212 N.W.2d 158 | Wis. | 1973
The county civil service commission and the circuit judge agree that competent evidence supported the charge brought against respondent employee that:
“On or about the 11th day of October, A. D. 1969, at 3:30 p. m. he reported late for duty. After noting his duty assignment to Ward South 4, he advised his supervisor, Mrs. Pearl MacArthur, supervisor of the p. m. shift, that he would not work with the other employees assigned to that ward. He repeated his refusal to Mias Aura Pugh, E. N., stating finally, T am going home.’*318 He then left the premises. He has failed to heed repeated warnings regarding excessive absenteeism.”
The civil service commission held that respondent’s conduct constituted a violation of three commission rules: (u) relating to absence from duty without leave; (f) relating to insubordination; and (k) relating to acts or omissions unbecoming an incumbent of the position held.
In reviewing these three commission findings of specific rules violated, the circuit court stated that the rule upon review was that findings of the commission as to facts or conclusions of law was that they are to be sustained if, in any reasonable view, the evidence sustains them.
As to rule (u), relating to absences from duty, the circuit court upheld the commission holding that the rule had been violated by respondent.
As to rule (f), relating to insubordination, the circuit court held that the commission could reasonably make a
As to rule (k), relating to conduct unbecoming an incumbent of a position, the circuit court found “no evidence whatsoever” to support the commission finding of the rule being violated,
Upholding the commission finding of rules (u) and (f) being violated, and setting aside the finding that rule (k) had been violated, the trial court felt itself obliged to “either reject the decision of the commission in toto or accept it as is.”
Both appellant and respondent would have this court deal with an additional issue. While holding that rule (k) had not here been violated, the circuit court added the observation that “. . . If paragraph (k) as applied to the facts of this case has a meaning contended for the commission, . . .” rule (k) would become so vague as to violate the constitutional assurance of due process.
By the Court. — Order affirmed as to finding rules (u) and (f) to have been violated by respondent; affirmed as to finding rule (k) not to have been violated by respondent; reversed as to vacating proceedings before the appellant commission. Cause remanded to the circuit court with directions to remand to appellant commission for reconsideration and redetermination of penalty.
Citing State ex rel. Morehouse v. Hunt (1940), 235 Wis. 358, 291 N. W. 745. Review by certiorari is limited to the following questions: “‘(1) Whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question.’ ” State ex rel. Gudlin v. Civil Service Comm. (1965), 27 Wis. 2d 77, 82, 133 N. W. 2d 799, quoting State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis. 2d 243, 111 N. W. 2d 198.
Circuit judge stated: “An examination of the record clearly supports a finding that though he was given prior warnings he was guilty of excessive absenteeism without leave and of tardiness and he thus violated paragraph (u).”
Circuit judge stated: “The substantiation of the charge of insubordination is not as clear; however it is this court’s conclusion that the commission could reasonably make a finding of insubordination.”
Circuit judge stated: “. . . the court . . . also determines that there was no evidence whatsoever, let alone reasonably could conclude, that the petitioner violated paragraph (k) unless the scope of such paragraph is tortured beyond its plain meaning.”
The circuit judge stated: “Because the commission determined the petitioner violated all three paragraphs of the rule the court must assume it measured the degree of punishment to some extent because of a violation of paragraph (k). It is now impossible for this court to say how much the penalty was attributed to the commission’s belief that the petitioner had violated paragraph (k) and how much was attributed to violations of paragraphs (f) and (u). Because of the nature of the proceeding which brings this
“Therefore the court will sign an order reversing, vacating and setting aside the aetion of the commission.”
Meehan v. Macy (D. C. Cir. 1968), 392 Fed. 2d 822, 839, the court stating: “The second and third of the three charges cannot support the discharge. It does not inexorably follow that the discharge itself was contrary to law. However, it is unclear whether the three charges were deemed by the agency and the Civil Service Commission to constitute separate or cumulative grounds for discharge. We cannot treat the errors as harmless since we don’t know that a finding on Charge 1 alone would have resulted in a discharge — especially in light of the spectrum of punishments the agency could have imposed for conduct which, as already indicated, is not altogether void of Constitutional protection. The cause is remanded to the District Court for the framing of an order retaining jurisdiction pending further consideration by the Canal Zone Government and the Civil Service Commission.”
On rehearing, the scope of the remand was enlarged to include reconsideration of the validity of the charged violation, the court stating:
“. . . [I]f Charge 1, so reconsidered, is still found to be validly charged and proved, the penalty assessed is to be reconsidered in view of Charges 2 and 3 being dismissed.” Meehan v. Macy (D. C. Cir. 1969), 426 Fed. 2d 472, 473.
Iannarelli v. Morton (E. D. Pa. 1971), 327 Fed. Supp. 873, 889; Slowick v. Hampton (D. C. Cir. 1972), 470 Fed. 2d 467, 469. See also: Siang Ken Wang v. Immigration and Naturalization Service (9th Cir. 1969), 413 Fed. 2d 286, 287. But see: Grimm v. Brown (9th Cir. 1971), 449 Fed. 2d 654.
Baumgartner v. Leary (1971), 29 N. Y. 2d 873, 278 N. E. 2d 345, 328 N. Y. Supp. 2d 176; Glover v Murphy (1973), 41 App. Div. 2d 915, 343 N. Y. Supp. 2d 746; Torres v. Andrews (1969), 33 App. Div. 2d 696, 306 N. Y. Supp. 2d 189.
State ex rel. Irany v. Milwaukee County Civil Service Comm. (1962), 18 Wis. 2d 132, 136, 118 N. W. 2d 137, holding, «. . . The circuit court should enter an order which directs the commission to hold a hearing or, upon its failure to do so, to set aside the suspension.” See also: State ex rel. Heffernan v. Board of Fire & Police Commissioners (1945), 247 Wis. 77, 18 N. W. 2d 461.
See. Street v. New York (1969), 394 U. S. 576, 89 Sup. Ct. 1354, 22 L. Ed. 2d 572, holding that a criminal conviction based upon a statute proscribing two acts, where the defendant was accused of committing both acts, must be set aside where one of the proscribed acts is constitutionally protected.
State ex rel. Gudlin v. Civil Service Comm. (1965), 27 Wis. 2d 77, 86, 133 N. W. 2d 799.
State ex rel. Richey v. Neenah Police & Fire Comm. (1970), 48 Wis. 2d 575, 582, 180 N. W. 2d 743, where police officer was charged with conduct unbecoming a police officer, the majority stated: “. . . It is true that the details of the conduct are not set forth. However, it has often been stated that charges in such proceedings need not be technically drawn nor meet the requirements of a criminal indictment. And this court has held that ‘conduct unbecoming an officer’ is not too vague to define a cause for discharge.
“In any event, no objection was made at the time of the hearing . . . .” Dissenting opinion, by Mr. Justice Heffernan, stated (p. 587) : “While it may be conceded that a policeman may be discharged for ‘conduct unbecoming an officer,’ a charge of such conduct must be supported by specifications sufficient to give notice of the nature of the conduct charged.” See also: Giaccio v. Pennsylvania (1966), 382 U. S. 399, 404, 86 Sup. Ct. 518, 15 L. Ed. 2d 447, holding, “. . . It would be difficult if not impossible for a person to prepare a defense against such general abstract charges as ‘misconduct’ or ‘reprehensible conduct.’ . . .” (Emphasis supplied.)
Grayned v. City of Rockford (1972), 408 U. S. 104, 108, 92 Sup. Ct. 2294, 33 L. Ed. 2d 222, the court stating: “. . . Vague
Hamtramck CSC v. Pitlock (1973), 44 Mich. App. 410, 205 N. W. 2d 293, 294, 295; Zelcas v. Baldwin (E. D. Wis. 1971), 334 Fed. Supp. 1158; Soglin v. Kauffman (7th Cir. 1969), 418 Fed. 2d 163.
In re Bithoney (1st Cir 1973), 486 Fed. 2d 319.
Avrech v. Secretary of Navy (D. C. Cir. 1973), 477 Fed. 2d 1237.
Levy v. Parker (3d Cir. 1973), 478 Fed. 2d 772.
Avrech v. Secretary of Navy, supra, footnote 16, appeal granted (October 9, 1973), 414 U. S. 816, 94 Sup. Ct. 64, 38 L. Ed. 2d 48; Levy v. Parker, supra, footnote 17, appeal granted (October 23, 1973), 94 Sup. Ct. 286, 38 L. Ed. 2d 216.