May 9, 2023 – A Green Bay police detective failed to demonstrate that an arbitrator manifestly disregarded the law when he upheld the detective’s demotion, the Wisconsin Supreme Court has ruled.
In Green Bay Professional Police Association v. City of Green Bay, 2023 WI 23 (April 27, 2023), the supreme court held (6-1) that the notice of the charges provided to the detective before he was disciplined met the procedural due process standard established by the U.S. Supreme Court.
Justice Jill Karofsky wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Ann Walsh Bradley, Justice Patience Roggensack, Justice Rebecca Dallet, and Justice Brian Hagedorn. Chief Justice Ziegler filed a concurrence. Justice Rebecca Bradley also filed a concurrence but did not join the majority.
Disclosures Lead to Investigation
In the autumn of 2017, the Green Bay Police Department (GBPD) launched an investigation and issued a formal complaint charging Detective Andrew Weiss with violating four GBPD policies: media relations; media requests; unauthorized disclosure; and conduct unbecoming an officer.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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Weiss allegedly accessed sensitive information about two sexual assault cases by using the city’s electronic records program. GBPD investigators interviewed Weiss and allowed him to answer the allegations.
About a month later, the GBPD investigators interviewed Weiss a second time, and provided him with a copy of a formal complaint that added two charges of violating the city’s policy on personal communications devices.
The investigators requested that Weiss turn over his cell phone records, but allowed him time to discuss the request with his union representative.
When the investigators met with Weiss for a third time, he refused to turn over his cell phone records. Investigators provided Weiss with a copy of the city’s policy on cooperation with personnel complaint investigations.
Final Notice and Discipline
The city later issued Weiss a final notice and informed him that the city was considering disciplinary action against him.
The final notice alleged the following four policy violations: media relations; media requests; unauthorized disclosure; and conduct unbecoming an officer.
The city later demoted Weiss to a patrol officer position, after determining that he’d violated the following policies: unauthorized disclosure; conduct unbecoming an officer; use of personal communication devices; and failure to cooperate in an investigation of a personnel complaint.
The demotion cost Weiss his $80 per month detective’s stipend.
Weiss filed a grievance with the Green Bay Personnel Committee; the committee denied the grievance.
Weiss then filed for arbitration, arguing that the city’s discipline was unconstitutional because he was disciplined for three policy violations that were not included in the final notice. The arbitrator found that the city had cause to discipline Weiss.
Weiss challenged the arbitration award in Brown County Circuit Court and lost. He appealed to the Wisconsin Court of Appeals, which affirmed the circuit court.
‘Manifestly Disregarding the Law’
Justice Karofsky began her opinion by explaining that a court may reverse an arbitration award if the arbitrator has exceeded his or her powers by, among other things, manifestly disregarding the law.
Weiss argued that the arbitrator exceeded his powers by misapplying the procedural due process standards established by the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
Weiss argued that because several of the grounds for his discipline weren’t included in the final notice, he’d not been provided a chance to respond to them.
Arbitrator Correctly Applied Loudermill
Karofsky explained that under Loudermill – a case in which the employee was fired – the process due an employee before he or she is disciplined may vary, depending upon the importance of the interests involved and the nature of proceedings subsequent to the discipline.
Karofsky pointed out that the arbitrator had said as much in his ruling.
“Weiss offers no argument for why this statement is inaccurate, let alone how this statement manifestly disregarded Loudermill,” Karofsky wrote.
“At best, Weiss’ position could be seen as a request to extend Loudermill’s pre-termination process requirements to less serious forms of discipline,” Karofsky wrote. “However, the arbitrator is not bound to extend Loudermill in this way.”
Karofsky noted that the arbitrator concluded that the city’s process before disciplining Weiss – giving him notice of all the policies he’d allegedly violated and allowing him to move for post-disciplinary review and arbitration – were adequate under Loudermill.
“The arbitrator did not manifestly disregard Loudermill in doing so, and Weiss received the arbitration he bargained for,” Karofsky wrote.
Ziegler Concurrence: Arbitration Contract Should Govern
In her concurrence, Chief Justice Ziegler argued that the “manifest disregard” standard was not based on the text of the Wisconsin Arbitration Act.
Ziegler pointed out that the “manifest disregard” standard sprang from dicta in Wilko v. Swan, 346 U.S. 427 (1953).
The standard had become “untethered from the text of arbitration agreements … taking on a life of its own as the standard for reviewing essentially all challenges to arbitral awards without regard to the language in the underlying [arbitration] contract,” she wrote.
Reviewing courts should focus instead on the wording of the arbitration contract at issue, Ziegler argued, and include with their briefs a copy of the arbitration agreement so the court could decide whether the “manifest disregard” standard was the appropriate one for determining whether an arbitrator had exceeded his or her powers.
R.G. Bradley Concurrence
In her concurrence, Justice R.G. Bradley wrote that while she agreed with the outcome, she would not join he majority opinion.
The U.S. Supreme Court in Loudermill was applying a due process rubric created by the Court in Mathews v. Eldrigde, 424 U.S. 319 (1976), she explained.
Given that Loudermill involved an employee who was fired and not merely disciplined, Justice R.G. Bradley argued that Mathews should govern Weiss’ case.
“The private interest at stake in this case is obviously less than in Loudermill,” R.G. Bradley wrote. “Weiss will lose $80 a month as a result of his demotion, a small fraction of his salary, whereas the security guard in Loudermill lost his entire salary.”