STATE OF WISCONSIN
IN COURT OF APPEALS
Wisconsin Employment Relations Commission
and Oneida County Courthouse Employees, Local 158,
[Decision No. 24844-J]
[NOTE: This document was re-keyed by WERC. Original pagination has been
APPEAL from an order of the circuit court for Oneida County: PATRICK J.
MADDEN, Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1 PETERSON, J. The issue in this case is whether chief deputies in the
offices of the
clerk of court, county clerk, county treasurer and register of deeds
are excluded from a collective bargaining unit as a matter of law. We hold they are
accordingly affirm the order.
¶2 Oneida County originally commenced a declaratory judgment action
seeking a ruling
that the deputy clerk of court, deputy county clerk, deputy county treasurer and deputy
deeds are excluded from the collective bargaining unit of the Oneida County Courthouse
Local 158. The collective bargaining agreement provides "all regular full-time and regular
employees of the Oneida County Courthouse [are] covered by this agreement, but excluding
elected personnel, supervisory personnel, and managerial personnel, as defined by the Act."
referred to is the Municipal Employment Relations Act (MERA), Wis. Stats. §§
The deputies, as members of the collective bargaining unit, are covered by the
1 All references to the Wisconsin Statutes are to the 1997-98
version unless otherwise indicated.
2 The only statutory reference to a "chief" deputy is for the clerk
court office in Milwaukee County.
Wis. Stat. § 59.40(1)(b). Every other statute refers only to "deputy" or "deputies."
Nevertheless, by practice
counties have apparently adopted the title of "chief deputy" for positions in various offices.
The following Wisconsin Statutes are the relevant statutes regarding deputies:
59.23 Clerk. (1) Deputies; Salaries; Vacancies. (a)
Every clerk shall
appoint in writing one or more deputies and file the appointment in the
clerk's office. The deputy or deputies shall aid in the performance of the
duties of the clerk under the clerk's direction, and in case of the absence or
disability of the clerk or of a vacancy in the clerk's office, unless another is
appointed therefor as provided in par. (c), shall perform all of the duties of
the clerk during the absence or until the vacancy is filled. The board may,
at any meeting, provide a salary for the deputy or deputies.
¶3 The County sought exemption for the deputies based on two
contentions. First, by
virtue of their designation as chief deputies, the County
(2) Deputies; oath; salary; temporary vacancy. (a) The
appoint one deputy to aid the treasurer, under the treasurer's direction, in the
discharge of the duties of the office of treasurer. A deputy appointed under this
paragraph may be removed only for just cause. The appointment shall be in writing
and shall be filed and recorded in the treasurer's office. Such deputy, in the absence
of the treasurer form the treasurer's office or in case of a vacancy in said office or
any disability of the treasurer to perform the duties of the office of treasurer, unless
another is appointed therefor as provided in par. (b), shall perform all of the duties
of the office of treasurer until such vacancy is filled or such disability is removed.
The person so appointed shall take and file the official oath. The person shall file his
or her appointment with the clerk. The board may, at its annual meeting or at any
special meeting, provide a salary for the deputy.
59.40 Clerk of court. (1) Clerk of court; deputies; chief
chief deputies; calenar deputy in certain counties. (a) Counties of less than
500,000 population. Every clerk of the circuit court shall appoint one or more
deputies and the appointments shall be approved by the majority of the circuit judges
for the county, but shall be revocable by the clerk at pleasure, except in counties
having a population of 500,000 or more. The appointments and revocations shall be
in writing and shall be filed in the clerk's office. The deputies shall aid the clerk in
the discharge of the clerk's duties. In the absence of the clerk from the office or from
the court, the deputies may perform all the clerk's duties; or in case of a vacancy by
resignation, death, removal or other cause, the deputy appointed shall perform all
such duties until the vacancy is filled.
59.43 Register of deeds; duties, fees, deputies.
(3) Register of deeds; deputies. Every register of deeds shall
appoint one or
more deputies, who shall hold office at the register's pleasure. The appointment shall
be in writing and shall be filed and recorded in the register's office. The deputy or
deputies shall aid in the register in the performance of the register's duties under the
register's direction, and in case of the register's vacancy or the register's absence or
inability to perform the duties of the register's office the deputy or deputies shall
perform the duties of register until the vacancy is filled or during the continuance of
the absence or inability.
claimed the positions are exempt from MERA as a matter of law. Alternatively, the
contended the deputies are exempt by the terms of the MERA because the deputies are
or managerial employees.3
¶4The circuit court referred the case to the Wisconsin Employment Relations
(WERC). The commission held a hearing, made findings and concluded that (1) the
not exempt from MERA as a matter of law and (2) based on the facts, the deputy clerk of
exempt as a supervisor under MERA, but the other deputies are not exempt because they are
neither supervisors nor managerial employees.
¶5The County then filed a petition for judicial review of the commission's
decision. The circuit
court affirmed and this appeal follows.
STANDARD OF REVIEW
¶6 We review the decision of the commission and not the circuit court.
Lewandowski v. State, 140 Wis. 2d 405, 409, 411
N.W.2d 146 (Ct. App. 1987). Some deference
is normally paid to the commission's determination. See
Brown County v. WERC, 138 Wis. 2d 254,
261-62, 405 N.W.2d 752 (Ct. App. 1987). However, when the question involves the
of statutes and case law outside the area of labor relations and the statute's relationship to the
applicable provisions of the MERA, the issue is one of law "'within the special competence
courts rather than the Commission .'" City of Brookfield v.
WERC, 87 Wis. 2d 819, 827, 275
N.W.2d 723 (1979) (quoting Glendale Prof'l
3 Wisconsin Stat. § 111.70(1)(i) reads as follows:
"'Municipal employee'" means any individual
employed by a municipal employer other than an independent contractor, supervisor, or
managerial or executive employee."
Policemen's Ass'n v. Glendale, 83 Wis. 2d 90, 100-01, 264 N.W.2d 594 (1978)). As
a result, we do
not defer to the commission's decision. See id.
I. MATTER OF LAW ARGUMENT
A. Case Law
¶7 The County's primary argument is that under County
of Eau Claire v. AFSCME
Local 2223, 190 Wis. 2d 298, 526 N.W.2d 802 (Ct. App. 1994) and
Winnebago County v.
Winnebago County Courthouse Employees Ass'n, 196 Wis. 2d 733, 540
N.W.2d 204 (Ct. App.
1995), chief deputies are automatically excluded from the bargaining unit. We are not
¶8 As a backdrop to Eau Claire and
Winnebago, we first review two cases which set
the stage, Iowa County v. Iowa County Courthouse Soc. Servs.
Employees, 166 Wis. 2d 614, 480
N.W.2d 499 (1992) and Crawford County v. WERC,
177 Wis. 2d 66, 501 N.W.2d 836 (Ct. App.
1993). In Iowa, the position of register in probate
became vacant. A statute provided that the judge
shall appoint the register in probate. The county's collective bargaining agreement, however,
provided that vacancies must be posted and that the most senior person applying must get the
Our supreme court concluded that while a county may limit its own power with respect to
in probate, e.g., setting salary, it could not bargain "restrictions on the hiring of a register in
because it was not within its power to begin with." See Iowa
County, 166 Wis. 2d at 620. Thus, the
provisions in the agreement which purported to limit the statutory power of the judge to
register in probate were void. All other provisions remained in effect. See
id. at 621.
¶9 In Crawford, the union proposed
subjecting deputies in the clerk of court's and
register of deeds' offices to all terms and conditions of a collective bargaining agreement.
statutes, however, authorized the elected clerk of court and register of deeds to appoint and
deputies. Consistent with Iowa, we concluded that the
county could not bargain away the statutory
power of the clerk of court and register of deeds to appoint and discharge deputies.
County, 177 Wis. 2d at 78. The county could, however, bargain on
subjects over which it had
authority, such as pay and other conditions of employment. See
¶10 Oneida County first relies on the Eau
Claire case. There, we again dealt with the
offices of clerk of court and register of deeds. The county had entered into a collective
agreement with the union covering the employees in those offices. The collective bargaining
agreement contained provisions for hiring and firing: required posting for hiring and required
cause for firing. Each office had a non-union chief deputy position, but virtually every other
employee was deputized and was covered by the agreement.
¶11 We first stressed the importance of harmonizing, if possible, the
provisions of a
collective bargaining agreement under MERA with other conflicting statutory provisions.
County of Eau Claire, 190 Wis. 2d at 304. We observed that
Crawford involved only a single chief
deputy in the offices of clerk of court and register of deeds. We then limited the holding of
to those facts "to avoid the evisceration of the legislative intent underlying MERA" and the
authorizing the clerk of court and register of deeds to appoint and discharge deputies.
Eau Claire, 190 Wis. 2d at 305.
While Crawford could not reconcile the appointment of a deputy clerk and
deputy register at the pleasure of their superior, it does not follow that the
number of appointments pursuant to this statutory power is unlimited.
The size and function of the particular office will ultimately
scope of the power.
Id. We then remanded the case to determine
whether any employees were exempt under MERA as
supervisors or managers. If not, they would remain covered by the agreement and were not
merely because they were deputized. See id. at 307.
¶12 Oneida County seizes on the following statement in
Eau Claire: "We conclude that
deputized employees, apart from the chief deputy, are exempt from MERA coverage only to
extent that they in fact function as managerial or supervisory employees ."
Id. at 301. From this,
the County concludes that chief deputies are automatically excluded from the collective
unit as a matter of law. It would not have to show whether the chief deputies are exempt
MERA as supervisors or managers because MERA does not apply to chief deputies. Other
employees, according to the County, are covered by MERA and are only exempt if they are
supervisors or managers.
¶13 As a preliminary matter, Eau
Claire did not address whether chief deputies are
automatically exempt from MERA. That was not an issue in the case. In fact, the chief
there were non-union positions. The issue was whether deputized employees, aside from the
deputy, were subject to MERA. See id. Any
comments about chief deputies must be read in the
context of the facts of the case.
¶14 More fundamentally, however, the County misreads our decision.
Crawford held that
deputies were subject to the collective bargaining agreement in all respects except those that
conflicted with the statutory powers of appointment and removal. See
Crawford County, 177 Wis.
2d at 78. By limiting Crawford to
Eau Claire restricted
Crawford's holding to one chief deputy in each office.
of Eau Claire, 190 Wis. 2d at 304. That chief deputy is subject to
MERA with one exception: the
county may not bargain away the elected official's power to appoint and discharge. By
MERA in all other respects to chief deputies, they will be subject to a collective bargaining
unless they are exempt as supervisors or managers, just like other deputies. Thus, under
the difference between the chief deputy and other deputies is simply that the elected official
retains the power to appoint and discharge the chief deputy. The power to hire and fire
deputies, however, can be limited by a collective bargaining agreement.
¶15 Last, the County cites the
Winnebago case. However,
Winnebago merely restated
the holding in Eau Claire. See
Winnebago County, 196 Wis. 2d at 743. It did not expand
holding, nor was the question of a chief deputy's exemption from MERA even an issue in
Winnebago adds no further support to the County's
¶16 Thus, we conclude that, contrary to the County's argument,
Eau Claire and
Winnebago do not support the proposition that chief
deputies are exempt from MERA as a matter
of law. To the contrary, the case law holds that chief deputies are subject to MERA, with
exception of the elected officials' power to appoint and discharge.
B. Legislative History
¶17 The County additionally argues that WERC disregarded relevant
regarding the revision of the treasurer's powers in Wis. Stat. § 59.25(2)(a). The
allowed the treasurer to appoint one or more deputies. The statute was amended by 1997
Act 211 to limit the
appointment to one deputy and to require just cause for discharge. The County argues
amendments were prompted by its interpretation of the rulings in Eau
Claire and Winnebago. We
reject the County's argument because, as already explained, we reject its interpretation of our
¶18 The County cites a legislative reference bureau memorandum to support
for why the statute was changed. To begin with, we do not defer to the legislative reference
for an interpretation of our decisions. In addition, the County does not make an argument
statute is ambiguous. In the absence of ambiguity, we do not refer to legislative history.
v. Sample, 215 Wis. 2d 487, 495, 573 N.W.2d 187 (1998).
¶19 Finally, a reading of the legislative amendments cited by the County
the commission's decision. Wisconsin Stat. § 59.52(2)(a) was amended to provide for
appointment of a single deputy treasurer and to permit the removal of the deputy treasurer
just cause. It provides that deputy treasurer with just cause protection, a protection the
would lack under the holding in Crawford.
C. Public Policy
¶20 The County also makes a public policy type of argument for exclusion
deputies from the collective bargaining unit. The argument is as follows:
Pursuant to the appointment statutes, the Deputies perform the statutory
duties and, with regard to the offices of the Register of Deeds and the Clerk
of Court, the constitutional duties, of their respective elected officials during
a vacancy in the elective office, during an absence of the elected official, or
during a period in which the elected official is unable to perform his or her
duties. The terms of
employment of the Deputies are also coextensive with the
who appointed them. Like the elected officials, the Deputies are required by
statute to take and file an oath and post a bond. The Deputies' duties and
conditions of employment are those of the elected officials, rather than that
of mere employees. (Footnote omitted.)
As a result, the County contends that chief deputies "cannot fairly and effectively
perform their duties
if they are torn by an allegiance to the bargaining unit members or are unduly influenced by
¶21 The County's argument must be rejected for three reasons. First, we
acknowledged these factors. In Crawford we
the constitutional origins of the offices themselves, the statutory provisions
authorizing their appointed deputies to carry out the functions of the offices
in the event of vacancy or inability of the officeholder to serve, and by the
various provisions of the Wisconsin Constitution and state statutes which,
in distinction to local officers, give other state officials a role in their
appointment, resignation and removal.
Id. 2d at 77-78. That recognition, however, did
not lead to the sweeping conclusion of automatic
exemption from the collective bargaining unit. Rather, it led to harmonizing the statutes by
only the county's authority to bargain the statutory powers of appointment and discharge.
¶22 Second, the statutes and the constitution do not support the County's
Rather, those laws all refer to a "deputy" or "deputies." None specifies a "chief" deputy. If
to accept the County's argument based on the statutes and the constitution, we would
to exempt all deputies in these offices from the collective bargaining unit. Since most
these offices are deputized, this would have the effect of abrogating the collective
bargaining rights of a major portion of courthouse employees. This is a conclusion we
will not reach
on public policy grounds.
¶23 Third, the County's argument is directed at the wrong forum. A public
argument is best made to the legislature. A court's function is to interpret and give effect to
statutes, not to rewrite them on the grounds of public policy. See Flynn
v. DOA, 216 Wis. 2d 521,
539, 576 N.W.2d 245 (1998).
II. EVIDENCE ARGUMENT
¶24 Finally, the County argues that if the chief deputies are not exempt
from MERA as
a matter of law, then the evidence shows that they should all be exempt as supervisory or
positions. However, this issue was not raised in circuit court. In fact, in its reply brief in
court, the county specifically stated:
[T]he Commission argues that it could reasonably find that the Deputy
County Clerk, Deputy County Treasurer, and Deputy Register of Deeds did
not qualify as managerial or supervisory employees within the meaning of the
Municipal Employment Relations Act (MERA). Oneida County is not
challenging that determination. Rather, the County's sole contention in this
matter is that these Deputies, and the Deputy Clerk of Court, should be
excluded from the collective bargaining unit as a matter of law because they
are duly appointed Chief Deputies to the elected officials.
We generally do not address issues raised for the first time on appeal. See
Anderson v. Nelson, 38
Wis. 2d 509, 514, 157 N.W.2d 655 (1968). We conclude that the County waived any claim
positions were supervisory or managerial by its failure to raise the issue in the circuit court.
By the Court.--Order affirmed.
Recommended for publication in the official reports.