873 N.W.2d 232
Wis. Ct. App.2015Background
- Officer Richard Schoen was charged with excessive force after squad-car video showed repeated punches, hair-pulling, and a knee strike against an arrestee following a September 22, 2011 arrest.
- Milwaukee Police Chief discharged Schoen; Schoen appealed to the Milwaukee Board of Fire and Police Commissioners under Wis. Stat. § 62.50, triggering the two-phase hearing process (Phase I: sustain charge; Phase II: discipline).
- On December 3, 2012 the Board announced in open session that the charge was sustained and, by a 2–1 vote, orally announced a 60-day suspension as the penalty.
- Commissioner O’Hear later realized he had applied an incorrect legal standard (omitted portion of Commission Rule XVI, §14 regarding determining discipline “for the good of the service”) and moved to reconvene; the Board held further deliberations and then announced discharge as the penalty on December 11, 2012.
- Schoen challenged the Board’s reconsideration and ultimate discharge in a certiorari action, arguing the Board lacked authority to change its oral decision and that the reconvening violated due process; the circuit court upheld the Board and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board had authority to reconsider and change its oral penalty decision | Schoen: Board had no inherent authority to reconsider; statute §62.50 requires the Board to "determine at once" and thus the oral decision was final | Board: As a quasi‑judicial body it has inherent authority to reconsider and correct a legal error to apply the correct statutory standard | Court: Board had inherent authority to reconsider to correct a mistake of law and properly apply §62.50(17)(a) and Rule XVI §14 |
| Whether the Board exceeded its jurisdiction by relying on a different legal theory in reconsideration | Schoen: Reconsideration based on a new/changed legal view exceeded jurisdiction | Board: Reconsideration corrected misapplication of governing law and fulfilled its statutory duty to decide discipline "for the good of the service" | Court: No jurisdictional overreach; correction of legal error was within authority of quasi‑judicial body |
| Whether reconvening denied procedural due process (notice and opportunity to be heard) | Schoen: Lack of adequate notice and inability to present additional defense deprived him of due process | Board: Schoen had notice or at least actual presence; counsel objected and was present at the reconvened session | Court: No due process violation—counsel was present, objected, and no prejudice shown; any notice defect was de minimis |
| Whether Board complied with timing/written decision requirements after changing oral decision | Schoen: Oral decision triggered timing obligations; altering it circumvented statutory timing | Board: Final decision occurred on reconvened date; written decision filed within ten days of final action | Court: Final decision date was December 11; written decision timely filed; no jurisdictional violation |
Key Cases Cited
- Goldberg v. City Milwaukee Bd. of Zoning Appeals, 115 Wis. 2d 517 (Ct. App.) (quasi‑judicial boards may reopen decisions to correct mistakes)
- City of Oak Creek v. Pub. Serv. Comm'n, 292 Wis. 2d 119 (Ct. App.) (administrative agencies possess power to reconsider and amend prior decisions)
- Lindas v. Cady, 183 Wis. 2d 547 (Wis.) (agencies are not precluded from reconsidering unreviewed determinations; res judicata principles differ for agencies)
- Claflin v. DNR, 58 Wis. 2d 182 (Wis.) (recognition of agency authority to hold reconsideration hearings)
- Rickaby v. DHSS, 98 Wis. 2d 456 (Ct. App.) (agencies cannot disregard controlling legal standards and must correct legal errors)