Appeals court says county home rule power does not trump state’s equal pay requirement

By Joe Forward, Legal Writer, State Bar of Wisconsin

March 31, 2011 – The lawsuit between police captains and Milwaukee County will continue to determine if the county violated a civil service statute that guarantees equal pay to employees in the same classification and level of advancement.

In 2001, the Milwaukee County Sheriff’s Department promoted Eric Roberson and Mark Strachota (plaintiffs) to the rank of captain, a position with eight pay steps.

The plaintiffs started at pay step five, and would have moved to pay step eight after a probationary period if not for a Milwaukee County freeze on step pay increases. Both remained at pay step five until retirement in 2007 and 2009.

But in 2006, the sheriff promoted eight other officers to captain at pay step eight to ensure they would be paid more than subordinates. The plaintiffs sued for back pay and pension adjustments, alleging the pay disparity violated Wis. Stat. section 63.14(3).

Section 63.14(3), the equal pay statute, ensures that statewide county employees in the same classification and level of advancement are paid the same unless the work performed is different or a pay difference is justified by the time the work is performed.

Milwaukee County argued its statutory “home rule” power authorized it to pay two groups of police captains differently and trumped the otherwise applicable equal pay statute. The home rule statute, Wis. Stat. 59.03(1), allows counties to exercise administrative power subject to the constitution or laws of statewide concern and which uniformly affect every county.

Equal pay statute trumps home rule 

The Milwaukee County Circuit Court granted summary judgment to the Milwaukee County based on the home rule statute. But in Roberson v. Milwaukee County, 2010AP857 (March 31, 2011), the District I Court of Appeals reversed the circuit court, concluding the equal pay statute is one of statewide concern and the home rule power does not supersede it.

“The question is whether the county home rule statute trumps § 63.14(3) because the latter statute is not an enactment ‘which is of statewide concern and which uniformly affects every county,’” wrote Judge Paul Lundsten.

Milwaukee County argued the equal pay statute does not “uniformly affect every county” because it only applies to counties with a civil service commission and not all counties are required to have one. The appeals court disagreed, noting that all counties have the legal power to establish one.

The appeals court noted the county home rule statute is patterned after Art. XI, section 3(1) of the Wisconsin Constitution – the home rule statute for cities and villages – and Thompson v. Kenosha County, 64 Wis. 2d 673, 221 N.W.2d 845 (1974), is arguably controlling.

In Thompson, a plaintiff argued the home rule power of cities to assess property could not be overridden by a state statute allowing counties to establish a county assessor system. The state statute did not require, but allowed, all counties to establish a county assessor system.

The Wisconsin Supreme Court in Thompson rejected the argument that home rule powers trump a state statute that isn’t mandatory, but permissive. The court ruled that a statute is “uniform” if it confers equal legal powers on all counties.

“Given the fact that the county home rule statute is patterned after the constitutional city and village home rule provision, we discern no reason to deviate here,” Judge Lundsten wrote. 

No summary judgment 

Even if the home rule power does not apply, Milwaukee County argued, summary judgment was appropriate because it was undisputedly warranted in paying the plaintiff captains less than other captains.

The appeals court disagreed, finding Milwaukee County failed to produce undisputed evidence that it complied with the equal pay statute in paying the captains differently.

Specifically, the court concluded the Milwaukee County lacked undisputed evidence that the plaintiffs were in a different classification, stage of advancement, performed different work, or the pay difference was justified by a difference in the time the work was performed.