CIRCUIT COURT BRANCH III:
LOCAL 1925-B, AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Case No. 98-CV-507
[Decision No. 29123-D]
[NOTE: This document was re-keyed by WERC. Original pagination has been
MEMORANDUM DECISION ON THE
APPLICATION FOR A JUDICIAL REVIEW
THE DECISION OF THE WISCONSIN
RELATIONS COMMISSION OF JUNE 26,
AND MOTION OF THE PETITIONER FOR
TO PROFFER TESTIMONY IN COURT
AND TO TAKE DISCOVERY
The petitioner, AFSCME Local 1925-B, by its attorneys, Shneidman, Myers,
Blumenfield, Ehlke, Hawks & Domer, and Bruce F. Ehlke, of Madison, Wisconsin.
The respondent, Wisconsin Employment Relations Commission, in this
proceeding by its attorneys, James E. Doyle, Attorney General, and John D. Niemisto,
Attorney General, of Madison, Wisconsin.
[The respondent Walworth County in the underlying prohibited practices complaint
appeal nor appear.]
This is a Chapter 227 review, taken by the petitioner, AFSCME Local 1925-B, under
§§227.52, 227.53 and 227.57, Wis. Stats., arising from an allegation before the
Employment Relations Commission by the local union that the sheriff of Walworth County
engaged in prohibited practices under §111.70(3)(a)(1) (this is within subchapter IV,
Acomplaint had been filed before the Wisconsin Employment
(known herein as the commission) on February 24, 1997, which resulted in the commission
appointing a hearing examiner. [See the decision of hearing examiner Amedeo Greco of
1998.] After procedural matters were decided, a hearing was held in Elkhorn, Wisconsin on
October 31, 1997, which was adjourned to December 16, 1997. The hearing examiner then
issued findings of fact, conclusions of law, where he concluded:
1. Respondent Walworth County violated Section 111.70(3)(a)l of
the Municipal Employment Relations Act when it continued its
criminal investigation into whether Kathy Franklin and Dian Strunk
had improperly gained access to the Sheriff Department's computer
system after Undersheriff David Graves had given them permission
to do so.
The examiner then ordered the county to cease and desist from such conduct.
In his memorandum attached to the decision, captioned Discussion, the hearing
rationalized his decision and (in part) stated thus:
More importantly, since an objective test rather than a subjective
test must be used in determining whether Section 111.70(3)(a) (1)
of MERA has been violated, it should be clear to any reasonable
person that being subjected to a criminal investigation is one of the
single most threatening devices around.
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When viewed in this light - which is the only light that can be used -
it is clear that the County, through Sheriff McKenzie, engaged in
outrageous conduct when he refused to put a stop to the criminal
investigation after Graves told him on or about September 3, 1996,
that he, Graves, did not dispute Franklin and Strunk's assertion that
Graves in 1993-1994 gave them permission to access the computer
files. McKenzie's failure to then call off the hounds shows that he
at that point was no longer interested in learning the truth about this
matter (assuming arguendo that was ever his real goal), and that he,
instead, wanted the criminal investigation to continue for reasons
other than those now stated by the County.
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As for any additional remedy, a case can be built for sending a copy
of this decision to the local newspapers and local media so that the
citizens of Walworth County could learn just how McKenzie called
for a continued criminal investigation into activity that his own
undersheriff approved years earlier. It may be necessary for them
to learn about what has transpired herein so that they can see how
their taxes have been wasted and so that they understood that they,
too, may be subjected to a criminal investigation at McKenzie's
mere whim and caprice. Such public disclosure, however, will have
to be made through some other vehicle, as I conclude that I do not
have the authority to publicly disseminate this decision in this
But, there is no need for the Union to pay for any continued
litigation costs over this matter.
Hence, if the County wishes to engage in frivolous litigation by
appealing this decision, I recommend to the Commission that it
order the County to pay for all future legal fees and costs incurred
by the Union on appeal. I also recommend that if this matter is
taken to court, that the Commission then seek full attorney's fees
and costs against the County for engaging in frivolous litigation.
To do otherwise would only encourage McKenzie to think that
there is no cost to his illegal conduct. That is not the message that
the Commission should send when the police power has been
abused to the extent found here.
Then, on May 18, 1998, the commission under its power found in §111.07(6)
aside, modify or change any order . . . at any time within 20 days . . ." [See the order of
commission of June 26, 1998] set aside the last two paragraphs (quoted above).
In its memorandum the commission explained:
Finally, we strike the lasttwo paragraphs of the Examiner's
Our reading of the record finds insufficient support for the intemperate dicta of the
first. In any
event, the dicta reflects an unnecessary and unsuitable personalization of this litigation.
We regard the second as an inappropriate intrusion into a party's
decision as to whether it wishes to exercise its statutory appeal
rights. Imposition on one party of the fees and costs of the other
should never be based on whether a party chooses to exercise its
statutory rights. If the examiner believed the County's defense to
be frivolous in the litigation before him, he should have ordered
payment of fees and costs. He made no such order. Nor do we.
The effect of the order was to uphold the April 27, 1998 order but
again to strike the
However, a separate opinion was filed by the commission's chair, James R. Meier.
[Two of the
three commissioners was enough to constitute a majority.]
In his separate opinion the chair stated:
The Respondent (Walworth County) did not appeal the Examiner's
decision, thus leaving the Commission to wonder whether the
Respondent agreed with the Examiner's decision or whether the
Respondent would have appealed but for the Examiner's coercive
threat to persuade the Commission to charge the Respondent with
I write separately to make several observations. First, on appeal, an
examiner's findings and decision have no influence beyond what is
supported by the record and the law. Our review is de novo. (Cits.
That a party or parties could refrain from exercising the right to
appeal as a result of coercion by a staff member of the WERC
indicates a serious misunderstanding of how we operate.
Commissioners were not appointed to the Wisconsin Employment
Relations Commission to rubber stamp examiners' decisions or
abide coercive restraint of statutory rights. The Examiner's threat
was not only "beyond the pale," but hollow as well.
Furthermore, I want the parties and the public to know that the
Examiner's objectionable decisioncontaining the threat was initially
brought to my attention by two professional WERC staff who
believe the decision reflects badly on the WERC. My point is that
WERC is largely made up of professionals who are desirous of
maintaining the Commission's reputation for professionalism.
Therefore, it is a mistake to refrain from appealing or complaining
of unprofessional conduct on the theory that the agency will "get
even" with the appellant or that the agency will let the offending
staff person "get even" with the appellant.
The Examiner excoriated Sheriff McKenzie because ". . . McKenzie
called for a continued criminal investigation into activity that his
own undersheriff approved years earlier." The record establishes
that the only thing done after Undersheriff Graves remembered that
he may have authorized the access to the corrections system was
that the investigation report was sent to the District Attorney. In
Wisconsin the district attorney is an independent, neutral charging
authority, not an investigative agent of the sheriff. It is not the
function of a district attorney to continue investigations or to file
charges where no crime exists, and neither occurred here.
I am satisfied that while it may have been better if the Sheriff had
not had the report sent to the District Attorney, doing so did not
warrant the Examiner's reaction. At all times, the Sheriff acted
consistent with the advice received from the Corporation Counsel.
Consistent with that advice, the employe conduct in question was
investigated by an outside entity whose report was submitted to the
appropriate authority for closure.
Finally, I do not concur with my colleagues' conclusion that the
Respondent violated Sec. 111.70(3)(a)l, Stats.
The dissent did not affect the majority's decision, of course, finding a violation by
[The order of 6/26/98 goes unappealed by the county.]
Meanwhile, the attorney for the local wrote the general counsel for the commission
on June 4,
1998, and asked, "If it is the intention of the commission to review and make any substantive
change it (the local) demands to be informed of the identity of the person(s) who have
communicated with the commission."
The attorney for the union was asking in effect if there was a violation of:
227.50. Ex parte communications in contested cases
(1)(a) In a contested case, no ex parte communication relevant to
the merits or a threat or offer of reward shall be made, before a
decision is rendered, to the hearing examiner or any other official or
employe of the agency who is involved in the decision-making
1. An official of the agency or any other public employe or official
engaged in prosecution or advocacy in connection with the matter
under consideration or a factually related matter; or
2. A party to the proceeding, or any person who directly or
indirectly would have a substantial interest in the proposed agency
action or an authorized representative or counsel.
(b) Paragraph (a)l does not apply to an advisory staff which does
not participate in the proceeding.
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(2) A hearing examiner or other agency official or employe
involved in the decision-making process who receives an ex parte
communication in violation of sub. (1) shall place on the record of
the pending matter the communication, if written, a memorandum
stating the substance of the communication, if oral, all written
responses to the communication and a memorandum stating the
substance of all oral responses made, and also shall advise all
parties that the material has been placed on the record; however,
any writing or memorandum which would not be admissible into the
record if presented at the hearing shall not be placed in the record,
but notice of the substance or nature of the communication shall be
given to all parties. Any party desiring to rebut the communication
shall be allowed to do so, if the party requests the opportunity for
rebuttal within 10 days after notice of the communication.
The response of Attorney Davis [under (2)] was to deny any contact on June 8,
attorney for the local again wrote on June 11, 1998, clarifying his earlier letter, demanding
to know if any "person had communicated with the commission about this matter."
was a denial of June 16, 1998. On June 26, 1998, the findings and order were filed. (See
On July 24, 1998, the general counsel for the commission wrote to the attorney for
After the Commission issued its May 18, 1998 Order for the
purpose of "correcting mistakes" contained in Greco's April 27
decision, Chair Meier attended a meeting of the Board of Directors
of the Wisconsin School Attorneys' Association to give them a
requested update on the Wisconsin Employment Relations
Commission. Mr. Korom is on the Association Board and was in
attendance at the meeting.
During the meeting, Mr. Korom asked Chair Meier why the Commission had issued
the May 18,
1998 Order. Chair Meier replied: "You will know when you get our decision." In response
questions from other Board members, Mr. Korom then went on to describe the Greco
Upon his return from the meeting, Chair Meier advised me and
Commissioner Hempe and Hahn of Korom's remark and his
response . . . .
The local complains that these communications as alleged constitute ex parte
under §227.50(l)(a), et. seq., and render the proceedings unfair, §227.57(4).
The underlying issues between the local union and the county sheriff no longer have
The findings of Hearing Examiner Amedeo Greco goes unappealed as does his conclusion
1. Respondent Walworth County violated Section
111.70(3)(a)l of the Municipal Employment Relations
Act when it continued its criminal investigation into whether Kathy
Franklin and Dian Strunk had improperly gained access to the
Sheriff Department's computer system after Undersheriff David
Graves had given them permission to do so.
The commission's order of June 26, 1998, in favor of the local goes unappealed thus:
Pursuant to our May 18, 1998 Order, we hereby make and issue the
same Findings, Conclusions, Order and Memorandum issued by the
Examiner on April 27, 1998 with the follow exceptions:
Examiner Finding of Fact 21 is modified to read:
Inasmuch as Undersheriff Graves had previously approved
Franklin and Strunk's use of the computer system, the County's
subsequent criminal investigation ** of said use had a reasonable
tendency to interfere with restrain and coerce Franklin and Strunk
in the exercise of rights guaranteed by Sec. 111.70(2), Stats.
B. The last two paragraphs of the Examiner's Memorandum are
This is, of course, a Chapter 227 review by this court.
227.57. Scope of review
(1) The review shall be conducted by the court without a jury and
shall be confined to the record, except that in cases of alleged
irregularities in procedure before the agency, testimony thereon
may be taken in the court and, if leave is granted to take such
testimony, depositions and written interrogatories may be taken
prior to the date set for hearing as provided in ch. 804 if proper
cause is shown therefor.
(**) §943.70(2)(a)(3), Stats., makes accessing computer data
unlawfully a possible
Class D felony (government operations jeopardized). Class D felonies carry
penalties of up to five years in prison and a $10,000 fine. §939.50(3) (d).
(2) Unless the court finds a ground for setting aside, modifying,
remanding or ordering agency action or ancillary relief under a
specified provision of this section, it shall affirm the agency's action.
- - - - -
(4) The court shall remand the case to the agency for further action
if it finds that either the fairness of the proceedings or the
correctness of the action has been impaired by a material error in
procedure or a failure to follow prescribed procedure.
- - - - -
(10) Upon such review due weight shall be accorded the
experience, technical competence, and specialized knowledge of the
agency involved, as well as discretionary authority conferred upon
it. The right of the appellant to challenge the constitutionality of
any act or of its application to the appellant shall not be foreclosed
or impaired by the fact that the appellant has applied for or holds a
license, permit or privilege under such act.
The commission first raises the issue of whether after all the local is "aggrieved" by
commission's decision. "Aggrieved" is a word of art. To determine if the local is
has standing under §§227.52 and 227.53, one looks to Town of Delavan
v. City of Delavan,
160 Wis. 2d 403 (Ct. App.) 1990, thus at page 409:
Sections 227.52 and 227.53(l), Stats., govern judicial review of
agency determinations. The relevant portions of those statutes
227.52 Judicial review; decisions reviewable. Administrative
decisions which adversely affect the substantial interests of any
person, whether by action or inaction, whether affirmative or
negative in form, are subject to review as provided in this
chapter . . ..
227.53 Parties and proceedings for review. (1) Except as otherwise
specifically provided by law, any person aggrieved by a decision
specified in s. 227.52 shall be entitled to judicial review thereof as
provided in this chapter.
Further at pages 410-411:
STANDING TO PETITION FOR REVIEW
A petitioner does not have standing to petition for review of an
administrative decision merely because that person requested and
was granted an administrative hearing. (Cits. omitted) Rather, the
petitioner must be "aggrieved" by the agency decision.
Section 227.53(l), Stats.
We apply a two-part test for determining whether a party is
aggrieved and thus has standing under secs. 227.52 and 227.53(l),
Stats. (Cits. omitted) First, the petitioner must demonstrate that it
sustained an injury due to an agency decision. (Cit. omitted) That
injury must not be hypothetical or conjectural, but must be "injury
in fact." (Cit. omitted) Second, the petitioner must show that the
injury is to an interest which the law recognizes or seeks to regulate
To look no further than the decision in favor of the local would I think make it not
possible for the court to examine the record at all.
Section 111.07(4) provides certain remedies to the local, including an order requiring
person to cease and desist or reinstatement. The union officials were not terminated by the
county. The sheriff was personally required to sign an admission that a prohibited practice
occurred and was ordered to cease and desist from threatening a criminal investigation of the
union officials accessing vacation data in the county's computer.
No other remedy appears available to the court or the commission. I affirm the
and dismiss the union's petition.
Dated at Elkhorn, Wisconsin, this 25th day of January, 1999.
BY THE COURT:
John R. Race /s/
John R. Race, Circuit Judge
cc: Atty. Bruce F. Ehlke
Asst. AG John D. Niemisto