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103.21(1) No jurisdiction
The Commission lacks the authority to review a decision denying hazardous employment injury benefits under §230.36(4), Stats., where appellant was a classified employe in a bargaining unit with a collective bargaining agreement in effect. Appellant alleged her union representatives refused to process her grievance relating to the denial. The Commission's authority was superseded by the collective bargaining agreement pursuant to §111.93(3), Stats. Jones v. DOC, 98-0069-PC, 11/18/98
The Commission lacks jurisdiction under §230.44(1)(g)2., regarding the information respondent allegedly provided to complainant when she chose the type of leave to take for a period of absence from her employment. The alleged conduct was not among those specific personnel actions made appealable in §230.44(1)(g)2. Ellis v. UWHCA, 98-0052-PC, 8/12/98
Decisions made regarding the scope of posting for a vacancy are made prior to certification and are not cognizable under §230.44(1)(d), Stats. Ernst v. DATCP, 97-0152-PC, 7/1/98
A constructive demotion does not exist where there has been a "temporary" change in duties at a lower level from a classification standpoint for a period of five months. It was undisputed that appellant was reassigned pending an investigation and that his reassigned duties were below the level of duties he had performed in his permanent position. However, appellant retained his classification and all related benefits during the "temporary" reassignment. The Commission concluded it lacked jurisdiction over the appeal under §230.44(1)(c). Stacy v. DOC, 97-0098-PC, 2/19/98; affirmed by Pierce County Circuit Court, Stacy v. Wis. Pers. Comm., 98-CV-0053, 7/9/98
Pursuant to §230.44(1)(e), Stats., the Commission lacks jurisdiction over discretionary performance awards. Angha v. DHFS, 97-0135-PC, 1/14/98
The Commission lacked jurisdiction to enforce a settlement agreement entered into between the respondent and the former position incumbent (the agreement setting 1979 as the effective date for reallocation of the position) where the case at bar was brought by the current position incumbent and the Commission had found that irrespective of any settlement agreement, the correct effective date for reallocating the former incumbent's position was in 1983. The court held that the settlement agreement did not have a res judicata effect on the current incumbent's appeal. DER v. Pers. Comm. (Klepinger), Dane County Circuit Court, 85-CV-3022, 12/27/85
The Commission lacks jurisdiction to hear an appeal relating to a letter placing appellant "on notice that any reoccurrence of . . . problematic behavior will result in the implementation of progressive discipline" where there was no "demotion, layoff, suspension, discharge or reduction in base pay" pursuant to §230.44(1)(c), Stats., nor did appellant proceed through the first three steps of the non-contractual grievance procedure, distinguishing Basinas v. State, 104 Wis. 2d 539, 312 N.W.2d 483 (1981). Klemmer v. DHFS, 97-0034-PC, 7/2/97
The denial of the use of sick leave benefits and resultant action of treating the absence as unexcused is not a disciplinary action covered by §230.44(1)(c), Stats. However, to the extent the absence was one of the bases of a suspension that was properly appealed to the Commission, evidence relating to the unexcused absence would be relevant. Kanitz v. UW, 97-0019-PC, 5/21/97
Section 230.44(4)(c), Stats., does not give the Commission the authority to enforce its own orders. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Wis. Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
The Commission lacks jurisdiction to decide whether respondent had improperly calculated appellant’s rate of pay for the period before his position was reclassified, even though the respondent had specifically acceded to consideration of the issue at hearing. A decision to change an employe’s rate of pay is not among those personnel actions listed in §230.44(1), Stats., that are appealable, where there is no reduction in base pay for reasons of discipline and the pay rate decision is not part of the initial hiring process. Steber v. DHSS & DER, 96-0002-PC, 6/25/96
None of the statutory provisions which serve as the basis on which the Commission may exercise jurisdiction encompass an allegation of "racketeering." Balele v. DILHR et al., 95-0063-PC-ER, 10/16/95
The decision as to whether or not a position should be included in the protective occupation status under the State's retirement program, ch. 40, Wis. Stats., is outside of the Commission's jurisdiction. Cox v. DER, 92-0806-PC, 11/3/94
The Commission lacks jurisdiction over the creation of a civil service position. ACE & Davies v. DMRS, 94-0060-PC, ACE & Davies v. DOA & DMRS, 94-0069-PC, 10/24/94
The Commission lacks jurisdiction over an appeal which contests the denial of training. Completion of the training was a prerequisite for eligibility for promotional interviews. Lentz v. UW & DER, 93-0217-PC, 9/9/94
The decision to remove the appellant's responsibilities as chairperson of the Division of Sciences and Mathematics at the University of Wisconsin-Superior was not reviewable as an appeal, because the appellant was employed in a faculty position rather than in the classified service. Nelson v. UW, 94-0282-PC, 10/24/94
A decision to assign a classification to a pay range in one pay schedule rather than to a pay range in a second pay schedule does not fall within the scope of §230.09(2)(a), so it is not reviewable by the Commission. Johnson v. DER, 94-0064-PC, 7/25/94
The assignment of an employe from one position in one class to another position in the same class is a transfer, not a demotion. Although it lacked subject matter jurisdiction under §230.44(1)(c), the Commission had jurisdiction over the matter under §230.44(1)(d) to the extent the appeal challenged the transfer as being illegal or an abuse of discretion. Kelley v. DILHR, 93-0208-PC, 2/23/94
Petitioner's handicap discrimination charge and discharge appeal were barred by exclusivity provision of Worker's Compensation Act (WCA), where he had pursued a WCA claim for work-place injuries which prevented him from returning to work subsequent to the injuries and which resulted in his discharge. Powers v. UW, 92-0746-PC, 92-0183-PC-ER, 6/25/93
Where appellants had not alleged any actual or threatened injury by the Commission's action or inaction, they did not have a right to a hearing under §227.42, Stats. ACE et al. v. DHSS et al., 92-0238-PC, 3/29/93
Respondent's reassignment/transfer of appellant constituted a management right pursuant to §ER 46.04(2), Wis. Adm. Code, and hence was non-grievable under the noncontractual grievance procedure. However, since appellant alleged that respondent improperly failed to handle the transaction in the context of a layoff, this provided a basis for jurisdiction under §230.44(1)(c), Stats. Ramsden v. DHSS, 92-0826-PC, 2/25/93
The fact that the employer has not formally denominated a personnel transaction as a disciplinary action does not mean that under certain circumstances it cannot be cognizable as a constructive disciplinary action under §230.44(1)(c). Davis v. ECB, 91-0214-PC, 5/14/92; explained further in interim decision, 6/21/94
There was no jurisdictional basis on which the Commission could review the appellant's pay level during the period of an alleged acting assignment where there was no certification associated with filling the acting assignment. Bauer v. DATCP & DER, 91-0128-PC, 4/1/92
The Commission lacked jurisdiction over an agency's decision to request removal of the appellant's name from a certification. Chadwick v. DMRS & DHSS, 91-0177-PC, 10/21/91
The Commission lacks jurisdiction over decisions regarding salary adjustments made in connection with reallocations. Garr et al. v. DER, 90-0163-PC, etc., 1/11/91
The Commission was without authority to resolve complainant's assertions that a decision by respondent to deny him compensation for attending his own deposition violated the Fair Labor Standards Act or would constitute an improper disciplinary action. However, the Commission did construe both the Commission's rules and ch. 804, Stats., as not entitling complainant to compensation during his deposition. Holubowicz v. DOC, 90-0048, 0079-PC-ER, 8/22/90
The Commission lacks jurisdiction over an appeal from the failure to make an "accommodation" as required by §230.37(2), Stats. To the extent it was an appeal of a discharge decision, the Commission's jurisdiction was superseded by operation of §111.93(3), Stats. Keul v. DHSS, 87-0052-PC-ER, 6/1/90
The Commission lacks the authority to review the imposition of a suspension with pay where there was no allegation that the suspension caused the appellant to lose any overtime pay or any pay increase to which he otherwise would have been entitled. Passer v. DHSS, 90-0003-PC, 5/16/90
The Commission lacked the authority to grant a request filed in 1989 to reopen an appeal which was dismissed with prejudice pursuant to a settlement agreement on November 18, 1987, or to open a new appeal arising from the alleged breach of the settlement agreement. Krueger v. DHSS, 89-0070-PC, 1/10/90
The Commission lacks jurisdiction over a decision denying the appellant's application for a salary add-on. Marquardt v. DHSS & DER, 89-0106-PC, 10/4/89
The Commission lacks jurisdiction over an appeal of a decision not to award compensation add-ons to appellant's position or an appeal of a tacit decision not to conduct a classification survey of the appellant's position. Olson v. DHSS, 88-0087-PC, 12/5/88
An agency's decision to fill a vacancy by utilizing a competitive procedure is not reviewable by the Commission. However, the decision of the administrator of DMRS, when reviewing the procedure used by an agency in filling a vacancy, to designate the underlying transaction as a transfer and not a promotion is reviewable under §230.44(1)(a), Stats. DMRS was added as a party. Meschefske v. DHSS, 88-0057-PC, 7/13/88
Respondent's decision as to whether to fill a position by transfer or promotion, and in the latter case whether to request in-service competition or open recruitment is a direct, undelegated power which is not appealable per se to the Commission. However, to the extent the appellant was contending that the decision to request further certification after appellant's initial certification and interview was a means to the end of not appointing him to the position, the action of failing or refusing to hire the appellant falls within §230.44(1)(d), Stats., and evidence tending to show respondent requested an additional, or a particular type of certification for the purpose of undermining appellant's chances for the appointment apparently would be relevant to the issue of whether the decision not to appoint the appellant was illegal or an abuse of discretion. Ransom v. UW, 87-0125-PC, 7/13/88
The Commission lacks jurisdiction over an appeal from a decision not to reinstate prorated fringe benefits (sick leave, vacation, length of service payments) to the appellants after their layoff. The layoff was a five day mandatory layoff for all union employes. The union and the state subsequently reached an agreement to restore the benefits lost during the layoff period, but appellants had changed positions and were unrepresented at the time the agreement became effective. Buechner & Koberle v. DER & UW, 85-0089-PC, 11/22/85, reversing an interim decision issued 9/13/85
The only aspect of the transfer process that is appealable to the Commission is the administrator's action (or inaction in failing) to authorize the transfer. An appeal of the administrator's decision does not lead to jurisdiction over the transfer itself which is a decision made by the appointing authority. Witt v. DILHR & DER, 85-0015-PC, 9/26/85
A refusal by an appointing authority to permit a transfer into a position has no appealable elements because it does not involve even a theoretical exercise of power by the administrator. Witt v. DILHR & DER, 85-0015-PC, 9/26/85
There is no statutory provision for a direct appeal to the Commission of the denial of an acting assignment and therefore, the Commission lacks jurisdiction for that claim. Witt v. DILHR & DER, 85-0015-PC, 9/26/85
The Commission lacks jurisdiction to review a decision setting appellant's salary upon a voluntary demotion. McCallum v. DOT, 85-0036-PC, 6/18/85
The Commission lacks the authority to rule on the question of the constitutionality of the statutes relating to the requirement of Wisconsin residency for civil service employment. Presumably the Commission could consider questions concerning alleged constitutional violations emanating from the statutes as applied, the determination of which would not involve reaching any conclusions as to the facial constitutional validity of the statutes. McSweeney v. DOJ & DMRS, 84-0243-PC, 3/13/85
The Commission lacks jurisdiction to review an allegation that an appointing authority violated the Administrative Code by failing to seek and obtain approval from the administrator of DMRS for extending appellant's acting assignment beyond the 45 day and six-month periods established in those rules. Hagman v. DNR, 84-0194-PC, 1/30/85
The Commission lacks the authority to preside over "actions" brought under §230.41, Stats. Actions under that section are to be filed in circuit court. Hagman v. DNR, 84-0194-PC, 1/30/85
The Commission lacks the authority to review a decision to change an employe's overtime status. Tiser v. DER, 84-0160-PC, 9/28/84
The Commission lacks jurisdiction over an appeal of respondent's refusal to reinstate the appellant, where appellant would only be eligible for reinstatement if her separation was without delinquency or misconduct, where appellant had grieved the discharge to (but not beyond) the third step in the contractual grievance procedure, and where the Commission lacks jurisdiction over bargainable subjects such as a review of appellant's discharge, pursuant to §111.93(3). Schmit v. DHSS, 83-0234-PC, 4/25/84
The responsibilities referred to in §230.09(2)(c), Stats., (when an agency anticipates changes in program or organization affecting assignment of duties or responsibilities) are the responsibility of the appointing authority rather than DER and, therefore, are not a proper issue in a reallocation appeal. Reding v. DER, 83-0149-PC, 11/9/83
There is no basis for jurisdiction over an appeal of the assignment of duties to a limited term employe (LTE). Schaeffer et al. v. DOT, 83-0059-PC, 7/7/83
The Commission has jurisdiction over an appeal of a transfer, to the extent that pursuant to §230.44(l)(a), Stats., it can hear an appeal of a decision of the administrator authorizing the transfer pursuant to §Pers 15.02, Wis. Adm. Code. The action of the appointing authority in deciding to fill the new position by transfer and/or to propose to the administrator that the appellant be transferred into the new position are not actions that are appealable to the Commission. Ford v. DHSS & DP, 82-243-PC, 83-0011-PC, 83-0020-PC, 6/9/83
The Commission has no jurisdiction over a decision by the appointing authority to reassign a position. Ford v. DHSS & DP, 82-243-PC, 83-0011-PC, 83-0020-PC, 6/9/83
There are no statutory bases for appealing (and therefore the Commission lacks jurisdiction over appeals of) the following alleged improper actions by the appointing authority: 1) exclusion from the DHSS Performance Planning and Development (PPD) Program which required an annual PPD session between the supervisor and the employe; 2) failure to provide the appellant with a position description during a 16 month period contrary to §230.09, Stats.; 3) failure to provide an employe performance evaluation since March 1980 contrary to §230.37, Stats.; 4) denial of an "automatic" wage step increase. Thorn v. DHSS, 81-459-PC, 6/9/83
With respect to an appeal of a decision of the Administrator, Division of Personnel, to remove an applicant from certification pursuant to §Pers 6.10(8), Wis. Adm. Code, there is no claim stated against BVTAE, the agency which requested the decertification. Pflugrad v. BVTAE & DP, 82-207-PC, 12/29/82
Pursuant to Chapter 317, Section 2015, Laws of 1981, the Commission has no jurisdiction to hear an appeal of a reduction in pay of a nonrepresented employe who is demoted or exercises the right of displacement on or after May 1, 1982. Staral v. UW, 82-146-PC, 9/30/82
Appellants were found to lack permanent status in class, thereby precluding review under §230.44(l)(c), Stats. of an alleged "discharge decision," where appellants had previously been employed as LTE's but had not completed the requisite probationary period and were never notified that they had obtained permanent status in class and where they were most recently working for various veterans organizations under contract with DILHR, even though the terms of the contract granted DILHR a supervisory role over the appellants and also made DILHR an equal partner in all hiring and disciplinary decisions. Smith & Berry v. DILHR & DP, 81-412,415-PC, 8/5/82
The Commission lacks jurisdiction to review the denial of an equity adjustment (§230.12(5)(a), Stats.) Davis v. DHSS, 82-1-PC, 6/25/82
Use of abusive language by co-workers does not constitute a personnel action appealable to the Commission under §230.44, Stats. Schmit v. DHSS, 82-49-PC, 4/2/82
The Commission lacks jurisdiction over an appeal of the determination of a probationary step increase as there is no basis for jurisdiction under §§230.44(i)(a), (b), or (c), Stats., and since the Court of Appeals has held that the hiring process does not include employe's probationary period it cannot be argued successfully that this appeal could be heard under §230.44(l)(d), Stats. Forrester v. DP & DNR, 80-252-PC, 3/19/82
The Commission lacks subject matter jurisdiction over an appeal of the denial of an application for transfer. Olbrantz & Harring v. DHSS, 81-462, 468-PC, 3/4/82
There is no statutory basis for the Commission to assert jurisdiction over the direct appeal of a reprimand. There was no indication that the matter had been grieved noncontractually before the appeal. Anand v. DHSS, 81-438-PC, 1/8/82
Where the appeal could be characterized as an appeal of a denial of a merit increase, the Commission lacks jurisdiction. §230.44(l)(e), Stats. Thorn v. DHSS, 81-401-PC, 12/18/81
The Commission lacks jurisdiction to hear an appeal from a decision to hire student hourly employes to fill what had been a permanent custodial position. Basch v. UW, 80-124-PC, 12/16/81
The Commission lacks jurisdiction over an appeal of the decision to hire LTE project employes. Rickard v. DILHR, 80-382-PC, 12/16/81
The Commission lacks jurisdiction to review the salary level to be paid to an employe upon promotion, which is a determination within the authority of the appointing authority. Mueller et al. v. DHSS, 81-92, etc.-PC, 12/16/81; Black et al. v. DP, 81-266-PC, 11/19/81
The Commission lacks jurisdiction over an appeal contesting both the decision to fill a position by transfer rather than promotion and the timing of the effective date of the transaction, as these decisions are within the purview of the appointing authority and hence not appealable pursuant to §§230.44(l)(a) or (b), Stats., and are not appealable under §230.44(l)(d), Stats., because they are not a personnel action after certification which is related to the hiring process in the classified service. Miller v. DHSS, 81-137-PC, 10/2/81
Where a represented employe filed an appeal of a performance evaluation, the Commission's jurisdiction apparently was not barred by the operation of §230.12(5)(e), Stats., since the evaluation apparently had no connection with a discretionary performance award, but the Commission still lacks jurisdiction because there is no provision of the statutes which authorizes a direct appeal of a performance evaluation. Although performance evaluations may enter into reclassification decisions under the new personnel rules, there has been no allegation of a reclassification decision and hence there could be no appealable personnel decision under §§230.44(l)(a) or (b), Stats. Also, it does not follow that the Commission must have jurisdiction in light of a recent arbitration decision that performance evaluations are not contractually grievable, as there must be a specific statutory provision giving the Commission the authority to hear an appeal. Welniak v. UW, 81-126-PC, 6/3/81
The Commission lacks jurisdiction under §230.44(l)(a) or (b) over an appeal of transactions effected or affected by changes in the compensation plan that were made by the director prior to the effective date of §230.12, Stats., and were potentially attributable to the administrator, the director's successor. Lustig et al. v. DILHR et al., 78-277-PC, etc., 1/12/81
The Commission lacks jurisdiction over so much of an appeal that alleges that position standards are incorrect because they fail to contain "administrative elements", because the promulgation of the position standards required a decision by the Personnel Board as well as by the administrator, and it is likely that the legislature did not intend that general questions about the position standards could be resolved in individual personnel transactions occurring years after the standards were approved by the Board. Ziegler & Hilton v. DP, 80-34-PC, 79-358-PC, 12/8/80
The Commission lacks jurisdiction to hear an appeal alleging "continuous erosion" or removal of duties and responsibilities. Roberts v. DHSS, 80-264 & 282-PC, 11/4/80
There is no basis for the Commission to assert jurisdiction over a direct appeal of the assignment of an academic teacher to supervise the appellant. Foder v. DHSS, 78-185-PC, 12/28/79
There is no basis for asserting jurisdiction under §§230.44 or 230.45, Stats. of an appeal of a decision effecting mandatory retirement. Leonhardt v. DHSS, 79-171-PC, 12/4/79
There is no basis for the Commission to assert jurisdiction over an appeal alleging that the agency violated §Pers 24.09 Wis. Adm. Code, in procedures used to investigate a complaint against an employe. Frey v. DOT, 79-107-PC, 8/30/79; White v. DOT, 79-112-PC, 1/15/80
The Commission’s subject matter jurisdiction over a noncontractual grievance relating to a discretionary performance award derives from §230.45(1)(c), not §230.44(1)(b), Stats., since it does not involve the type of decision which the administrator of DMRS has the authority to render. Peterson & Hoel et al. v. DOT, 78-178, 193-PC, 4/19/79
There is no statutory basis for Commission jurisdiction over an appeal of the termination of limited term employment. Klopp v. UW, 79-33-PC, 5/7/79
103.21(2) Jurisdiction present
Where a career executive was downwardly reassigned and alleged it was for disciplinary reasons and was an unreasonable and improper exercise of the appointing authority's discretion, the Commission had jurisdiction over the appeal pursuant to §230.44(l)(c), Stats., and §§Pers 30.10(l)(2), and (5), Wis. Adm. Code, construed as defining appealable demotions for career executive officers. Basinas v. State of Wis. (Personnel Commission), 104 Wis. 2d 539, 312 N.W.2d 483 (S. Ct. 1981)
A written reprimand "equal to and carrying the weight of a one day suspension" but resulting in no loss of pay was a constructive suspension and the Commission had jurisdiction to review the discipline pursuant to §§230.44(1)(c) and .45(1)(a), Stats. Rodgers v. DOC, 98-0094-PC, 1/27/99
The Commission will look beyond the employer's characterization of an action to determine whether it had the legal effect of an action over which the Commission has jurisdiction pursuant to §230.44(1)(c), Stats. Rodgers v. DOC, 98-0094-PC, 1/27/99
A cognizable claim of constructive suspension can exist if the employe demonstrates that the disputed transaction had the same legal effect as a suspension. Rodgers v. DOC, 98-0094-PC, 1/27/99
It is not dispositive for appeal purposes whether a personnel transaction fits or does not fit within the definition of a particular type of transaction. The Commission must examine the practical effect the transaction has on the employe's employment status, in the context of the employer's intention in effecting the transaction, and the policy factors which underlie the statutory framework of the civil service, to determine whether the transaction partakes more of the nominal category of personnel transaction, e.g., a reprimand, or more of the more serious category, e.g., a suspension. Rodgers v. DOC, 98-0094-PC, 1/27/99
A disciplinary suspension has three obvious impacts on an employe. First, the employe is relieved of the performance of his or her duties. Second, he or she loses the opportunity to earn wages during the period of the suspension. Third, the employe's disciplinary record is blemished and this record may move the employe up the ladder in terms of progressive discipline in connection with any future disciplinary action. Rodgers v. DOC, 98-0094-PC, 1/27/99
Where respondent's disciplinary action blemished appellant's disciplinary record with a suspension rather than with a reprimand, it was considered a constructive suspension that could be appealed under §230.44(1)(c), Stats., even though the discipline resulted in neither any interruption in appellant's performance of his duties nor any interruption in his salary. Respondent's intention was to discipline appellant in a manner that would be as close as possible to a one day suspension without jeopardizing appellant's exempt status under the Fair Labor Standards Act. The discipline imposed had a significantly more severe disciplinary impact on appellant's employment status than a mere reprimand. Rodgers v. DOC, 98-0094-PC, 1/27/99
Where the respondent was found to have failed to restore the appellant to appellant's "former position or a similar position" pursuant to §ER-Pers 14.03(1), Wis. Adm. Code, after having removed or discharged him while serving a probationary period in his promotional position, respondent's action was subject to review under §230.44(1)(c), Stats. Stevens v. DNR, 92-0691-PC, 5/27/94
Where, effective October 14, 1984, the appellant received an increase in her base salary as a result of the approval of a raised hiring rate and in May of 1988, respondent reassigned the appellant's classification to a higher pay range, effective June 10, 1984, the respondent's decision "correcting overpayment errors" and requiring the appellant to refund salary received when her pay rate was recalculated to reflect the higher pay range but without the raised hiring rate, constituted a "reduction in base pay" under §230.44(1)(c), Stats. Schmidt v. DER, 89-0058-PC, 2/26/91
Where the appellant suffered from an injury in 1986 while employed by the respondent as a correctional officer at Waupun Correctional Institution, the exclusivity provision of the Worker's Compensation Law does not extend to foreclose an appeal of a decision in 1988 to terminate the appellant's employment as a Social Services Collection Specialist 1 in the respondent's Division of Management Services. Smith v. DHSS, 88-0063-PC, 2/7/90
The Commission has the authority to rule on whether due process requires a predisciplinary hearing where the civil service code neither mandates nor prohibits such a hearing. Showsh v. DATCP, 87-0201-PC, 11/28/88; rehearing denied, 3/14/89; reversed on other grounds by Brown County Circuit Court, Showsh v. Wis. Pers. Comm., 89-CV-445; affirmed by Court of Appeals, 90-1985, 4/2/91
Even though allegations in an appeal of sex discrimination may repeat allegations contained in a companion complaint under the Fair Employment Act, there is no reason why appellant cannot pursue her allegations of illegality with respect to civil service code provisions which concern nondiscrimination in certain aspects of employment independent of the Fair Employment Act. Witt v. DILHR & DER, 85-0015-PC, 9/26/85
The Commission has jurisdiction pursuant to §230.44(l)(c), Stats., over a reduction in supplemental supervisory pay, as a constructive reduction in base pay, where the agency took a duty that had been an ongoing function of a position, identified it as a basis for supplemental supervisory pay for the sole purpose of being able to bring the starting salary of the position to a level that would meet the salary requirements of the appellant, and subsequently removed the supplemental pay for no convincing reason other than to augment the salary of another employe. Mirandilla v. DVA, 82-189-PC, 7/21/83
The decision as to the appellant's appropriate responsibility add-on level under the physician's pay plan is appealable to the Commission pursuant to §230.44(l)(a), Stats., inasmuch as the administration of the pay plan is the responsibility of the administrator pursuant to §230.12(l)(a), Stats. Zechnich v. DHSS & DP, 79-4-PC, 9/29/80
107 Effect of prior settlement agreement reached in another proceeding
Where the parties to a classification appeal filed in 1995 agreed to settlement in 1996 which called for a re-review of the underlying decision by respondent, dismissal of 1995 case upon completion of the re-review regardless of the outcome and waiver of appellant's right to appeal the results of the re-review, appellant was barred from appealing the re-review decision issued in 1998. It would have been unjust to permit appellant to avoid his obligations under the agreement after respondents had met theirs. Although two years might seem like a long time to complete the re-review, the agreement by the parties did not specify a deadline and two years was not so unreasonable as to justify voiding the agreement. Schaefer v. DNR & DER, 95-0179-PC, 6/3/98
Respondent was required to reallocate the appellant's position effective August 26, 1979 rather than July 15, 1983, where, in settlement of a separate appeal filed by appellant's predecessor in the same position, respondent had agreed to reallocate the position effective August 26, 1979. Klepinger v. DER, 83-0197-PC, 5/9/85; reversed by Dane County Circuit Court, DER v. Wis. Pers. Comm. (Klepinger), 85-CV-3022, 12/27/85
110 Declaratory rulings (see also 523)
Appellants were found to have no interest in pursuing a matter as a declaratory ruling proceeding pursuant to §227.41, Stats., where they failed to plead such a proceeding, they failed to respond to respondents' arguments in opposition to the Commission proceeding with the matter as a declaratory ruling proceeding under §227.41 and they relied solely on §§230.44(1) and 227.42 as jurisdictional bases. ACE et al. v. DHSS et al., 92-0238-PC, 3/29/93
Appellant's were "interested" persons for purposes of seeking a declaratory ruling under §227.41, if for no other reason, because of their allegation that an evasion of the civil service code had resulted in the improper expenditure of tax dollars. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93
130.5(2) Appointment to future vacancy
The Commission lacks the authority to require as a remedy for a perceived abuse of discretion in a non-appointment case that the appellant be appointed, if still qualified, to the position upon its next vacancy. DHSS v. Wis. Pers. Comm. (Paul), Dane County Circuit Court, 81-CV-1635, 9/18/83 (dictum)
Where in an appeal of a selection decision, the Commission found that the respondent had violated the civil service law in improperly awarding veterans points and improperly using a trainee designation, the Commission was barred by the decision of the Circuit Court from awarding back pay and from requiring respondent to appoint the appellant to the position in question, and was also prevented from ordering the appellant reclassified because the issue of reclassification had not been addressed at the hearing. The only remaining remedy was to order respondent to cease and desist from similar violations. Martin v. DILHR, Case No. 74-132, 12/16/81
As a remedy in a successful appeal of a non-selection decision, the Commission ordered the respondent to appoint the appellant, if still qualified, to the disputed position (or comparable one) upon its next vacancy. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Wis. Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
130.5(4) Attorneys fees
The Commission lacks the authority to award back pay, a pay raise or attorneys fees as a remedy in a successful appeal of a decision not to select the appellant. Pearson v. UW & Wis. Pers. Comm., Court of Appeals District IV, 86-1449, 3/5/87
The Commission lacked the authority to consider appellant's supplementary motion for attorney's fees and costs arising from attempts by appellant's counsel to obtain full compliance or a compromise settlement with respect to the remedy ordered by the Commission where the decision and order was served on May 15 and the supplementary motion was filed on August 26. Arneson v. UW, 90-0184-PC, 11/13/92
The Commission lacks the authority to award attorneys fees under §230.44(4)(c), Stats., as a remedy in a successful non-selection appeal. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Wis. Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
The Commission lacks statutory authority to award, and hence may not require the respondent to pay, attorney's fees as a result of a successful appeal. Bjorklund v. DHSS, 79-327-PC, 2/13/81
130.5(6) Back pay
The remedy of back pay is not available in reinstatement cases. Seep v. State Pers. Comm., Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87; affirming in all respects Seep v. DHSS, 83-0032-PC, 83-0017-PC-ER, 10/10/84
The Commission lacks the authority to award back pay, a pay raise or attorneys fees as a remedy in a successful appeal of a decision not to select the appellant. Pearson v. UW & Personnel Commission, Court of Appeals District IV, 86-1449, 3/5/87
Where the Commission rejects a reclassification denial, it lacks the authority to require retroactive salary payment as a remedy. DER v. Wis. Pers. Comm. (Cady), Dane County Circuit Court, 79-CV-5099, 7/24/81
The Commission lacks authority to award back pay in denial of reclassification appeals. DHSS v. Wis. Pers. Comm. (Eschenfeldt), Dane County Circuit Court, 81-CV-5126, 4/27/81
The Personnel Board, after determining that an employe's position is misclassified, lacks the authority to award back pay retroactively to a date prior to the date on which the Board is required to act on an appeal (i.e., 45 days after the date on which the appeal was filed with the Board). Ehly v. State Pers. Bd., Dane County Circuit Court, 158-371, 9/22/78; affirmed by Court of Appeals, 78-719, 6/26/79
The Personnel Board lacks the authority to order back pay retroactive to the time at which an employe assumed a position which the Board later deemed misclassified. Nunnelee v. State Pers. Bd., Dane County Circuit Court, 158-464, 9/14/78
The Commission lacks the authority to award attorneys fees under §230.44(4)(c), Stats., as a remedy in a successful non-selection appeal. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Wis. Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
Where the appellant left the position in question subsequent to having filed an appeal of a reclassification denial, the respondent's motion to dismiss on the ground that the Commission lacked the authority to require that back pay be paid was denied, because regardless of whether such authority were present, the Commission must assume that if it were to determine that the position should have been reclassified, that the agency would comply with the Wisconsin Personnel Manual promulgated by the Division of Personnel, and effectuate the transaction retroactively. McGrew v. UW & DP, 81-443-PC, 1/10/83
Where in an appeal of a selection decision, the Commission found that the respondent had violated the civil service law in improperly awarding veterans points and improperly using a trainee designation, the Commission was barred by the decision of the Circuit Court from awarding back pay and from requiring respondent to appoint the appellant to the position in question, and was also prevented from ordering the appellant reclassified because the issue of reclassification had not been addressed at the hearing. The only remaining remedy was to order respondent to cease and desist from similar violations. Martin v. DILHR, Case No. 74-132, 12/16/81
A transfer does not fall within the categories of transactions set forth in §230.43(4), Stats. (requiring the awarding of back pay in the event of reinstatement pursuant to order of the Commission), and retroactive pay is limited to those transactions enumerated. Stasny v. DOT, 78-158-PC, 10/12/79 (Note: This case was affirmed by the Dane County Circuit Court in all respects except for restoration of sick leave. DOT v. Pers. Comm. (Stasny) Dane County Circuit Court, 79-CV-6102, 6130, 3/27/81
In an appeal of the refusal to admit the appellant to an examination, if the appellant were successful with her appeal but someone else already had been appointed to the position in question, she would not be entitled, as a remedy, to a salary award. Noltemeyer v. DILHR & DP, 78-14-PC, 78-28-1, 12/20/78
130.5(8) Other
Restoration of sick leave is beyond the remedial powers of the Commission in an appeal of a noncontractual grievance which determined that the appellant had been improperly transferred and that this exacerbated his medical condition to the point where he had to take medical leave. DOT v. Wis. Pers. Comm. (Stasny), Dane County Circuit Court, 79-CV-6102, 6130, 3/27/81
The Commission lacks the authority to issue a preliminary injunction with respect to a civil service appeal filed under §230.44(1)(b), Stats. Van Rooy v. DILHR & DER, 87-0117-PC, 87-0134-PC-ER, 10/1/87
In an earlier decision, the Commission had ruled in favor of the appellants in a dispute over the proper effective date of a reclassification. Appellants subsequently disputed the payroll calculations used by respondents in determining the amount of back pay and the appellants' hourly rate. The Commission held that it lacked the authority to enforce its own orders and dismissed the appeals. Guzniczak & Brown v. DHSS & DER, 83-0210, 0211-PC, 4/6/88
Although there were violations of §230.16, Stats., in an exam process with respect to its timing and nonverbal feedback from one of the oral exam panel members, there was no showing of obstruction or falsification as set forth in §230.43(l), Stats., and therefore the Commission could not require the removal of the incumbent, and the remedy would be to require the respondents to cease and desist from further violations of the kind found in this case. Zanck & Schuler v. DP, 80-380-PC, 81-12-PC, 12/3/81
The Commission lacks the authority to grant what functionally amounts to a preliminary injunction. Lyons v. DHSS, 79-81-PC, 4/26/79; affirmed by Dane County Circuit Court, DHSS v. Wis. Pers. Comm. (Lyons), 80-CV-4948, 7/14/81
130.7(1) Exam
Although there were violations of §230.16, Stats., in an exam process with respect to its timing and nonverbal feedback from one of the oral exam panel members, there was no showing of obstruction or falsification as set forth in §230.43(l), Stats., and therefore the Commission could not require the removal of the incumbent, and the remedy would be to require the respondents to cease and desist from further violations of the kind found in this case. Zanck & Schuler v. DP, 80-380-PC, 81-12-PC, 12/3/81
In an appeal of the refusal to admit the appellant to an examination, if the appellant were successful with her appeal but someone else already had been appointed to the position in question, she would not be entitled, as a remedy, to a salary award. Noltemeyer v. DILHR & DP, 78-14-PC, 78-28-1, 12/20/78
130.7(2) Grievance
Restoration of sick leave is beyond the remedial powers of the Commission in an appeal of a noncontractual grievance which determined that the appellant had been improperly transferred and that this exacerbated his medical condition to the point where he had to take medical leave.
DOT v. Pers. Comm. (Stasny), Dane County Circuit Court, 79-CV-6102, 6130, 3/27/81
130.7(4) Imposition of discipline
Where respondent had terminated appellant's employment as a MIS 4-Sup. while the appellant was serving a promotional probationary period, suspended him for 30 days without pay, reduced his rate of pay and demoted him to a position in a classification with a lower pay range, and where the Commission found the predisciplinary process to have been inadequate, the Commission rejected the respondent's contention that the appellant was not entitled to be restored to his MIS 4-Sup. position. While the respondent could have simply terminated the appellant's probationary employment as a MIS 4-Sup. and restored him to a position in his previous MIS 3 classification without a right to an appeal under §230.44(1)(c), once the respondent went further, there was no basis for respondent to argue that appellant was not entitled to restoration to his previous position as a remedy to successful appeal, citing §ER-Pers 14.03. Arneson v. UW, 90-0184-PC, 2/6/92
130.7(6) Post-certification action relating to hire, including non-appointment
The Commission did not exceed its authority where it rejected the decision of the respondent denying appellant's reinstatement and remanded the case for action in accordance with its decision. While the effect of the order may be appellant's reinstatement, the Commission's actions were clearly within the confines of its authority to "affirm, modify or reject the action which is the subject of the appeal." Seep v. Pers. Comm., Court of Appeals District 11, 140 Wis 2d 32, 5/6/87; affirming in all respects Seep v. DHSS, 83-0032-PC, 83-0017-PC-ER, 10/10/84
The remedy of back pay is not available in reinstatement cases. Seep v. State Pers. Comm., Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87; affirming in all respects Seep v. DHSS, 83-0032-PC, 83-0017-PC-ER, 10/10/84
The Commission lacks the authority to award back pay, a pay raise or attorneys fees as a remedy in a successful appeal of a decision not to select the appellant. Pearson v. UW & Personnel Commission, Court of Appeals District IV, 86-1449, 3/5/87
The Commission lacks the authority to require as a remedy for a perceived abuse of discretion in a non-appointment case that the appellant be appointed, if still qualified, to the position upon its next vacancy. DHSS v. Wis. Pers. Comm. (Paul), Dane County Circuit Court, 81-CV-1635, 9/18/83 (dictum)
The Commission lacks the authority to award attorneys fees under §230.44(4)(c), Stats., as a remedy in a successful non-selection appeal. The Commission did order the respondent to appoint the appellant, if still qualified, to the disputed position (or comparable one) upon its next vacancy. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Wis. Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
Where in an appeal of a selection decision, the Commission found that the respondent had violated the civil service law in improperly awarding veterans points and improperly using a trainee designation, the Commission was barred by the decision of the Circuit Court from awarding back pay and from requiring respondent to appoint the appellant to the position in question, and was also prevented from ordering the appellant reclassified because the issue of reclassification had not been addressed at the hearing. The only remaining remedy was to order respondent to cease and desist from similar violations. Martin v. DILHR, Case No. 74-132, 12/16/81
130.7(8) Reclassification/reallocation
Where the Commission rejects a reclassification denial, it lacks the authority to require retroactive salary payment as a remedy. DER v. Wis. Pers._Comm. (Cady), Dane County Circuit Court, 79-CV-5099, 7/24/81
The Commission lacks authority to award back pay in denial of reclassification appeals. DHSS v. Wis. Pers. Comm. (Eschenfeldt), Dane County Circuit Court, 81-CV-5126, 4/27/81
The Personnel Board, after determining that an employe's position is misclassified, lacks the authority to award back pay retroactively to a date prior to the date on which the Board is required to act on an appeal (i.e., 45 days after the date on which the appeal was filed with the Board). Ehly v. State Pers. Bd., Dane County Circuit Court, 158-371, 9/22/78; affirmed by Court of Appeals, 78-719, 6/26/79
The Personnel Board lacks the authority to order back pay retroactive to the time at which an employe assumed a position which the Board later deemed misclassified. Nunnelee v. State Pers. Bd., Dane County Circuit Court, 158-464, 9/14/78
Where the appellant left the position in question subsequent to having filed an appeal of a reclassification denial, the respondent's motion to dismiss on the ground that the Commission lacked the authority to require that back pay be paid was denied, because regardless of whether such authority were present, the Commission must assume that if it were to determine that the position should have been reclassified, that the agency would comply with the Wisconsin Personnel Manual promulgated by the Division of Personnel, and effectuate the transaction retroactively. McGrew v. UW & DP, 81-443-PC, 1/10/83
The provisions of §230.44(4)(c), Stats., permitting the Commission to modify the appealed action do not apply where the appeal was not brought pursuant to §230.44 and where the remedy sought cannot be accomplished by modifying the appealed action. Stasny v. DOT, 78-158-PC, 10/12/79 (Note: This case was affirmed by the Dane County Circuit Court in all respects except for restoration of sick leave. DOT v. Pers. Comm. (Stasny), Dane County Circuit Court, 79-CV-6102, 6130, 3/27/81
130.7(10) Other
A transfer does not fall within the categories of transactions set forth in §230.43(4), Stats. (requiring the awarding of back pay in the event of reinstatement pursuant to order of the Commission), and retroactive pay is limited to those transactions enumerated. Stasny v. DOT, 78-158-PC, 10/12/79 (Note: This case was affirmed by the Dane County Circuit Court in all respects except for restoration of sick leave. DOT v. Pers. Comm. (Stasny), Dane County Circuit Court, 79-CV-6102, 6130, 3/27/81)
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.