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600 NON-DISCIPLINARY ACTIONS OF THE APPOINTING AUTHORITY
605.5(2) Particular applications
Where there was no explicit evidence of the administrator's approval pursuant to §230.29, Stats., of the transfer, but the record contained a copy of a memo to the administrator requesting his approval, and a notation that the administrator verbally had approved the transfer, it will be inferred, in part in keeping with the presumption of administrative regularity, that the required approval had been given. Harley v. DOT & DP, 80-77-PC, 11/7/80
Where there was evidence to support a finding that the appointing authority had delegated certain authority to first line supervisors, it would be inferred pursuant to the presumption of administrative regularity, and in the absence of any evidence to the contrary, that this delegation was in writing and on file with the director as required by §Pers 1.02(l), Wis. Adm. Code. Schmid v. UW, 78-19, 9/5/79
610.2 As academic staff
In an appeal of a noncontractual grievance relative to the designation by the Board of Regents of two UW-Green Bay positions as academic staff (as opposed to classified civil service), the scope of the Commission's review is limited to the question of whether there has been a violation of the civil service code (Subchapter II, Chapter 16 (now 230), and Ch. Pers. WAC). The Commission can find nothing in the code that creates a presumption that positions be designated in the classified service, and concludes that there was no violation of the civil service code. WSEU v. UW, 74-100, 2/15/80
615.2 Generally
The strict selection criteria designed to predict successful performance on the job required under the competitive examination process described under §§230.15 and .16, Stats., apply only up to the time that the certification list of qualified candidates is developed. Thereafter, the appointing authority is required only to base its selection on more flexible criteria that are reasonably related to the responsibilities of the position in its quest to appoint the best candidate for the position. 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
If an agency decides to use handicapped expanded certification, it is not mandated by law to hire a person with a disability. Byrne v. State Pers. Comm., Dane County Circuit Court, 93-CV-3874, 8/15/94
Where it was not established on what grounds the appointing authority acted, improper motives will not be imputed to the appointing authority from the acts of the three person interview panel he appointed, and in any event, the appointing authority is not required to appoint the most qualified candidate. DHSS v. Wis. Pers. Comm. (Paul), Dane County Circuit Court, 81-CV-1635, 9/18/83 (dictum)
Appellant failed to sustain his burden to establish that respondent's failure to hire him for a Youth Counselor position was illegal or an abuse of discretion where he was not hired because he failed to disclose all convictions on the form he completed the day of his interview. Wedekind v. DOC, 98-0091-PC, 2/24/99
Respondent did not abuse its discretion by relying upon the conviction disclosure form completed by the appellant as part of the interview process, as opposed to searching for disclosures previously made by appellant when he was a state employe. Respondent's reliance on the conviction disclosure form was not clearly against reason or evidence. Respondent's decision not to consider the appellant further for a vacant position after discovering that appellant failed to make full disclosure of his conviction record was not contrary to respondent's policy. Disqualifying a candidate from further consideration due to falsification of application materials is specifically authorized in §ER-MRS 6.10(7), Wis. Adm. Code. Wedekind v. DOC, 98-0091-PC, 2/24/99
The traditional analysis under §230.44(1)(d), Stats., of hiring decisions is whether, based on the record, the appointing authority’s decision was clearly against reason and evidence, citing Harbort v. DILHR, 81-74-PC, 4/2/82. However, where an appeal relates to the hiring authority’s request for certification of additional names, evidence that would tend to show that the agency requested an additional, or a particular type of certification for the purpose of undermining appellant’s chances for the appointment would be relevant as would evidence as to whether respondent improperly relied on recommendations in violation of §230.20, citing Ransom v. UW-Milwaukee, 87-0125-PC, 7/13/88. Morvak v. DOT & DMRS, 97-0020-PC, 6/19/97
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. DHFS, 96-0054-PC, 2/14/97
Where respondent decided to reevaluate appellant’s application for vacancies as a Nurse Clinician and the deciding factor in the second decision not to hire appellant was the fact that she had threatened to file a complaint if she did not get a response from respondent about her denial within two weeks, respondent’s second decision was an abuse of discretion. Appellant knew she had certain (time limited) rights with respect to her non-hire and she merely informed respondent that if she did not receive an explanation for its action within a certain time, she would exercise those rights. An applicant for state employment has the statutory right under §230.44(1)(d), Stats., to challenge an agency’s hiring decision. Neldaughter v. DHFS, 96-0054-PC, 2/14/97
There was no showing that the interview process failed to satisfy any relevant requirement or was not applied in a consistent fashion to each candidate where each interviewee was told they had to turn in their copy of the interview questions prior to the start of their interview, and where another candidate was able to consult his notes during the interview because he took his notes on another piece of paper while the appellant had taken his notes on the paper which contained the interview questions so he was unable to consult them during the interview. Firlus v. DOC, 96-0030-PC, 11/14/96
Where there was no evidence in the record relating to the content of the interview questions, interview benchmarks, or responses to the interview questions by the candidates, there was no way to compare the interview performances of the candidates to determine if there was an abuse of discretion in relation to the scoring of the interviews. Evidence that the successful candidate was a friend of, and rode to work with, the supervisor for the position (who was one of the three members of the interview committee) and evidence that even though the vacant position was posted as a second shift position, the successful candidate ended up working only four days on the second shift before the position (and incumbent) returned to the successful candidate’s previous shift, was insufficient to support a conclusion of an illegality or an abuse of discretion. Firlus v. DOC, 96-0030-PC, 11/14/96
Interviews were not regarded as part of the competitive examination process. The interview questions, which were job-related, need not have been designed to predict successful performance on the job. Respondent conceded the questions were not designed as a scientific measure of success. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
Respondent did not abuse its discretion when it eliminated petitioner from consideration for the position of supervisor of a particular work unit where respondent had a reasonable basis to believe that some degree of conflict existed between petitioner and the staff of the unit, even though there were only two incidents that respondent cited as the basis for its belief and the most recent incident occurred approximately one and one-half years prior to the interview. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
Respondent did not commit an illegal act or abuse its discretion when it did not select appellants for a vacant Civil Engineer-Developmental (Plan Reviewer) position where the appellants did not possess an engineering degree and the top five candidates all had such a degree, even though the appellants did have experience reviewing plans. Ochs & Jensen v. DILHR, 93-0185, 0219-PC, 9/9/94
Respondent's hiring decisions were sustained where the job announcement had specifically referenced holding a data processing or equivalent degree, the successful candidates had such degrees and appellant did not and during the interview appellant was not well organized and failed to link his background with the duties of the position. Stewart v. DOR, 92-0003-PC, 8/18/94
Respondent's hiring decision did not constitute an abuse of discretion where there was conflicting testimony about whether there was animosity between appellant and his supervisor, but in any event the record reflected that the supervisor neither participated in nor influenced the interview panel which ranked appellant third among four candidates, and that the selected candidate had superior qualifications for the position. Ransom v. UW, 92-0234-PC, 2/9/94
In dictum, the Commission noted it was not "clearly against reason and evidence" for the appointing authority to consider the interview panel's recommendation as only one of several selection criteria. The basis for the respondent's selection decision, i.e., that the successful candidate's training in law enforcement was superior to appellant's and that he had been employed at a higher level in the State Patrol than appellant held to be reasonably job-related and accurately assessed. It was also not "clearly against reason and evidence" for respondent to conclude, based on appellant's successful and lengthy employment with the DOT, that he was not eligible for Handicapped Expanded Certification, i.e., that he did not have a "physical or mental disability which substantially limits the person's employment opportunities, including the person's ability to obtain or retain employment." Byrne v. DOT & DMRS, 92-0672-PC, 92-0152-PC-ER 9/8/93; affirmed by Dane County Circuit Court, Byrne v. State Pers. Comm., 93-CV-3874, 8/15/94
Appellant failed to sustain his burden to show an illegality or an abuse of discretion where there was nothing in the record relating to the selection process followed by respondent, the selection criteria utilized or the comparative qualifications of the candidates based upon these criteria. Bauer v. DATCP & DER, 91-0128-PC, 6/25/93
No abuse of discretion in hiring was found although successful candidate's son-in-law headed institutional department to which she gained employment where respondent did not include successful candidate's son-in-law in selection process, appellant did not show that son-in-law influenced the process, appellant was not better qualified than successful candidate who had previous LTE experience performing similar duties to those assigned to the vacant position, and interview scoring inconsistencies did not significantly affect appellant's ranking. Schmidt v. DHSS, 88-0131-PC, 6/4/93; affirmed by Winnebago County Circuit Court, Schmidt v. Wis. Pers. Comm., 93 CV 654, 4/28/94; affirmed by Court of Appeals, 94-1545, 7/19/95
Even though one interviewer asked appellant his marital status, the decision not to hire the appellant was not illegal where there was no basis for a finding that the question had any effect on the hiring decision. Bengtson v. DILHR, 92-0026-PC, 8/26/92
Respondent had a rational basis for its decision not to select the appellant for a supervisory position even though the appellant had very strong supervisory experience and the successful candidate did not, where the successful candidate had program experience and client base experience and the appellant did not. Bengtson v. DILHR, 92-0026-PC, 8/26/92
Respondent's decision not to hire the appellant for a staff psychiatrist position in a mental health institute was affirmed where the decision was based on the revocation of the appellant's license to practice medicine 6 years earlier for having engaged in a sexual relationship with a patient, even though the revocation was overturned on appeal based upon the court's conclusion that the applicable statute of limitations had run. The respondent was not required to conduct an independent investigation to determine the accuracy and completeness of the information provided to them by apparently reliable and knowledgeable outside sources. Puls v. DHSS, 90-0172-PC, 5/1/92
Where the primary basis utilized by respondent for making hiring decisions pursuant to the contractual transfer process was seniority unless a less senior candidate possessed clearly and substantially different qualifications, and where the appellant failed to show that her relevant qualifications were clearly and substantially different than those of the more senior candidates, the decision not to select the appellant was affirmed. Molitor v. DHSS, 89-0086-PC, 89-0105-PC-ER, 5/1/92
Where the appellant failed to show 1) that the three selection criteria were not applied uniformly to the final four candidates or 2) that it was "clearly against reason and evidence" for the respondent to conclude that the successful applicant was the better candidate, she did not sustain her burden of proof. The fact that the appellant was satisfactorily performing in a similar position while serving probation did not mean she was entitled to appointment to the vacant position. Also there was no requirement that the respondent hold up its recruitment and selection process until the appellant was eligible to exercise a mandatory transfer right into the vacancy. Jorgensen v. DOT, 90-0298-PC, 6/12/91
Respondent's decision not to select the appellant for a vacant position as a stores supervisor in a prison was affirmed where the questions used by the interview panel were job-related, the questions were asked of all the candidates, the answers were scored using a pre-established benchmark rating system, the actual scores awarded were based on the candidates' responses and the candidate selected received the highest score. Although the person selected was the step-daughter of a payroll and benefits specialist in the prison, and the selectee would end up supervising her mother, neither parent was involved in the hiring process and there was no evidence the hiring process was modified to give the appellant any advantage. An ambiguous comment by the supervisor for the vacant position, who also served on the interview panel, which could be interpreted as an indication of bias against the appellant did not generate an abuse of discretion. Jahnke v. DHSS, 89-0094-PC-ER, 89-0098-PC, 12/13/90
Respondent's selection decision was upheld where respondent developed a series of questions which were related to the functions assigned to the position, all candidates were asked the same questions, their responses were rated separately by each panel member, the resulting scores were combined and the candidate obtaining the highest score was offered the position after first checking references. The experience and knowledge of the person selected more closely matched all of the areas which respondent had determined were important in performing in the position than did appellant's experience and knowledge. Mott v. DOA, 89-0119-PC, 12/13/90
Respondent abused its discretion when it ceased to consider the appellant for a vacant position primarily because the director of the hiring unit believed appellant had been terminated by that unit from a similar position 10 years earlier and it was policy not to rehire an employe who had been terminated, where the position involved menial tasks which posed relatively low risks for respondent and the Commission found that appellant had resigned and had not been terminated. Bjornson v. UW, 90-0004-PC, 10/4/90; rehearing denied, 1/11/91
Respondent abused its discretion when it manipulated the hiring process to avoid hiring the appellant by ignoring the numerical results of the interview process and substituted a sort of popularity contest which resulted in the lowest-ranked candidate being selected. Zebell v. DILHR, 90-0017-PC, 10/4/90
Two selection decisions were sustained where there was an insufficient basis on which to conclude that the selection criteria were unreasonable, were not uniformly applied, were not the actual criteria utilized or that the interviewer's assessments of the candidates were unreasonable in view of the candidates' presentations during the interviews and in view of the selection criteria. The interviewer's comment during the first interview that the respondent did not need people with appellant's negative attitude did not demonstrate animus toward appellant but reflected the interviewer's opinion of the type of attitude required of respondent's employes. Sonnenberg v. Lottery Board, 89-0036, 0069-PC, 4/19/90
Respondent abused its discretion when it violated its own in-house selection procedure of obtaining a consensus of the four-person interview panel where two of the four panelists were not consulted prior to the selection of one of the candidates. Thornton v .DNR, 88-0089-PC, 11/15/89
Respondent abused its discretion when two of the four interview panelists virtually placed a substantive value on the answer to a question which was not job-related. Appellant was asked during the interview, whether, if he received the appointment to the position in Dodgeville, he would move to that area. Based on his response, two panelists decided the appellant would not comply with the agency's residency requirement. This decision was made before the panelists verified their belief with the appellant and before giving the appellant an opportunity to request an exception from the agency secretary, even though such an exception was specifically provided for in the agency's rules. Thornton v. DNR, 88-0089-PC, 11/15/89
No abuse of discretion was shown where all of the questions asked of the candidates were reasonably related to the duties of the position, appellant's qualifications were not clearly superior to those of the successful candidate, the panelists awarded complainant fewer points than the successful candidate and one of the three interviewers characterized the appellant as being "hostile" during the interview in addition to testifying that the successful candidate did very well in the interview. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
There was no abuse of discretion even though some of the panelists incorrectly added up the scores for the various questions asked of the candidates where the errors did not result in a change in the ranking of the candidates by either the individual panelists or by the panel as a whole. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
No abuse of discretion was shown where the criteria used by the respondent in reaching the decision were reasonably related to the duties and responsibilities of the position, the selection criteria were applied uniformly and the respondent was justified in reaching the conclusion that it did as a result of the application of such criteria. Wali v. PSC, 87-0081-PC, 87-0080-PC-ER, 4/7/89
No abuse of discretion was shown where there was no basis on which to conclude that the selection criteria were unreasonable, were not uniformly applied, or were not the actual criteria utilized by the respondent or that the interviewing panelist's assessments of the candidates were not reasonable in view of the presentations of the candidates at the interviews and in view of the selection criteria. The failure to appoint the appellant to the position was not illegal where the appellant lacked those mandatory restoration rights claimed by her. Larson v. DILHR, 86-0019-PC-ER, 86-0013-PC, 1/12/89
Appellant failed to establish that the respondent acted illegally or abused its discretion in not hiring him to fill a vacancy even though the respondent had previously acted illegally when it offered the position in question to someone who was listed on an expired register. Appellant was unable to rely on the previous illegality to show that the ultimate failure or refusal to appoint him to the vacancy was invalid where the prior offer was withdrawn and the selection process was reinitiated. Thornton v. DNR, 88-0012-PC, 1/12/89
Apparently conflicting opinions by a respondent's examining physician and appellant's osteopath did not generate a conclusion that the decision not the select the appellant was clearly against reason. Absent expert testimony on which the Commission could conclude that the procedures or conclusions of respondent's physician setting lifting and bending restrictions on the appellant were unwarranted or inappropriate, appellant failed to sustain his burden of proof. Lauri v. DHSS, 87-0175-PC, 11/3/88
It is not the Commission's role to determine which of an unlimited number of possible selection criteria it would have been best for respondent to utilize but rather to determine whether the criteria used by respondent were reasonably related to the duties and responsibilities of the position to be filled and were uniformly applied. Royston v. DVA, 86-0222-PC, 3/10/88
Where 65% of the successful candidate's time would be devoted to supervising and program management responsibility, respondent's reliance on supervisory and program management experience as primary selection criteria was not unreasonable. Royston v. DVA, 86-0222-PC, 3/10/88
The existence of an affirmative action plan with affirmative action goals does not establish a requirement that an employer hire a woman, a member of an ethnic/racial minority or a handicapped person for a position. Royston v. DVA, 86-0222-PC, 3/10/88
Respondent's selection decision for a Printing Technician position was upheld where the successful candidate had a broader exposure, through course work, to printing than did the appellant and the successful candidate had superior public contact skills. Jensen v. UW-Milwaukee, 86-0144-PC, 11/4/87
The successful candidate for a Printing Technician position had sufficient knowledge of the printing craft to perform the functions of the job. Some form of orientation is inevitable in any new job in order to understand the system of operation, i.e., orienting a new employe as to the means of utilizing basic knowledge of the craft rather than teaching the incumbent that basic knowledge required in a position. Jensen v. UW-Milwaukee, 86-0144-PC, 11/4/87
Respondent's selection decision was upheld where the successful candidate had more extensive experience in one of the two main responsibilities of the vacant position and "came across better" during the interview, and where the complainant's response to a background questionnaire was incomplete. Nothing supported appellant's contention that the selection decision resulted from threats to the decision-maker by others. Respondent did not abuse its discretion by not confirming the information on candidate's work history questionnaire or not confirming that the candidates were actually qualified in the two requisite building trades. Friedrich v. UW-Platteville, 86-0210-PC, 6/24/87
Respondent's selection decision was affirmed where the criteria utilized in making the decision were reasonably related to the duties and responsibilities of the vacant position and were uniformly applied. The supervisor had mistakenly assumed that the vacancy could be filled via promotion (without competition) and had developed a proposal to promote employe #1. Once the supervisor learned that competition would be required, she obtained a list of certified eligibles including employe #1. Neither employe #1 nor appellant were selected. Stichert v. UW-Oshkosh, 86-0197-PC, 6/11/87
It was clearly not against reason and evidence for the appointing authority to conclude that the successful applicant was a better candidate than the appellant for the subject position where appellant lacked enthusiasm for the position, demonstrated resistance to changing the status quo, and where the appointing authority was aware of problems regarding appellant's work performance. In contrast, the successful applicant was enthusiastic and demonstrated great creativity and flexibility while her references did not cite any problems with her work performance. McIntyre v. DHSS, 86-0140-PC, 4/15/87
The non-selection of the appellant for a Boiler Safety Inspector I position was not an abuse of discretion even though the appellant already had the necessary certification requirements to independently conduct boiler inspections and the successful candidate could be expected to spend six months or more in a training capacity until being able to pass the certification test, where it was the typical agency experience to hire an applicant who did not possess the requisite certification and the respondent had determined that white males had always occupied the position and there was a resistance in the decision to affirmative action considerations and the person selected was both qualified and a minority. However, the selection decision was found to be illegal. Kesterson v. DILHR & DER, 85-0081-PC & 85-0105-PC-ER, 12/29/86
The appointing authority is not required to apply every reasonable criterion in making a hiring decision. It is not the role of the Commission to determine which criteria should have been applied, i.e., to substitute its judgment for that of the appointing authority. Romaker v. DHSS, 86-0015-PC, 9/17/86
Respondent did not abuse its discretion in not selecting the appellant for a vacant Institution Security Director I position where the person selected had superior interpersonal skills even though the appellant had far better security and supervisory experience, and where the successful candidate would have an opportunity to pick up the necessary security knowledge during the interval between the hiring decision and the date the first maximum security patients arrived. However, the certification of the successful candidate was found to be illegal. Paul v. DHSS & DMRS, 82-156-PC & 82-PC-ER-69, 6/19/86
Respondent's decision not to select the appellant, who ranked number I on the examination and had significant experience in property assessment, for either of two vacant Property Assessment Technician 1 positions was affirmed where the individual who made the decision was not aware of the candidate's test scores or rankings, the positions did not perform assessments but were responsible for performing support services to persons who did the professional assessment/appraisal work, the positions were assigned nearly 50% data processing work on a short-term basis, the two successful candidates had skills in either word processing, data entry or both and there was no indication that the appellant had such skills. Wilterdink v. DOR, 85-0072-PC, 2/6/86
The Commission found an abuse of discretion where the person who had the effective authority to make the hiring decision bore an animus toward the appellant, was predisposed not to hire him and manipulated the process to prevent appellant from being hired despite the fact that the appellant was the best qualified candidate. Pearson v. UW-Madison, 84-0219-PC, 9/16/85; affirmed by Dane County Circuit Court, Pearson v. UW & Pers. Comm., 85-CV-5312, 6/25/86; affirmed by Court of Appeals District IV, 86-1449, 3/5/87
Respondent's decision not to select the appellant for a vacant BMH 2 position at UW-Stevens Point was affirmed even though appellant was employed as a BMH 3 at UW-La Crosse, where the employment interviews were conducted uniformly and questions about work experience were not asked because the BMH 2 position is an entry level position. Kraklow v. UW, 84-0237-PC, 7/3/85
No abuse of discretion was found where, as to each of five selection decisions, the selection criteria were reasonably related to the duties of the positions and, based upon the application of those criteria, the appellant was less qualified than the successful applicants. Pflugrad v. DMRS & DHSS, 83-0176-PC, 6/6/85
Appellant failed to show that respondent's decision to select another candidate was illegal or an abuse of discretion where respondents had concluded 1) that the successful applicant was qualified and 2) that by hiring her, respondent would satisfy a goal of its affirmative action plan. Hoppenrath v. DOT, 83-0065-PC, 2/29/84
Decision by respondent to hire someone other than appellant was affirmed, where the successful applicant had more experience that was particularly relevant to the duties of the vacant position and had performed better than the appellant during the oral interview. Ebert v. DILHR, 81-64-PC, 11/9/83
Respondent's failure to select appellant for positions in question was neither illegal nor an abuse of discretion where respondent reasonably concluded that appellant was not as well qualified as those sixteen applicants ultimately hired for janitorial positions and where appellant had held six different positions during the prior 4-2 year period and had been terminated once for a personality conflict and once for a verbal attack on a nun escorting a group of children who had walked on a floor complainant had just waxed. Vesperman v. UW-Madison, 81-232-PC, 81-PC-ER-66, 3/31/83
The respondent's failure to appoint the appellant to the position in question was neither illegal nor an abuse of discretion where the appellant's reinstatement eligibility was permissive, and there were valid selection criteria, including a better attendance record in prior employment and an excellent, stable employment history, supporting the appointment decision that was made. Ronne v. UW, 82-160-PC, 11/11/82
Where the appellant had more technical competence at the time than the appointee, but the employer had legitimate concerns about appellant's communications and interpersonal relations skills, it could not be concluded that the appointment decision was clearly against reason and evidence and therefore an abuse of discretion. Harbort v. DILHR, 81-74-PC, 4/2/82
ln an appeal pursuant to §230.44(l)(d), Stats., of a non-appointment with respect to which the appellant alleged sex discrimination and retaliation, the Commission applied the type of analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and found no such discrimination following a discussion of the material circumstances including the relative qualifications of the applicants. Jacobson v. DILHR, 79-28-PC, 4/10/81
No abuse of discretion was found where the appellant, an employe of the appointing authority, was evaluated on the basis of his employment with the agency, and where the allegation of anti-union animus was not supported by evidence of more than common-place labor-management friction. Baker v. Secretary of State, 80-183-PC, 12/17/80
Appellant failed to show that respondent's failure to appoint her was illegal or an abuse of discretion where both the appellant and the successful applicant were certified and the respondent adduced credible evidence that there were justifiable grounds for selecting the successful applicant as the better qualified applicant. Spink v. DHSS, 78-9-PC, 2/9/79
615.5(2) Who is considered
A conclusion that an appointment was made outside the 60 day period referenced in §230.25(2)(b), Stats., would not result in an order voiding the certification or the appointment. Seitter v. DOT & DMRS, 94-0021-PC, 3/9/95
Multiple certifications and an appointment were neither illegal or an abuse of discretion, even though the ultimate appointment occurred more than 60 days after the initial certification as provided in §230.25(2)(b), Stats., where an initial appointment, made within the 60 day period was invalidated because the successful candidate was certified based upon receiving veterans preference points to which he was not entitled, where the appointing authority then worked with DMRS to obtain additional certifications and the appointing authority at least implicitly requested an extension of the 60 day period or a new 60 day period that was implicitly granted. DMRS did not abuse its authority when it did not order the appointing authority to make an appointment within the initial 60 day period, from the group of interested candidates who remained interested in the position, because to do so would have been inconsistent with additional time implicitly granted by DMRS and would have forced the appointing authority to forego the opportunity to have a full slate of certified candidates from which to choose. The reasoning process of DMRS which resulted in a conclusion, some time after the initial appointment was invalidated, that a vacancy had been created which required a new appointment and that a reasonable time to complete this was 60 days, was not an abuse of discretion. Seitter v. DOT & DMRS, 94-0021-PC, 3/9/95
Respondent's action was affirmed where it was clear that respondent did not use open recruitment to fill the subject position in order to prevent the appellant from obtaining the position and the appellant failed to establish that respondent engaged in any illegal action or abuse of discretion during the recruiting and hiring process. Ransom v. UW, 87-0125-PC, 9/20/89
Respondent's decision to deny appellant's request to be interviewed for a position where, by the time the appellant contacted the agency regarding the vacancy, interviews had been completed and the position had been offered to and accepted by a qualified candidate. Wing v. DMRS & DPI, 85-0013-PC, 9/23/87
Respondent's selection decision was affirmed where the criteria utilized in making the decision were reasonably related to the duties and responsibilities of the vacant position and were uniformly applied. The supervisor had mistakenly assumed that the vacancy could be filled via promotion (without competition) and had developed a proposal to promote employe #1. Once the supervisor learned that competition would be required, she obtained a list of certified eligibles including employe #1. Neither employe #1 nor appellant were selected. Stichert v. UW-Oshkosh, 86-0197-PC, 6/11/87
The non-selection of the appellant was illegal where the respondent's action of appointing an expanded certification candidate violated certain statutes relating to affirmative action and the Fair Employment Act. Kesterson v. DILHR & DER, 85-0081-PC & 85-0105-PC-ER, 12/29/86
The Commission affirmed respondent's decision not to seek interviews with all of the 20 applicants who were eligible for the vacant position. The respondent had utilized five job related factors in screening the applicants based upon their resumes and had eliminated 15 of the 20 eligibles in this manner. Schmaltz v. UW-Madison, 85-0004-PC, 10/29/86
The respondent violated §230.03(4m), Stats., when it decided to use expanded certification after comparing the proportion of minority incumbents in the ISD-1 classification to the proportion of minorities in the state population as a whole rather than to the percentage of minorities from amongst all those persons who were "qualified and available" for hire in the ISD-I classification. Respondent also violated §§230.01(2) and .03(4m), Stats., when it made a work force analysis based upon job category ("Officers and Administrators") rather than a classification (ISD-1). Therefore, the resulting decision to appoint someone whose name appeared on the list of candidates due to expanded certification was illegal. Paul v. DHSS & DMRS, 82-156-PC & 82-PC-ER-69, 6/19/86
There was no illegal action or abuse of discretion in failing to interview the appellant, who was in layoff status with permissive reinstatement rights to the position in question, where the appointing authority had a reasonable basis for concluding that he was 11not qualified" for the position in question, and there was no necessity to have interviewed anyone who was not certified for the position. McCabe v. UW, 82-20-PC, 9/30/82
The Commission determined that there was no illegal action or abuse of discretion with respect to an appointment process where the original register for two vacancies consisted of six names chosen on a competitive promotional employing unit basis, only four names remained for the second position, the agency requested an additional certification, the vacancy was reannounced on a statewide open competitive basis, and after a delay a new register was established. Also, there was no evidence that a candidate had been given information about the exam in advance thereof, and there was nothing improper about the makeup of the post certification interview panel. Toigo et al. v. UW & DP, 80-206-PC, 6/3/81
615.5(4) Who decides
Respondent's hiring decision did not constitute an abuse of discretion where there was conflicting testimony about whether animosity existed between appellant and his supervisor, but in any event the record reflected that the supervisor neither participated in nor influenced the interview panel which ranked appellant third among four candidates, and that the selected candidate had superior qualifications for the position. Ransom v. UW, 92-0234-PC, 2/9/94
Respondent's use of a single person (as opposed to a panel) to interview certified candidates was neither illegal nor an abuse of discretion. Rosenbauer v. UW-Milwaukee, 91-0086-PC, 91-0071-PC-ER, 9/24/93
It was reasonable for respondent to select a person for the interview panel who had previously acted as supervisor for those duties representing 40% of the vacant position, despite the fact that the person was also first line supervisor of the appellant. Stichert v. UW-Oshkosh, 86-0197-PC, 6/11/87
Where the interview process was not part of the competitive examination process for the subject position and the interview process was intended to be advisory only, the person who made the selection decision was authorized to exercise his discretion and to appoint the best candidate from the list of eligibles and the decision-maker was not required to appoint the candidate with the highest interview score. Romaker v. DHSS, 86-0015-PC, 9/17/86
615.5(6) Candidate references or recommendations
The action by one of the interviewers to withdraw his recommendation to hire appellant for an elevator inspector vacancy was not an abuse of discretion where, after making the recommendation, the interviewer received information from a variety of sources indicating appellant was not a desirable candidate for the vacancy. It was not unreasonable for the interviewer to choose to rely on the multiple sources of negative information about appellant's work history, rather than to simply ignore that information and proceed with the hiring process. While the interviewer could have sought even more information about the appellant before he decided to withdraw the recommendation, the abuse of discretion standard did not require him to do more than he did. Holley v. DOCom, 98-0016-PC, 1/13/99
A state employe who had inspected appellant's work as an elevator mechanic did not abuse his discretion when he provided negative information about appellant's work to the hiring panel that was considering employing appellant as an elevator inspector. Appellant did not show that the state employe's own work would have been negatively affected if appellant had been hired. The state employe's observations of appellant were corroborated by other persons. Appellant failed to show that any animosity between the state employe and the appellant had a bearing on the reliability of the employe's observations. Holley v. DOCom, 98-0016-PC, 1/13/99
Respondent's decision not to hire appellant as a Forestry Technician 5 was upheld. Appellant was ranked highest after all candidates had been interviewed, but three of the four panelists were concerned about appellant's communication style and his interpersonal skills. Respondent's subsequent reference checks of appellant's listed references, firms listed on his resume and respondent's area staff, generated four positive responses and four negative responses. The negative responses included statements that appellant was very quiet, not aggressive and did not get along with other people. The contacts also indicated that appellant had been fired by one employer and did not "work out" for a second employer. The panel decided not to recommend appellant for the position. Lee v. DNR, 97-0081-PC, 10/9/98
Respondent did not abuse its discretion by not selecting the appellant for vacant Nurse Clinician positions where the assistant director of nursing had contacted the hospital which had previously employed the appellant, had asked as to the reason for terminating appellant’s employment and had been advised by someone who identified himself as an attending physician rather than as appellant’s supervisor: "As far as I can tell, it had to do with advocating too strongly for patients (clients) (vs. not enough)," and where appellant had not volunteered some information to respondent about her termination at the hospital. While appellant attempted to compare respondent’s handling of her situation with that of other candidates, appellant failed to show that her case was really parallel with those of the other candidates in question. However, respondent was found to have abused its discretion when it subsequently reevaluated appellant’s application and decided not to hire her for a different reason. Neldaughter v. DHFS, 96-0054-PC, 2/14/97
While it was possible that the appellant would have been able to successfully perform as a Registered Nurse in the vacancy in question, it could not be said that the decision not to hire her was an abuse of discretion where a "damning" reference signed by four of the appellant's instructors at her nursing school was quite current and raised concerns which specifically related to the duties of the vacancy. Skaife v. DHSS, 91-0133-PC, 12/3/91
No abuse of discretion was found as to respondent's failure to check the appellant's references where all three members of the interview panel were quite familiar with the appellant and her work based on the appellant's five years of employment with the department. Certain inconsistencies in the record (i.e. more candidates' references were actually checked than had been described in testimony and the successful candidate submitted fewer references than had been requested) were insufficiently indicative of an abuse of discretion to support a finding for the appellant. Jensen v. UW-Milwaukee, 86-0144-PC, 11/4/87
An abuse of discretion was found where the appointing authority failed to check the current references of an applicant, but instead relied on the comments of her supervisors in a prior job, where the complainant had testified adversely about one of the supervisors before the legislature, and there was a variance between his comments about her to the appointing authority and his written evaluations in her personnel file. Jacobson v. DILHR, 79-28-PC, 4/10/81
In determining whether an appointment decision is illegal under §230.20(2), Stats., the Commission's role is to determine whether the appointing believed that any recommendation considered by the appointing authority provided an objective evaluation of an applicant's character, training, etc., in the sense that it was an evaluation that a reasonable person in an appropriate position would have made. It may be appropriate in a given case for the Commission to consider whether a recommendation could be considered objective and whether "there was a rational basis" for the recommendation. The latter may be relevant to the question of whether the recommendation was objective, which in turn may be relevant to the question of whether the appointing authority in fact believed the recommendation was objective. The Commission found, in the case before it, that the evaluation was objective and the appointing authority believed it was an objective evaluation. McIntyre v. DHSS, 86-0140-PC, 4/15/87
In making a selection decision for the position of assistant superintendent of a minimum security correctional facility for men, the decision-maker's reliance on a comparison of the quality of the candidate's work performance in minimum security correctional institutions was reasonable. The decision-maker reasonably relied upon his own knowledge of the candidate's work performance rather than on knowledge he could have gained from contacting references. Romaker v. DHSS, 86-0015-PC, 9/17/86
615.5(9) Other issues
A contract was created when a letter of appointment was sent to the appellant after the appellant had verbally accepted an offer of a civil service position. Respondent's conduct in setting the rate of pay upon selection was "a fraud or a manifest abuse of discretion" where the letter of appointment showed his rate of pay as $8.522 per hour and made his appointment effective on February 2nd, and on February 11th, the appellant was informed that his rate of pay would be set at $8.352 as a result of legislation which became effective on February 1st. A reduction of the appellant's salary would work a severe injustice to the appellant if equitable estoppel were not applied. Appellant was awarded the higher level of pay until he received a raise which brought his pay above the $8.522 level. Siebers v. Wis. Pers. Comm., Outagamie County Circuit Court, 89 CV 00578, 11/9/89
Respondent did not fail to fulfill an agreement to hire appellant, even though appellant understood he had been offered a job, where no unconditional employment offer had actually been made to appellant by respondent. There was nothing written tending to support appellant's contention he had accepted a formal offer of employment, and the person who spoke to appellant on the telephone did not have the authority to hire the appellant. That authority rested with the department secretary, and it was undisputed he never took such action. Holley v. DOCom, 98-0016-PC, 1/13/99
While it is the better practice to retain records created as part of a hiring process, no legal mandate for retention exists. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
Respondent appointing authority's action of mailing a letter regarding a post-certification interview to the address which appellant had provided was neither illegal nor an abuse of discretion, nor an obstruction nor falsification pursuant to §230.43(1), Stats. Morgan v. DHSS, 93-0089-PC, 9/24/93
Respondent's failure to give all candidates the same opportunity to augment their resumes with details concerning their training and experience constituted an abuse of discretion. Rosenbauer v. UW-Milwaukee, 91-0086-PC, 91-0071-PC-ER, 9/24/93
Respondent's decision to promote two other candidates to vacancies in preference to appellant was not an abuse of discretion where respondent had a rational basis for preferring the selected candidates--better rankings on their oral interviews, more positive opinions regarding their past performance, and concerns about certain aspects of appellant's performance--and appellant could not show that these reasons were lacking in substance or unreasonable. There is no requirement that an appointee to a position satisfy on appointment all the prerequisites for reclassification to the class level for the position. Orr v. OCI, 92-0018-PC, 92-0025-PC-ER, 10/29/92
The state civil service system is entirely a statutory creation which cannot be overridden by individual contracts of employment created by and between individual state employes and applicants for employment. Appellant's starting salary was governed by the relevant pay plan, and this could not be altered on the theory that he had a contract with the state as a result of the salary representation in his letter of appointment. Kelling v. DHSS, 87-0047-PC, 3/12/91
Respondent's conduct in setting the rate of pay upon transfer/promotion did not amount to "a fraud or a manifest abuse of discretion" where as soon as the respondent discovered its error, they took steps to correct it and the appellant was given an opportunity to return to her prior position but declined. Respondent had advised the appellant that the transaction would be a promotion. However, as a consequence of the implementation of the Comparable Worth Plan approximately three months prior to the date of the transaction, the pay range of the classification of the appellant's prior position was upgraded. Respondent did not take the change into account until after the appellant had received a letter of appointment which continued to incorrectly identify the appointment as a promotion accompanied by a pay increase and after the appellant had begun working in the new position. Meschefske v. DHSS & DMRS, 88-0057-PC, 7/14/89
The acceptance of an application for civil service employment does not constitute an employment contract or entitle the applicant to some contractual right which determines the nature of the transaction or the starting pay. Meschefske v. DHSS & DMRS, 88-0057-PC, 7/14/89
Respondent's action to reduce the appellant's starting salary after his appointment but before he received his first pay check was neither illegal nor an abuse of discretion, where the pay rate initially quoted to the appellant was incorrect. Before accepting the job offer, the appellant worked in the private sector. In reviewing the necessary elements of equitable estoppel, the Commission concluded that 1) the appellant's reliance on the wage rate contained in respondent's job offer was not "to his detriment" when there were reasons other than salary that prompted appellant to obtain state employment and there was no adverse pay effect at either pay rate as compared to his salary at his previous job and that 2) the respondent's conduct did not amount to fraud or to a manifest abuse of discretion. Taddey v. DHSS, 86-0156-PC, 5/5/88
While it is not improper per se to consider the performance of an appointee in making an "abuse of discretion" analysis of a selection decision, other factors usually carry more weight in that evaluation and care must be exercised because of the danger that scrutiny of post-appointment performance can lead to an extensive, time-consuming "sideshow", whose costs may exceed its value to the adjudicative process. Kesterson v. DILHR & DER, 85-0081-PC & 85-0105-PC-ER, 12/29/86
While it was regrettable that the appellant, who was asthmatic, was not given notice about a chemical exposure training requirement prior to his hire to an Institution Aide 5 position, there was no showing that the requirement constituted an undue health hazard to the appellant. [Note: This conclusion was reached only after the Commission had found the appeal to have been untimely filed; and, therefore, represents dictum.] Hebert v. DHSS, 84-0233-PC & 84-0193-PC-ER, 10/l/86
Pursuant to §230.33(3), Stats., an employe such as the appellant who is appointed to a position in the unclassified service from the classified service, cannot receive less than the employe received while actually serving in the classified position; it does not mean that the employe continues to receive what the employe would be receiving in the classified position if the employe had never left the classified position. Phillips v. DILHR, 82-43-PC, 7/7/83
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.