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500 PROCEDURE AND RELATED TOPICS [APPEALS]
500.50 Filing fee
The 30 day time limit for receipt of a filing fee is mandatory rather than directory. The appeal was dismissed for failing to timely tender the filing fee where the fee was due to be received by the Commission on Columbus Day, Monday, October 13, which is a business day for the Commission but is also a federal holiday, the fee was mailed via Express Mail for "next" day delivery by complainant in Maryland on October 10th, but it was not received by the Commission until October 14th. Runde v. DMRS, 97-0088-PC, 12/17/97
When the Commission relies on another state agency to receive and distribute its mail, that agency is acting on behalf and in place of the Commission with respect to the receipt of mail from the postal service. Because the Commission inferred that it would have received appellant’s filing fee in a timely manner but for the failure of the Department of Administration to have processed its mail on a Friday and subsequent Monday, the delivery of the filing fee to DOA was equivalent to delivery to the Commission. The envelope enclosing the filing fee had been postmarked in Milwaukee on Thursday, August 8, and was correctly addressed, but did not reach the Commission’s offices until August 13. Bouche v. UW & DER, 96-0095-PC, 10/29/96
The filing fee requirement of §PC 3.02, Wis. Adm. Code, was enacted, at least in part, to discourage filing of clearly non-meritorious claims, such as claims over which the Commission clearly has no jurisdiction. Van Beek v. DER, 96-0072-PC, 6/25/96
Appellant’s request for waiver of the filing fee requirement was denied where the requirement applies to all appeals filed on and after June 1, 1996, appellant mailed his appeal in the afternoon of Friday, May 31st, and it was received on Monday, June 3rd. Neither the respondent nor appellant’s employing agency had any obligation to notify appellant of the potential of a new Commission administrative rule. Van Beek v. DER, 96-0072-PC, 6/25/96
501.01 Evidentiary standard
It is the respondent's burden to show "by a preponderance of credible evidence that there was just cause for the termination of appellant," a standard equated by the Court in Reinke to "a reasonable certainty by the greater weight or clear preponderance of the evidence." Hogoboom v. Wis. Pers. Comm., Dane County Circuit Court, 81-CV-5669, 4/23/84
The standard of judgment to be applied by the Commission is that of a reasonable certainty, by the greater weight of the evidence, citing Reinke v. Pers. Bd., 53 Wis. 2d 123 (1971). Jackson v. State Personnel Board, Dane County Circuit Court, 164-086, 2/26/79
In cases involving the termination of employes with permanent status in the state classified civil service, the appointing authority has the burden of proving the discharge was for just cause and to sustain its action, the appointing authority must prove to a reasonable certainty, by the greater weight of credible evidence, that the discharge was for just cause, citing Bell v. Personnel Board, 259 Wis. 602, 49 N.W. 2d 889 (1951). Higgins v. Wis. Racing Bd., 92-0020-PC, 1/11/94
Regardless of whether the conduct underlying the discipline would also support a criminal charge, the Commission is to apply a standard of judgment of "a reasonable certainty, by the greater weight of the credible evidence" in discipline cases. Blake v. DHSS, 82-208-PC, 1/4/84
501.02(1) Just cause in disciplinary actions (including constructive discipline)
It is the obligation of the Commission to determine a reasonable level of discipline and the action of the employing agency is not material to the determination by the Commission. DNR v. Pers. Comm (Hess), Dane County Circuit Court, 80-CV-5437, 6/24/81
In a constructive demotion appeal, appellant had the burden of proof to establish that management acted to reduce her position with the intent of effectively disciplining her because of dissatisfaction with her performance. Davis v. ECB, 91-0214-PC, 6/21/94
The Commission has subject matter jurisdiction over an alleged constructive disciplinary demotion. In order to prevail, an employee must establish not only that changes in assigned duties and responsibilities imposed by management reduced the effective classification of the position, but also that the appointing authority had the intent to cause this result and to effectively discipline the employe. Davis v. ECB, 91-0214-PC, 6/12/92
It is not necessary for the respondent to show that the charged activity actually impaired the performance of the duties of the appellant's position or the group with which he works. Respondent needs only show that the activity could be reasonably concluded to have had a tendency to do so. Paul v. DHSS, 87-0147-PC, 4/19/90
In deciding whether the appellant's misconduct had a tendency to impair the performance of the duties of the appellant's position or the group with which he works, it is appropriate to consider whether, if the appellant's actions had become known to the public, it would have had a tendency to undermine the public image of the institution. Paul v. DHSS, 87-0147-PC, 4/19/90
The underlying questions in an appeal of a discharge were: 1) whether the greater weight of credible evidence shows that appellant committed the conduct alleged by respondent in its letter of discharge; 2) whether the greater weight of credible evidence shows that such chargeable conduct, if true, constitutes just cause for the imposition of discipline, and; 3) whether the imposed discipline was excessive. Mitchell v. DNR, 83-0228-PC, 8/30/84
In considering the severity of the discipline to be imposed, the Commission must consider at a minimum, the weight or enormity of the employe's offense or dereliction, including the degree to which, under the Safransky test, it did or could reasonably be said to have a tendency to impair the employer's operation, and the employe's prior work record with the respondent. Barden v. UW-System, 82-237-PC, 6/9/83
In determining whether the decision to terminate the appellant's employment with the agency, and not to demote him was excessive discipline, the Commission cannot second guess the employer, and render its own independent decision in the matter, but can only examine the record to determine whether the action taken was excessive. Ruff v. State Investment Board, 80-105-PC, etc., 8/6/81
The issue of whether there is just cause for the discipline imposed includes the question of whether the imposition of the discipline violated appellant's right to freedom of speech where appellant's speech activity was readily discernible from the face of the letter imposing the suspension. Hess v. DNR, 79-203-PC, 8/19/80; affirmed by Dane County Circuit Court, DNR v. Wis. Pers. Comm. (Hess), 80-CV-5437, 6/24/81
In a First Amendment case, the question of the excessiveness of the discipline imposed is superseded by the requirement that the state impose a penalty that is no more drastic than necessary to satisfy its legitimate interests. Hess v. DNR, 79-203-PC, 8/19/80; affirmed by Dane County Circuit Court, DNR v. Wis. Pers. Comm. (Hess), 80-CV-5437, 6/24/81
In an appeal of a one-day suspension based on five separate allegations of inadequate performance, the Commission did not decide whether any single instance justified the suspension but considered whether the combined weight of those instances where performance was found to be inadequate justifies the imposition of discipline and the amount of discipline actually imposed. Clark v. DOT, 79-117-PC, 10/10/80
501.02(2) Just cause for a layoff
In a layoff case, the employer is not required to prove that the employes selected for exemption from layoff were the best qualified. If the employer can show that it had a rational basis for its decision, it has satisfied its burden of proof. It is not required to prove that its decision was perforce the best personnel decision that could have been made under the circumstances. Eft v. DHSS, 82-98-PC, 8/17/83; Newberry & Eft v. DHSS, 82-98, 100-PC, 8/17/83
Arbitrary or capricious action is unreasonable or does not have a rational basis and is not the result of the "winnowing and sifting" process. Arbitrary is defined as being 1) without adequate determining principle, or 2) fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance ... decisive but unreasoned. Martin v. Transportation Commission, 80-366-PC, 3/21/83
In applying the arbitrary and capricious standard, the focus must be on whether the process, as a whole, was arbitrary and capricious, not on whether the end result might have been reached in any event had a different analysis been followed by the agency. Martin v. Transportation Commission, 80-366-PC, 3/21/83
On an appeal of a layoff, the Commission can consider only the question of whether there was just cause for the layoff, and pursuant to Weaver v. Wis. Pers. Board, 71 Wis. 2d 46, 52, 237 N.W. 2d 183 (1975), the employing agency sustains its burden of proof when it shows it has acted in accordance with administrative and statutory guidelines and the exercise of that authority has not been arbitrary and capricious. In this case, the laid off appellant alleged that the respondent over the course of several years slowly eroded his duties and usurped his responsibilities, and the appellant argued that the "respondent should be forced to carry the burden of proof in justifying all of his actions affecting the appellant from the commencement of the respondent's term as Commissioner of Securities. . ." The Commission held that the language of the Weaver decision limited review of the layoff to the personnel decision itself and precluded review of the numerous decisions relative to the administration of the agency which may have affected the appellant's position during the period of years preceding the layoff. Oakley v. Comm. of Securities, 78-66-PC, 4/19/79
501.02(3) Just cause for resignation by job abandonment
The just cause standard for lay-off situations is the proper standard to be applied in the review of an abandonment/resignation, reaffirming Petrus v. DHSS, 81-86-PC, 12/3/81. The issue of whether the action was "otherwise authorized by applicable law" includes considering, where appropriate, whether the requirements of §230.37(2), Stats., have been met. The failure to comply with the statutory mandate of §230.37(2), Stats., prior to effecting the separation from employment of an employe who has become physically or mentally unfit to perform the duties of her position would be arbitrary and capricious, and, therefore, the action of deeming the incumbent as having abandoned her job would be without just cause. Smith v. DHSS, 88-0063-PC, 2/9/89
The just cause standard for lay-off situations, i.e., whether the appointing authority has acted in accord with administrative and statutory guidelines and the exercise of the authority has not been arbitrary or capricious, is the proper standard to be applied in the review of an abandonment/resignation, where the legislature has established precise procedural requirements that must be followed before an employe may be considered as having resigned due to job abandonment. Petrus v. DHSS, 81-86-PC, 12/3/81
501.03 Correctness of actions by the administrator
The Commission has the authority to review for correctness any reclassification decisions made by DER itself or by the appointing authority delegated from DER. DILHR v. Pers. Comm. (Foust), Dane County Circuit Court, 85-CV-3206, 7/29/86
The appellant in a reclassification case has the burden of proof and must establish by a preponderance of the evidence the facts necessary to show that respondent’s decision that appellant’s position should remain in a particular classification was in error, citing Cox v. DER, 92-0806-PC, 11/3/94. Harder v. DNR & DER, 95-0181-PC, 8/5/96
In an appeal of a decision to remove the appellants' names from a register, the appellants have the burden to prove by the greater weight of the credible evidence that the respondent was not justified, pursuant to §230.17, Stats., and §ER-Pers 6.10(7), Wis. Adm. Code, in removing the appellants' names. Dugan & Fisher v. DMRS, 88-0043, 0044-PC, 1/13/89
In reviewing decisions by the Secretary of the Department of Employment Relations, the Administrator of the Division of Merit Recruitment and Selection and their predecessors, the Commission applies the standard of whether the decision being reviewed was correct. Robinson v. DHSS & DMRS, 85-0064-PC, 7/17/85
501.04 Abuse of discretion
An agency acts outside the proper exercise of, or abuses its discretion, when it bases a discretionary decision on an erroneous view of the law relating to the transaction in question. Kelley v. DILHR, 93-0208-PC, 3/16/95
If an agency considers a factor it should not have considered, or fails to consider at all a factor it should have considered, this can amount to an abuse of discretion. Kelley v. DILHR, 93-0208-PC, 3/16/95
In reviewing a transfer decision, the decision had to be examined to determine, 1) whether the decision had a rational basis, 2) whether respondent failed to consider any factors which it can be concluded it should have considered, or considered any improper factor, and 3)whether respondent based its decision on any erroneous views of the law. Kelley v. DILHR, 93-0208-PC, 3/16/95
Abuse of discretion is "a discretion exercised to an end or purpose not justified by and clearly against reason and evidence." (Citing case law and Black's law dictionary). Lundeen v. DOA, 79-208-PC, 6/3/81
502.01(1) Burden of persuasion
With the exception of appeals of disciplinary matters, the burden of proof as to all issues, including jurisdiction, is on the party seeking relief. The appellant has the burden of proof relative to issues of jurisdiction. Lawry v. DP, 79-26-PC, 7/31/79
502.01(2) Applicability of burden
The five factors to consider in determining which party has the burden of proof in a particular matter, as set forth in State v. McFarren, 62 Wis. 2d 492, 215 N.W.2d 459 (1974), do not have equal weight. The first factor is the customary common law rule that the moving party has the burden of proof. The four remaining factors are considered to determine whether special considerations exist to justify shifting the burden of proof to the opposing party. WPEC v. DMRS, 95-0107-PC, 5/14/96
When considering the fourth factor (fairness based on analyses of proof of exceptions and proof of negatives) in determining which party has the burden of proof, an exception clause in the underlying statute must be analyzed in terms of whether it involves a true exception or is an integral part of the described activity, citing State v. McFarren, 62 Wis. 2d 492, 215 N.W.2d 459 (1974) WPEC v. DMRS, 95-0107-PC, 5/14/96
502.02 Jurisdiction
It is appellant's burden to establish that her appeal was timely filed. Schuster v. DER, 94-0479-PC, 1/20/95
In an appeal of the examination and selection process for a vacant position, the appellant was the party asserting jurisdiction and seeking relief and, therefore, had the burden of establishing the Commission's jurisdiction over the matter. The Commission found the more credible evidence favored the conclusion that the appellant had failed to file his appeal within 30 days after he received notice of his nonselection. Allen v. DHSS & DMRS, 87-0148-PC, 8/10/88
With the exception of appeals of disciplinary matters, the burden of proof as to all issues, including jurisdiction, is on the party seeking relief. The appellant has the burden of proof relative to issues of jurisdiction. Lawry v. DP, 79-26-PC, 7/31/79
502.03 Discharge
In cases involving the termination of employes with permanent status in the state classified civil service, the appointing authority has the burden of proving the discharge was for just cause and to sustain its action, the appointing authority must prove to a reasonable certainty, by the greater weight of credible evidence, that the discharge was for just cause, citing Bell v. Personnel Board, 259 Wis. 602, 49 N.W. 2d 889 (1951). Higgins v. Wis. Racing Bd., 92-0020-PC, 1/11/94
The burden of persuasion in an appeal from a discharge is on the employer and the appellant does not have to prove that the assignment that he refused to carry out was unethical in order to show there was no just cause. Lyons v. DHSS, 79-81-PC, 7/23/80; affirmed by Dane County Circuit Court, DHSS v. Wis. Pers. Comm. (Lyons), 80-CV-4948, 7/14/81
502.04 Suspension/demotion
In a constructive demotion appeal, appellant had the burden of proof to establish that management acted to reduce her position with the intent of effectively disciplining her because of dissatisfaction with her performance. Davis v. ECB, 91-0214-PC, 6/21/94
502.06 Actions of the administrator
In an appeal under §230.44(1)(a) of the correctness of the decision under §230.30 to establish new employing units in an agency as opposed to treating the entire agency as one employing unit, the burden of proof properly rests with the appellant. WPEC v. DMRS, 95-0107-PC, 5/14/96
In an appeal of respondent's approval of the creation of new employing units for an agency, the burden of proof rested with the appellant rather than the respondent. The "proof of exceptions" principle, which supports placing the burden of proof on the party who relies on an exception to a general rule or statute, was inapplicable to the language of §230.30, Stats. WPEC v. DMRS, 95-0107-PC, 4/4/96; rehearing denied, 5/14/96
In an appeal of a decision to remove the appellants' names from a register, the appellants have the burden to prove by the greater weight of the credible evidence that the respondent was not justified, pursuant to §230.17, Stats., and §ER-Pers 6.10(7), Wis. Adm. Code, in removing the appellants' names. Dugan & Fisher v. DMRS, 88-0043, 0044-PC, 1/13/89
502.07 Reclassifications/reallocations
Court found no error in the Board's statement that the burden of proof was on the appellant to show that he be reclassified as requested. Jackson v. State Personnel Board, Dane County Circuit Court, 164-086, 2/26/79
The appellant in a reclassification case has the burden of proof and must establish by a preponderance of the evidence the facts necessary to show that respondent’s decision that appellant’s position should remain in a particular classification was in error, citing Cox v. DER, 92-0806-PC, 11/3/94. Harder v. DNR & DER, 95-0181-PC, 8/5/96
It is appellant’s burden to show that his position is correctly classified at the higher or requested level rather than merely showing that the decision to classify his position at the lower level was incorrect, citing Svensson v. DER, 86-0136-PC, 7/22/87. The conclusion that appellant’s position was excluded from one classification did not mean that appellant had sustained his burden of establishing that his position fell within the alternative classification identified in the issue for hearing. Ellingson v. DNR & DER, 93-0057-PC, 5/28/96
In a reclassification appeal where movement to the higher level is based on performance, the Commission must decide whether respondent's determination of unsatisfactory performance in the context of the higher class level was correct and the appellant had the burden of proof to establish by a preponderance of the evidence that respondent's evaluation of her performance was incorrect. Where the appellant challenged the respondent's procedure or policy with respect to which case files to score for purposes of her reclassification review, the more specific question is whether that policy or procedure constitutes an inaccurate or otherwise incorrect method of measuring employe performance. McNown [Williams] v. DILHR & DER, 94-0828-PC, 11/14/95
In a reclassification appeal, the appellant has the burden of proof and must establish by a preponderance of the evidence the facts necessary to show that respondent's decision that appellant's position should remain in a particular classification was in error. Cox v. DER, 92-0806-PC, 11/3/94
The appellant in a reallocation case has the burden of proof and must establish the necessary facts by a preponderance of the evidence. Bluhm v. DER, 92-0303-PC, 6/21/94
In a reallocation case, the employe who is asserting that his position should be classified at a higher level has the burden of proof, and must establish the requisite facts by a preponderance of the evidence. If the trier of fact feels the evidence on each side of a disputed issue is equally weighted, or that the respondents' evidence is more weighty, then the appellant cannot prevail as to that factual issue, citing Tiser v. DNR & DER, 83-0217-PC, 10/10/84. Hubbard v. DER, 91-0082-PC, 3/29/94; affirmed by Dane County Circuit Court, Hubbard v. Wis. Pers. Comm., 94-CV-1408, 11/27/96
Appellant in a reclassification case has the burden of proof and must establish by a preponderance of the evidence that the respondents' decision was incorrect. Miller v. DHSS & DER, 92-0840-PC, 1/25/94
It is the appellant's burden to show that her position is correctly classified at the higher level rather than merely showing that the decision to classify her position at the lower level was incorrect. Svensson v. DER, 86-0136-PC, 7/22/87
In a reclassification appeal, the employe or appellant who is asserting that his position should be reclassified to a higher level has the burden of proof, and must establish the requisite facts by a preponderance of the evidence. If the trier of fact feels that the evidence on each side of a disputed issue is equally weighted, or that the respondent's evidence is more weighty, then the appellant cannot prevail as to that factual issue. Tiser v. DNR & DER, 83-0217-PC, 10/10/84
The burden of proof in a reallocation case is on the appellant to show he should be reallocated as requested. Vranes v. DER, 83-0122-PC, 7/19/84
502.09 Burden of proceeding
In an appeal from discharge based on refusal to carry out a work assignment, the employer must show that there was a refusal to carry out an assignment which was within the employe's duties and responsibilities, and then the employe has the burden of going forward with evidence on the issue of the reasonableness of the order. Lyons v. DHSS, 79-81-PC, 7/23/80; affirmed by Dane County Circuit Court, DHSS v. Pers. Comm. (Lyons), 80-CV-4948, 7/14/81
502.15 Affirmative defenses
Where the appellant had met the burden of establishing that respondents had failed to comply with the statute, it was respondent's burden to establish "harmless error" (or, at a minimum, the burden of going forward) rather than the appellant's burden to establish the absence of harmless error, because harmless error amounts to an affirmative defense. Paul v DHSS/DMRS, 82-156-PC, 82-PC-ER-69, 6/19/86
502.75 Issue for hearing
Where Board misstated the issue for hearing by referring only to the two classifications sought by the appellant rather than the current classification, the board was still able to conclude that the appellant was properly classified at his current level. Kolonick v. State of Wisconsin (Personnel Board), Dane County Circuit Court, 162-178, 2/26/79
The proposed decision erred where it addressed matters outside the scope of the notice of hearing. Complainant claimed he was discriminated against based on arrest and conviction record. The statement of the issue was phrased in terms of whether respondent discriminated on the basis of arrest or conviction record in connection with the last paragraph of a letter it issued to complainant. The letter stated that it served as a last chance warning to complainant that "any subsequent driving while intoxicated or similar charges" would result in termination of his employment. The statement of the issue did not provide adequate notice to the parties that the Commission would consider whether respondent's conduct violated §111.322(2), Stats, which prohibits circulating any statement which implies or expresses any limitation, specification or discrimination; or an intent to make such limitation, specification or discrimination because of any prohibited basis. The original charge of discrimination did not mention the circulation issue. The initial determination also did not mention that issue, nor had either party addressed that issue prior to the issuance of the proposed decision and order. Williams v. DOC, 97-0086-PC-ER, 3/24/99
Where the hearing examiner erred in deciding, in a proposed decision and order, an issue that was not properly noticed, circumstances were consistent with a remand for further proceedings before the hearing examiner. Williams v. DOC, 97-0086-PC-ER, 3/24/99
Adjudicative bodies should decide cases on the basis of the result the law requires, regardless of whether the particular legal theory is brought to bear by the parties or, sua sponte, by the adjudicative body, so long as the parties have sufficient notice and an adequate opportunity to be heard on the issue in question. Williams v. DOC, 97-0086-PC-ER, 3/24/99
The decision to reallocate appellants' positions to a particular classification level rather than to another classification level was a decision made by the secretary of the Department of Employment Relations (or delegated by the secretary) pursuant to §230.09(2)(a), Stats., rather than a decision by an appointing authority that relates to the hiring process. Appellants' motion to supplement the issue for hearing to include a review of the reallocation decisions on an "abuse of discretion" standard was denied. Arenz et al. v. DOT & DER, 98-0073-PC, etc., 2/10/99
Appellant's tentative reference to the Wisconsin Fair Employment Act in its post-hearing brief to an appeal under §230.44(1)(d), Stats., of a non-selection decision, was insufficient to create an obligation for respondent to object to the consideration of such a claim at the pain of creating an implied waiver. While it is possible to effect a waiver by silence or inaction, the tentative reference in appellant's brief did not indicate that appellant was seeking to amend his appeal. It could not be concluded that respondent reasonably should have foreseen the possibility that complainant's reference, coupled with respondent's failure to object to that reference, would be converted sua sponte and without prior notice into an accomplished amendment converting the civil service appeal into a FEA claim and accompanied immediately by the adjudication of the claim and the establishment of liability. There was no effective waiver by respondent to the interjection of the FEA claim. The parties had not had the opportunity to present arguments on a possible amendment or to make a record on that issue. The Commission remanded the matter to the designated hearing examiner to allow complainant to seek to amend his appeal to add a claim under the FEA. Holley v. DOCom, 98-0016-PC, 1/13/99
No error occurred in listing two issues for hearing in an appeal arising from a non-selection decision where the first issue referred to the traditional analysis of whether the hiring authority committed an illegal act or abuse of discretion in failing to hire the appellant and the second issue referred to whether the hiring authority committed an illegal act or abuse of discretion in requesting the Division of Merit Recruitment and Selection to certify additional names beyond the initial names received. Separate statements of issue provided clearer notice to the parties of the matters to be litigated. Morvak v. DOT & DMRS, 97-0020-PC, 6/19/97
It was not inappropriate to read a transaction’s effective date into the topic of whether a reclass denial was correct as long as both parties were ready to present evidence at hearing on the effective date question. No prejudice to respondent was shown, the effective date issue was clearly identified by the appellant in his letter of appeal and appellant appeared pro se. It is better practice to clearly specify the question of effective date in the statement of issue agreed upon prior to the hearing. The fact that respondent was unaware of certain specific arguments to be offered by appellant at hearing was not a sufficient reason for denying appellant’s request to amend the issue. Gutierrez v. DOT & DER, 96-0096-PC, 4/11/97
Where appellant requested and was given reconsideration following respondent’s initial decision not to hire her, respondent’s decisional process consisted of two distinct parts. The second part of the decisional process, in which the director of the facility decided to stand by previous decision made by the assistant director of nursing but changed the rationale for its decision to include a new reason, was part of the subject matter of the appeal. The additional reason fell within the scope of the respondent’s failure or refusal to hire the appellant and within the stipulated issue for hearing which asked whether respondent committed an illegal act or an abuse of discretion in not appointing the appellant to the vacant positions in question. In addition, respondent waived any objection to the scope of the hearing by never raising this issue until after the promulgation of the proposed decision and order, where respondent specifically addressed the second part of the decisional process in terms of the evidence it presented at hearing and in terms of the arguments it made in its closing statement at hearing. Neldaughter v. DHSS, 96-0054-PC, 2/14/97
Issues raised in an appellant's post-hearing brief that were outside the scope of the issue noticed for hearing could not be considered by the Commission. Kelley v. DILHR, 93-0208-PC, 3/16/95
Where respondent did not, until the day of hearing, raise its contention that a classification other than those included in the agreed upon issue best described appellant's position, its request to amend the issue was denied. Pamperin v. DER, 90-0321-PC, 7/25/94
In an appeal of the effective date of a reclassification, the Commission has jurisdiction to determine whether the respondent's policy specifying the minimum qualifications necessary for reclass comported with the class specifications and, if so, whether respondents applied the policy to the appellants' positions in a correct manner. Heath & Mork v. DOC & DER, 93-0143-PC, 6/23/94
In classification appeals, appellants may be required to specify, prior to hearing, which classifications they allege as better describing their positions. The appellants' proposal that the statement of issue refer to alternative classifications "with equivalent pay ranges," without further specification, was rejected as being inconsistent with §227.44. Germanson et al. v. DER, 91-0223-PC, etc., 3/19/92
It is inappropriate to frame an issue in a way that might, in effect, resolve the contentions appellant is seeking to raise in advance of the hearing and before the parties have an opportunity to present evidence. DuPuis v. DHSS, 90-0219-PC, 7/25/91
Where the issue for hearing only referred to the respondent's decision to deny the appellant's request for reclassification but during the course of the hearing and in his post-hearing brief, the appellant clearly argued both reclassification and reallocation and the respondent did not argue that the reallocation contention extended beyond the issue for hearing, the Commission addressed both the reclassification and reallocation claims. Seay v. DER, 89-0117-PC, 1/24/91
Where the issue for hearing merely referred to the correctness of the reclassification denial decision but the record clearly indicated the appellant's position had been reclassified and the appellant not regraded due to the failure to achieve minimum quality standards, the Commission liberally interpreted the issue for hearing as referencing the regrade decision. Vanover v. DILHR & DER, 89-0128-PC, 11/16/90
The Commission declined to take a literalistic interpretation of the statement of issue where that approach would lead to absurd results. Cernohous v. UW & DER, 89-0131-PC, 9/13/90
Where the issue for hearing agreed to by the parties during the prehearing conference referred to the classifications of Program Assistant 2 and Educational Services Intern, and the respondent's representative recounted the discussion which had occurred during the prehearing and noted that respondents had prepared for hearing only on the basis of the PA 2 and ESI classifications, evidence relating to the PA 3 classification was not considered. Darland v. UW & DER, 89-0160-PC, 7/12/90
Where an employe makes a general request for the upgrading of the classification of his position, the Commission's review need not be limited to those classifications specified by the employe in his request but may extend to any classification the specifications for which could describe the duties and responsibilities of appellant's position. But where the employe specifically limits his request to certain classifications or series, the Commission's review will be limited to those classifications or series. Kleinert v. DER, 87-0206-PC, 8/29/88
Even though the appellants had not made any factual allegations that would constitute circumstances under which the Commission could conclude that DER had rejected either explicitly or implicitly the AA 5 classification, the Commission directed the respondent to issue a decision on the appropriateness of the AA5 classification in the interest of avoiding undue further delay, and scheduled a hearing in approximately 90 days on an issue including the AA5 classification. Gardipee v. DER, 88-0004-PC, 8/10/88
Where it was not possible, on the record before it, to determine how the appellant had raised an additional classification for consideration during the position audit and whether the personnel analyst had indicated he would consider the additional classification, the Commission directed the parties to proceed to hearing on an issue broad enough to allow a determination of this preliminary question in order not to unnecessarily delay a hearing on the merits. Kleinert v. DER, 87-0206-PC, 2/24/88
Even though employes may use the term "reclassification" loosely in a way that includes the legal definition of both "reclassification" and "regrade", the record indicated that the appellant had requested reclassification for her position and regrade for herself. Therefore, the Commission established an issue for hearing that included a subissue relating to regrade (versus opening the position for competition). Stratil v. DILHR & DER, 87-0210-PC, 2/24/88
Where the conference report required the parties to file objections within 10 days from the date the conference report was signed or the parties would be deemed to have agreed to the issue as proposed, and respondent's objections were filed on the 11th day, the issues as set in the report were established as the issue for hearing. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 12/17/87
Appeals of reclassification denials are heard on a de novo basis. The Commission does not simply review the reclassification decision on the basis of the evidence that was before the analyst at the time of the decision, but it allows both parties to present at hearing whatever evidence is relevant to the classification question. That does not mean that respondent has no recourse if, for example, the appellant were to present at the hearing an entirely new aspect of the job that was not even alluded to in the position description or during the audit. The respondent could argue, for example, that the appellant is estopped from raising this now, or that the element of the job was only added to the position after the decision was made. Such issues have to be dealt with on a case by case basis. Ratchman v. UW-Oshkosh & DER, 86-0219-PC, 11/18/87
Where respondent issued a layoff notice for appellant's Executive Personnel Officer 2 position, the ultimate issue was whether the appellant had ever attained permanent status in class in an Executive Officer 3 position in the Career Executive Program, thereby entitling him to the career executive lay off procedure. In determining whether the appellant had permanent status in class, the focus had to be on what did happen to the appellant rather than what should have happened and the respondent cannot ask the Commission to revise a reallocation decision made three months before the layoff decision. McDowell v. DER, 87-0006-PC, 4/15/87
Where respondent declined to process the appellant's request before the respondent reached a determination as to the appropriate classification level, the issue for hearing did not include an analysis of the appropriate classification for the appellant's position. Spilde v. DER, 86-0040-PC, 1/8/87
Where the appellant was told by her personnel office that she should not include a specific classification in her reclass request and that the appropriate classification would be determined, she had the right to assume that in response to her request, DER would select the most appropriate classification out of the universe of potential state classifications and she is not restricted on appeal to the classification recommended by her employing agency or the ones actually considered by DER. In addition, DER did not restrict itself to the classification actually requested by the employing agency but ended up reallocating her position to a classification it determined was more appropriate than either the current classification or the one requested. Saindon v. DER, 85-0212-PC, 10/9/86
In a case arising from respondents rejection of appellant's application for a position, the Commission established the issue for hearing as one of whether respondent's decision was correct. Robinson v. DHSS & DMRS, 85-0064-PC, 7/17/85
An issue for hearing which asked whether the respondent's decision setting September 16, 1984 as the proper effective date for a reclassification was correct or whether the date should have been October 30, 1983, provided adequate notice for a Commission decision setting December 12, 1983 as the correct date. The date established by the Commission was simply a different result of the issue of "correctness" included in the established issue. Wentz v. DER, 84-0068-PC, 3/5/85
Where the issue for hearing in an appeal arising from the decision establishing the effective date for reclassification referred to whether September 16, 1984 was proper or, if not, whether it should have been October 30, 1983, the Commission established December 12, 1983 as the correct effective date, concluding that it fell within the range of dates that were implicit within the issue for hearing. The issue for hearing was found to provide adequate notice to the parties. Wentz v. DER, 84-0068-PC, 3/5/85
The Commission permitted the appellant to amend the issue for hearing, effectively reopening a prior stipulation between the parties, where the charges were based upon the appellant's inadvertence or excusable neglect and there was no indication that the respondent had been prejudiced by appellant's delay in seeking the amendment. Novak v. DER, 83-0104-PC, 2/29/84
Respondent Secretary of Department of Employment Relations lacked standing to challenge his own decision not to reallocate appellant's position to a particular classification. The appeal was filed by an employe whose position was reallocated from Research Analyst 3 (RA3) to RA2 as a result of a classification survey. Appellant proposed that her position should have been reallocated to the RA3 level. Respondent proposed that, if its initial reallocation decision was incorrect, appellant's position should be at either the RA3 or Research Technician 4 level. The Commission declined to consider respondent's proposed issue because the Secretary was part of the decisional process and, therefore, was not an aggrieved party. Nichols v. DER, 83-0099-PC, 9/16/83
Where appellant was granted leave without pay from his career executive position to accept a gubernatorial appointment in the unclassified service and after seeking restoration to his former position, he was temporarily assigned and then subjected to a layoff so that he demoted into a non-career executive position, the Commission held that the transaction should be reviewed as a layoff rather than as a career executive demotion (§ER-Pers 30.10(3), Wis. Adm. Code) even though the transaction met both definitions, because the layoff provision was more specific. Givens v. DILHR & DP, 83-0046-PC, 7/12/83
The Commission has jurisdiction over the decision of the administrator refusing to process the appellant's reclassification request without a position description agreed to by the appellant and his supervisor, but its inquiry on such an appeal must be limited to whether that decision was correct and cannot reach the substantive question of the most proper classification of appellant's position, which the administrator did not reach. Corning v. DER & DP, 82-185-PC, 10/27/82
In an appeal of a reallocation, the more appropriate issue for hearing is "whether or not the decision of the administrator to reallocate appellant's position... was correct "as opposed to "what is the proper civil service classification for...," because the appeal is of a decision of the administrator to reallocate the position to a particular classification, and although the Commission conducts a de novo hearing, it does not have the authority to enter into an independent inquiry as to the position's proper classification as is intimated by the latter issue, proposed by the appellant. Werth v. DP, 81-130-PC, 8/5/81
The issue of whether there is just cause for the discipline imposed includes the question of whether the imposition of the discipline violated appellant's right to freedom of speech where appellant's speech activity was readily discernible from the face of the letter imposing the suspension. Hess v. DNR, 79-203-PC, 8/19/80; affirmed by Dane County Circuit Court, DNR v. Pers. Comm. (Hess), 80-CV-5437, 6/24/81
The appropriate issue for hearing in an appeal of the non-selection of the appellant for a particular position is: Whether or not respondent acted illegally or abused its discretion in not selecting the appellant. Rowe v. DER, 79-202-PC, 6/3/80
Commission would not consider ground of error that was outside of the scope of hearing notice. 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. Wis. Pers. Comm. (Stasny), 79-CV-6102, 6130, 2/27/81)
The appellant should be allowed to raise issues which may fairly be said to relate to the transaction that was the subject of the original appeal, and may be allowed to amend the original appeal letter to do so. Halter v. DILHR & DP, 78-144-PC, 11/22/78
503.01 Resignation
Where complainant resigned after her complaint was filed, the question of whether the controversy was moot involved reviewing complainant's claims and the available related remedies to determine if the resignation precluded granting effective relief to complainant. Burns v. UW-Madison, 96-0038-PC-ER, 4/8/98
Appellant's fourth step grievance relating to the requirement that he carry and respond to a pager was moot where he had resigned from the position in question. Loomis v. UW, 92-0035-PC, 2/15/96
An employe who resigns from his/her position after commencing a reclassification appeal may continue with the appeal after their resignation. Fullmer, Mastricola & Belshe v. DP, 83-0008-PC, 1/4/84
503.02 Examination appeal
An appeal of a non-selection decision does not become moot when the unsuccessful applicant/appellant resigns from state service. McLlquham v. UW, 79-207-PC, 4/25/80
A mootness argument was rejected by application of the rationale of Watkins v. DILHR, 69 Wis 2d 782 (1975), since the Commission conceivably could enter an order affecting future selection processes in which the appellant might compete. Kaeske v. DHSS & DP, 78-18-PC, 11/22/78
503.03 Future abuses
A mootness argument was rejected by application of the rationale of Watkins v. DILHR, 69 Wis 2d 782 (1975), since the Commission conceivably could enter an order affecting future selection processes in which the appellant might compete. Kaeske v. DHSS & DP, 78-18-PC, 11/22/78
503.06 Other matters
An appeal arising from a decision to discipline the appellant was moot where respondent had unilaterally rescinded the discipline due to appellant's decision to voluntarily demote to a lower-classified position in a different institution. Klemmer v. DHFS, 97-0054-PC, 4/8/98
The question of fees and costs is not part of the analysis of mootness. Klemmer v. DHFS, 97-0054-PC, 4/8/98
Where the remedies sought by the appellant were exemption from respondent’s employe fraternization policy and the addition of her name to an inmate’s visitation list, any decision by the Commission could not have any practical legal effect because the appellant was no longer employed by respondent. Greuel v. DOC, 96-0135-PC, 1/16/97
Where the appeal arose from a three-day suspension in 1995 which was retracted by respondent by letter in August of 1996, several months after appellant had filed his appeal, and respondent issued a new letter in October of 1996 suspending the appellant for three days as a result of the same conduct described in earlier suspension letter, the appeal was moot because the suspension imposed in 1995 no longer existed so there could no longer be any actual controversy. Dismissal of the appeal did not deprive appellant of a mechanism to have the suspension imposed by the October 1996 letter reviewed. Friedrichs v. DOC, 96-0023-PC, 11/22/96
An appeal with an issue relating to whether respondent had carried out an investigation was dismissed as moot or, in the alternative, for failure to state a claim, where it was undisputed that respondent had investigated the matter to the extent it deemed necessary. ACE & Davies v. DMRS, 94-0060-PC, ACE & Davies v. DOA & DMRS, 94-0069-PC, 10/24/94
An appeal of the effective date of reclassification was moot where, subsequent to the appeal, the respondents have decided that the appellant's reclassification in a progression series should not have been delayed because of appellant's §230.36, Stats., employment injury leave. Since the appellant had received the remedy sought by this appeal, a decision of his appeal could have no effect on his current working conditions. Since he was already at the progression (CO 2) level, a decision of his appeal could not affect his future working conditions. There were no special policy factors that would support a contrary conclusion. Maday v. DOC & DER, 92-0838-PC, 6/23/93
Where appellants were seeking a declaratory ruling that respondents had engaged, in effect, in a pattern or practice of recurring activity designed to circumvent the protections of the civil service system and to create and perpetuate a political patronage system in state employment, and were not alleging simple misfeasance in failure to follow the civil service code with respect to an isolated transaction, the matter was not moot. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93
Appeal filed with the Commission as the 4th step in the noncontractual grievance procedure was moot where appellant alleged she had not been allowed to have a representative present at a disciplinary meeting, where the appellant was no longer employed by respondent and where any ruling by the Commission could have no effect on appellant's current or past conditions of employment. Parrish v. UW, 84-0163-PC, 12/6/84
In an appeal involving an alleged failure by the appointing authority and the administrator to restore the appellant to his former status following a downward reallocation pursuant to §Pers 5.03(h), Wis. Adm. Code, the matter was not moot because the time for reinstatement had elapsed by the time of the hearing, inasmuch as either the time restriction would not be applicable in a case where it might be determined on appeal that during the initial period of reinstatement eligibility, the employe was denied certain rights with respect to reinstatement, or, alternatively, the time period with respect to which it might be determined that the employe's rights to reinstatement eligibility were denied would be considered tolled, and the factors set forth in Watkins v. DILHR, 69 Wis. 2d 782, 233 N.W. 2d 360 (1975), with respect to the employe's right to what amounts to a declaration of rights, and similar policy reasons, are present. Wing v. UW & DP, 79-148, 173-PC, 10/4/82
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.