Wisconsin Personnel Commission's             Digest of Decisions        March, 1999 Version

Sections 506 through 508.9

[Previous material]    [Next material]

506.03 Particular issues

Respondent was required to provide complainant with a non-redacted version of notes taken by the appointing authority when conducting reference checks regarding complainant. Respondent had redacted the names of the individuals who provided the information to the appointing authority. According to respondent, the appointing authority had informed the references he was speaking with them confidentially. Complainant indicated she intended to depose the individuals providing the references to discover what information they provided that was not reflected in the appointing authority's notes. Complainant's motion to compel was granted. Kalashian v. Office of the Jefferson County District Attorney, 97-0157-PC-ER, 2/25/98

The nature of the defense offered by respondent does not define the permissible scope of complainant's discovery inquiry. Kalashian v. Office of the Jefferson County District Attorney, 97-0157-PC-ER, 2/25/98

Dismissal, though an extreme sanction, was appropriate where complainant failed to attend his scheduled deposition and the failure was intentional and in bad faith. Complainant refused to attend the deposition that had been scheduled with relatively short notice although it had been scheduled to take advantage of complainant's presence in Wisconsin to attend another Personnel Commission proceeding. The deposition had been discussed during two separate telephone conferences with the designated hearing examiner and the parties. Complainant also refused to respond to specific questions posed by the designated hearing examiner in a letter to the parties establishing a briefing schedule on respondent's motion to dismiss. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98

Language in §804.02(1), Stats., relating to the perpetuation of testimony by deposition before an action in court has been filed, is inapplicable to a case that was already pending before the Commission. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98

Pursuant to §227.46(1), Stats., and §PC 4.03, Wis. Adm. Code, a designated hearing examiner has the authority to act on discovery disputes between the parties to cases pending before the Commission. An examiner's oral ruling is a ruling made with the authority of the Commission. Huff v. UW (Stevens Point), 97-0092-PC-ER, 11/18/98

Information a party provides in response to an interrogatory is not controlling as to that information. While the party propounding the interrogatory is free to rely on the information by offering the answer in evidence, or by not objecting to the answering party's offer, he also can dispute the information contained in the interrogatory answer. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98;

In a complaint arising from the decision not to select the complainant for a vacant Administrative Officer 3 position, where complainant had not asked a preliminary question relating to whether the materials he submitted for the job were received by the employing agency and reviewed by the rating panel, and, therefore, had not established that the raters did not see all of his materials, he was not entitled to discover information about the clerical handling of the application materials. To rule otherwise would create an undue burden for the employing agency. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

Respondent's answer that "no statistics are available," was an inadequate response to a request for the number of times the agency had used a two-page executive summary for screening candidates for positions in 1997. That information is not available already in summary form does not meet the duty to respond. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

The responding party is not required to gather and create a document of the requested information at the responding party's own expense. However, the responding party has an obligation to produce what exists and if a requested compilation does not exist, the responding party must make available to the requesting party the documents from which the requested compilation could be derived. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

Complainant was not entitled to discover the salary paid to one of the persons involved in the subject hiring decision, either by his current or previous employer, because the inquiry was not reasonably calculated to the discovery of admissible evidence. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

In a complaint arising from a decision not to select the complainant for a vacant position, information as to how the successful candidate came to apply for the job is a topic that could lead to the discovery of admissible evidence. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

In a complaint arising from a decision not to select the complainant for a vacant position, information about connections between the successful candidate and someone who played a part in the hiring decision could lead to the discovery of admissible evidence. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

In a complaint arising from a decision not to select the complainant for a vacant position, a request for all correspondence between two offices, with no limits as to either subject matter or time, was too broad. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

The closed record protections of §230.13, Stats., pertain to keeping personnel matters closed to the public, not to a complainant in the context of litigation where the information is relevant to the complainant's claims. Balele v. DOR et al., 98-0002-PC-ER, 7/7/98

Discovery inquiries relating to the names of persons hired or promoted by respondent must be of a reasonable period of time but are not limited solely to the time complainant was not hired. Rather, the period of time may precede and/or follow the date when complainant was not hired. Complainant's motion to compel discovery of the names of persons hired or promoted in the College of Business for a ten year period was granted. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98

Where it appeared reasonable to presume that respondent's personnel office would have access to hiring and promotion information without much difficulty and where respondent presented insufficient information about its record-keeping system to conclude that answering complainant's interrogatory would create an undue burden, complainant's motion to compel discovery of the names of persons hired or promoted in the College of Business for a ten year period was granted. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98

The responding party is not required to gather and create a document of the requested information at the responding party's own expense. Rather, the responding party has an obligation to produce what exists and if a requested compilation does not exist, the responding party must make available to the requesting party the documents from which the requested compilation can be derived. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98

Complainant, in a case arising from a decision not to select her for a faculty position in the College of Business, was entitled to information in the personnel files of persons hired into faculty positions where that information preceded or was associated with each of the individual hires. However, complainant was not entitled to information in the personnel files which post-dated each individual hire, as those post-dated documents could not have played any part in the hiring or promotional decision made. Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98

It is not possible, within the context of discovery, to order the production of something that does not exist. Complainant's motion for discovery sanctions was denied. Nelson v. UW-Madison, 97-0020-PC-ER, 5/20/98

A party obtaining a report under §804.10 is to provide the report to the adverse party. Section 804.10(3)(a) applies to non-personal injury actions. Huempfner v. DOC, 97-0106-PC-ER, 5/6/98

Investigative materials prepared by a personnel manager for respondent, acting as a representative of the respondent's attorney, are subject to protection from discovery under the attorney work product doctrine. The protection extended to statements the personnel manager took from party witnesses as well as the portions of her report that discussed or summarized information obtained from party witnesses. However, the protection did not extend to copies of statements obtained from non-party witnesses or to other portions of her report. Winter v. DOC, 97-0149-PC-ER, 3/11/98

In an appeal of the decision to discharge the appellant in 1997, due to her alleged denial on several employment applications that she had been convicted of any offense, respondent was entitled to obtain information regarding appellant’s indictment for homicide in 1980. In the letter of termination, respondent alleged that appellant had been convicted of prostitution, criminal trespass and two city ordinance violations for retail theft. Appellant contended she had understood that the prostitution charge against her had been withdrawn at the same time the prosecutor chose to dismiss the homicide charge. Information about the events which served as the basis for the prostitution and homicide charges could tend to show that it would have been less or more likely for someone in appellant’s position to have believed that the prostitution charges had been withdrawn. Zeicu v. DOC, 97-0013-PC, 9/10/97

In a reallocation appeal, appellant was required to answer interrogatories which directed her to compare her position to representative positions as described in the classification specification, to identify the reasons she was contending her position was wrongly reallocated, and to compare her position to the position descriptions of two other positions classified at the same level as her position. Carroll v. DER, 94-0434-PC, 3/20/96 (ruling by examiner)

Where, in preparation for hearing on appeals arising from reallocation decisions, respondent propounded interrogatories to appellants, through their counsel, seeking to determine which of two allocations the nine individual appellants claimed to meet, five appellants identified the first allocation and four the second, and it was not until after the hearing was underway that appellants asked that they not be bound by their answers, the appellants were held to their answers to the interrogatory. The interrogatory addressed a major issue of litigation strategy and respondent had the right to rely on the answers. Appellants offered no reasons why the initial answers did not reflect their subsequent position or why they did not raise the issue until well after the commencement of the hearing. Von Ruden et al. v. DER, 91-0149-PC, etc., 8/31/95

In responding to a discovery request, the party may assert the attorney-client privilege or any other privilege that may apply to the particular document/information being sought. Jaques v. DOC, 94-0124-PC-ER, 3/31/95

To the extent a party providing discovery had previously supplied the requesting party with a portion of the requested documents, the party providing the discovery was not required to provide a second copy but was directed to specify those materials it was relying upon as having been previously supplied. Jaques v. DOC, 94-0124-PC-ER, 3/31/95

A response to a discovery request for documents relating to claims of discrimination brought against a supervisor which merely stated that Personnel Commission records were open to the public was not responsive because the request related to documents found in respondent's possession and it failed to provide complainant with a method for identifying complaints filed with the Commission which might relate to the supervisor. Jaques v. DOC, 94-0124-PC-ER, 3/31/95

In a reallocation appeal, the appellant waived his right to offer evidence relating to the first of two allocation patterns identified at the higher classification level when his answer to respondent's interrogatories indicated he was only pursuing the second allocation pattern and he had reiterated this position in a telephone conference 10 days prior to hearing. The appellant was permitted to present evidence on both allocations solely for the purpose of making a complete record for court review. Welch v. DER, 92-0630-PC, 5/16/94

In appeal involving termination for alleged conflict of interest resulting from a personal relationship with representative of regulated industry, discovery relating to this relationship would be permitted since it was clearly relevant to the question of just cause and there was no showing the information was to be provided to any of respondent's employes other than those directly involved in the appeal and there was no showing of a privacy interest which would outweigh governmental interest in obtaining such information. Giebel v. WGC, 93-0041-PC, 3/15/94 (ruling by examiner)

Consistent with the precautions described in §230.16(10), Stats., DMRS's request for a protective order was granted where the request required appellant to return to DMRS exam-related materials provided by DMRS pursuant to discovery request which appellant did not intend to use at hearing, and to return the remaining materials at date of closure of proceeding, with such closure date to reflect any period for pursuing an appeal of the underlying decision. Goehring v. DHSS & DMRS, 92-0735-PC, 2/3/94

Because petitioner alleged handicap discrimination, there was no privilege attached to her relevant medical records, and they were subject to discovery by the employer. Mosley v. DILHR, 93-0035-PC, etc., 1/25/94

In the absence of an allegation that DMRS carried out the examination process as part of a larger preselection scheme, appellant is not entitled to add DER or DMRS as party respondents simply for the purpose of being able to then obtain discovery more readily from them. Goehring v. DHSS, 92-0735-PC, 10/20/93

Appellant's request to meet with agency employes during working hours as part of the preparation of his case is not a discovery request. The Commission went on to conclude that it is within respondent's discretion to refuse to make its employes available to an appellant who has requested a meeting with respondent's employes as part of appellant's investigation or preparation for hearing and the request is not a formal discovery request. However, nothing prevents an appellant from contacting prospective witnesses while they are off work and seeking their agreement for an evening or weekend interview. Goehring v. DHSS, 92-0735-PC, 9/24/93

Complainant's failure to file a response to a request for admissions and production of documents in violation of the Commission's order resulted in statements in the request being deemed admitted. The cases were dismissed pursuant to the admission that complainant had agreed to settle the claims. Garner v. SPD, 88-0015-PC, 88-0183-PC-ER, 8/11/93

Since DHSS was the only party respondent in the appeal, completed achievement history questionnaires maintained by DMRS but not in the possession, custody, or control of DHSS were not discoverable pursuant to §804.09(1), Stats. Goehring v. DHSS, 92-0735-PC, 7/30/93

Complainant's request for an extension of the discovery deadline was denied where the conference report clearly set forth the discovery schedule and complainant was aware of the deadline date, having filed his first discovery request on that designated date. Complainant's pro se status was insufficient in itself to justify an extension. Stark v. DILHR, 90-0143-PC-ER, 5/7/93 (ruling by examiner)

Where appellants provided actual notice on March 3 of a deposition of a department secretary and division administrator on March 8, the notice was not unreasonable. Respondent's motion for protective order was denied. ACE et al. v. DHSS et al., 92-0238-PC, 3/10/93 (ruling by examiner)

In ruling on motion for protective order, appellant, whose residence was 90 miles from Madison and whose work place was 150 miles from Madison, was not limited to viewing exam and other materials provided by respondent as the result of discovery only in Madison. Respondent was required to mail such materials to appellant whose use of such materials was limited by terms of protective order. Only the names of non-certified candidates would not be subject to disclosure. Goehring v. DHSS, 92-0735-PC, 2/8/93

In a race discrimination case involving complainant's termination from the State Patrol Academy, deposition questions about his earlier termination from the Milwaukee Police Department were within the boundaries of relevance for discovery purposes. Owens v. DOT, 91-0163-PC-ER, 9/18/92

Commission hearing examiners are available by telephone to rule on discovery issues that arise during the course of depositions, but to the extent possible advance arrangements should be made and the procedure should not be used for mundane issues of relevance. Owens v. DOT, 91-0163-PC-ER, 9/18/92

Counsel is not required to explain the relevance of information sought through deposition at the time the issue arises at the deposition, but attorneys are encouraged to attempt to resolve discovery disputes by informal means to the extent possible. Owens v. DOT, 91-0163-PC-ER, 9/18/92

Where respondent's deposition of a witness denominated by complainant as an "expert" did not occur "upon motion" and by "order" as provided in §804.01(2)(d), the respondent was not obligated to pay expert fees to the witness for the time spent in deposition. Keul v. DHSS, 87-0052-PC-ER, 5/14/92

In a complaint arising from the termination of complainant's probationary faculty appointment, the complainant was entitled to review the entire files maintained by various committees which must act on probationary faculty appointments. Asadi v. UW, 85-0058-PC-ER, 4/10/92

In a complaint arising from the termination of complainant's probationary faculty appointment, the complainant was entitled to review the academic transcripts of those faculty and academic staff at the campus whose contracts were considered for renewal during the relevant time period. Asadi v. UW, 85-0058-PC-ER, 4/10/92

In a complaint arising from the termination of complainant's probationary faculty appointment, the complainant's request to look through entire personnel files of faculty and academic staff was too broad in light of the fact the files contained materials relating to sensitive and personal matters unrelated to the complaint. Asadi v. UW, 85-0058-PC-ER, 4/10/92

In a complaint arising from the termination of complainant's probationary faculty appointment, the complainant was not entitled to review the files of students he taught during the course of his employment, in light of the status accorded student records under the family Educational Rights and Privacy Act, commonly known as the Buckley Amendment. Asadi v. UW, 85-0058-PC-ER, 4/10/92

In an appeal of a reallocation decision, the appellant was entitled to discover the rating sheets prepared by the individual members of the rating panel, citing the decision in Mincy et al. v. DER, 90-0229, 0257-PC, 2/21/91; rehearing denied, 3/12/91. Hubbard v. DER, 91-0082-PC, 11/6/91

The attorney-client privilege could not rightfully be claimed for all communications that occurred at meetings where a personnel problem was discussed and advice was sought from a number of persons, one of whom was a lawyer and where it could not be said that the primary purpose of the communications made by those present at the meeting besides counsel was to facilitate the obtaining of legal advice. Respondent was ordered to provide information on the meetings pursuant to discovery requests except that the respondent was not required to provide information regarding the content of any legal advice rendered by counsel at the meetings. Iwanski v. DHSS, 89-0074-PC-ER, etc., 8/21/91

Where respondent asserted that it did not possess the documents being requested, the appellants' motion to compel was denied. Mincy et al. v. DER, 90-0229, 0257-PC, 2/21/91; rehearing denied, 3/12/91

Where, in an appeal of a reallocation decision, the work of the rating panel resulted both directly in the decision to reallocate appellants' positions and in the establishment of class specifications and where the specifications were established at the end of the reallocation process and amounted to simply labeling the assessment of positions which already had occurred, the appellants were entitled to discovery which ran to their attempt to show that the rating panel's evaluation was erroneous and resulted in their positions being placed in the wrong cluster and hence at a lower class level than should have been the case. Mincy et al. v. DER, 90-0229, 0257-PC, 2/21/91; rehearing denied on other grounds, 3/12/91

In an appeal in which the appellant sought reinstatement and back pay and her claim was based on her allegation that her medical condition prevented her from performing the duties and responsibilities of the position that she held at that time but not the duties and responsibilities of other positions within respondent agency that were available at that time and thereafter, the respondent was entitled to obtain discovery of information relating to appellant's medical condition at the time of, and subsequent to, her termination. Smith v. DHSS, 88-0063-PC, 5/1/91

In an appeal arising from the action of the respondent to screen out the appellants during the 1989 Fiscal Supervisor 1 examination process pursuant to a review of their resumes, the appellants were entitled to discovery of the ranking from the previous Fiscal Supervisor 1 examination. Allen et al. v. DMRS, 89-0124-PC, 11/2/89

In an appeal arising from the action of the respondent to screen out the appellants during the 1989 Fiscal Supervisor 1 examination process pursuant to a review of their resumes, the respondent was required to respond to a discovery request in 10 rather than 30 days where a hearing date had already been scheduled for a date which fell within the 30 day period and in light of the Commission's lack of authority to grant interlocutory relief to the appellants while they awaited a hearing. Allen et al. v. DMRS, 89-0124-PC, 11/2/89

Appellant's motion to compel discovery of an employe evaluation report for another position was granted in an appeal of a classification decision where the position was at the classification level sought by the appellant and the appellant specifically excluded those portions of the evaluation which related to the quality of performance of the incumbent. The evaluation report was not confidential and was subject to the open records law. The decision includes a weighing of the relevant interests under the open records law. Behling v. DOR & DER, 88-0060-PC, 12/14/88

Respondent was directed to perform any photocopying of documents requested by the complainant at the cost of $0.05 per page plus any applicable sales tax, to be paid by the complainant at the time the documents were provided to him. Alternative proposals offered by complainant for photocopying the materials were denied. The cost of copying items as part of a discovery request typically rests with the party requesting production of the documents. (Due to the volume of materials sought in the discovery request, the respondent had previously been granted the option of allowing the complainant to review the requested files themselves rather than photocopying the files). Asadi v. UW-Platteville, 85-0058-PC-ER, 4/7/88

Respondent was compelled to respond to certain requests for production where the requests were for notes made by respondent's agents with regard to the Commission's initial determination of probable cause. While the documents were otherwise protected by the attorney-client privilege, the privilege was waived when the supervisor had testified that she had referred to the documents to refresh her recollection prior to the deposition. Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 4/22/87

Respondent was allowed to withdraw its admissions to complainant's request for admission and respondent was allowed to substitute its responses even though the 30 day period for responding to the request for admissions had run by the time respondent moved for an extension, or in the alternative, a request for leave to amend or withdraw admissions. Excusable neglect was established where counsel for respondent represented that he was forced to leave his office abruptly for treatment of an illness and this lead to confusion in his office which resulted in the failure to timely respond to the request for admissions. There was no suggestion of bad faith on the part of respondent and there was no prejudice to complainant, save being required to prove what otherwise would be deemed admitted. In addition, the two requests for admission that were in question ran to the merits of the cases and the presentation of the merits would have been subserved if the admissions were not allowed to be withdrawn. Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 4/22/87

In an appeal arising from an examination, the appellant, if he determined he needed to make notes or photocopies of the exam materials (provided to him pursuant to a discovery request) to prepare for hearing or to consult with attorneys or exam experts, was directed to advise the Commission of the names of such attorneys or experts so a copy of the Commission's Order, restricting the dispersal of the materials, could be provided them. Doyle v. DNR & DMRS, 86-0192-PC, 3/24/87

Respondent was permitted to substitute some form of coding in lieu of the actual names of the examinees listed on materials to be provided to the appellant pursuant to the Commission's order. Doyle v. DNR & DMRS, 86-0192-PC, 3/24/87

§ER-Pers 6.08(l), Wis. Adm. Code, governing the release of information to an examinee, which constitutes an exception to the open records law, is not inconsistent with an order of the Commission extending discovery of certain exam materials to a party to an appeal. Doyle v. DNR & DMRS, 86-0192-PC, 3/24/87

The Commission generally has the authority to enter orders regulating and compelling discovery. Doyle v. DNR & DMRS, 86-0192-PC, 3/24/87

In an appeal of an examination, the Commission required respondent DMRS to respond to appellant's discovery request despite §§ 230.13, 230.1600) and (11), Stats., and ER-Pers 6.08, Wis. Adm. Code, by providing him information including: names, scores and ranks of other applicants, applications, examination questions and responses, tapes of oral interviews and benchmark answers. The Commission was to maintain the material on a sealed basis, providing access to the appellant who was directed not to divulge the material beyond the extent necessary for the processing of his appeal. Doyle v. DNR & DMRS, 86-0192-PC, 3/4/87

Making the documents requested by the appellant available to the appellant for inspection and copying is an adequate response to certain interrogatories which ask the respondent to "identify" certain documents, in light of the fact that the burden of deriving or ascertaining the answer was substantially the same for both parties in regard to such interrogatories. Southwick v. DHSS, 85-0151-PC, 4/16/86

Interrogatories which seek information which could be relevant to the issue in the instant case, i.e. whether respondent's reassignment of the appellant was an unreasonable and improper exercise of discretion, are appropriate. Southwick v. DHSS, 85-0151-PC, 4/16/86

A party may utilize both depositions and interrogatories and is not prohibited from seeking to elicit the same type of information through both discovery devices subject to certain limits imposed to prevent unreasonable duplication. Southwick v. DHSS, 85-0151-PC, 4/16/86

Appellant's motion to compel was denied to the extent he sought discovery in a case after the parties had agreed to hold the case in abeyance pending investigation of a complaint that was to be filed by the appellant and before the complaint had been investigated. Wing v. UW System, 85-0077-PC, 85-0104-PC-ER, 2/6/86

Complainant's motion to compel was granted where complainant sought to invoke the discovery rights encompassed in §PC 2.02, Wis. Adm. Code (1980), in a case filed under the whistleblower law. The Commission found that the existing rule was broad enough to include the parties to a whistleblower complaint. Wing v. UW System, 85-0077-PC, 85-0104-PC-ER, 2/6/86

Production and inspection of the notes of the personnel specialist involved in a reclassification decision was ordered, as against the agency's arguments that the notes were not "public records" or, alternatively, that they were exempt from disclosure under the public records law. Siegler v. DNR & DER, 82-206-PC, 3/4/83

While a discovery request is not objectionable because the information sought would not be admissible at trial, the information must, in a broad sense, be relevant to the subject matter of the pending action. In the absence of any articulation by the appellant as to how the requested information was relevant to the proceeding, the Commission denied appellant's motion to compel discovery. Paul v. DHSS, 82-PC-ER-69, 82-156-PC, 10/14/83

In an appeal and complaint arising from a hiring decision, the Commission granted the appellant's motion to compel discovery of performance evaluations of the successful applicant but directed the appellant and his attorney to handle the material confidentially and not to disclose the material or any information regarding it to the public, as provided in §230.13(l), Stats. Paul v. DHSS, 82-PC-ER-69, 82-156-PC, 10/14/83

On a motion to compel discovery, the Commission noted that the test for relevancy was very broad, relating to the subject matter of the appeal as opposed to the precise issue for hearing, and certain interrogatories were analyzed pursuant to this test. The Commission also determined that certain interrogatories directing the respondent to "identify all documents and give the details of all communications, written and oral, relative to the reassignment...," were too broad but could be amended to be more specific. The Commission also determined that where the information sought had never been compiled but could readily be determined from documents found in specific locations, it was an appropriate response for the respondent to have provided the appellant with the specific location of documents containing the information being sought. Biddick v. DHSS, 82-127-PC, 10/14/82

Letters by the Commission requesting two of respondent's employes to appear at a hearing on respondent's motion for a protective order were quashed where the goal of the protective order was to prevent the taking of depositions of the same two employes. This result was based on the inconsistency that would result if the two employes were required to attend the hearing but were later granted protection from being deposed, and on the view that appellant's interests could be adequately protected by submission of an affidavit. Kozich v. UW & DP, 81-77-PC, 6/4/82

Where the appellant's ability to prepare for hearing was directly related to the availability of information controlled exclusively by respondent, and respondent had a valid interest in the confidentiality of certain information, both interests are served by providing that the requested discovery be made available to the appellant under seal. Rowe v. DER, 79-202-PC, 6/3/80

The Commission does not have the authority to order DER to rescind a bulletin to the other agencies which provides advice as to the extent of compliance necessary with respect to §PC 1.10(4), Wis. Adm. Code. Saviano v. DP, 79-PC-CS-335, 4/4/80

The appellant lacked standing with respect to a motion to enforce §PC 1.10(4), Wis. Adm. Code, where she was not an employe of the agency refusing compliance. Saviano v. DP, 79-PC-CS-335, 4/4/80

When the appellant’s attorney attempted to interview certain supervisory employes prior to hearing and they were instructed by the institution head not to submit to interviews, the Commission held that this constituted inappropriate interference with the appellant’s ability to prepare for hearing. Dziadosz v. DHSS, 78-32-PC, 2/15/80

Section PC 2.02, Wis. Adm. Code, which gives parties to appeals the same basic discovery rights as parties to judicial proceedings as set forth in chapter 804, Stats., is not invalid as in excess of statutory authority. Alff v. DOR, 78-227-PC & 78-243-PC, 6/13/79

Respondent was not entitled to delay response to a discovery request by the appellant until the appellant responded to what amounted to an interrogatory requesting more detailed statement of appeal. Alff v. DOR, 78-227-PC & 78-243-PC, 6/13/79

The Commission upheld the request of the respondent that an exam plan requested by the appellant be kept under seal by the Commission and, when made available to the appellant, the appellant not be permitted to copy it, as the information could give the appellant an unfair advantage in future exams. Holmblad v. DP, 78-169-PC, 1/30/79

506.04 Sanctions

Sanctions under §804.12(2), Stats., were premature where the Commission granted, in part, complainant's motion to compel, and there had been no opportunity to fail to comply with that ruling. In addition, the Commission lacks authority to order a state agency to pay costs and attorney fees for discovery motions filed by a complainant in a proceeding under the Wisconsin Fair Employment Act, citing Dept. of Transportation v. Wis. Pers. Comm., 176 Wis. 2d 731, 500 N.W.2d 545 (1993). Ready v. UW (La Crosse), 95-0123-PC-ER, 7/1/98

Complainant's motion, made during the hearing, to strike certain evidence because respondent allegedly failed to include the information in its responses to complainant's discovery requests, was denied where, despite instructions from the hearing examiner, the complainant failed to provide sufficient specificity to decide the motion. Rufener v. DNR, 93-0074-PC-ER, etc., 8/4/95

No motion expenses were awarded where the motion to compel discovery was resolved informally, no order was necessary and none was issued. ACE et al. v. DHSS et al., 92-0238-PC, 10/24/94

Where complainant did not advise respondent or the Commission of her change of address, her representative gave inconsistent statements about complainant's whereabouts at the time the notice of deposition was received, and it was represented that complainant would be unavailable for deposition prior to hearing, the Commission granted respondent's motion to dismiss, citing §804.12(2) and (4), Stats. as authority. Farr v. DOC, 93-0065, 0111-PC-ER, 8/23/94

A single unjustified failure by complainant to appear for a properly noticed deposition did not justify sanction of dismissal but did justify the award of reasonable expenses to respondent. Dorf v. DOC, 93-0121-PC-ER, 5/27/94

Appellant, who was proceeding pro se, unjustifiably refused to comply with an order compelling discovery. The Commission concluded that "other circumstances" within the meaning of §804.12(2)(b), Stats., made an award of attorney's fees to respondent unjust, since the Commission already had dismissed her handicap claims and barred her from supporting two disciplinary appeals with evidence relating to her medical condition. Mosley v. DILHR, 93-0035-PC, etc., 6/21/94

Petitioner's refusal to comply with an order compelling discovery will not result in dismissal of all her cases, inasmuch as she is proceeding pro se and her refusal to permit discovery of her medical records did not relate to all her claims. However, her claims of handicap discrimination were dismissed, and she was prohibited from using any evidence concerning her medical condition in connection with her disciplinary action appeals. Mosley v. DILHR, 93-0035-PC, etc., 4/19/94

A sanction hearing would be held against appellant's representative who had promised to produce appellant at a scheduled deposition if his motions opposing the deposition were denied. Both motions were denied yet appellant's representative said the client was no longer available for deposition scheduled the following day. The examiner rejected the option of imposing sanctions on the appellant because it was not shown that appellant shared in, or was even aware, of her representative's conduct. The potential sanction at issue would be the costs incurred by respondent for the deposition which appellant failed to attend, and the rescheduled deposition, including the cost of obtaining an expedited transcript to ensure the transcript would be available for hearing. Lyons v. WGC, 93-0206-PC, 3/11/94

Discovery sanctions were imposed where complainant's answers to respondent's interrogatories were tardy, incomplete and evasive, and the continued tardiness had the effect of avoiding a Commission order to reply. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)

Complainant's attempts to avoid sanctions were rejected where respondent's questions were relevant to its potential defense and complainant's claim that the interrogatories, consisting of over 100 questions, were overly burdensome should have been raised by a request for a protective order rather than for the first time as a defense to respondent's motion to compel. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)

Where the complaint arose from a decision not to hire the complainant, the examiner denied respondent's dismissal request but granted its request that complainant be prohibited from presenting any evidence, other than her own testimony, relating to the subject matter of those interrogatories where the responses were incomplete or evasive. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)

Where complainant did not receive the notice of deposition (it was served on his mother) and where there was a relatively short time period between the service of the notice and the date of the deposition, the complainant's failure to appear at the deposition was "substantially justified" so respondent's motion for expenses caused by the failure to attend the deposition was denied. Pugh v. DNR, 86-0059-PC-ER, 4/28/88

No sanctions were appropriate where respondent DMRS had failed to comply with an order to provide certain examination materials, because appellant had not appeared by counsel, the appellant rather than respondent would presumably be seeking to offer the subject materials into the record and a default judgment would deprive the appellant of a chance to have his claims adjudicated and would be of limited practical effect given restrictions on the Commission's ultimate remedial authority in the case. In addition, seeking judicial sanctions would generate costs and delays. Doyle v. DNR & DMRS, 86-0192-PC, 3/24/87

To enforce its order compelling discovery of exam materials, the Commission could petition circuit court for remedial or punitive sanction under §785.06, Stats., in addition to invoking those sanctions specified in §§227.44(5) and 804.12(2)(a) 3, Stats. Doyle v. DNR & DMRS, 86-0192-PC, 3/24/87

As a sanction for failure to comply with the Commission's order for respondent to answer certain interrogatories, the Commission barred the respondent from offering any evidence related to the subject matter inquired into by the unanswered interrogatories and ordered respondent to pay appellant's reasonable expenses, including attorney fees, caused by the failure to comply with the order. Southwick v. DHSS, 85-0151-PC, 2/13/87

A hearing was ordered scheduled on complainant's request for fees and expenses incurred in connection with his motion to compel discovery where, after the motion was filed, respondent filed answers to the underlying interrogatories. Hebert v. DILHR, 84-0206-PC-ER, 84-0242-PC, 9/13/85

A failure to answer or an evasive or incomplete answer to a discovery request is not a basis for a motion for sanctions but is a basis for an order compelling discovery. Paul v. DHSS, 82-PC-ER-69, 82-156-PC, 10/14/83

The appeal of a non-selection decision was dismissed where appellant refused to comply with the Commission's order to disclose the name of a potential witness, citing fears of retaliation, where the Commission had entered an order forbidding retaliation against such witness and appellant's allegations were conclusory in nature. Rowe v. DP, 79-202-PC, 7/22/81; affirmed by Dane County Circuit Court, Rowe v. Wis. Pers. Comm., 81-CV-4288, 4/13/83

The appellant was not entitled to an order of immediate reinstatement or order quashing testimony of a witness where the respondent refused to produce the witness for deposition on theories that discovery rule (§PC 2.02, Wis. Adm. Code) was invalid as in excess of statutory authority and that respondent was entitled to more detailed statement of appeal before submitting to discovery, but Commission notes such sanctions might be available in future depending on circumstances. Alff v. DOR, 78-227-PC & 78-243-PC, 6/13/79

506.50 Proper parties

Appointing authorities, or their designees, actually make appointment decisions to the state civil service. The secretary of the Department of Employment Relations and the administrator of the Division of Merit Recruitment and Selection do not control, and are not accountable for, aspects of the appointment process carried out by state agencies acting as appointing authorities. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98

The Personnel Commission reasonably interpreted ch. 230, Stats., to mean that the appointing authority is generally responsible for actions in the selection process which occur after the point of certification. The terms of delegation agreements running from the administrator of the Division of Merit Recruitment and Selection to various appointing authorities did not demonstrate that DMRS had ultimate authority over appointments at the various state agencies where the positions were located. The terms of those agreements as well as the State's Personnel Manual cannot supersede the language of the statutes, and ch. 230, Stats., does not give the administrator authority over the appointment process after the point of certification. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98

Employe X filed an appeal of a reallocation decision and later left the position. Employe Y transferred into the position vacated by X and requested to be added as a party to X's appeal, pursuant to s. 227.44(2m), Stats. The Commission concluded that Y had a "substantial interest [which] may be affected" by a decision in X's case and therefore was added as a party. The Commission noted that the case remained an appeal of the decision reallocating X's position, rather than an appeal of the decision setting the class level for the position filled by Y. Kiefer v. DER, 92-0634-PC, 5/2/94

In the absence of an allegation that DMRS carried out the examination process as part of a larger preselection scheme, appellant is not entitled to add DER or DMRS as party respondents simply for the purpose of being able to then obtain discovery more readily from them. Goehring v. DHSS, 92-0735-PC, 10/20/93

Where the issue for hearing was whether exam materials were objectively rated or scored, DMRS was the proper party and not the hiring agency because no delegation of authority was made by DMRS to the appointing authority. Overall responsibility for the exam and certification process is vested in the Administrator of DMRS, as reflected in §§230.16, .17 and .25, Stats. Johann v. LRB & DMRS, 93-0010-PC, 4/30/93

The secretary of DER has no authority with respect to the selection of an individual to a project position in another agency. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93

Pursuant to §230.05(2)(b), any claim stated against an appointing authority with respect to matters involving authority delegated by the administrator of DMRS also runs to the administrator. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93

The Commission has no authority to impose liability against the DOA secretary for having provided budgetary authorization for allegedly improper project appointments in other agencies and granted a motion to dismiss for failure to state a claim as to the DOA secretary. ACE et al. v. DHSS et al., 92-0238-PC, 1/12/93

Where appellant's name was removed from the certification list and register due to a physical exam and complainant did not reach the interview stage, he was unable to show that he would have been a successful candidate for the vacancy. The employing agency was not a necessary party for purposes of awarding relief and was dismissed. Chadwick v. DMRS & DHSS, 91-0177-PC, 8/26/92

Where the appellants had a substantial interest in the classification of their positions and that interest might be affected by the Commission's decision relative to an appeal filed by another employe alleged to be performing the same duties, the appellants had an absolute right to be admitted as parties to that appeal pursuant to §227.44(2m), Stats. Eckdale et al. v. DER, 91-0093-PC, etc., 11/25/91

Where the Commission could not rule out a scenario which could result in an order directing DHSS to appoint the appellant to the vacancy in question, DHSS was retained as a party in an appeal arising from the decision of DMRS to remove the appellant's name from the certification. Chadwick v. DMRS & DHSS, 91-0177-PC, 10/21/91

In clarifying several previous decisions in this area, the Commission noted that only where the appellants appear to advance contentions that the employing agency is acting as an agent vis-a-vis the other named respondent, will the employing agencies be included as proper parties. Chadwick v. DMRS & DHSS, 91-0177-PC, 10/21/91

DPI was appropriately included as a party respondent with respect to an appeal of an examination where the appellant clearly alleged conduct which, if established at hearing, could result in an order requiring DPI to remove the person who was filling the position in question. Taylor v. DMRS & DPI, 90-0279-PC, 12/11/90

Where the appellant alleged that employes of UW acted to interfere with and delay her efforts to obtain a reclassification of her position, the UW's request to be dropped as a party was denied even though the final authority for setting the effective date for reclassifying the position rested with DER. Vollmer v. UW & DER, 89-0056-PC, 8/24/89

An appeal was considered to be a group appeal where the letter of appeal was in the form of a memo to the Commission from "Jeff Holubowicz, Industries Specialist et al IDC" and the body of the appeal contained language which was consistent with a group appeal. Respondent's motion to dismiss all appellants other than Mr. Holubowicz was denied. Holubowicz et al. v. DHSS & DER, 88-0039-PC, 7/13/88

The appointing authority was a proper party to an appeal of a reclassification decision (at least as of the time the objection was raised) where, even though the classification sought by the appellant was not delegated for reclassification purposes, the appellant alleged facts concerning certain actions relating to the reclassification at the Department level, which actions are alleged to have affected the outcome at the Division level. Lott v. DHSS & DP, 79-160-PC, 3/24/80

508.2 Exchange of witness and exhibit lists

Any prejudice arising from a 7 hour delay in providing petitioner with witness lists and exhibits flowed from petitioner’s own actions where he waited until 3 working days before the commencement of a 3 day hearing to visit various law firms to discuss his case and retain an attorney and where petitioner was unavailable, during the following 2 days, to work with any attorney he might be able to retain. The respondent submitted its witness list and exhibits one day later than provided by §PC 4.03, Wis. Adm. Code, but in compliance with the specific directions of the hearing examiner. Postler v. Wis. Pers. Comm., et al, Dane County Circuit Court, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98

Respondent’s motion to dismiss for lack of prosecution was granted where complainant failed to have served on respondent either exhibits or a witness list at any time prior to the hearing. Complainant contended that he understood he could rely on documents already submitted during the course of the investigation without having to satisfy the filing and service requirements of §PC 4.02, Wis. Adm. Code. However, the prehearing conference report explicitly informed the parties of the date for complying with the filing and service requirement. Complainant refused to explain his conclusory statement that there were mitigating circumstances and asked to have the opportunity to consult with counsel. Smith v. DOC, 95-0134, 0169-PC-ER, 11/14/96

Where appellant did not request certain documents from respondent until August 23^rd, the hearing was scheduled for September 4^th, respondent interpreted appellant’s request as a subpoena duces tecum and brought the requested documents to the hearing, and appellant offered some of those documents as exhibits, the documents were properly excluded because appellant had failed to comply with the 3 working day requirement in §PC 4.02, Wis. Adm. Code, because appellant was responsible for the delays which resulted in his failure to timely file the documents as potential exhibits and because he failed to provide sufficient justification for this procrastination. Firlus v. DOC, 96-0030-PC, 11/14/96

The Commission could not take official notice of a DHSS manual which was not part of the hearing record. The manual, which was attached to a post-hearing brief, was neither a generally recognized fact nor an established technical or scientific fact, within the meaning of s. 227.45(3), Stats. The argument was rejected that the manual was a "generally recognized fact" solely because it was subject to the public records law in s. 19.32(2), Stats. Respondent objected to the document because it was not exchanged prior to hearing. Harron v. DHSS, 91-0204-PC, 9/26/92

In order to be consistent with the rule, §PC 2.01 Wis. Adm. Code, (1985) is interpreted to provide for a three step analysis of a party's disclosure or nondisclosure of evidence. The first steps concern whether the disclosure requirements were met and whether there was good cause for any failure of compliance. If no good cause is shown, the Commission will, at the third level of analysis, exercise its discretion by considering such factors as prejudice or surprise and the ability to cure the prejudice, the extent that waiver of the witness rule could disrupt an orderly and efficient hearing and bad faith or willfulness in failing to comply. Frank v. DHSS, 83-0173-PC, 3/13/85

The Commission declined to strictly apply the exchange rule where there was less than one hour out of the normal workday where appellant's counsel had respondent's list of witnesses and respondent's counsel did not have appellant's list, where respondent suffered neither surprise nor prejudice from the delay, where the hearing could proceed without disruption if appellant was allowed to call her witnesses, where the failure to disclose was not done in bad faith, where neither party had filed their lists with the Commission and where an opposite result would have caused dismissal of the appellant's case. Frank v. DHSS, 83-0173-PC, 3/13/85

An exhibit offered by the appellant was properly received in evidence where, one week prior to the hearing, appellant filed a letter reserving the right to use as exhibits those exhibits listed by the respondent and where respondent bad previously thereto submitted the document in question as a potential exhibit. Seep v. DHSS, 83-0032-PC & 83-0017-PC-ER, 10/10/84; affirmed in part, reversed in part by Racine Circuit Court, Seep v. State Pers. Comm., 84-CV-1705, 84-VC-1920, 6/20/85; supplemental findings were issued by the Commission on 2/2/87; affirmed in part, reversed in part by Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87 [Note: the effect of the Court of Appeals decision was to affirm the Commission's decision in all respects.]

Appellants failed to meet the mandatory disclosure rule when they did not provide respondent with a copy of a 91 page report prepared by their expert witness until after the hearing had commenced. The report had not been completed until shortly before it was offered but the parties had over four months between the prehearing conference scheduling the hearing and the date the hearing commenced. Kennedy et al. v. DP, 81-180, etc.-PC, 1/6/84

Appellant's motion to exclude a previously admitted document from the record was denied where the respondent filed the exhibit one day before the scheduled hearing date but had also filed a copy during the prehearing conference and where appellant offered the exhibit as part of his case. Plasterer v. DOT, 83-0007-PC, 9/28/83

An exhibit purported to be a position description prepared by the appellant can be characterized as rebuttal evidence and thus not subject to the prior disclosure requirement where the document had been introduced by respondent's counsel in an effort to rebut or impeach appellant's testimony as to how many students she supervised. Lloyd v. UW, 78-127-PC, 8/30/79

508.4 Subpoenas

It is fundamental to a fair hearing that persons may be compelled to testify in proceedings before the Commission. While the attorney's power to subpoena is exercised in the name of the forum, only the Commission has the power to determine whether a person will be compelled to testify. ACE v. DOA & DMRS, 94-0069-PC, 6/26/95

Appellant's subpoena of the Secretary of the Department of Administration was quashed in a case in which the issue was whether a project position had been filled in accordance with the civil service code, where the Secretary's role in filling the position was not significant enough to render his testimony necessary and material. The Secretary had advanced the successful candidate's name and had formally appointed him to the position at the conclusion of the hiring process, but otherwise, the duties involving the filling of the position had been delegated by the Secretary to others. In addition, appellant had failed to make use of discovery procedures and rejected, out of hand, the Secretary's proposal to prepare an affidavit. ACE v. DOA & DMRS, 94-0069-PC, 6/26/95

In a case in which the issue was whether a project position had been filled in accordance with the civil service code and where affidavits of the Administrator of the Division of Merit Recruitment and Selection and of the Administrator's policy advisor showed they were both involved in reviewing the request from an agency to fill a position on a project basis, the request to quash their subpoenas was denied. ACE v. DOA & DMRS, 94-0069-PC, 6/26/95

Letters by the Commission requesting two of respondent's employes to appear at a hearing on respondent's motion for a protective order were quashed where the goal of the protective order was to prevent the taking of depositions of the same two employes. This result was based on the inconsistency that would result if the two employes were required to attend the hearing but were later granted protection from being deposed, and on the view that appellant's interests could be adequately protected by submission of an affidavit. Kozich v. UW & DP, 81-77-PC, 6/4/82

Where the appellant declined to cross-examine respondent's expert witnesses who resided in New York, and then served subpoenas on them to testify adversely on an adjourned date, the subpoenas would be quashed unless the appellant paid their fees and expenses. Alff v. DOR, 78-227, 243-PC, 10/1/81; affirmed by Dane County Circuit Court, Alff v. Wis. Pers. Comm., 81-CV-5489, 1/3/84; affirmed by Court of Appeals District IV, 84-264, 11/25/85; petition for review by Supreme Court denied, 2/18/86