STATE OF WISCONSIN
LOCAL 1901-F, AFSCME, AFL-CIO
WISCONSIN EMPLOYMENT RELATIONS
COMMISSION and BROWN COUNTY,
Case No. 99-CV-1671
[Decision No. 29094-C]
[NOTE: This document was re-keyed by WERC. Original pagination has been
Petitioner seeks judicial review of a decision of the Wisconsin Employment Relations
Commission, which dismissed a prohibited practice complaint brought by the petitioner
respondent Brown County. The commission ruled that the respondent had just cause to
the petitioner, and therefore did not commit a prohibited practice of altering the status quo as
discipline during a contract hiatus in violation of Wis. Stat. § 111.70(3)(a)(4).
The petitioner asks this court to reverse the commission's decision, claiming that: (1)
commission denied the petitioner his constitutionally secured due process of law by
prejudicial procedural error in arriving at its decision; (2) there was not "substantial evidence
record" within the meaning of Wis. Stat. §227.57(6) to support the material findings of
fact made by
the commission; and (3) the commission erred in determining that its authority is limited to
concerning investigatory findings made pursuant to Wis. Stat. § 49.981.
Wis. Stat. § 227.57 sets forth the scope of review a trial court applies when it
administrative decision. Wis. Stat. §227.57 provides in pertinent part:
The review shall be conducted by the court
without a jury and shall be confined to the
(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.
The scope of judicial review of an agency decision is limited to review of the
based on the record developed before the agency. See Wis. Stat. §
227.57(1); see Charter Mfg. Co.,
Inc. v. Milwaukee River Restoration Council, Inc., 102 Wis.2d 521, 528 (Ct. App.
addition, the court must separately consider questions of law, fact, and procedure.
See Wis. Stat. §
227.57(3). The following standards are established by Wis. Stat. § 227.57(4), (5), (6)
issues of fact, law, and procedure:
(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
(5) The court shall set aside or modify the agency action if it
finds the agency has
erroneously interpreted a provision of law and a correct interpretation compels a
particular action, or it shall remand the case to the agency for further action under
a correct interpretation of the provision of law.
(6) If the agency's action depends on any fact by the agency
in a contested case
proceeding, the court shall not substitute its judgment for that of the agency as to
the weight of the evidence on any disputed finding
of fact. The court shall, however, set aside agency action or
remand the case to
the agency if it finds that the agency's action depends on any finding of fact that
is not supported by substantial evidence in the record.
The Commission's Findings of Fact
As a preliminary matter, this court recognizes that under Wis. Stat. §
227.57(6), a court upon
judicial review of an administrative decision may not "substitute its judgment for that of the
as to the weight of the evidence on any disputed finding of fact." Rather, a reviewing court
uphold the agency findings unless they are not supported by "substantial evidence."
Id; see Hamilton
v. Department of Industry, Labor and Human Relations, 94 Wis.2d 611, 617
courts have defined "substantial Evidence" as "such relevant evidence as a reasonable mind
accept as adequate to support a conclusion." Bell v. Personnel Bd., 259 Wis.
602, 608 (1951).
Moreover, the standard does not require that the evidence be subject to no other reasonable,
plausible interpretation. See Hamilton, 94 Wis.2d at 618. In other
words, the agency's decision may
be set aside by a reviewing court only when, "upon an examination of the entire record, the
including the inferences therefrom, is found to be such that a reasonable person, acting
could not have reached the decision from the evidence and its inferences."
Bucyrus-Erie Co. v. ILHR
Dept., 90 Wis.2d 408, 418 (1979).
Although this court's function with regard to review of agency decision-making is a
one, this court cannot properly carry out its limited role on review unless the agency follows
procedure by providing the court with adequate facts and reasoning upon which its decision
based. This is particularly true in cases such as the one at hand where the commission's
reverses the proposed legal and factual findings of a hearing
examiner who heard testimony from and observed witnesses during hearings that
spanned seven days.
Under Wis. Stat. 227.46(2), "if any agency's decision varies in any respect from the
decision of the hearing examiner, the agency's decision shall include an explanation of the
for each variance." Id. Wisconsin courts have also stressed the significance of
decision-making on the judicial review process. Voight v. Washington Island Ferry
Line, Inc., 79
Wis.2d 333, 343 (1977)(stating that "[w]here an agency's decision is contrary to
of the hearing examiner responsible for making findings initially, the agency must itself
what evidence it has relied to support its result."); and Heine v. State Chiropractic
167 Wis.2d 187, 191-92 (Ct. App. 1992)(stressing that "[w]here the agency's decision is
to the recommendation of the hearing examiner, the agency must explain on what evidence it
relied to support its result, and even where the agency does not set aside findings, it still
adequate reasons for departing from the proposed order.").
An administrative agency's explanation of its conclusions not only permits the
court to carry out its judicial review function, but also ensures that the proceedings do not
fundamental notions of fairness. See Transamerica Ins. Co. v. ILHR
Dept., 54 Wis.2d 272, 284
(1972). As stated by the court in Transamerica:
The partiesare entitled to know, not only that the department set aside
the findings of an examiner but why it did so--not only what independent
findings the department found proper, but on what basis and evidence it
made such findings. Particularly is this true where credibility of witnesses
is involved. Fundamental fairness requires that administrative agencies, as
well as courts, set forth the reasons why a fact-finder's findings are being
set aside or reversed, and spell out the basis for independent findings
Id. at 284.
Guided by the statutory authority and case law as set forth above, this court finds that
commission failed to state the reasons for its affirmance in part, and reversal in part, of the
Examiner's Finding of Fact number 25. On page two of its decision, the commission made
following finding as part of its order:
Examiner Finding of Fact 25 is affirmed in part and reversed in part
the deletion of the stricken through language and the addition of the
25. In preparation for his testimony at the preliminary
hearing, JB was
transported from his new home in another state to Brown County and was
housed in Secure Detention. While in Secure Detention, he encountered a
female juvenile, JM. JM has also been a resident at both the Mental Health
Center and Shelter Care from time to time, and knew JB from both places.
JM was in Secure Detention for having run away from Shelter Care. JM
approached JB in the common room at Secure Detention, just outside the
jailers' office. She asked JB what he was doing there, and JB replied that he
was there to testify against M for sexually assaulting him.
JM asked if he had
sexually assaulted him, and JB said that he had not, that he had made up the
charges to get even with M. JM rebuked him for this. During their
conversation, JB did not tell JM he had made up the charges to get even with
M. The following morning, JM was returned to his new home state. Later
that day, JM was placed in lockdown for being too loud.
Decision No. 29094-B, p.2
In the discussion section of the opinion, the commission's sole comment on its action
Examiner Finding of Fact 25 was as follows:
Third, I find J.M.'s testimony regarding J.B.'s alleged recantation to be less
credible and persuasive than the Examiner's analysis reflects. I conclude that
J.B. did not recant and thus the Examiner Finding of Fact 25 has been
reversed to that extent.
Decision No. 29094-B, p.9.
As stated above, questions concerning the weight and credibility of the evidence are
for the agency. See Bucyrus-Erie Co. v. ILHR Dept., 90 Wis.2d
408, 418 (1979); Wis.
Stat. §227.57(6). Thus, the court's limited function is to determine whether
there is substantial
evidence in the record to support the agency's factual findings. However, the court cannot
adequately determine whether the findings are supported by substantial evidence if the
presented for review fail to included an evidentiary basis for the conclusion reached.
Here, the commission's only written explanation for its reversal of Examiner Finding
Fact #25 that J.B. told J.M he made up the charges to get even with M was that it found
testimony regarding J.B.'s alleged recantation to be less credible and persuasive than the
examiner's analysis reflects." Decision No. 29094-B, p.9. This court
concludes that the
commission's cursory statement does not satisfactorily explain the commission's variance
the finding of fact recommended by the hearing examiner, and therefore fails to satisfy the
requirements of Wis. Stat. § 227.46(2).
For the aforementioned reasons, the case is remanded under Wis. Stat.
§227.57(4) to the
commission with orders that the commission solely explain in detail on what evidence it
determining that J.M. was not a credible witness, and ultimately reversing the Examiner
Fact 25 that J.B. recanted.
Dated at Green Bay, Wisconsin, this 5 day of October, 2000.
BY THE COURT:
Honorable Sue Bischel
Circuit Court, Branch III