of that aspect of the
not dictate a different conclusion.
Therefore, for the reasons stated above, the court must affirm
the Commission's order, with the
exception that the Memorandum of Understanding does not include a waiver
of Thomsen's statutorily
protected right to pursue a §1983 claim.
IT IS SO ORDERED.
Dated this 20 day of May, 1999.
BY THE COURT:
Honorable Robert A. DeChambeau
Circuit Court, Branch 1