Appeal No. 01-1360
Cir. Ct. No. 99-CV-1671
STATE OF WISCONSIN
IN COURT OF APPEALS
Local 1901-F, AFSCME, AFL-CIO,
Wisconsin Employment Relations Commission and
[Decision No. 29094-G]
[NOTE: This document was re-keyed by WERC. Original pagination has been
APPEAL from an order of the circuit court for Brown County: SUE E. BISCHEL,
Reversed and cause remanded with directions.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
¶1. PER CURIAM. Local 1901-F, AFSCME, AFL-CIO, (the Union)
appeals an order
affirming a decision of the Wisconsin Employment Relations Commission. The commission
that Dallas Maass, an employee at the
Brown County Shelter Care for juveniles, had sexually abused a resident of the
shelter.1 As a
result, the commission concluded the County had just cause to discharge Maass. The
argues that the commission improperly based its material findings of fact on uncorroborated
hearsay. We agree. Therefore, we reverse the order and remand to the commission for
proceedings consistent with this opinion.
¶2. Maass began employment at the shelter in 1989 and became a full-time
in 1994. His responsibilities were to care for and supervise the children who were residents.
Maass first began working with Joshua B., a fourteen-year-old male, in 1994. Joshua had a
history of neglect and abuse, including sexual abuse. He was a resident at the shelter on
different occasions in 1994 and 1995.
¶3. On April 14, 1995, a hearing was held before a court commissioner
appropriate placement for Joshua. At the hearing, Joshua expressed an interest in returning
shelter. Maass attended on behalf of the shelter. When asked by the court commissioner
the appropriateness of returning Joshua to the shelter, Maass stated that he doubted the
could provide the level of supervision that Joshua required. However, the commissioner
that the shelter was the preferable placement.
1 Both the commission and Brown County are respondents in this
appeal. We refer to them collectively as
2 The Union represents employees of the Brown County Shelter
¶4. On April 16, 1996, Maass sent Joshua to his room because of
problems. Joshua accused Maass of kicking him in the face and threatened to have his job.
Maass noted this in the log. Joshua's allegation was investigated and found to be
¶5. Shortly after that, Joshua was transferred to the Brown County Mental
Center. On April 30, 1995, he told Sally Jo Ledvina, a nurse, that Maass had fondled his
He complained of an upset stomach at the time and later became sick. Ledvina reported
allegations to her supervisor.
¶6. Wisconsin Stat. §48.981(3)(c)4 requires a county to investigate
reports of child
abuse. A Manitowoc County social worker investigated the allegation against
told the social worker that Maass had touched his penis on several different occasions while
was sleeping. On June 15, 1995, the social worker filed her report, substantiating the
of sexual abuse. Specifically, the social worker concluded that Maass had touched Joshua on
¶7. On June 23, 1995, the County discharged Maass based upon the social
finding of sexual abuse. The Union filed a grievance on behalf of Maass challenging the
discharge. The County declined to submit the grievance to arbitration.
3 Wisconsin Stat. §49.981(4)(d) provides that if an individual
accused of child abuse is an employee of
an agency required to investigate reports of child abuse, another licensed child welfare
agency may be designated
to conduct an independent investigation. Brown County has an agreement with Manitowoc
allegations of child abuse against County employees are to be investigated by a Manitowoc
¶8. The Union then filed a prohibited practice complaint with the
the Municipal Employment Relations Act. The Union alleged that the County violated
§111.70(3)(a)(1) and (4) by failing to bargain and by failing to maintain the
status quo upon
expiration of the 1993-1994 collective bargaining agreement, specifically the provision of the
agreement requiring just cause for discipline. The complaint also requested a hearing on the
merits of the allegation against Maass.
¶9. As a result of Joshua's allegation, Maass also was charged criminally
counts of second-degree sexual assault with a person under the age of sixteen, contrary to
Wis. Stat. §948.02. On July 29, 1996, a preliminary hearing was held. Joshua
testified that while
he was a resident at the shelter, Maass had touched his penis on two separate occasions.
stated that Maass would come into his room while he was sleeping. Maass was bound over
trial at the conclusion of the hearing.
¶10. While housed in secure detention prior to the preliminary hearing,
with Jennifer M., a female juvenile who had also been a resident at the shelter. Joshua told
Jennifer that he was there to testify against Maass for sexually assaulting him. According to
Jennifer, Joshua said that he had made up the charges to get even with Maass and that Maass
not assaulted him.
¶11. Jennifer later told workers at the shelter that Joshua had admitted he
when he accused Maass. On August 27, 1996, Jennifer signed an affidavit stating that
lying. Consequently, the district attorney dismissed the criminal charges against Maass. At
dismissal hearing, the district attorney stated that the dismissal was based upon Jennifer's
and Joshua's unreliability.
¶12. In late 1997 and early 1998, extensive hearings were held before
regarding the Union's complaint. During the hearings, the guardian ad litem stated that
would not be available to testify because he was hospitalized in an adolescent psychiatric unit
following an overdose of Tylenol. Joshua's psychologist at the time wrote a letter explaining
it would not be in Joshua's best interests to testify. According to the psychologist, the
anticipation of testifying would produce a great deal of anxiety for Joshua and would threaten
undo his recent improvement.
¶13. The examiner determined that Joshua was unavailable as a witness.
Joshua's unavailability, the examiner admitted into evidence the Manitowoc County social
worker's report regarding Joshua's allegation against Maass, the testimony of nurse Ledvina,
related Joshua's report of fondling by Maass, and the transcript of Joshua's testimony at the
¶14. On December 29, 1998, the examiner issued a decision concluding that
had violated the collective bargaining agreement by discharging Maass without just cause.
examiner found that none of the witnesses was overwhelmingly credible. However, he
some weight to Jennifer's testimony and to Maass's denials. Given the weakness of Joshua's
credibility, the examiner concluded that the hearsay statements did not satisfy even a
preponderance burden of proof much less rise to the level of clear and convincing evidence.
Accordingly, the examiner held that the allegations of sexual abuse were not proved and the
County did not have just cause to discharge Maass.
¶15. The County petitioned the commission for administrative review of the
decision. The commission reversed the examiner's decision, finding that Maass did have
contact with Joshua and concluding that there
was just cause for the County to discharge him. Specifically, the commission
concluded that: (1)
Maass's conduct with other residents of the shelter substantially increased the probability that
sexual abuse occurred; (2) Maass's lack of recollection damaged his overall credibility; (3)
Jennifer's testimony was not credible; and (4) Joshua's hearsay statements that Maass
abused him were credible and persuasive.
¶16. The Union then petitioned for review in the circuit court. The court
the commission to explain what evidence it relied on to determine that Jennifer was not a
witness. The commission complied, and the circuit court affirmed the commission's decision.
STANDARD OF REVIEW
¶17. On appeal, we review the commission's decision, not the circuit
Serv. Corp. v. Public Serv. Comm'n, 156 Wis. 2d 611, 616, 457
N.W.2d 502 (Ct. App. 1990).
We may set aside the commission's order if the order depends on any material and
finding of fact that is not supported by credible and substantial evidence.
General Cas. Co. v.
LIRC, 165 Wis. 2d 174, 178, 477 N.W.2d 322 (Ct. App. 1991).
¶18. "Substantial evidence is evidence that is relevant, credible, probative,
and of a
quantum upon which a reasonable fact finder could base a conclusion."
Cornwell Pers. Assocs. v.
LIRC, 175 Wis. 2d 537, 544, 499 N.W.2d 705 (Ct. App. 1993). We
will construe the evidence
most favorably to the commission's findings of fact and we may not overturn the
order if there is credible evidence "sufficient to exclude speculation or conjecture ...."
Cas., 165 Wis.2d at 179.
I. Uncorroborated Hearsay Rule
¶19. The Union argues that the commission's material findings of fact are
by substantial evidence. In particular, the Union contends that Joshua's hearsay statements
Maass sexually abused him are uncorroborated. According to the Union, uncorroborated
statements do not constitute substantial evidence. Therefore, the Union concludes the
commission's decision is not based on substantial evidence.4
¶20. The commission counters that hearsay evidence does not have to be
In the alternative, it argues that Joshua's hearsay statements were corroborated.
¶21. The Union relies on Folding Furn. Works v.
Wisconsin L.R. Bd., 232 Wis. 170,
188-89, 285 N.W. 851 (1939), in arguing that the commission cannot rely on uncorroborated
hearsay. In that case, our supreme court addressed the significance of Wis. Stat.
(1937), and its relation to the "substantial evidence" standard.5
Id. The court expressly identified
4 The Union also argues that that the commission: (1) disregarded
unrebutted evidence; (2) erred by
concluding that Joshua was unavailable as a witness; (3) relied on untrustworthy hearsay by
evidence the Manitowoc County social worker's report, the testimony of the Mental Health
Care nurse to whom
Joshua first reported the alleged sexual abuse by Maass, and the transcript of Joshua's
testimony at the preliminary
hearing; and (4) applied the wrong burden of proof. We do not address these arguments
because we resolve this
appeal on the uncorroborated hearsay issue. Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App.
1983). We have substantial concern about the admissibility of the social worker's report,
testimony, and the transcript of Joshua's former testimony. However, we need not decide
those issues. Id. at 67.
5 Wisconsin Stat. § 111.10(2) (1937) provided that "the rules
of evidence prevailing in courts of law or
equity shall not be controlling."
"uncorroborated hearsay" as evidence that is not substantial evidence to support the
the Wisconsin Labor Relations Board. Id. The court
The obvious purpose of [Wis. Stat. § 111.10(2) (1937)] and
similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter
which would be deemed incompetent in judicial proceedings would
not invalidate the administrative order. ... But this assurance of a
desirable flexibility in administrative procedure does not go so far
as to justify orders without a basis in evidence having rational
probative force. Mere uncorroborated hearsay or rumor does not
constitute substantial evidence.
Id. (emphasis added).
¶22. Subsequent to Folding Furniture
Works, Wis. Stat. § 111.10(2) (1937) was
repealed and § 111.07(3) (1939) was created to govern proceedings before the
statute now provides that proceedings "shall be governed by the rules of evidence prevailing
courts of equity." Id.
¶23. The commission states that before hearsay evidence now may be
proceedings before the commission, the hearsay evidence must fall within one of the
hearsay exceptions. See Wis. Stat. Ch. 908. It contends that because
hearsay falling within one
of the exceptions is reliable, there is no need for the rule requiring hearsay to be
¶24. However, since the statutory change, we held in
Village of Menomonee Falls v.
DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App. 1987), that
should never ground administrative findings
upon uncorroborated hearsay."6 We are bound not only by
Folding Furn. Works, but also by
Village of Menomonee Falls. See
Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
(1997). The rule that "uncorroborated hearsay ... does not constitute substantial evidence"
remains the law. Folding Furn. Works, 232 Wis. at
II. Application of the Uncorroborated Hearsay Rule
¶25. Here, the commission based its finding that Maass did sexually abuse
hearsay evidence, specifically the report of the social worker, nurse Ledvina's testimony
what Joshua told her, and Joshua's former testimony at the preliminary hearing. The
argues that even if it is prohibited from relying on uncorroborated hearsay, the hearsay
A. Expert Testimony
¶26. Both Nurse Ledvina and psychologist Stephanie Heuseman testified at
as expert witnesses and offered their opinions that Joshua's conduct was consistent with that
victim of sexual abuse. Ledvina testified that Joshua had the attributes of a sexual assault
She stated that in her experience, many victims of sexual abuse complain of chronic stomach
pains. Heuseman also
6 The uncorroborated hearsay rule is especially important in a case
like this. Joshua has severe emotional
and mental problems, including both suicidal and homicidal tendencies. The commission
found that Joshua has a
history of falsely accusing other people of wrongdoing. He has accused both his parents of
sexual abuse. He has
falsely accused other Shelter Care workers of injuring him and has made false accusations
against other young
people with whom he has resided at the various county facilities. He has also accused the
Mental Health Care staff
of stealing his jacket and money. And, as stated earlier, he previously accused Maass of
kicking him in the face,
an accusation that was found to be unsubstantiated.
testified that the way Joshua responded to questions was consistent with sexual abuse
The commission contends this expert testimony corroborates the hearsay.
¶27. We disagree. It is undisputed that Joshua had already been sexually
another facility. Therefore, the expert testimony, at most, only reinforces what was already
known, namely that Joshua was a victim of sexual abuse. The expert testimony does nothing
corroborate Joshua's allegations against Maass.
B. Consistent Statements
¶28. The commission also appears to argue that the hearsay is corroborated
Joshua made consistent statements to Ledvina, the social worker, and in his preliminary
testimony. However, whether hearsay is corroborated is not dependent upon the number of
a story is told or the number of people the story is told to. Mere repetition does not amount
¶29. The commission contends that the hearsay is corroborated by evidence
that Maass had the opportunity to sexually abuse Joshua. The examiner found that at the
the alleged assaults: (1) Maass was working on the midnight to 8 a.m. shift; (2) the
staffing pattern is one male and one
female; and (3) employees sometimes fall asleep on the midnight to 8 a.m.
shift.7 In addition,
Maass testified "if someone really wanted to do something of this type, you know, you
¶30. However, Joshua's allegations that Maass sexually abused him were
and unspecific. Joshua was unable to say what time of night the abuse occurred. He simply
described the abuse by stating that he would wake up to Maass fondling his penis. Maass's
testimony that anyone could do something like this if they wanted to does not corroborate the
hearsay, either. Any employee who was on duty while a resident was sleeping would have
opportunity to sexually abuse that resident. Just because Maass had the general opportunity
not mean it is more likely that he did in fact commit the assault.
¶31. Other than Joshua's hearsay allegation, there is no evidence in the
Maass in Joshua's room on the nights of the alleged abuse. Therefore, the hearsay is not
corroborated by so-called opportunity evidence.
D. Other Acts Evidence
¶32. Last, the commission argues the hearsay was corroborated by other acts
of Maass's inappropriate work behavior. The commission found that Maass had engaged in
inappropriate behavior with other residents of the
7 The commission concluded that Maass had ample opportunity to
sexually abuse Joshua without
detection because staff members sometimes fall asleep on this shift. However, the
commission did not find that any
staff members were asleep when the alleged sexual abuse occurred.
8 Other acts evidence is admissible under Wis. Stat. §
904.04(2) if: (1) the evidence is offered for an
acceptable purpose; (2) the proposed other acts evidence is relevant; and (3) the prejudicial
effect of the other acts
evidence substantially outweighs its probative value. State v.
Sullivan, 216 Wis. 2d 768, ¶¶6-8, 576 N.W.2d 30
shelter. The commission adopted the examiner's findings that Maass: (1) had another
the shelter grab his ankles before entering the shower; (2) allowed other boys to spank a
on his sixteenth birthday and then had the resident remove his shirt so Maass could draw a
face on the resident's stomach; (3) had a flirtatious exchange with a resident; and (4) told
staff that he knew why a particular resident was popular with the ladies because he was
¶33. These findings may constitute inappropriate behavior. However, they
instances of sexual abuse. None of the findings is similar to Joshua's allegation. The
inappropriate behavior did not occur at night when the residents were asleep. Further, the
instances did not consist of Maass touching the genital area of any resident. Maass's
work behavior with other residents does not corroborate Joshua's allegation that Maass
abused him. As a result, the hearsay evidence is uncorroborated.
¶34. We conclude there is no substantial evidence to support the
that Maass sexually abused Joshua. That finding was based entirely on uncorroborated
Therefore, we reverse the commission's decision finding just cause to terminate Maass's
employment based on the alleged sexual assault.
By the Court.--Order reversed and cause remanded with
This opinion will not be published. See Wis. Stat. Rule