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  • WisBar News
    November 15, 2016

    Appeals Court Upholds Police Officer’s Termination After Dirt Bike Incident

    Joe Forward

    Gavel

    Nov. 15, 2016 – A Milwaukee police officer wanted a dirt bike for his son. Recently, a state appeals court upheld a decision to terminate the officer for falsifying a document that allowed him to take possession of an unclaimed dirt bike from police inventory.

    The Milwaukee City Board of Fire and Police Commissioners permanently discharged Milwaukee Police Officer Daniel Vidmar on the basis that he now lacked the capacity to enforce federal and state laws and city ordinances. That is, the bike incident meant Vidmar’s credibility could be attacked if he ever gave testimony in court.

    After an investigation, the board found that Vidmar filed an official form to have the bike, worth $1,500, released to his possession. He listed a friend as the “claimant” on the form. Vidmar attested that he was returning the bike to the claimant, its rightful owner.

    But the claimant he listed, his friend, was not the owner of the bike. Vidmar had listed him as an apparent strawman and took possession of the bike for his own son to use.

    Vidmar returned the bike at the direction of a superior who learned about it. But internal affairs got involved after receiving an anonymous letter indicating what had happened.

    Ultimately, the police chief discharged Vidmar. The board upheld the termination, and a circuit court affirmed. On appeal, Vidmar argued that the board’s determination was based on an incorrect theory of law – that the infraction undermined his capacity to enforce the law. Vidmar also argued that he could still perform administrative functions.

    But in Vidmar v. Milwaukee City Board or Fire Police Commissioners, 2015AP1832 (Nov. 15, 2016), a three-judge panel for the District I Court of Appeals affirmed.

    “We agree with the position of the Board that the capacity to enforce the laws means the capacity to engage in the full spectrum of responsibilities that an officer may be called upon to undertake,” wrote Judge William Brash III. “One of the most crucial of those responsibilities is giving testimony in court that is worthy of belief.”

    The panel noted that the Milwaukee County District Attorney’s Office declined to criminally charge Vidmar, but indicated that he would no longer be used as a prosecution witness. An assistant U.S. Attorney also indicated that if Vidmar was called to testify in federal court, his office would be required to disclose the bike incident.

    The city attorney’s office also informed the police department that Vidmar would not be called to testify in municipal cases because his credibility would be questioned.

    Vidmar argued that the circuit court gave undue deference to the board’s findings of fact and credibility determinations. But the panel also disagreed with that argument.

    Even if it was not precluded from reviewing evidence-based arguments on appeal, the panel noted, “we disagree with the assertion that the Board failed to make sufficient findings of fact and credibility determinations,” Judge Brash wrote.

    Finally, Vidmar argued that the circuit court applied an incorrect standard of review by looking at whether the board’s decision was reasonable, not whether it had “just cause” to uphold the termination. Vidmar noted that the standard changed in 1997, but the circuit court cited a case prior to 1997 in rendering its decision against him.

    “Regardless of the citation to Clancy, consideration of the circuit court’s complete decision makes it clear that it understood its role and applied the correct standard of review,” Judge Brash explained.

    “The circuit court enumerated the just cause standards and then proceeded to address the sufficiency of the evidence to support each of the three just cause standards … implicated in Vidmar’s statutory appeal,” Judge Brash explained.



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