(City of Menasha v. Wisconsin Employment Relations Committee, et al., Appeal No. 2010-AP-1799)

Nov. 8, 2010 – Pursuant to Article VII, Section 2(a) of the State Bar of Wisconsin Bylaws, the Government Lawyers Division of the State Bar of Wisconsin has submitted a request to the Board of Governors for authorization to file an amicus curiae brief in the pending Wisconsin Court of Appeals case of City of Menasha v. Wisconsin Employment Relations Committee, et al., Appeal No. 2010-AP-1799.

The division’s request sets forth the following statement facts: 

The collective bargaining agreement between the City of Menasha (City) and the Menasha Professional Police Union, Local 603 (Union) contains provisions indicating that the parties will use the statutory procedures of § 62.13(5), Stats, for resolving police discipline matters, instead of the grievance procedure. The statutory discipline procedure utilizes an independent Police & Fire Commission to hold hearings and make determinations regarding the discipline of police officers and firefighters. The parties' bargaining agreement language was consistent with the ruling in Janesville v WERC,193. 2d 492 (Ct. App.1985) which held that a collective bargaining agreement could not use grievance arbitration for discipline in lieu of a hearing before a Police &Fire Commission since § 62.13 (5) was a matter of statewide concern.

In the adoption of Wisconsin's 2007-2009 biennial budget, the Wisconsin Legislature enacted two amendments to § 111.70 Wis. Stats., Wisconsin's Municipal Employment Relations Act with the intent of overturning Janesville.Those two new provisions are as follows:

Wis. Stats, § 111.70(4)(c)2.b., states:

A collective bargaining agreement may, notwithstanding § 62.13 (5), contain dispute resolution procedures, including arbitration, that address the suspension, reduction in rank, suspension and reduction in rank, or removal of such personnel. If the procedures include arbitration, the arbitration hearing shall be public and the decision of the arbitrator shall be issued within 180 days of the conclusion of the hearing, (emphasis added)

Wis. Stats., § 111.70(4)(mc) states in relevant part:

Prohibited subjects of bargaining. The municipal employer is prohibited from bargaining collectively with respect to:

1. The prohibition of access to arbitration as an alternative to the procedures in § 62.13 (5).

In the course of negotiating for a successor 2009 collective bargaining agreement, the Union proposed to introduce grievance arbitration for police discipline in lieu of using the Police & Fire Commission for resolving discipline matters. The City proposed to maintain the existing contract language using § 62.13(5) instead of grievance arbitration.

In light of the City's position to maintain § 62.13(5) for resolving discipline, the Union filed a Petition for Declaratory Ruling with the Wisconsin Employment Relations Commission (WERC) claiming that based upon the new statutory provisions cited above, the City was prohibited from maintaining this language. The City argued that the new statutes only intended to overturn Janesville, not to prohibit it from bargaining the use of § 62.13(5). If there was a difference between the parties, such differences would be determined through the statutory interest arbitration procedure set forth for resolving collective bargaining. Each party could argue the merits of their respective position and the interest arbitrator would determine which position was more reasonable. The offer selected by the interest arbitrator would be included in the subsequent bargaining agreement. The legislative history supported the City's position.  The Union claimed the City could not even include its position in a final offer in the interest arbitration process.

The Wisconsin Employment Relations Commission acknowledged that the two new statutes were not clear. It determined that only a union could propose using § 62.13(5) for resolving police and fire discipline, but a municipal employer could not, if the union objected. Since the Union objected, the City of Menasha could not propose, or continue through the interest arbitration process so as to maintain the use of § 62.13(5) for resolving police and fire discipline.

The practical effect of this decision meant that the Police & Fire Commission process for resolving police and fire discipline would no longer exist, not only in Menasha, but every other municipality, unless the union approved. A police officer could receive a full due process hearing before the Police & Fire Commission, and if appealed, would receive another full due process hearing in grievance arbitration, making the two hearing process cost prohibitive. Therefore, the parties would skip the Police and Fire Commission hearing and simply proceed to grievance arbitration, thereby effectively eliminating the use of Police & Fire Commissions in Wisconsin.

The further practical effect is that municipalities are prohibited from even arguing within the context of a best final offer in interest arbitration that the use of § 62.13(5) for resolving police and fire discipline in that particular community may be more reasonable than grievance arbitration.

The City timely appealed the decision of the WERC. The Circuit Court for Winnebago County upheld the decision of the WERC from the bench. The City has timely appealed the decision of the Circuit Court.

The City has filed its brief with the Wisconsin Court of Appeals. The Respondent WERC and Respondent Union filed their responsive briefs on Oct. 21, 2010 and the City of Menasha filed its reply brief on Nov. 5, 2010. The Court of Appeals has not determined as of yet as to whether or not it will hear oral arguments.

The division’s request also sets forth the following principles of law:

Among the issues that the Division is interested in addressing are the following:

(1) Do the new statutory provisions contained in Wis. Stats, § 111.70(4)(c)2.b., and Wis. Stats., § 111.70(4)(mc) prohibit municipal employers from proposing the use of Wis. Stats, § 62.13(5) in collective bargaining negotiations through and including the interest arbitration process for resolving collective bargaining disputes?

(2) Were the new statutory provisions contained in Wis. Stats, § 111.70(4)(c)2.b., and Wis.Stats., § 111.70(4)(mc) intended to not only overturn Janesville, but to also prohibit the use of Wis. Stats. § 62.13(5) for resolving police and fire discipline unless agreed upon by the labor organization.

(3) Were the new statutory provisions contained in Wis. Stats, § 111.70(4)(c)2.b., and Wis.Stats., § 111.70(4)(mc) intended to effectively eliminate the use of local input of Police & Fire Commissions in Wisconsin municipalities recognizing that Wis. Stats. § 62.13(12) still identifies § 62.13 as an enactment of statewide concern?

Rationale for division involvement: 

The purposes of the Government Lawyers Division, described in its bylaws (Article I, § 1.2), are similarly consonant with, and also would be well served by, the filing of an amicus curiae brief. These purposes include conducting activities "related to the practice of government attorneys." Many local government attorneys will be directly affected by the outcome in this case and a voice at the table explaining how the decision would impact local government practice is vitally important. Many division members are local government attorneys.

In addition, the subject matter of the case falls squarely within the field of expertise of the Government Lawyers Division generally as historically many of its board members are local government attorneys that allow the division a unique perspective on how this case will impact local government law.

If you have any questions or comments, please send them to pubaffairs@wisbar.org by Monday, Nov. 29, or contact Adam Korbitz, Government Relations Coordinator, at (608) 250-6140 or akorbitz@wisbar.org .

Government Lawyers Division Amicus Request

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